Save Family Farming works to protect our family farmers from Puget Soundkeeper Alliance’s unrelenting and unfair assault on our farms
Pressuring Ecology to impose massive new dairy regulations
Litigating against farmers and farm support businesses
Waging a public campaign to sow distrust of farmers
Do Puget Soundkeeper and Waterkeeper Alliance’s efforts harm our family farmers?
The federal law in question, CERCLA also known as the Superfund law, was specifically designed to help our nation deal with hazardous materials including chemical and oil spills. To suggest that cow gas emissions should be treated under the same law which requires reporting to the National Spill Response Center (managed by the Coast Guard) and local emergency management officials is, well, just plain ridiculous. It is clear the motivation behind this is not environmental concerns, but the emerging shift from environmental activism on the part of groups like Puget Soundkeepers, RE Sources and Waterkeepers to an anti-farm agenda. Some have even said they don’t want any farms except those that supply farmer’s markets, and don’t want any export of farm products from our farms. They think this is about “industrial” farms, without realizing that 97% of the nation’s farms are family owned and operated and that their broad brush “solutions” would destroy most of our family farms. What is a bit irritating is that they come up with these attacks on our farms while sipping on lattes with foreign grown coffee beans and enjoying an anti-oxidant berry mix with berries from Mexico, China, Serbia and Chile.
A bi-partisan effort in Congress put an end to the animal emissions nonsense, but let’s not think for a moment that Puget Soundkeepers, RE Sources or others like the Western Environmental Law Center are giving up their assault on our family farms. These groups need to continually find new ways to raise money to keep their jobs. Clearly, they have determined that “industrial agriculture” is ripe for the fundraising efforts, regardless of the very harmful effects on our nation’s ability to feed our citizens and the future of our family farms.
Another hot topic: Clean Water Act lawsuits.
Puget Soundkeeper, Western Environmental Law Center and RE Sources have participated in what we have called “barely legal” lawsuits. We’ve been accused of not being honest in our comments on this. We think those defending these lawsuits are not being honest and we invite an open and public debate on the facts. We will gladly publish the defense of these they offer. But they will have to respond to these key points (which are all expanded and explained on this page below including a downloadable fact sheet that includes references from legal experts):
1) After initially allowing citizen lawsuits to help enforce the Clean Water Act, in the 1980s Congress acted to severely limit these because of abuse (the kind of abuse practiced by these environmental groups here in the West.)
2) The US Supreme Court also decided that citizen lawsuits could only be used when there was serious pollution and government enforcement was not happening.
3) All US federal courts have ruled against allowing these citizen lawsuits EXCEPT the very extreme 9th Circuit Court in San Francisco, which explains why these cases really only happen within the jurisdiction of the 9th court.
4) Most cases filed by Puget Soundkeeper do not involve significant pollution or failure to enforce, but rather involve minor issues mostly related to the complexities of the permits these organizations have to comply with. Minor record keeping violations are sufficient for these groups to file suit.
5) The Ferndale Grain lawsuit was an example: they claimed a big pollution problem but there was no significant pollution.
6) These lawsuits are about raising money for these groups and not about environmental protection. A Seattle law firm specializes in them and uses these groups as the “citizens”. The law firm of course always gets their legal fees first, then, when they negotiate a settlement that is far, far, far less than the lawsuit called for, instead of the penalties going to the federal government, they agree to send it to the Rose Foundation. From there, in addition to some legitimate environmental projects, some of these funds finds it way back into the coffers of the groups participating in the lawsuits. The law specifically says those suing are not to gain financially, but these groups have found a way around it.
7) Farmers care because: 1) this appears to us to be skirting laws and is in effect a scam aimed at deep pockets, so it is a matter of law and justice 2) farm related businesses such as Ferndale Grain (owned by deep pocket Cargill) have been and may continue to be targeted 3) the money gained in a very dubious way has been directly used to attack farmers such as the very significant funds provided to Western Environmental Law Center used to develop their false attack on farmers on farm pollution (the facts included were even disputed by the very anti-farm EPA Region 10 administration)
If those defending these “barely legal” lawsuits can answer those seven points we will retract and admit we have been incorrect or dishonest. Until then, they should withhold name calling.
