Company loses challenge to city odor ordinance

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The 8th U.S. Circuit Court of Appeals has upheld the constitutionality of an odor ordinance enacted by the city of South St. Paul. The court, in a decision filed March 1, concluded that Sanimax, a company that has been criticized for the odors that result from its animal processing, unsuccessfully argued its free speech and equal protection claims against the city.

Sanimax processes animal carcasses and organic byproducts. During this processing, there are foul odors that residents have described as “eye-watering,” “burning flesh,” and “putrid.” Residents have claimed that the smell has prevented them from being outside in their yards or opening their windows. Others complained of headaches.

While the livestock and meatpacking trade was synonymous with South St. Paul for nearly a century, the city endeavored to create a new image for itself. It adopted its 2030 Comprehensive Plan, which set forth future land use policies. One part of the plan included working with “holdover industries,” such as Sanimax, which produced odors that stymied development.

Although Sanimax is familiar with its odor issue, and invested resources into odor-abatement technology, complaints against Sanimax remain. In response, the city enacted various ordinances which regulate odor pollution. Under the 2014 Odor Ordinance, Sanimax was designated a “Significant Odor Generator.” Then, in 2017, the city enacted another odor ordinance that had heightened requirements for designation as a “Significant Odor Generator.” However, the city determined that its odor legislation lacked an adequate enforcement mechanism. Under the 2017 ordinance, there was a 12-month grace period before administrative penalties accrued.

The city then enacted another ordinance in 2020, which created a “two-track system” for dealing with odor emissions. One track was “friendly” and applied to businesses that wanted to collaborate to reduce odors. The other track was “punitive” for businesses that were not inclined to reduce odors, and it permitted the city to immediately issue administrative citations. Sanimax received 20 administrative citations for violating the city code’s prohibition on emitting offensive odors. It accrued $35,000 in fines.

Additionally, the city enacted Ordinance 1350 in 2019, creating a 115-parcel I-1 Light Industrial district. Consequently, Sanimax was a legal, nonconforming use. It could operate, but it was unable to expand its business.

Sanimax filed suit in U.S. District Court. There were two lawsuits, which were ultimately consolidated. Sanimax asserted a First Amendment retaliation claim and Equal Protection class-of-one claim in its first lawsuit. In a second lawsuit, Sanimax raised a void-for-vagueness claim and another First Amendment retaliation claim.

The city moved for summary judgment, and the court granted the motion on all counts. Sanimax appealed, claiming that summary judgment was premature since there was a genuine dispute of material fact regarding its alleged constitutional injuries.

Sanimax argued that internal city emails were a smoking gun for First Amendment retaliation. In the emails, the city planner suggested an odor tax to combat Sanimax’s odor problem. Sanimax asserted that, but-for Sanimax’s challenge to its designations as a Significant Odor Generator, the 2020 Odor Ordinance would not exist. However, the court found that this did not show retaliation. Rather, the city adopted the 2020 Odor Ordinance to survive a legal challenge. “Extrapolating Sanimax’s argument underscores its untenability: A plaintiff affected by a local regulation could unilaterally hamstring municipal lawmakers in perpetuity by merely challenging the regulation’s effect, as any attempt by the municipality to thereafter amend the law would necessarily be in response to—and thus in ‘retaliation’ for—the initial challenge brought by the plaintiff,” the court wrote.

The company also asserted that the 2019 Zoning Ordinance violated the Equal Protection Clause of the 14th Amendment. Sanimax identified two other companies—Twin City Hide and Twin City Tanning—as its comparators, and asserted that they were not included in the ordinance’s I-1 Light Industrial district. However, the court found that the businesses were not similarly situated by considering the odor complaints. While Sanimax generated 79 complaints between 2015 and 2021, the two other businesses generated seven combined. Although Sanimax argued that the Comprehensive Plan looked at odor issues generally rather than relying on a certain number of odor complaints, the court was not persuaded. “It is indeed puzzling to contemplate how a local government could ‘generally’ address bothersome odor emissions without developing a quantifiable process through which it could identify the sources of the emissions for remediation,” the court maintained.

Sanimax also contended that many odor complaints arose from City Hall officials, which the court took as a claim that “bogus odor complaints” were filed to “artificially inflate the disparity between its property and other odor emitters.” However, the court pointed to verified odor complaints. “Put differently, even if we accept Sanimax’s argument that City officials had submitted unsubstantiated odor complaints, there is no evidence showing that those complaints survived SEH’s verification procedures, or that such processes were illegitimate, in the sense that SEH erroneously confirmed Sanimax as the source of the odor despite receiving a purportedly fictitious complaint,” the court concluded.

The court affirmed the district court’s judgment.