Dairy Farmers Ask Ninth Circuit Court to Review Flawed EPA Nitrate Study

  • February 24, 2020

Legal action states EPA’s 2012-2013 Yakima Nitrate Study conclusions were “arbitrary and capricious” and enforcement by EPA violated the 14th Amendment’s due process clause

Dairy groups from around the nation are closely following the Washington State Dairy Federation and a dairy farm in Eastern Washington in their legal action against the EPA. At issue is the validity of an EPA science report issued in 2013 that claimed current dairy operations were responsible for nitrate levels in Central Washington state groundwater above the EPA limit. Dairy farmers and farm groups in the state and across the nation have claimed that the study grossly mischaracterized the actual results and that the EPA failed to subject the study to the level of outside peer review standards required by federal policy.

“Every legitimate science expert who reviewed this study said it was false, and some even claimed it appears to be intentionally falsified,” Dan Wood, Executive Director of the Washington State Dairy Federation commented. “We have been trying to work with

EPA leadership initially in Region 10 and now in D.C., but while they have offered to stop using the study for further enforcement, they refuse to retract it or call for the level of outside peer review that their own policy requires.”

According to Wood, the study presents three very significant problems to a struggling dairy community, not only in Washington state but far beyond. “First, it was used for extremely punitive EPA enforcement action against four farms which goes on to this day. Second, it continues to be the basis for environmental litigation against Washington dairy farms which force most into expensive settlements involving large legal fees to the attorney suing and has cost our dairy farms multiple millions in unproductive expenses. And third, it communicates a false message about dairy farming and nitrates to the nation,” Wood stated.

Kent Krabill and Chris Patton of the Dallas, Texas-based law firm Lynn Pinker Cox & Hurst, represent the dairy community. Both attorneys have significant experience employing the Administrative Procedure Act to invalidate government overreach on behalf of private sector clients.

Earlier, the American Dairy Coalition and the National Milk Producers Federation, along with Representative Dan Newhouse from Central Washington, wrote to EPA Director Andrew Wheeler requesting the study be properly peer reviewed. Newhouse wrote on June 26, 2019: “I ask that you take immediate action to allow a legitimate peer review…” on the study. He noted that EPA’s enforcement had forced one farm out of business and another had spent $11 million to comply.

Lynn Pinker has stated that “withering” criticism of the report by public and private scientists coupled with the EPA’s recent misrepresentations related to the improper classification of the report and resulting improper peer review of the report serve as a basis for this legal action.

“Indeed, the EPA failed to implement a proper peer review, which is required of science studies deemed ‘influential, ’” attorney Patton stated. Mr. Krabill and Mr. Patton

explained that they are seeking to invalidate the report—and the subsequent consent agreement—on three potential grounds: (1) as arbitrary and capricious under the Administrative Procedures Act; (2) as an impermissible construction of the Safe Water Drinking Act; (3) and as a constitutional due process violation.

If this action is successful, the Court would invalidate the EPA Report and the Administrative Order on Consent which would set a precedent establishing that faulty science could not be used by the EPA to indiscriminately target farms.

SFF-EPA-APA-QA-FINAL-022320

More information about this legal action may be found at www.savefamilyfarming.org.