Source: Muskogee Phoenix (OK), September 4, 2011
Posted on: http://envfpn.advisen.com
More than 18 months have passed since the parties involved in the state’s poultry industry pollution lawsuit rested their cases.
U.S. District Judge Gregory Frizzell, who presided over the 52-day trial that spanned nearly five months, has yet to render an opinion.
Former Oklahoma Attorney General Drew Edmondson described the delay of the ruling as “frustrating and puzzling.”
Edmondson filed the lawsuit in 2005, alleging the poultry industry was responsible for deteriorating water quality of the Illinois River, its tributaries and Tenkiller Lake.
Industry practices that included the application of poultry litter on land within the watershed, Edmondson alleged, contributed to phosphorus overloading of the scenic streams.
High nutrient levels, according to experts who testified on behalf of the state, contributed to algae growth, decreased levels of dissolved oxygen, and deteriorated water quality.
While Edmondson, who left office this year after losing a bid for the Democratic nomination for governor, is clearly ready to see an outcome of his efforts, others are not surprised by the delay.
Gary Mickelson, a spokesman for Tyson Foods, one of the poultry companies named as a defendant in the state’s lawsuit, said there should be no expectation of a fast ruling.
Frizzell has “had the arduous task of reviewing the exhibits and testimony from a trial that spanned five months,” Mickelson said. “That process takes time and should be the product of careful reflection by the Court.”
Mickelson said since the trial ended Feb. 18, 2010, federal court decisions in related cases have been made. Those decisions, he said, could have implications regarding the outcome of Oklahoma’s lawsuit.
Some of those decisions, Mickelson said, include an appeal by the Cherokee Nation, which was denied an opportunity to join the state in its lawsuit. Mickelson said that ended favorably for the poultry companies.
Mickelson said a U.S. Supreme Court case dealing with greenhouse gas emissions “rejected a similar attempt by litigants to circumvent existing laws and regulations by asking courts to write new environmental regulations in lawsuits.”
With that ruling, the state also claimed victory. That opinion precludes nuisance claims under federal law when Congress has codified similar provisions. The opinion, however, left open the question of whether claims could be prosecuted under state nuisance laws.
There was no indication this past week from the federal court when a ruling might be released in the state’s lawsuit against the poultry industry.