(NOTE: this post pre-dates the passage of the Omnibus Bill that clarified these animal emissions are exempt under federal law.)
Will Waterkeepers’ and Puget Soundkeepers’ effort to require farms to report cow gas emissions (burping and farting) harm our family farms? You can bet the farm on that. They try to suggest this is just about massive CAFOs (Confined Animal Feeding Operations) which is their preferred name for “industrial” or “factory” farms involving animals. But CAFOs aren’t just about massive farms with tens of thousands of animals like they suggest. Essentially all full time family farms can fall under the definition of a CAFO, and particularly for these gas emission regulations they are pushing. It is almost impossible these days to make even a very modest living as a dairy farmer without milking close to 400 cows, unless you are doing your own processing and distribution and can get a high premium price for your milk products through great marketing. If you are milking 400 cows, you may have another 300 you are raising as replacement animals. So full time family dairy farms start at nearly 400 animals and all these would fall under the air emissions reporting requirements that Puget Soundkeeper is pushing.
Capital Press reported on the lawsuit by Waterkeeper that resulted in a DC judge ruling that farms with animals fall under the Superfund law that was designed to deal with toxic and hazardous waste and materials, things like major chemical and oil spills. Waterkeeper and Puget Soundkeeper believe that cow gas should fall under the CERCLA Superfund law which requires that any toxic emission be reported to the National Spill Response Center and the local emergency management department. They said the law requires that any farm that generates 100 pounds of ammonia per day must report.
How much do cows emit of what some call “toxic”? The EPA doesn’t know, which is why they have been resisting this ridiculous lawsuit and ruling. Here’s what one authoritative source reports:
How much ammonia do dairy cows emit? There is lot of variation in the emissions estimates in the research literature. This is one of the primary reasons that EPA wants to do some additional monitoring on dairy farms. Current estimates range from less than 20 to more than 70 lbs/cow/year.
Currently, an operation that emits > 100 lbs. of ammonia for any day within a year is supposed to report this release. How many cows would it take to meet this threshold? Obviously, it would depend heavily on the actual emission factor. However, a number of individuals have made estimates. Two examples are:
Dr. J. Jonker – National Research Council – 120 mature dairy cows plus 120 replacement heifers.
Dr. Al Rotz – USDA-ARS – 100 to 250 cows plus associated replacement heifers.
These estimates by national experts show that any family farmer with a herd sufficient to provide even a minimal income would fall under the reporting requirements. It is simply dishonest for some environmental leaders to say that this applies to “corporate farms” with massive lagoons. First, there are no corporate dairy farms in Washington state. 95% of all farms in Washington are family owned and operated and as far as we know, there are no dairy farms that are owned by publicly traded or large corporations not owned by the family. And every farm has to have a lagoon. Some seem to think the lagoons are a problem that need to be fixed, but proper lagoons are an essential part of the effective management of cow manure, required by law, and necessary to prevent proper (safe) application of the organic fertilizer needed to grow crops.
What does the US Coast Guard, that runs the National Spill Response Center, think of hundreds of thousands of farmers inundating their hazardous material reporting structure with nonsense reports? Not much, according to this newspaper account.
Does this really contribute to public health and safety by having your local emergency management office, usually understaffed and overworked, to now to have to deal with completely meaningless reports on how much the local dairy cows are burping and farting?
It is very clear to anyone looking at the CERCLA (Superfund) law that the authors never intended cow or other manure to fall under the reporting requirement. That’s why Democratic and Republican leaders alike are trying to put an end to this non-issue generated by Waterkeeper and a judge who needs to get out of his chamber and into the countryside a little more often. It looks like it may happen, according that news report, which said:
There’s not a lot of bipartisan consensus in Washington, D.C., but folks on both sides of the aisle can agree CERCLA shouldn’t apply to animal agriculture, Kevin Kester, National Cattlemen’s Beef Association president, said.
