EPA Releases CAFO Information, Activist Lawsuits Could Be on the Rise

Published on: 12:19PM Feb 28, 2013

Is your feedlot being monitored by an activist group?  Do environmentalist groups conduct flyover inspections of your property or search your reports to environmental agencies in hopes of finding a "paper violation"?  Thanks to the folks at the EPA, it will be much easier for these groups to do so in the future.

Earlier this month, EPA released information it had been secretly collecting on concentrated animal feeding operations (CAFOs) to anti-CAFO groups including Earthjustice, the Pew Charitable Trust, and the Natural Resource Defense Council.  This information includes the addresses of operations, names and contact information for operators.  It also could contain information regarding operations, such as capacity and how manure is stored and applied.  Environmental activists intend to use this information to monitor operations and bring litigation against farmers that they believe are violating environmental laws.  We can also expect these activist groups to create a public database of operations similar to the Environmental Working Group’s listing of farmers and ranchers that receive government payments.  All of this is intended to achieve the environmentalists’ end goal – shutting down CAFOs in the United States.

How Did This Happen?

Section 308 of the Clean Water Act (CWA) allows EPA to gather information from businesses and individuals to carry out the goals of the CWA.  One caveat, however, is that any information (minus trade secrets) gathered by EPA under Section 308 is also available to the general public.  In 2010, EPA entered into a settlement agreement with environmentalist groups where it promised to develop a regulation where it would gather information regarding CAFOs under its Section 308 authority.  In July 2012, after facing strong opposition from both farm groups and the Department of Homeland Security over privacy and bioterrorism concerns, EPA relented and decided not to implement the data gathering rule.  It seemed that the idea of a public national CAFO database was finally put to rest.

EPA, however, knows that there is more than one way to skin a cat.  Without the fanfare of a relatively transparent public rulemaking, EPA secretly requested state environmental agencies to submit information that they held on animal feeding operations within their state.  More than 30 states submitted information on operations; oftentimes states included information on farms that do not qualify as CAFOs under the CWA.  Farmers, ranchers, and farm groups did not have knowledge that this information gathering was taking place.

Although America’s farmers and ranchers were kept in the dark, environmental groups were privy to the knowledge that this information gathering took place.  These groups submitted a request for this information under the Freedom of Information Act (FOIA), which EPA complied with.  Thus, these activist groups have access to data on CAFOs from over 30 states.  While these activists could have submitted information requests under state "sunshine" or FOIA laws to individual states, EPA’s secret data gathering made these activists job much easier.

The Implications

It’s unclear exactly how this will play out, but those in animal agriculture could face increased scrutiny from activists.  The CWA allows private citizens and groups to bring enforcement actions against CAFOs they believe have violated the CWA.  Activist groups can bring private enforcement suits for violations ranging from illegal discharges to failure to meet submission deadlines for paperwork.  Even if an operation is in compliance with the CWA, the cost associated with defending against a frivolous lawsuit can be steep.  With easy access to a database of CAFOs across the country, we can expect to see the number of lawsuits filed by activist groups and opportunistic plaintiff’s attorneys to increase.

John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA.  John focuses his practice on agricultural and environmental law.  He occasionally tweets at @DCAgLawyer