Biogas’ Toxic Relationship with CAFOs: How Reliance on this Fuel Source Engenders Harmful Animal Farming Practices 

Written by Alex Hume and Delcianna Winders 

Spanning roughly 2.5-million years, the Pleistocene epoch demarcated a significant point of Earth’s geologic history in which vast frozen tundras blanketed the globe. This epoch also saw major changes in the evolution of our early hominid ancestors, eventually becoming the more recognizable form of homo sapiens. Our ancestors survived the (possibly) “nasty, brutish, and short” lives they had during the Ice Age and emerged into the world of the Holocene. This period saw the advent of developments key to human culture, society, and history. Among the many human innovations, agriculture and the domestication of “farm animals” (dogs were domesticated a few thousand years earlier) are near the top when it comes to impact on humanity as a whole. 

Fast forward about 10,000 years, and modern agriculture is almost unrecognizable from whence it came. Animal farming can be a lucrative endeavor due to ever-increasing need for food. To maximize profit from this, some entities try to utilize all the farm space they have. Animal farms of this nature are known as concentrated animal feeding operations (CAFOs), or factory farms, and are places where animals are confined in tight spaces to maximize food production at the cost of animal well-being. Officially, the Environmental Protection Agency (EPA) defines a CAFO as an animal feeding operation where a specific number of animals are kept indoors for at least 45 days a year and crops are not sustained during growing seasons. CAFOs are regulatorily categorized as large, medium, or small. For example, if the animal feeding operation has 1,000 or more cows, then it would be a large CAFO. Due to the large number of animals in relatively small areas, CAFOs present a multitude of problems. Both animal and environment advocates have filed many lawsuits in this area, some of which have sought stricter regulation of CAFOs.  

In 2017, several groups filed suit against the EPA for promulgating a rule to exempt CAFOs’ emissions from reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). CERCLA defines certain pollutants as particularly harmful, including ammonia and hydrogen sulfide. As animal waste breaks down, it releases these (and many other) gases, which can be harmful in concentrated amounts. The court ultimately sided with the environmental groups and held that this rule was unreasonable and vacated it. But this win was unfortunately short-lived, as the 2018 Farm Bill overturned the court’s ruling. While CAFO problems each warrant their own in-depth analysis, this article focuses on the emergent issue of biogas, also known as factory-farm gas, and how CAFOs engender this problem to the detriment of the environment. 

CAFOs present many issues that can actually be perceived: the overcrowded and poor living conditions of the animals, routine mutilations without anesthesia, and general harm to the surrounding land and communities, which are disproportionately comprised of people of color. There are also legal issues associated with CAFOs, such as the EPA failing to require Clean Water Act (CWA) and Clean Air Act (CAA) permits. Biogas is also incredibly harmful but is often overlooked due to its non-obvious nature. Biogas is produced as a byproduct of animal waste and is created when anaerobic bacteria consume biomass. Biomass is an organic compound that is derived from plants and animals and was used extensively in the past as a reliable fuel source and is still relied on in some parts of the world. Biogas is mostly comprised of methane and carbon dioxide, which are harmful gases that contribute to climate change. Despite this, fuel generated with biogas is considered a renewable form of energy due to the fact that it attempts to harness these gases. It can either be used directly after being digested by the bacteria, or can be treated via different methods and turned into biomethane. Because of this additional step, only a small percent of biogas is converted into biomethane, despite the fact that biomethane has more applications. Europe currently produces the most biogas, and the European Union (EU) plans to further increase its biogas use in the hopes of reducing fossil fuel reliance. While the EU touts the necessity of increasing biogas, doing so could lead to adverse effects on the environment, especially if they obtain their biogas through CAFOs. It would also lead to more harm being done to animals who produce the biogas on CAFOs. This interest in biogas is not unique to Europe, however, as evidenced by California’s Low Carbon Fuel Standard law (LCFS). 

California enacted its LCFS to combat greenhouse gases (GHGs) being released into the atmosphere. GHGs and climate change are arguably the most pressing issues that plague humanity. However, the issue with California’s law is that it further entrenches environmentally-harmful CAFOs by enticing residents to turn to alternative fuel sources, such as biogas and biomethane. Additionally, it theoretically makes the CAFO industry more profitable for entities who have the ability to benefit from it, such as CAFOs, energy companies, and investors. Due to this increased reliance on biogas, these aforementioned entities could start to propagate more CAFOs to increase their biogas output. More CAFOs means more inhumane treatment of animals, and more pollutants being produced. 