“CERCLA was never intended to regulate cow manure, and Congress should fix this situation as soon as possible,” he said.
The National Milk Producers Federation agrees.
“Through this legislation, Congress is stipulating that this burdensome regulatory overreach serves no legitimate health or safety purpose,” Jim Mulhern, NMPF
So why is Puget Soundkeeper pushing this new demand on farmers that will hinder our nation’s and communities ability to respond to real emergency situations? Probably to show their support for those folks in New York City dreaming up ever new ways to make it difficult to farm in the US. It’s time for those who care about local food (see the New York Times article on imported food) and who care about keeping farmers going in our state to tell these anti-farm activists posing as environmentalists to support our farmers rather than continually trying to make things harder for them.
Puget Soundkeeper’s support for cow burp reporting requirements smells funny
Puget Soundkeeper is continuing its assault on our family farms. It’s not enough they are pressuring the Department of Ecology to impose new dairy regulations that would result in the loss of most of our family dairy farms in the state. It’s not enough they use lawsuits that are barely legal, if that, to sue farm support businesses like Ferndale Grain, and then skirt the law by having funds from these lawsuits fund their fellow organizations. No, that’s not enough. Now they are part of the effort to force all farmers to report how much their cows and other animals burp and fart. Report to whom? To the National Spill Response Center, run by the Coast Guard, and to local emergency management officials.
Does this make sense? No, not one tiny bit. The law they are using as a basis for the legal action is called CERCLA, also called the Superfund law. It was intended to provide protection from hazardous materials, like chemical releases and oil spills. That’s why there is a National Response Center and why it is run by the Coast Guard. Does the Coast Guard want to know how much our cows are releasing? No, not at all, in fact as this article makes clear the Coast Guard is not at all happy about this ridiculous situation.
What’s behind this sheer nonsense? This is part of an assault on farmers like we have never seen before. It is anti-environment because in the Puget Sound in particular, we have lost over 60% of our farmland already and every reputable environmental expert understands that keeping our farmers and farmland is a crucial part of protecting and enhancing our environment. Why is Puget Soundkeeper doing this? This attack came from Waterkeeper Alliance in New York. So PSK is just dancing to their tune completely oblivious to the damage this kind of ridiculous demand is doing to environmental protection in our region. Wouldn’t it make sense for our own local environmental group let those folks in far away New York know that there can be some pretty harmful consequences from this?
One consequence is the very rapid rise in imported foods, which was documented by the New York Times on Sunday, March 18. (The report got a crucial piece of information wrong–they quoted a Seattle food plaintiffs attorney to state imported food does not cause more illness. Either Mr. Marler is wrong or the Center for Disease Control is wrong as they report an increase in food related illnesses that has kept pace with the rapid increase in imported food.)
The actions by Puget Soundkeeper against our farmers, if successful, will not only hasten the conversion of farmland to concrete and shopping centers, but will hasten the transition from locally grown foods to food from Mexico, Chile, Peru, Serbia and China. It’s a fact.
Imported food is rapidly rising, particularly fruits and vegetables, causing Washington’s family farmers deep concern. But more and more regulations, like the completely ridiculous one now supported by Puget Soundkeeper, is a major reason. Imported food causes more food related illnesses according to the CDC and the FDA reports that imported food is five times more likely to have pesticide residue above violation levels than domestic food.
This video shows why Puget Soundkeeper and Friends Get Environmental Protection All Wrong
Five years ago EarthFix, an environmental news channel, produced this documentary on urban stormwater and its impact on the Puget Sound water, including salmon.
We note that Chris Wilke from Puget Soundkeeper commented on the excellence of this story.
We agree with Chris.
So we ask him and his fellow environmental group leaders from RE Sources and Western Environmental Law Center: why are you trying to make this worse?
These groups continue to pursue legal action against the Department of Ecology demanding new regulations that would cost the state most of our dairy farms. If you have any doubt about it, we have prepared detailed information about their demands, the lack of scientific basis for the solutions they propose and the extremely high cost the regulations they seek.
