Wisconsin Notches a Win Against Big Ag—For Now

The lawsuit, spearheaded by the Venture Dairy Cooperative and the Wisconsin Dairy Alliance, was rejected by a circuit court in January 2024. On August 27, the Court of Appeals for District II upheld that decision.

“We wanted to make sure that we had a government agency that was protecting our most precious resource, which is groundwater and surface water,” says Darin Rudin, president of the Wisconsin Farmers Union (WFU), an intervener in the case on behalf of the DNR. “What was being asked was that the DNR not keep an eye on that.”

As a grassroots, member-driven organization, WFU represents more than 2,300 small and mid-size farmers and rural citizens across the state, many of whom have been personally affected or are concerned about the impact of industrial agriculture.

Venture Dairy and the Wisconsin Dairy Alliance did not respond to multiple requests for comment.

Often referred to as factory farms, CAFOs are operations of 1,000 or more animal units, which equates to about 700 milking cows or 2,500 pigs. These operations typically produce in one year more manure and wastewater than entire small cities. If not carefully disposed of, the manure can seep into the groundwater and spill into the rivers and lakes of nearby communities, making it undrinkable and harmful to wildlife.

“As farmers and people that produce the food that we eat, we don’t want to put something out there that could either poison people directly by the food they eat or by having something in the water sources that we need to grow our crops and animals,” says Rudin.

But Venture Dairy and the Wisconsin Dairy Alliance argued that the state overstepped its legal authority by requiring these operations to obtain Wisconsin Pollutant Discharge Elimination System (WPDES) permits, claiming that the DNR’s rules were inconsistent with federal regulation. State statute, their argument went, bars regulators from imposing stricter environmental standards than those set by the federal Clean Water Act of 1972.

According to Adam Voskuil, an attorney with the Madison-based nonprofit Midwest Environmental Advocates, federal regulation of CAFOs has been minimal since federal court cases in the first decade of the millennium narrowed the Environmental Protection Agency’s reach. As a result, CAFOs don’t need to obtain permits until they’re caught discharging waste.

“The Clean Water Act effectively doesn’t regulate CAFOs,” Voskuil says. He adds that Wisconsin’s water program also protects groundwater (something not covered in the Clean Water Act), giving DNR authority that extends beyond federal limits.

The lack of oversight from the Environmental Protection Agency, he says, means states like Wisconsin need to fill in the gaps themselves. Midwest Environmental Advocates, which co-represented the WFU with the advocacy organization Clean Wisconsin, intervened to bring those stakes before the court.

In their legal brief, Midwest Environmental Advocates pointed to health outcomes of communities just over the border in Iowa, a state dominated by corn production and industrial-scale hog farming. A 2018 study the lawyers cite shows consistent links between nitrates in Iowa drinking water and elevated rates of bladder, ovarian, thyroid and kidney cancers, as well as certain birth defects. 

Iowa has nearly 4,000 CAFOs, more than any other state. It doesn’t, however, have a state permitting program like Wisconsin; the Iowa DNR instead defers to federal guidelines around the issue. As a result, only about 4% of CAFOs in the state have federal pollution discharge permits. Recent studies on the effects of CAFOs on Iowa’s waterways are more damning: the state’s livestock industry produces 800,000 tons of nitrogen in manure each year, about 50 times more than humans in the state produce. Much of it exceeds the land’s capacity to absorb it, meaning it—along with other agricultural pollution—ends up in surface and groundwater. Iowa now has the second-highest cancer rate in the U.S. and is one of only two states where cancer incidence is rising.

“[We were] really talking about water quality issues and the health impacts of industrial agriculture: blue baby syndrome [a disorder in infants where there’s not enough oxygen in the blood] … ties to cancer and thyroid disease,” says Voskuil of his organization’s defense in the lawsuit. “There are real-world impacts and real-world reasons why these water quality regulations need to be maintained.”

CAFOs have been a growing issue in the dairy state for more than 20 years, when Wisconsin’s 2004 livestock facility-siting law paved the way for easy factory farm expansion. Since 2005, the number of CAFOs has more than doubled in the state, growing from 135 that year to more than 336 today.

