Oregon Rescinds Small Dairy CAFO Policy But Lawsuit Persists

Small dairy producers won’t be subject to Oregon’s confined animal feeding operation permit requirements, as farm regulators have decided against implementing the year-old policy. Without directly addressing a recent lawsuit over the controversy, the Oregon Department of Agriculture has withdrawn its 2023 decision to step up CAFO enforcement on small dairies, particularly those selling raw milk. Last year, ODA determined small farms technically meet the definition of CAFOs if they confine livestock indoors during milking and generate wastewater by washing the associate equipment—even if their animals are mostly kept outdoors and are too few in number to trigger commercial dairy license requirements. At the time, ODA acknowledged the policy was partly motivated by complaints from the conventional dairy industry that raw milk producers enjoy an unfair advantage by avoiding CAFO permitting rules meant to prevent water contamination. As agency officials prepared to enforce the policy in 2024, four small dairies filed a federal complaint in January claiming ODA lacked a rational basis for the regulatory change and wasn’t implementing it uniformly for all livestock owners. The ODA hasn’t yet responded in federal court to the lawsuit’s allegations that it violated the plaintiffs’ constitutional rights to due process and equal protection under the law. However, the agency has now announced it’s rescinding the new CAFO policy “effective immediately” and that permits for small dairies are “no longer necessary in most cases.” The announcement doesn’t mention the federal complaint and instead frames the agency’s decision as part of a broader overhaul of CAFO regulations ordered by lawmakers last year. “Through this process, ODA will also look for opportunities to clarify who is required to hold a CAFO permit,” the agency said. While they won’t face imminent CAFO enforcement, the small dairy plaintiffs don’t believe their lawsuit became moot because of ODA’s decision, as it may be temporary and the agency may still believe it has the authority to implement the permit policy. Their attorneys at the Institute for Justice nonprofit plan to continue litigating the case, drawing parallels between the CAFO policy and previous government regulations for pest exterminators and casket sellers that were struck down in court. In a legal precedent that’s binding across the West, the 9th U.S. Circuit Court of Appeals ruled that California irrationally forced certain pest control companies that rely on mechanical devices to obtain the same permits required for those who apply pesticides. In other regions, appellate courts determined casket sellers shouldn’t be subject to the same permits as funeral directors who must abide by safety rules for handling dead bodies. In each of those cases, the appellate courts said state regulations were intended to protect the economic interests of certain groups rather than by real health and safety concerns. Requiring small dairies to obtain CAFO permits meant for much large operations is similarly unreasonable and unlawful, according to attorneys with the Institute of Justice, which opposes government overregulation. The small dairy plaintiffs claim CAFO regulations would force them to install expensive equipment and comply with onerous record-keeping mandates, even though the amount of wastewater they produce is minimal and unlikely to pollute waterways. Ari Bargil, senior attorney for the dairies, said “economic protectionism is flatly unconstitutional and our lawsuit will continue on until the courts acknowledge precisely that.”