Puget Sound has lost over 60% of its farmland, with almost all of that going to urbanization. As the video shows, more highways, streets, parking lots, roofs and others means more urban stormwater runoff. We have maybe 250,000 or so acres of farmland left in Puget Sound. About 100,000 in Whatcom County, 80,000 in Skagit County and the rest scattered on urban fringes in Snohomish, King and other counties. The video graphically shows what happens to salmon smolts when put in water coming off our impervious surfaces. (Spoiler alert: they quickly die) Then it shows what happens to smolts when put in water filtered by “rain gardens.” (Spoiler alert: they live)
Of course, there is much more value to keeping our farmers and farmland than the filtering effect on rain water. Consider the wildlife and particularly the wintering birds. Farmers host these birds charging no rent or damage fees for the considerable damage they cause to fields. This Daily Kos article makes it clear that if farms go, so do the swans, snowgeese and many other birds. The article made the importance of keeping our farms clear: Farms are not natural habitat but they provide many benefits over urban and residential development, which is what would happen here without ongoing efforts to preserve the farmland. Farms are getting paved over relentlessly in western Washington. 60% of the farmland in Puget Sound region has disappeared under development since 1950.
Please help us send a message to Mr. Wilke (Puget Soundkeeper Alliance), Ms Hoyer (RE Sources) and Ms. Rodgers (Western Environmental Law Center) that to continue their efforts to drive farms out of business will only hurt the environment. Those who say they are fighting urban stormwater pollution, then take action that will convert much more farmland to urbanization are either not thinking things through clearly or are being dishonest.
Puget Soundkeeper Alliance and RE Sources Use Legal “Shakedown” To Raise Money to Attack Farmers
Puget Soundkeeper Alliance is at the center of a legal but highly questionable fundraising method some call “legal extortion” and others a “shakedown.” Farmers believe that these funds are raised in the wrong way and too often used to harm our farmers, communities and even the environment.
Family farmers in Whatcom County were incensed that local environmental group RE Sources filed a lawsuit against a major supplier of dairy feed. This followed attacks by the activist group against dairy farmers including publicly promoting false accusations and participating in legal action that, if successful, would result in the loss of most dairy farmers in the state. The lawsuit against Ferndale Grain causes further harm to the farm community by potentially causing the corporate owner to withdraw from this market. The farm support businesses are an essential part of the success of family farms and an attack on any one weakens the farm community.
Abusing the courts to raise funds and then attack farmers
But a larger story has emerged in which RE Sources, led by the Puget Soundkeeper Alliance, is participating in a controversial fundraising technique involving the use or, some would say, abuse of the courts. The action against Ferndale Grain is one example. Even though these lawsuits go on with the protection of the notedly extreme Ninth Circuit Court, legal authorities in major universities note these lawsuits violate the intent of Congress and the direction from the Supreme Court while generating millions of dollars for Northwest activist groups. Farmers across Washington state are very concerned because significant dollars from these sources are being used to fund efforts to create public anger against farmers and secure political support for anti-farm actions. Some of these funds have been directly linked to the “What’s Upstream” political attack on farmers that angered over one third of Congress and is still being remedied by legislative activity in Washington DC.
There are some who will think it is good to get money from big companies and use that money for environmental purposes. We note that some good environmental projects have come from it. But we believe most who discover this will see that even if some good comes from it, the ends do not justify the means. Plus, when the money is used to fund political lobbying and to promote false accusations against our family farmers, most would agree this is a practice that must stop.
How the citizen law suits work
Federal pollution law allows for citizen enforcement
The federal Clean Water Act came into being with that name in 1972 as a means of protecting against water pollution. Although it is federal law, the enforcement of it is done largely by state agencies, such as the Washington State Department of Ecology. It also provides for citizen enforcement, but following abuse of this provision in the 1980s Congress clarified that such citizen enforcement would only be allowed if federal and state agencies failed to stop significant pollution. Despite this and despite clear direction from the US Supreme Court, the lawsuits continue but only under the protection of the extreme Ninth Circuit Court in San Francisco (details provided below).
