Maryland must regulate the gaseous ammonia emitted by animal waste on poultry farms that could land in state waterways, a Montgomery County Circuit Court judge ruled last week.
The vapor is pumped out of industrial chicken houses via exhaust fans. Ammonia breaks down into nitrogen and hydrogen in the environment, and excess nitrogen in waterways causes damaging algae blooms, which can block sunlight and suck up oxygen for creatures and vegetation below.
Environmental groups had been pushing for the state to monitor the pollutant during the permitting process for the so-called concentrated animal feeding operations, known as CAFOs, that make up the Eastern Shore’s robust poultry industry.
The Maryland Department of the Environment had argued that the gas couldn’t be taken into account as part of water pollution permits since it may not end up polluting bodies of water and could simply settle on land or vegetation. The department argued that considering gaseous ammonia would necessitate pollution permits for things “as varied as cars and chimneys.”
“The idea that you can’t tell with precision where it goes — I think it’s a red herring because you know enough about where it goes. You know that it doesn’t go very far,” said Abel Russ, a senior attorney at the Environmental Integrity Project, which has advocated for regulating ammonia emissions.
Circuit Court Judge Sharon V. Burrell found that Maryland law, an expansion of the federal Clean Water Act, requires the Department of the Environment to control “any liquid, gaseous, solid, or other substance that will pollute any waters of this State” — including ammonia.
The department is reviewing the decision, said MDE spokesman Jay Apperson, who defended the agency’s regulation.
“Maryland’s CAFO permits are among the strongest in the country, and the Maryland program’s effectiveness has been noted by the U.S. Environmental Protection Agency in its reviews,” he wrote in an email.
The ruling compels MDE to reevaluate the permit requirements for such operations, which were reworked in 2020, to include limits on ammonia emissions.
“Reopening this permit, which has been approved by the EPA and has gone through extensive public comment, adds uncertainty and potentially serious costs for each of Maryland’s family farmers raising chickens,” said James Fisher, spokesman for the Delmarva Chicken Association, in a statement.
Some farmers already work to mitigate ammonia emissions by planting trees, shrubs and tall grasses near exhaust fans, and some add treatments to chicken litter aimed at keeping ammonia levels low, Fisher wrote.
Environmental advocates say MDE should require these sorts of modifications, which are fairly inexpensive.
“The operators who are already doing this I think are paving the way, and I think their good deeds should be rewarded and recognized by leveling the playing field so that all of their competitors have to do the same thing,” said Evan Isaacson, a senior attorney at the Chesapeake Legal Alliance, which argued the case.
In 2018, the Environmental Integrity Project conducted a study that found poultry barns likely emit more ammonia than the U.S. Environmental Protection Agency has assumed — 0.54 grams of ammonia per bird each day compared with 0.27 grams per bird each day.
A 2019 study by researchers at North Carolina State University found that anywhere from 180 tons to 560 tons of ammonia could be landing in the Chesapeake Bay each year from poultry farms in the Delmarva Peninsula.
The Environmental Integrity Project, a Washington-based nonprofit advocacy group, found that these emissions have been increasing in part because the number of birds sold in the Chesapeake Bay region has been increasing, as has the size of those birds and the amount of waste they produce.
As a result, advocates are worried that the gas could be hampering a goal to reduce pollution in the bay by 2025 more than expected.
”When we are this close to the 2025 deadline, we cannot leave any pollution load and solution out of the equation,” said Alison Prost, the Chesapeake Bay Foundation’s vice president of environmental restoration and protection.
The court’s decision is a victory for Eastern Shore residents who have long fought for a better regulatory framework for the area’s quickly industrializing poultry industry, said Kathy Phillips, executive director of the Assateague Coastal Trust, which brought the suit with the help of the legal alliance.
It’s a fight that has spanned several years and several similar but unsuccessful court bids, Phillips said. The advocates also tried unsuccessfully to get the General Assembly to pass a bill called the Community Healthy Air Act to compel environmental officials to study air pollution from feeding operations, Phillips said.
In 2019, Delmarva Poultry and the Annapolis-based Keith Campbell Foundation for the Environment put up funds for MDE to conduct ammonia monitoring at four locations, two near poultry farms and two that would provide a baseline. This monitoring is narrower than what was proposed under the bill, and the Trust voiced opposition to the arrangement.
On a few occasions, small battles were won, Phillips said. Worcester County, for instance, has set requirements for the amount and type of vegetation that must be planted by exhaust fans to stymie the flow of gaseous ammonia.
“I do want to give a shout-out to the individual citizens and community groups down here on the Lower Shore that have just year after year trudged the Community Healthy Air Act to Annapolis and always met with disappointment,” Phillips said. “They are just so excited about this.”
One of those citizens is Monica Brooks, a Salisbury resident and co-founder of Concerned Citizens Against Industrial CAFOs. As she advocated for stricter regulations for on such operations over the years, she sometimes wondered whether she could carry on. But she did.
“It’s like my parents going: ‘Wow, I never thought I’d see a Black president in my lifetime,’” Brooks said of the court’s decision. “It’s that same thing.”