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On Monday, Attorney General Gentner Drummond is due to file his counterpoints to the Poultry Industry’s clapback on his proposed ruling in the state’s 20-year-old legal pursuit triggered by pollution of the Illinois River.
I was going to write that “Oklahoma” will file counterpoints Monday, but Drummond is abiding by the rule of law and representing Oklahomans who care about water quality in the Illinois River, Lake Tenkiller, and other sensitive waterways.
Oklahoma’s state leadership is not on board:
Gov. Kevin Stitt characterized the 2005 lawsuit filed by then-AG Drew Edmondson and, by extension, U.S. Northern District Court Judge Gregory Frizell’s 2023 findings in favor of the state, as frivolous and environmental radicalism.
The state’s top environmental officer, Secretary of Energy and Environment Jeff Starling, is asking the court to be removed from the case for a conflict of interest (he said it’s anti-business).
Secretary of Agriculture Blayne Arthur let the court know last year that her agency sees no merit in the case. They’ve got it all under control at ODAFF, she said. However, the people have no real idea if that’s true, since Arthur’s appointment, the agency holds back poultry’s secrets tighter than a fart on a first date.
And, no doubt about it, the Big Ag lobby, with the Poultry Federation and Farm Bureau, holds powerful sway in the Capitol halls.
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A sinfully brief summarization of Poultry’s 43-page argument is that they believe responsibility for phosphorus loading in the Illinois River Watershed still has not been proved, that there is no evidence Drummond’s proposed remedies are sound, that his proposal has no basis in law and would allow gross overeach, and that any remedy can and should rightly be devised by state leadership that the people elected.
Poultry industry attorneys lean heavily in their brief on examples from the state’s own agencies, officials, and regulations passed by its legislature that allow excessive poultry litter applications.
“Each and every element of General Drummond’s proposal lacks a legal or evidentiary basis, and it should be rejected in toto,” (in whole), the brief states.
As a reminder of what I wrote earlier, Drummond’s proposed ruling asks Frizell to levy $100 million in fines, that poulty litter should never again be applied in “nutrient-sensitive watersheds” where phosphorus tests show a 65 lbs/acre or greater concentration, and that a “special master” be appointed to direct remediation efforts at industry cost.
Poultry’s counter-proposal is a “take nothing” judgment. Just as the phrase implies, it would have the judge find in favor of the state, but take no action.
The state, they argue, has not produced “competent evidence” that its proposed remedy would have any impact at all. They argue a special master without bounds would allow for gross overstepping, and that Oklahomans have already voted for legislators and a governor who know what the people want. They implore the judge, as they have before, not to legislate from the bench.
“Such a judgment would acknowledge the value of Oklahoma’s natural resources while giving Oklahoma’s newly-updated state laws the opportunity to protect those resources according to the balance of interests that Oklahoma’s elected representatives adopted,” the brief states.
Indeed, as an astute friend of mine recently opined, “elections have consequences.”
In other words, we get what we ask for. But did we ask for this shit?
Choices, choicesAG Edmondson, a Democrat, was elected in 1995. He served consecutive terms, 1995-2011, first with Republican Gov. Frank Keating and then Democrat Gov. Brad Henry.
In 2018, Edmondson was the Democratic gubernatorial candidate. Oklahoma chose Stitt then, and again in 2022. Voters also chose Drummond, who has proved a thoughtful and fair counterbalance.
The poultry industry would make a fair argument if Oklahoma lawmaking weren’t weighted quite so heavily in its favor.
Oklahoma’s 19998 Registered Poultry Feeding Operations Act was created with no small leverage on the part of the industry. One example: Unlike pork and beef operations, poultry operations avoided the more strictly regulated status as Confined Animal Feeding Operations. There is little argument that status is warranted, especially as the individual operations increased to produce up to 50,000 birds, three to four times a year, in a single enclosure. Most farms have four to eight enclosures.
The industry produces chicken shit measured in thousands of tons.
Nationwide, and here in Oklahoma, soil scientists with the National Resources Conservation Service, Oklahoma Conservation Commission, and Oklahoma State University will tell you there is only one reason to allow 300 lb/acre phosphorus concentrations on farmland—and that is to accommodate the poultry industry’s need to dispose of it.
Phosphorus, unlike its volatile counterpart nitrogen, is a forever substance. Is it better than a chemical fertilizer? Not really, it’s just cheaper to obtain if you’re within easy driving distance. Any natural compound can be caustic in concentrations that are too high. Phosphorus builds in the soil, and it’s there until plants can use it, or rainfall erodes it away. When applied at a rate more than five times what crops can absorb in a season, where do you think it goes?
Make no mistake, this judgment would be costly for these companies, and we should follow Drummond’s lead in supporting the industry as best we can. But support doesn’t equal tacit agreement to anything they need. This proposed judgment is a court ruling against these companies for illegal trespass against the people of Oklahoma. This is not meant to be an amicable settlement. Attempts at mediation were allowed and failed miserably.
That Drummond’s proposed ruling would make operations in Oklahoma untenable, as the industry has claims, is highly suspect. Reports of the industry’s consistently growing profits indicate they, much more than state agencies, taxpayers, and non-profits, possess the resources to assist in saving and protecting Oklahoma’s most cherished waterway, and have the incentive to develop alternative means of chicken shit disposal.
Oklahomans lacked the political muscle to force them into it in 1998, so the subject matter went to court for a legal and scientific remedy. Judge Frizzell should remain consistent in his findings and provide just that. If he does not, it will be up to Oklahoma’s voters to elect leaders who will.
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