State permits guarantee that perfect compliance is impossible
Permits issued and enforced by the state Department of Ecology are so complicated and convoluted that legal experts on both sides of citizen suits agree that 100% compliance is essentially impossible. Agency enforcement action does not focus on minor permit violations such as recordkeeping discrepancies. But these minor violations provide the basis for most of these citizen suits.
In the case of Ferndale Grain, the so-called violation according to press reports involved water that was more turbid or cloudy than state law allowed. Not only is this not a major pollution issue, but according to the news report, the violations date back two and four years! Zinc is not a toxin as activists may claim, but is needed in our food and animal feed as a micronutrient. Copper, the other “toxin,” referenced, is the most important pesticide used by organic farmers and is also a micro-nutrient. By making claims of this being significant pollution of toxic materials, these lawsuits put a cloud over organic farming practices.
Companies with deep pockets are targeted
A law firm in Seattle specializes in this type of citizen enforcement action. A detailed review of the compliance record of a target firm will almost always bring up some kind of minor violation. The deep pockets are essential as was made clear in the lawsuit against Ferndale Grain when the court documents stated that the company’s owner, Cargill, could afford to pay the substantial penalties. Clearly ability to pay is a primary motivator in these “environmental” actions. This could be seen as a “Robin Hood” strategy except the gains do not go to the public, but in many cases go to the environmental groups suing.
Extremely heavy penalties threatened
Any violation of the Clean Water Act can involve potentially heavy penalties. The Ferndale Grain action claims the violations accrue penalties of $52,414 per day. Note, this is for cloudy water dating back two to four years with essential nutrients. But, add these up and Puget Soundkeepers and RE Sources with their attorneys are threatening the company with up to $20 million a year in penalties. The news article said the lawsuit covered multiple years so the threat against even a large company with deep pockets is very significant.
Settlement dollars help fund those suing
Defendants almost always choose to settle. Indeed, that is the intention of the citizen lawsuit. Those filing the suit do not want to go to court as it would involve substantial time and work on their part, so they threaten huge penalties but settle for comparatively little. The settlement includes payment of substantial legal fees as well as the “expert” hired by the Seattle law firm, who just so happens to have his office with the lawyers. It’s his lucrative “profession” to show up at the target site, give his “expert” opinion, and then get paid a hefty sum. The law firm gets paid from the settlement, but what about the “citizens” filing the suit? They cannot receive funds directly in a Clean Water Act case, so a way has been devised so they can get funding through an indirect method. This circular system is why we believe the impetus for these is not environmental protection but fundraising for activist groups.
The settlement usually involves payment into a Supplemental Environmental Project or a “mitigation fund.” This avoids the payment of penalties to the federal government which would just go into the treasury. Such payments don’t help these activist groups. Instead, the settlement specifies payment to an organization like the Rose Foundation in California (https://rosefdn.org/). This foundation raises funds through donations and legal restitution payments and then provides grants. The biggest source of their funds is restitution payments from the kind of citizen lawsuits we are discussing. Their website states they have received over $25 million in restitution funds which then have been distributed to a number of organizations in the form of grants.
The Puget Soundkeeper Alliance is at the heart of these questionable legal actions
On their website, Puget Soundkeeper Alliance states that they have undertaken 170 of these citizen lawsuits since 1992 and the result of these is $5.16 million in mitigation and penalty money. Puget Soundkeeper says the money goes to environmental restoration and water quality improvements and declares that the non-profit does not receive any funds itself. That in itself is uncertain, but it is clear that their environmental partners definitely do receive funds. The lawyers and “expert” witnesses used also definitely receive payment of their fees as the Rose Foundation website explains:
Settlement funds are then donated to local environmental groups to help them repair damage done to the Sound. Soundkeeper receives no money from these settlements; however, the lawyers on the cases receive repayment of attorneys’ fees and expenses, which are paid separately from the mitigation fund.
