Fran Kronebusch (center) spoke in favor of the Daley Farms’ proposed expansion last month. MPCA Public information Officer Cathy Rofshus (background left) moderated the meeting.

Comments continue after lawsuit


(11/5/2018)

Ag groups sued over Daley Farms public comment period

by CHRIS ROGERS

A public comment period on the Daley Farms’ proposed feedlot expansion will continue after a judge quashed a bid by Minnesota agricultural organizations to stop the comment period.

Some of the largest agribusiness and farmers’ organizations in the state banded together to sue the Minnesota Pollution Control Agency (MPCA) over its decision to extend a public comment period on the Daley Farms’ dairy feedlot expansion from 30 days to 45 days. The Daley Farms of Lewiston is applying for permits from the MPCA to more than double its herd, from 2,275 animal units to nearly 6,000 animal units (around 4,000 cows and 525 heifers) generating 46 million gallons of manure annually. The comment period allows citizens to submit written comments on the MPCA’s environmental assessment worksheet (EAW), a study of the potential environmental effects from the proposed expansion that MPCA officials will use to make a permitting decision. Because of the large amount of public interest the proposal generated, because many local farmers said they would be hard-pressed to review the 235-page EAW and make comments in the middle of harvest season, and after the environmental and agricultural group Land Stewardship Project (LSP) urged the MPCA to extend the comment period, the MPCA did. Over objections from the Daley family, the agency’s commissioner decided on October 11 to push back the deadline for comments from October 31 to November 15.

On October 26, the Minnesota Farm Bureau Federation, the Minnesota Milk Producers Association, and organizations of poultry, egg, cattle, pork, and turkey producers all sued, asking a Ramsey County judge to stop the comment period on October 31.

Some citizens who are opposed to the expansion are calling on the MPCA to require a more in-depth, time-consuming study called an environmental impact statement (EIS). In legal terms, the MPCA is the “responsible government unit” charged with deciding whether an EIS is needed.

The state law that outlines how EAWs and EISs are supposed to work states that, after an EAW is released, “Comments on the need for an environmental impact statement may be submitted to the responsible governmental unit during a 30-day period following publication of the notice that an environmental assessment worksheet has been completed. The responsible government unit’s decision on the need for an environmental impact statement shall be based on the environmental assessment worksheet and the comments received during the comment period, and shall be made within 15 days after the close of the comment period.”

The law is clear that EAW public comment periods are only supposed to last 30 days, attorney for the plaintiffs Matthew Berger argued. “I do believe this remains a very important issue to livestock farmers across the state and, frankly, other businesses across the state that would be subject to environmental review,” Berger said in an interview. “If an extension of this [comment period] can be granted by the agency whenever it wants and for however long it wants, that creates uncertainty in the environmental review process that makes it very difficult for small businesses and businesses of all sizes that are looking at doing projects to plan for that.”

“MPCA wanted to ensure that the community had an appropriate length of time for meaningful review engagement,” the attorney for the MPCA, Nur Ibrahim, countered. Ibrahim argued that the agricultural organizations’ bid to stop the comment period early was procedurally improper under the law. Even if it were procedurally appropriate, the plaintiffs would need to show they have suffered irreparable harm to get a court to stop the comment period early, and they simply cannot show that extending the comment period for two weeks would cause irreparable harm, Ibrahim wrote.

The public, on the other hand, would be left high and dry if the court ended the comment period early, Ibrahim stated. Judge Jennifer Frisch considered Berger and Ibrahim’s arguments in an October 31 hearing. If Berger had prevailed, the comment period would have ended that same day, with no advance warning to the public that it was ending. A minor delay in the EAW process does not outweigh the significant public interest in allowing adequate time for comments, Ibrahim contended.

Judge Frisch sided with Ibrahim and denied Berger’s requests to stop to the comment period.

In a press release, LSP organizers celebrated the decision, describing the lawsuit as an attempt by corporate interests to stifle public comment.

“We still believe that the statute is clear that it establishes a 30-day comment period and 30 days means 30 days, and it doesn’t mean 30 days plus whatever additional time the government decides to add to the period,” Berger stated. He said he is currently reviewing his clients’ options, including options to continue challenging the comment period extension in court.

Another environmental group, the Minnesota Center for Environmental Advocacy, has joined the lawsuit and asked the court to dismiss the case.

Keep reading the Winona Post for more on this story.

In the meantime, citizens may find a copy of the Daley Farms’ EAW and submit written comments by visiting www.pca.state.mn.us/quick-links/projects-under-mpca-review. Comments may also be submitted by mail to Kim Grosenheider, EAW Project Contact, Minnesota Pollution Control Agency, 520 Lafayette Road, St. Paul, Minn., 55155.

Chris@winonapost.com

 

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