Kansas Supreme Court Rejects County Farm Pollution Laws

Published July 1, 2004

The Kansas Supreme Court on May 14 ruled counties may not impose more stringent environmental and pollution controls on feedlot owners than are imposed under state law. The decision marks a victory for farmers, and in particular family farmers, who would otherwise face the confusing task of complying with multiple conflicting laws.

County Law Invalidated Permits
The dispute arose after the Norton County Board of Commissioners passed Home Rule Resolution 2002-06, attempting to regulate confined animal feeding operations (CAFOs) within the county’s borders. Before the resolution’s passage, several feedlot operators had received a permit from the state that would have allowed expanded operations. However, their expansion was prevented by the county resolution. The individual feedlot owners and Kansas Livestock Association filed a suit challenging the county resolution.

A district judge held the resolution exceeded the county’s home rule authority and that the state had manifested a clear intent to preempt the field of CAFO regulation. In support of his decision, the judge noted the legislature intended to “reserve exclusive jurisdiction in a particular area by enacting a law of uniform application throughout the state, which manifests a clear intent to preempt the field.” The district judge also held, in the alternative, that the resolution’s provisions regarding separation distances constituted an unlawful attempt to engage in zoning of agricultural land.

Norton County appealed the district judge’s decision, and the Kansas Supreme Court agreed to determine whether the county lawfully employed its home rule power.

County Required State Authority
As an initial matter, the state supreme court observed that Kansas counties derive all of their home rule authority from a state statutory scheme. Kansas counties are empowered to transact all county business subject to the restrictions and prohibitions set forth under state statute.

The state supreme court noted state statute K.S.A. 2003 19-101a (b) directs, “If no statutory authority exists for such local legislation other than that set forth in subsection (a) and the local legislation proposed under the authority of such subsection is not contrary to any act of the legislature, such local legislation shall become effective upon passage of a resolution of the board and publication in the official county newspaper.” Legislation that contradicts any act of the state legislature, however, is invalid absent explicit authority to enact such legislation.

Invalidation of State Permit Not “Supplementary”
Regarding confined animal feedlots, the state supreme court pointed out the state had not given Norton County any explicit authority to enact legislation contrary to state standards. Norton County attempted to get around that obstacle by arguing its more stringent feedlot standards merely supplemented, rather than contradicted, state standards. The state supreme court did not agree.

Stated the court, “We have articulated the following standard for when a conflict exists between a county enactment and a state statute: ‘The primary method for determining whether an ordinance or resolution of a county is inconsistent with a state statute is to see whether the local law prohibits what the state law permits or the state law prohibits what the local law permits.'”

Applying the facts of this case to the law, the state supreme court ruled, “the County’s home rule resolution fails because it is ‘contrary to any act of the legislature’ under K.S.A. 2003 Supp. 19-101a(b). As counsel for the County was forced to admit at oral argument, the ‘local law prohibits what the state law permits,’ albeit implicitly. … When a County prohibits the same CAFO activity, its prohibition is ‘contrary to any act of the legislature.’ The County’s argument that there was no conflict here is nothing more than a word game, exalting form over substance.”

Predictability Protected
Ottawa County farmer Steve Baccus, who is president of the Kansas Farm Bureau, called the state supreme court’s decision “an enormous victory for Kansas farmers, ranchers, and rural communities.

“Had this case gone the other way, it could well have meant 105 separate sets of livestock regulation, and that’s nothing but hardship and headaches for producers,” said Baccus.

Allie Devine, general counsel for the Kansas Livestock Association, said the high court ruling provides the business community, including the livestock industry, with the regulatory stability it needs. “Livestock producers now can plan and maintain their operations under state law without the threat of variation from local authorities,” said Devine.

James M. Taylor is managing editor of Environment & Climate News. His email address is [email protected].

For more information …

The Kansas Supreme Court’s decision in David v. Board of Norton County Commissioners, No. 89,222, can be found online at http://www.kscourts.org/kscases/supct/2004/20040514/89822.htm.