By Rachel Sawicki

GEORGETOWN — The Sussex County Planning & Zoning Commission is facing a lawsuit over its approval of a CleanBay Renewables’ biogas facility.

The nongovernmental organization Food & Water Watch, which focuses on corporate and government accountability relating to food, water and corporate overreach, filed the suit Friday, arguing that the commission unlawfully gave CleanBay Renewables a “redo” on a project that residents have vehemently opposed for years.

The county has already had its fair share of trouble regarding chicken farm waste, particularly from Mountaire Farms, who had several lawsuits filed against it in 2018 by residents negatively impacted by water and air pollution.

Now, proposals for factory farm refineries throughout the county could pose similar risks to residents if constructed, says FWW.

In 2018, CleanBay Renewables was given conditional-use approval to build a heavy industrial facility at the corner of U.S. 113 and Breasure Road in Georgetown, in an area zoned for agriculture and low-density residential. The permit said that construction of the site must be “substantially underway” by Aug. 1, 2021, but when P&Z staff found that the site was just an empty field after that date, they informed the company that its permit was null and void.

Just over a month later, however, the P&Z Commission overruled their staff’s decision and gave CleanBay Renewables “the benefit of the doubt,” so the conditional-use authorization could remain in effect.

“Almost immediately afterwards, we sent a letter to the county urging them to reconsider and highlighting the clear legal deficiencies with their position,” said Emily Miller, an attorney for FWW. “County law very clearly lays out what construction activities have to take place in order to constitute ‘substantially underway construction,’ and those just had not been satisfied in this case. We sent that letter in September, and the commission ignored us.”

Ms. Miller added that FWW — along with a resident who lives close to the site — tried to appeal the P&Z decision before the Board of Adjustment in October.

In response, she said, the group received a letter from the county planning and zoning director that the appeal would not be processed because “in their view, the Board of Adjustment didn’t have jurisdiction to review the case.”

“So now, we are going to court because the county can’t ignore a lawsuit,” she said. “This is a clear, open-and-shut case. … The county can’t selectively choose when to enforce the law and when not to enforce the law. The zoning approval has expired, and just the county’s refusal to acknowledge and enforce that is what we are focused on with this lawsuit.”

Sussex County public information officer Chip Guy said county officials had not seen the lawsuit and declined to comment further.

FWW also argued against Seaford facility

In addition, FWW said state lawmakers have ignored opposition to another proposal for the construction and operation of an anaerobic digestion system on the site of an existing poultry litter-composting facility, south of Seaford.

In April, Sussex County Council voted to approve BioEnergy DevCo’s conditional-use permit for that facility, “despite significant risks to public health, safety and environmental justice concerns,” according to FWW. BioEnergy and Perdue have entered a 20-year agreement to process litter from Perdue’s poultry factory farms in Delaware and on Maryland’s Eastern Shore at that facility.

FWW is concerned with methane levels that will be produced there.

A 2019 study by the group said that burning biogas releases carbon dioxide and other pollutants, which can potentially offset other greenhouse gas reductions. Biogas is composed of 50%-70% methane, which is 90% more powerful than carbon dioxide. The study also said that researchers estimate that the leakage from “renewable” methane production is similar to that of fossil fuel gas production.

“The ... methane refinery proposed for Seaford would, by itself, produce as much (carbon dioxide) as a typical passenger car driving 98 million miles,” said Greg Layton, a Delaware organizer for FWW. “When combusted, the methane from a single plant would contribute emissions that equate to burning more than 43 million pounds of coal. … It continues to pollute the environment.”

In February, 32 environmental groups, led by Food & Water Watch, issued a letter to Gov. John Carney, calling for his intervention into the approval of the Seaford plant. The letter said the facility “will not only bring pollution into Delaware, but will entrench the factory farm industry in the Delmarva region for at least 20 years by creating a market for the huge quantities of waste these facilities generate.” Mr. Layton said the groups never received a response.