CAFOs can produce a harmful amount of toxins that find their way into the air, ground, and water. CAFO waste releases 168 gases into the atmosphere, which negatively impacts the overall environment and especially environmental justice communities living near CAFOs. Currently, the CAA’s fugitive emissions rule exempts CAFOs’ emissions from being adequately stymied, and right to farm laws protect many CAFOs from being sued for nuisance. This makes it difficult, if not impossible, to seek remedy in the courts. When animal waste is not cared for, it can easily leech into the ground, resulting in contaminants being released into groundwater, in violation of the CWA. Additionally, some CAFOs discharge directly into rivers, creeks, and other bodies of water that are considered “waters of the United States.” This too violates the CWA. CAFOs produce 335 million tons of animal waste every year in the United States, and increased reliance on biogas could result in even more waste being produced and subsequently discharged into water bodies.  

While these environmental concerns affect everyone, it should be noted that some communities face a disparate impact from CAFOs. Environmental justice is an incredibly important aspect of environmental law that unfortunately does not always get enough attention. It is a body of law that is concerned with ensuring all people, regardless of race, socioeconomic status, and nationality are protected from a harmful environment. Despite legislative attempts to guarantee a healthy living environment for all, there are still plenty of examples in the United States where people of color are overlooked, and CAFOs exemplify this. In North Carolina, for example, thousands of CAFOs were built in areas that are predominately black. To reiterate, CAFOs present many environmental concerns, especially for those who live in close proximity to them. Air, soil, and water quality are generally negatively impacted by nearby CAFOs. Residents are then subjected to these adverse environmental conditions, and oftentimes may not have the means of being able to escape them. 

Biogas presents a novel way of dealing with an issue that has plagued humanity for a long time. Burning biogas attempts to utilize these harmful gases that have historically just been released into the atmosphere where they have deleterious effects on the environment. While it may seem like harnessing biogas in this manner results in the majority of it being burned as fuel, some studies have found that the majority of biogas still escapes into the atmosphere. Even if this system were more efficient, this is still just treating one of the symptoms of the overall problem as opposed to treating the problem itself. CAFOs produce an abundance of biogas and are a serious problem today. They mistreat and abuse animals in a plethora of ways, which is often overlooked, especially if it is framed in a way that highlights the use of biogas as a renewable resource while ignoring the harms done to animals. If laws and policies continue to pass that further shield CAFOs from repercussions and make them more profitable, it will likely result in CAFOs becoming more prevalent. This will increase the overall use of biogas, but will directly result in more animal suffering. In an ideal world, CAFOs would not be allowed to continue to operate in the manner they do. While this is unlikely to happen anytime soon, measures should be taken to ensure they do not proliferate and harm the environment even more than they already do, and the government certainly should not be incentivizing it. Burning biogas as fuel should at best be seen as a last resort reserved for combating the harms resulting from CAFOs, not an incentive that promotes the creation of new CAFOs. 

Author Bios 

Alex Hume is currently a 3L at Vermont Law and Graduate School. He is the Senior Articles Editor on the Vermont Journal of Environmental Law. He intends to use what he has learned at law school to advocate for positive change in environmental law, specifically focusing on water quality and endangered species. He has interned with the United States Fish and Wildlife Service and the Philadelphia Law Department. Outside of law school, Alex enjoys reading fantasy books, hiking with friends in the beautiful Vermont outdoors, and cooking various cuisines. 

 Delcianna J. Winders is an associate professor of law and Director of the Animal Law and Policy Institute at VLGS. Professor Winders founded and directed the world’s first farmed animal advocacy clinic while teaching at Lewis and Clark Law School. She also served as Vice President and Deputy General Counsel at the PETA Foundation, was the first Academic Fellow of the Harvard Animal Law & Policy Program, and was a visiting scholar at the Elisabeth Haub School of Law at Pace University. Her work has appeared in many law reviews across the country, as well as in the popular press. She received her JD from NYU School of Law, where she was awarded the Vanderbilt Medal for outstanding contributions to the law school, named as a Robert McKay Scholar, and served as the Senior Notes Editor of the NYU Law Review.