Puget Soundkeeper Alliance reports on its site the $5.16 million does not include the reimbursement of legal fees needed to pursue the litigation. Whatever amount Puget Soundkeepers received in legal fees is not disclosed, nor is the retention of any of those funds paid to attorneys or beyond what was paid to attorneys.
How these funds are used to support anti-farm activism
The Rose Foundation and Puget Soundkeeper Alliance state these funds are for environmental restoration and water quality. Most of the money does indeed go to what appears to be valuable projects. The concern of Save Family Farmers is the attack against farmers by a few of the groups receiving funds from these citizen lawsuits. The claims by those involved that these are used for environmental purposes is not supported by an in-depth look at the details. The Puget Sound Mitigation Stewardship and Mitigation Fund has been used for:
- a false and malicious attack on farmers that most view as illegal lobbying
- data and “constituent management” systems clearly aimed at fundraising
- “messaging” and content development aimed at furthering the public communication purposes of these organizations
Mitigation funds were used by Western Environmental Law Center to support illegal lobbying and generate public outrage against farmers through false accusations.
To show the connection between grant funds received by Western Environmental Law Center and the What’s Upstream campaign, compare the grant request with the false accusations widely published and promoted in this illegal lobbying campaign. This is the $25,000 grant request submitted by Western Environmental Law Center which was approved:
In the Puget Sound; water pollution caused by industrial agriculture is degrading salmon habitat; water quality; and the Northwest’s economy and culture. For the last 30 years; the State of Washington has spent billions of dollars on voluntary incentive programs designed to reduce agricultural pollution and to facilitate the recovery of salmon in the Puget Sound basin. These voluntary incentive programs; while a potentially useful tool; have largely failed to improve water quality and restore salmon and shellfish habitat; and a new; comprehensive approach is needed. Funding supports policy development and related advocacy to help state government develop and implement an Agricultural Pollution Prevention Strategy to restore salmon and shellfish in Puget Sound.
The $60,000 grant request approved in 2014 provided the basis for many of the false accusations of this ill-fated campaign and makes it obvious the intent was lobbying:
However; there are no legally-enforceable rules that protect salmon from non-point source pollution resulting from agricultural activity…The results will be compiled and broadly disseminated in a report to help regulators; governmental policy makers and the public understand the values and drawbacks of the current voluntary approach to this major pollution source; and encourage the use of a more stringent regulatory approach where needed to protect Puget Sound’s water quality and salmon fisheries.
We note that Western Environmental Law Center disclosed that the funds used to develop their attack piece on agriculture, called Agriculture Pollution in Puget Sound, which served as the basis for most content in the “What’s Upstream” campaign, was funded by the mitigation fund set up by Puget Soundkeepers and delivered through the Rose Foundation. The false statements made in this document and the campaign were rejected by the EPA based on the intentional use of old and outdated science studies. This critique was revealed through Freedom of Information Act documents on the “What’s Upstream” campaign secured by Save Family Farming.
RE Sources received $144,000 in “mitigation” funds but used them for purposes far beyond environmental improvements
Given that farmers have been the target of significant community outreach that included widely publicizing false accusations about farmers, we are very concerned when we see these funds being used for anti-farm propaganda purposes such as was included in a $60,000 grant:
The project will also facilitate outreach and resident education via a series of fact sheets; written materials; published articles; the training of a cadre of interns and volunteers who will conduct conversations within the community; as well as the formation of two stakeholder groups that will vet solutions to the problems of urban stormwater and fecal coliform.
Perhaps more troubling is using funds that these groups all claim are specific to environmental restoration and water quality, to build the organization’s capability to raise more funds. A $50,000 grant was used in part for:
In order to provide adequate back-office support for the Citizen Stewardship groups; a portion of the funds also helps defray fund needed communications and data-management upgrades including a web-based; constituent relationship management database system.
These lawsuits violate the clear intent of Congress and the US Supreme Court
These citizen lawsuits are controversial because law experts make it clear they way they are exercised is against the clear intent of Congress and the US Supreme Court. In fact, all federal courts have significantly limited these cases, except for the Ninth Circuit Court, well-known as outlier in legal decisions. Every other federal court has upheld the intent of Congress and the US Supreme Court in rejecting citizen lawsuits that don’t meet the standards established by Congress and the high court. Puget Soundkeepers Alliance, RE Sources and those groups participating are operating under a legal shield that legal experts seriously question.