Biogas process an ‘illusion’

Mr. Layton has been working with FWW since March, fighting against anaerobic digesters in Sussex County that turn poultry waste into biogas. He said the process isn’t really reducing emissions, since the BioEnergy and CleanBay facilities will still release greenhouse gases, just like coal and oil production do.

“It’s an illusion,” Mr. Layton said. “It’s a way to prop up the fossil fuel industry. This renewable natural gas will ultimately end up in the Chesapeake Utilities pipeline, mixed with all the other methane. So now, the natural-gas industry can slap the word ‘renewable’ on it and say they’re doing something green and pretend that they are a solution to the problem, when really, for the most part, it’s just the same old natural gas.”

Additionally, pulling reusable energy from poultry waste does not eliminate the waste, he said, adding that the leftovers still carry high levels of nitrates, ammonia, hydrogen sulfide and other things that are harmful to human health.

According to the Environmental Protection Agency, Delaware leads the nation in total percent of state area with groundwater nitrate concentrations at 53%. The second highest is Maryland, with 28% of the state’s groundwater contaminated by nitrates.

Mr. Layton noted that nitrates are linked to miscarriages, blue baby syndrome and children with disabilities and developmental delays. Delaware ranks eighth out of 49 states for the percentage of students ages 6-21 with disabilities and sixth out of 46 for percentage of students ages 3-5 with developmental delay, according to data from the U.S. Department of Education, and Mr. Layton said his group believes that waste from the poultry industry is one of the biggest culprits.

“And profits from factory-farmed biogas would only incentivize more of it,” he said. “So by selling poultry industry waste to anaerobic digesters, they’re just putting more money into the waste that’s already causing problems.”

Delaware Interfaith Power and Light was one organization that signed the letter to Gov. Carney to stop the construction of the BioEnergy facility. Its outreach director, Shweta Arya, said it sees climate change as a moral issue because people who contribute the least to climate change often end up on the front lines to deal with the consequences.

“Through our coalition, we want to have a dialogue with communities that are hurting,” she said. “If we don’t make that noise, things will just keep moving like this. (Elected officials) can say they’ve made goals and have a plan, but if we don’t keep them accountable, they’ll just keep doing what they’re doing.”

Groups claim plan is insufficient

Gov. Carney recently announced Delaware’s Climate Action Plan, which includes suggestions on how to convert captured landfill gas into renewable natural gas. He said, however, that an effort should be undertaken to ensure there is adequate emissions-control technology for natural gas-fired engines, as the exhaust may contain higher levels of toxins.

A Department of Natural Resources and Environmental Control spokesperson noted that the plan does not endorse any specific project, nor does it include any mandates or regulations.

“The actions and strategies outlined in the Climate Action Plan can be implemented over time, as resources, data and partnerships develop,” they said. “Each individual project is always assessed based upon state laws and regulations to ensure that both public health and the environment are protected. An important aspect of the permit process is the opportunity for residents and other members of the public to give their opinion to DNREC about whether the permits should be granted.”

Mr. Layton suggested that reform is what is needed in the factory-farming industry.

“In the meantime, we need to enforce the Clean Water Act, the Clean Air Act, and regulate the pollution that comes out of the poultry industry as strictly as we regulate pollution that comes out of any other industry,” he said. “More than 90% of Delaware’s waterways are considered unfit for fishing or swimming, mostly due to nutrient pollution and bacteria levels, and most of those can be traced to the poultry industry or other factory farm operations.”

The Climate Action Plan itself has received criticism from several groups already, including DEIPL. Ms. Arya said the goals that Gov. Carney and DNREC set for the state are low.

“They don’t communicate the urgency of climate change,” she said. “We need much more ambitious goals to tackle climate change.”

Ms. Arya added that President Joe Biden set a goal to reduce greenhouse gas emissions by 50% by 2030, which Delaware has not mirrored in its plan. A technical analysis from DNREC of greenhouse gas emissions in Delaware projects them to decline by 25% in 2025 from 2005 levels, falling just short of the state’s goal of 26%-28%.

The analysis also showed that without additional reduction actions, emissions are projected to start rising again around 2032 and would bring the state’s net reduction in 2050 to 19.6% from 2005 levels.