The size of the CAFOs themselves is growing, too, with many large farms in recent years opting to expand. Earlier this year in western Wisconsin, a 1,700-cow farm in western Pierce County was given the green light by the DNR to triple in size. The expansion, which is estimated to generate 78 million gallons of manure annually, came despite protests from area residents concerned about nitrate contamination and other pollution from the farm in a county whose western border is on the Mississippi River. They pointed to a December report compiled by an ad hoc committee of county board members, which found that 14% of private wells tested contained levels of nitrate above federal drinkable standards, and 9% tested positive for E.coli.     

While advocates and farmers Barn Raiser spoke with call the appeals court decision a win, they’re measured about what it means going forward. Lisa Doerr, who runs a small hay farm in Laketown, Wisconsin, says that while she’s relieved the DNR will retain its authority, the agency falls short of keeping water free from agricultural waste—and does little to prevent other problems.

“It doesn’t mean our communities are protected. It just means they’re not less protected,” Doerr says. “They only talk about water; these things impact air, they impact roads, they impact the economy.”

In 2019, Doerr and her neighbors learned that a developer was eyeing their rural northwest Wisconsin community as a place for a 26,350 hog farm. Doerr and other residents formed an advisory group, out of which a strategy for greater local control of CAFOs was born. In 2021, Laketown passed an operations ordinance that imposed stricter environmental standards and regulations on large-scale farms. Several neighboring towns followed suit.

These ordinances include things like requirements for mortality plans in the event of mass die-offs, fire protections for large barns, stormwater controls for runoff and provisions for repairing local roads damaged by trucks. Expectedly, they’ve been met with resistance from the same industry groups fighting the DNR, including Venture Dairy, the Wisconsin Dairy Alliance and Wisconsin Manufacturers & Commerce, the state’s largest business association. These groups have sued townships and threatened county supervisors with jail time. The arguments have yet to pass muster in the court, but have had a chilling effect on some townships; Laketown rescinded its ordinance in 2023. Most recently, CAFO industry groups launched a lawsuit against the neighboring town of Eureka, a community of about 1,700 people. A circuit judge dismissed that case in January.

The battle for local control isn’t just getting waged in the courts, it’s also happening in Madison. Doerr pointed to a 2024 bill pushed by industry groups that would have barred towns from passing CAFO ordinances. Passed by the Republican dominated legislature, it was vetoed by Democratic Gov. Tony Evers.

“This is not a one-off lawsuit,” Doerr says. “They’re working at the federal, state and local level to stop any regulation. … They’re doing legislative work, litigation, and then they also have a ground game.”

There’s no sign of pressure letting up on state regulators, either. Voskuil of Midwest Environmental Associates says industry groups have unsuccessfully challenged the DNR’s authority to regulate CAFOs at various points over the last two decades. He notes that the appellate court’s opinion is unpublished, meaning the court determined the case did not have sufficient precedential value. Unless the court decides to publish the decision, industry groups in the state can raise the same arguments again. The Wisconsin Dairy Alliance and Venture Dairy have until September 26 to appeal the ruling to the state Supreme Court, which currently has a liberal majority.

If the decision does get published, it could help regulators in the state better fend off future industry challenges. It wouldn’t be binding outside of Wisconsin, but it could have persuasive value in other states. Courts or regulators elsewhere, Voskuil says, could look at the Wisconsin appeals court’s reasoning and use it to support their own defenses of state authority to regulate CAFOs.

Meanwhile, local operations ordinances are gaining traction elsewhere in the state. Doerr says eight towns and three counties have passed ordinances, and another 10 or so towns are considering them. Leaders in Maiden Rock, the town in western Wisconsin where the 1,700-cow farm is eyeing expansion, passed a CAFO operations ordinance in December 2024.  

At a time when the federal government is slashing environmental regulation nationwide, Doerr hopes municipalities in Wisconsin and other states will take notice.

“Local communities are the last line of defense,” Doerr says. “The state and the county and the feds are not going to be there for them.

Hannah FarisMore by this author →

Hannah Faris is a freelance reporter and the editor-in-chief of the Hyde Park Herald, Chicago's oldest community newspaper. She has written for In These Times and WBEZ.