In the February 2015 Journal of Legislation, Patrick S Cawley wrote an article titled “Diminished Need for Citizen Suits to Enforce the Clean Water Act:”
Congress’ intent that government agencies should enforce the Clean Water Act. The Supreme Court has recognized this congressional goal, and further restrained citizen suits. In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation,” the Supreme Court held that a “citizen suit” under § 1365 must allege “a state of either continuous or intermittent violation – that is, a reasonable likelihood that a past polluter will continue to pollute in the future.”‘ 2 Thus, if an agency has issued a compliance order under § 1319(a), but the violator continues to pollute the water, a citizen who lives or works downstream from the offender may augment the enforcement of the Clean Water Act by seeking injunctive relief and monetary penalties. The citizen suit will be inappropriate, however, when an effective compliance order spurs a polluter to eliminate or treat the effluents he discharges. Courts after Gwaltney consider this offense wholly rectified, and demand that citizen suits address only ongoing water pollution that has not been stemmed by governmental action.
The intent of Congress is that enforcement would be by government agencies and the US Supreme Court upheld that in the case just mentioned. But Puget Soundkeeper Alliance and the others participating in these operate under the aberrant protection of the Ninth Circuit Court. Cawley makes clear the legal error of this extreme court:
That State agency programs to reduce pollution take priority over citizen suits is a recurring theme of the CWA. The Supreme Court explained that [t]he bar on citizen suits when governmental enforcement action is under way suggests that the citizen suit is meant to supplement rather than to supplant governmental action. The legislative history of the Act reinforces this view of the role of the citizen suit. The Senate Report noted that “the Committee intends the great volume of enforcement actions [to] be brought by the State,” and that citizen suits are proper only “if the Federal, State, and local agencies fail to exercise their enforcement responsibility.” This explanation highlights the mistake made by the Ninth Circuit in allowing citizen suits to disrupt calculated enforcement strategies of the State agency. According to the Supreme Court’s explanation, citizens harmed by water pollution must trust the Federal and State agencies to combat the problem, but when governmental attempts to thwart pollution prove to be truly dilatory, the citizens may begin an action. [emphasis added] [source:http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1190&context=jleg]
Another scholarly analysis in the William & Mary Environmental Law and Policy Review is titled “Has the Citizen Suit Provision of the Clean Water Act Exceeded its Supplemental Birth?” Written by Jonathan S. Campbell, it makes clear there are serious negative consequences to this action by the Ninth Circuit Court including the pursuit of “vengeance and personal self-interest:”
Such deviation from congressional intent and the plain language of the Act results in an overabundance of citizen-suits flooding the already polluted dockets.
Without future direction from the Court, the role of the citizen-suit will inevitably expand past its supplemental birth and muddy the waters of the Act with vengeance and personal self-interest.
[source linked here]
However, what company threatened by these wants to spend the money necessary to take the very wrong decision by the Ninth Circuit Court all the way to the US Supreme Court? Most simply want to negotiate for pennies on the dollar and allow the shakedown to continue with minimal publicity and cost. Does the Ferndale Grain lawsuit for example qualify based on the intent of Congress and the Supreme Court? Not even close. What it does qualify for is the accusation that such cases are about vengeance and self-interest – in this case, the self-interest of these “citizens” to fill their non-profit coffers.
Is Puget Soundkeeper anti-farm?
Because the Puget Soundkeeper Alliance appears to lead in this area of environmental legal action and development of funds used to attack farmers, does not mean that this respected environmental group is anti-farm. No doubt, leaders would claim the opposite. However, such words matter little to farmers who instead watch the action of this group in taking multiple steps to harm farmers through false accusations and legal action.
