Chesapeake Bay Lawsuit Pits Environmentalists Against Farmers

Environmental groups sling mud against agriculture's challenge of EPA authority.

Published on: May 27, 2011

It had to happen. Chesapeake Bay environmental groups couldn't just sit by and let U.S. agriculture challenge the Environmental Protection Agency's authority to mandate pollution controls under the Clean Water Act, especially when it's based on faulty data.

On Wednesday, a coalition of environmental groups announced the filing of a federal court motion to intervene on behalf of EPA in the suit filed in January by American Farm Bureau and Pennsylvania Farm Bureau. That coalition includes the Chesapeake Bay Foundation, Citizens for Pennsylvania's Future, Defenders of Wildlife, the Jefferson County [W. Va.] Public Service District, the Midshore Riverkeeper Conservancy, and the National Wildlife Federation.

"[Agriculture's] motive is profit. Our motive is clean water and protecting human health," said Chesapeake Bay Foundation President Will Baker. "If it's a fight they want, it's a fight they'll get," he added, noting that American Farm Bureau Federation, Pennsylvania Farm Bureau and its allies represent profit-hungry "narrow corporate interests."

"Just as the Bay is making progress in its long fight to survive, these big money industry lobbyists are trying to derail the process.  Why? A simple profit motive," charged CBF's Baker. "They want the rest of us to suffer dirty and dangerous water so they can maximize their corn, hog, and poultry profits."

The AFBF and PFB suit filed in January charges that U.S. EPA overstepped its authority in mandating a specific pollution limits, knowing that its scientific data was incomplete and inaccurate. Co-plaintiffs in the case are the Fertilizer Institute, National Pork Producers Council, National Corn Growers Association, National Chicken Council, U.S. Poultry and Egg Association, and the National Turkey Federation.

"[EPA officials] make no bones about this," commented Danielle Quist, senior counsel for AFBF. "This is a model for the rest of the nation. They've exercised authorities in this case that we don't think the Clean Water Act gives them."

Now, a federal judge must decide whether to grant Chesapeake Bay Foundation and allies intervener status.

Claims and counterclaims

National Wildlife Federation's Mid-Atlantic Regional Executive Director Tony Caliguiri sees the ag suit as a "frivolous attack by polluters against the Chesapeake Bay's rivers and streams."  He claims that EPA efforts included a lengthy, transparent series of public meetings, attended by representatives from plaintiff organizations.  The pollution diet "was not conceived in a vacuum."

Brian Glass, senior attorney representing Citizens for Pennsylvania's Future (PennFuture) contends Farm Bureau's lawsuit is just another attempt to delay federal action.  However, agricultural advocates deny that charge, claiming that substantial evidence was ignored by EPA.

The Farm Bureau suit was not an attempt to stop Chesapeake Bay cleanup efforts, responds PFB President Carl Shaffer. "Environmental organizations have attempted to falsely characterize this lawsuit as a means of trying to escape responsible environmental management.

"Farmers are not alone with their concerns," he adds. "Many local officials and businesses support our efforts to challenge EPA's excessive use of authority."

"Conservation and environmental improvement practices will continue to be implemented on farms across the Commonwealth regardless of the length or outcome of the lawsuit," adds Shaffer.

Crucial background information

Farm Bureau initiated the lawsuit because EPA exceeded its authority under the Clean Water Act. It tried to dictate its will upon Pennsylvania and other states specific activities each state would be required to perform – at their own expense.

The suit also alleged that EPA's Total Maximum Daily Load computer models were seriously flawed, using incomplete data and bad science to make incorrect projections and assumptions. It also contended that EPA violated the Administrative Procedures Act by failing to provide sufficient information or adequate time for the public to provide comments or check the math behind EPA's TMDL.

U.S. Department of Agriculture's Natural Resource Conservation Service data strongly counters EPA's model. Specifically, 96% of farmers in the Chesapeake Bay Watershed have implemented erosion control practices on cropland acres in production.

The report also found that sediment contributions from cultivated cropland to the Bay's rivers and streams have been reduced by 64%, while phosphorus was reduced by 43% and nitrogen reduced by 36% between 2003-2006.  In addition, NRCS says that pollution has been further reduced by another 15% to 20% over the past five years.

 "Farmers have greatly reduced soil erosion, preserved and restored wetlands, and cleaned the air and water by voluntarily implementing numerous and costly conservation projects," concludes Shaffer. Progress is on-going, not stopping or even slowing.