Hear no evil, see no evil? Senate committee limits public comments on controversial farm bill that would limit public comments

A Senate committee on Wednesday shut down public discussion of a contentious portion of the Farm Act, which coincidentally, sharply curbs public input on swine farms that install biogas systems and anaerobic digesters.

The hog and energy industries support biogas, arguing the systems help alleviate climate change by capturing methane, a powerful greenhouse gas that would otherwise be released into the air.

But many environmental groups and neighbors of industrialized hog farms oppose the digesters. They say these systems don’t solve the many other problems posed by the farms: open lagoons and spray fields, both of which emit methane; the risk of degraded groundwater from applying feces and urine on farm fields; other air pollutants, including particulate matter and ammonia; and the environmental justice issues the farms raise for communities of color.

The public was allowed to comment on Tuesday before the Senate Agriculture, Energy and Environment Committee, which approved the bill and sent it on to the Senate Judiciary Committee.

On Wednesday, though, when the Judiciary Committee discussed the legislation, committee leaders limited public comment to non-controversial sections and specifically excluded the digester issue. That meant several members of the Judiciary committee did not hear public testimony on the issue. (Of the 16 members of Judiciary, only five also sit on Ag.)

A streamlined process?

Sen. Brent Jackson, R-Duplin, Johnston and Sampson, a farmer and primary sponsor of the Farm Act, did allow Sen. Natasha Marcus, a Mecklenburg County Democrat, t0 pose a few questions.

She asked why the bill language would prohibit the state Department of Environmental Quality from holding public hearings for each farm’s permit. The public could still submit comments in writing, but that process doesn’t allow for people to listen to other commenters, which happens at a hearing.

“You’re calling this a streamlined process,” Marcus said, “but it seems unfair to grant a general permit with very little public input. I don’t understand the reason for that change.”

Jackson and the pork industry argue that holding public hearings on each individual farm that installs a digester would delay the permitting process. Instead, the Farm Act would allow all operations with a biodigester to apply for a general permit, which environmental groups also oppose.

A general permit is used to cover a class of operations with similar characteristics, like those issued to swine farms for water quality. Most of North Carolina’s 2,200 swine farms operate under a general non-discharge permit which presumes, sometimes falsely, that each farm is similar and none sends feces and urine into the waterways.

Only a handful of farms in North Carolina have permits to build anaerobic digesters, but that number is expected to increase. Opponents of the Farm Act digester provision argue that each farm should operate under an individual permit because they are different: in the types of digester equipment they employ, the number of swine they house, as well as geography and neighborhood characteristics.

In defense of limiting public input on general digester permits, the North Carolina Pork Council cites the public process that shaped the current general water quality permits. The language was hashed out over multiple private and public meetings and hearings in 2019, but not for each individual farm.

DEQ could go through the same public process for the digester general permits, the pork council has said, which would supposedly “streamline” the process.

However, nearly two years after that public process, some portions of the general water quality permits aren’t in effect yet — because of advocacy by the Farm Bureau.

It legally contested DEQ’s authority to include certain provisions — annual reporting, groundwater monitoring and phosphorus loss calculations. Instead, those provisions must now go through the Environmental Management Commission. And the EMC’s rule-making process can take 18 months to two years by the time the language is drafted, debated, submitted for public comment and finalized.

The EMC makes rules that DEQ must follow; its members are appointed by the governor, House Speaker and Senate President Pro Tem.

(It is also true that environmental groups’ and law firms’ objections have also delayed permitting; the Southern Environmental Law Center recently contested DEQ’s approval of modified water quality permits for four farms that are installing digesters.)

The Farm Act, though, expedites the EMC’s rule-making process. It would require the EMC to act within 90 days of receiving a farm’s notice of intent to build a digester, or the permit would automatically be approved. That’s a very tight turnaround; the EMC meets only every other month.

Contested case hearings, like those filed by the Farm Bureau and the Southern Environmental Law Center, would have to be decided by a judge with 120 to 150 days.

The reason for this accelerated timetable, Jackson and the hog industry say, is that DEQ’s permitting process for reviewing a biogas facility proposal by the company Align RNG took too long in their estimation — 18 months. Jackson called it a “stall tactic.”

In a partnership with Smithfield Foods and Dominion Energy, Align RNG is building a biogas conditioning facility on Highway 24 near the Sampson County town of Turkey. When built, it will be the largest in the state so far. The facility will collect biogas piped in from 19 farms, upgrade it and then inject it into a natural gas pipeline. From there, the gas will be used by Duke Energy to generate electricity and to meet its swine waste gas requirement under the state’s Renewable Energy Portfolio Standard.

Six of the 18 months in the review process, however, were allotted for public comment; because of the pandemic, DEQ often encountered procedural delays. And it took three months for DEQ and Align to correspond about additional information. (Despite repeated requests from DEQ and Policy Watch, neither Smithfield nor Dominion has disclosed the location or names of 15 of the 19 farms.)

Another smaller biogas system, Optima KV near Magnolia in Duplin County, isn’t even required to have an air permit. Because it is required to cap sulfur dioxide emissions at less than 25 tons per year, that facility is only required to register with the Division of Air Quality.

Critics question the net environmental benefits

Anaerobic digesters, which are essentially covered lagoons that trap methane, do reduce greenhouse gas emissions, according to the EPA. In calendar year 2020, manure-based anaerobic digesters reduced greenhouse gas emissions nationwide by an estimated five million metric tons of carbon dioxide equivalent, the unit of measure for methane.

However, accounting for methane leakage from the natural gas pipelines, from the animals’ digestive systems, and from the spray fields and uncovered lagoons, the net reductions are unclear. This uncertainty is due in part to the lack of EPA regulations and data on individual farms’ methane emissions. A recent petition by environmental groups to the EPA asked the agency to regulate farms as stationary sources of methane, which also would require measuring and reining in emissions.

And not all lagoons would be covered. Secondary lagoons that catch additional feces and urine are open, according to a DEQ presentation made at public hearing earlier this year, and thus would emit methane.

Janet Melvin, a resident of Sampson County, spoke to lawmakers on Tuesday. She urged them to strip the biogas section from the Farm Act. “We have already experienced what it is like when the community is excluded from whatever agriculture and energy corporations are doing,” Melvin said. “We have the majority of hog farms, all located in mostly Black and brown communities.”

She told the Senate Ag Committee that “adding a biogas digester doesn’t mean cleaning up water pollution or eliminating the odor from spraying.”

“Let me be clear,” Melvin said. “I am not against hog farmers. I am against secrecy and a lack of transparency.”

The Judiciary Committee passed the bill with a favorable report; it now goes to Senate Rules.