In 2005, then–Oklahoma Attorney General Drew Edmondson, a Democrat, sued 11 companies over the pollution of the Illinois River. The companies, the case alleged, were spreading large amounts of chicken waste and bedding over cropland in the Illinois River Watershed, which covers parts of eastern Oklahoma and northwest Arkansas. While using chicken waste as fertilizer is allowed in some situations, this quantity of chicken waste, the state argued, led to high amounts of phosphorus runoff that polluted local waterways and, in turn, led to an overgrowth of algae and lower dissolved oxygen levels. Fish died, the Illinois River looked and smelled gross, the quality of the drinking water produced by the watershed suffered, and populations of fish and other wildlife in Lake Tenkiller declined. "Frivolous" (Stitt’s word above) is an odd adjective to describe that lawsuit. Thirteen years after the trial ended in 2009, U.S. District Judge Gregory Frizzell finally ruled in 2023 that the state was right about almost everything. While the state couldn’t prove the bit about the quality of the drinking water, he said, the phosphorus levels, algae levels, wildlife death, and aesthetic degradation were clear, and Frizzell didn’t find the companies’ argument that they were following the law very compelling. "Historically, defendants have done little—if anything—to provide for or ensure appropriate handling or management of the poultry waste," he wrote. They "knew or should have known no later than the late 1990s that their growers’ land application of litter was a primary source of the excess phosphorus in the waters," at which point they were obligated to take action or else fall afoul of state and federal public nuisance law, which stipulates that you’re not allowed to interfere with the public’s use and enjoyment of these waterways. And Oklahoma state law makes it clear, the judge added, that even if companies are following a strict pounds-per-acre regimen for chicken litter, "litter must be applied in a manner that will prevent pollution of State waters." Implying, as Governor Stitt did last week, that these sorts of lawsuits are putting law-abiding mom-and-pop shops out of business is also a little odd. Four of the companies named were either Tyson Foods or its subsidiaries. Tyson is the second-largest food company in the nation, right behind PepsiCo, and among the top 10 largest food companies in the world. Another two were Cargill and its subsidiary Cargill Turkey Production. Cargill is the largest privately held company in the country, with an estimated value of around $60 billion. Then there’s Cal-Maine Foods, with revenue above $1.3 billion, which was among those found liable in 2023 for conspiring with other companies to raise egg prices. And George’s Inc and George’s Foods LLC, which cut a $5.8 million deal with the Department of Justice last May as part of the department’s inquiry into poultry companies (including Cargill, which settled for $15 million) conspiring to suppress workers’ wages. Peterson Farms and Simmons Foods admittedly don’t have quite this sort of profile, although obviously no company that can recall 13 tons of TGI Friday’s boneless chicken bites, as Simmons did in December, is small. The companies in question are now upset that they’re being told to pay to fix something that happened a long time ago—an objection that sort of cuts both ways, since the people affected by their actions are probably mad that it took this long too. The tribal governments of the Cherokee, Chickasaw, Choctaw, Muscogee (Creek), and Seminole Nations have denounced the new law giving the poultry industry immunity from these sorts of lawsuits. This is the background to Stitt’s remarks declaring these suits "un-American." The Oklahoma case is part of a bigger picture. Protecting lakes, rivers, and drinking water is actually extremely popular. Polls typically find higher support for that than for fighting climate change. But as TNR’s Kate Aronoff and others have repeatedly observed, the legal system is typically much more favorable to corporations than to their victims—human or animal. Oklahoma has now made that system even more favorable to corporations. It’s one in a series of recent news events indicating that even the most clear-cut, commonsense moves to protect the public are going to be fought tooth and nail. On Monday, industry groups sued the federal government over a new standard to keep PFAS—chemicals "associated with developmental delays in children, decreased fertility in women and increased risk of some cancers," per The New York Times—out of drinking water. I previously wrote about companies’ loud objections to being told they could no longer decaffeinate coffee using a chemical so dangerous that it’s been banned for paint stripping since 2019. Voters say these issues matter to them. But if that’s the case, they’re going to have to show that at the polls. Relying on administrators and courts to protect them is getting riskier by the day. |
