Legal Ease: EPA and Your Privacy

11:43PM Nov 09, 2013
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John Dillard

John Perry Barlow, privacy advocate and famed lyricist for the Grateful Dead, nailed it when he said, "Relying on the government to protect your privacy is like asking a peeping Tom to install your window blinds."

The recent National Security Agency (NSA) data collection revelations illustrate our country’s struggle to balance its need for security against the rights of individual privacy. As with NSA, it seems that federal power always trumps individual privacy. This is also true for the Environmental Protection Agency (EPA).

In its aggressive push to regulate modern livestock operations, EPA is working with activist groups to compile and publish information about U.S. farms and ranches with little regard for the privacy rights of those who live and work on the oper­ations. In a matter of time, we can expect an online database of livestock operations that contains the names, addresses, e-mails and phone numbers of the farm owners. With this information in the public domain, livestock operations will be even more vulnerable targets to activist groups.

From the beginning. One of EPA’s perennial complaints is that it does not have sufficient information about Confined Animal Feeding Operations (CAFOs) to properly regulate them under the Clean Water Act. This is because, unlike other point sources of water pollution, most CAFOs are not required to have National Pollutant Discharge Elimination System (NPDES) permits.

EPA saw an opening to fill this perceived knowledge gap when it was engaged in litigation on a 2008 CAFO regulation. EPA entered into what some would call a "sweetheart settlement" with activist groups. As part of this settlement, EPA agreed to make a regulation that would require all medium and large CAFOs report information about their operation to EPA, regardless of whether the CAFO had an NPDES permit. This information, which would have been publicly available, would have included the location of the CAFO as well as contact information of the owner/operator.

As you can imagine, many farmer groups screamed "foul." Forced disclosure of contact information is an invasion of privacy and an open invitation to harassment.

Due to the substantial public backlash, EPA withdrew its proposed reporting regulation and went back to the drawing board. Sure enough, EPA found another way to skin the cat. Behind closed doors, the agency used state Sunshine laws to compile the information on CAFOs. It didn’t take long for acti­vists groups to submit Freedom of Information Act (FOIA) requests to EPA to access the CAFO data.

At this point, EPA has released information from 29 states through FOIA. Its goal is to release data from all 50 states by June 2014. I wouldn’t be surprised if activist groups use this information to establish a database similar to the one that the Environmental Working Group uses to document USDA subsidy recipients.

Fight back. EPA was a little sloppy in releasing this mountain of data and might not have complied with FOIA because it released information that amounted to an invasion of personal privacy. In fact, since it began releasing the CAFO data, EPA called back the data on two occasions because it failed to retract sensitive information. I suppose we are to assume that these acti­vist groups deleted this sensitive data after EPA revealed its goof.

Based on the release of sensitive data and the pending FOIA requests EPA intends to respond to, two farm groups have sued EPA to prevent further releases. In the suit, the American Farm Bureau Federation and the National Pork Producers Council have requested that a court issue an injunction that would stop EPA from including personal information in future FOIA releases. They want EPA to call back prior releases to redact this information. As of press time, this lawsuit has not been resolved.

Bells can’t be unrung. EPA has already released personal data on livestock farmers from across the country. This information is in activists’ hands now. We can only hope that the federal court system sides with the farmers and their right to privacy, and that EPA learns a lesson for the future.

John Dillard
writes from Washington, D.C. Contact John:

E-mail: [email protected]