Save Family Farmers considers Puget Soundkeepers to be one of the biggest threats to the future of our family farms for these reasons:
1. They were a willing and eager sponsor of “What’s Upstream,” the vicious anti-farm campaign condemned by Congressional leaders and one third of the members of Congress
This campaign contained numerous false accusations about farmers and even used images from dairy cows from Pennsylvania and the UK to illustrate the lack of regulation. Nowhere did they clarify that despite the false impression left by these images, dairy cows and manure runoff are forbidden to be anywhere near streams in Washington State. This was an overt and illegal lobbying campaign using taxpayer dollars to attempt to pass legislation in the Washington legislature. The latest documents released to Save Family Farming show that even EPA officials recognized that it was lobbying and the EPA’s Inspector General report made clear the intent was to lobby the Washington legislature. EPA officials also noted the numerous false accusations against farmers which the sponsors insisted on keeping.
2. Puget Soundkeepers’ website itself contains false accusations, represents an assault on the entire farming community and demonstrates their antagonism to our farms. The website says:
The truth is that 95% of our farms in Washington state are family owned and operated. Some are large, some small and a lot in the middle. Large ones and small ones all must meet farm regulations which in Washington state are some of the most stringent in the nation. As we are seeing in Whatcom County, water quality including groundwater contamination caused by 40 years of previous farming practices, is improving. It is completely false (and even maliciously false) to say that our dairy farms cannot manage the organic fertilizer produced by cows or that manure runs off into streams and groundwater. State regulations demand it and significant penalties ensure it. This accusation is offensive to the vast majority of our family farmers who are great stewards of air, land and water while producing great food. The contamination Puget Soundkeepers accuses farmers of primarily comes from urban areas and septic systems which is well documented by all respectable agencies and groups. With this kind of intentional misinformation prominently placed on their website, how can farmers conclude anything else than this group is working to put an end to our family farms?
3. The Puget Soundkeeper Alliance is attempting to force Ecology into regulations that would put an end to most state dairy farms.
Teaming up with Eugene, Oregon-based attorneys who declared in court that our dairy farmers are “killing America,” the Puget Soundkeepers Alliance is a leader in a legal appeal of Ecology’s new Concentrated Animal Feeding Operation permit. They are demanding that Ecology remove the protection against the kind of citizen lawsuits they are pursuing here despite the fact that other state discharge permits provide exactly that protection. This shows they want to keep the legal fees coming despite the fact that these lawsuits and the mere threat of them have already destroyed some of our farms. Worse, they are demanding that Ecology require all dairy farms to install lagoon liners that are so costly only the very largest farms could afford them. It would be one thing if these liners solved a significant environmental problem, but numerous studies show current lagoons built to USDA standards are protective of water as both Ecology and the state Agriculture Department have determined.
4. By working to destroy our farms, Puget Soundkeeper shows they are more interested in fundraising and legal fees than doing what is right for the environment.
The actions of Puget Soundkeepers is contrary to the Puget Sound Partnership’s Action Agenda which places a high priority on saving our farms and farmland. Sixty percent of farmland in Puget Sound has been lost to urbanization and no one (except perhaps this anti-farm consortium) recognizes that most water quality and environmental problems come from this urbanization. It is entirely reasonable to suggest, as we are here, that what Puget Soundkeepers is doing is harming the environment rather than helping it. Such is the corrupting power of fundraising.
Because of these positions, Save Family Farming will continue to aggressively defend farmers against the distortions, misinformation and dubious fundraising tactics employed by Puget Soundkeepers, RE Sources and Western Environmental Law Center. We believe that even the strongest environmental supporters can readily understand that lies do not make for good activism. When it comes to their position on our family farms, we do not consider Puget Soundkeepers to be looking out for the environment and we think most in the environmental community will agree. Forcing our family farms out directly contradicts the Action Agenda of the Puget Sound Partnership, accelerates the loss of precious remaining farmland, and adds to pollution by creating more impervious surfaces that cause the runoff and water contamination problems blamed on farmers.
What needs to be done to stop this?
Save Family Farming plans to take several steps to address what we consider a violation of the clear intent of Congress and the US Supreme Court. We will work to stop this kind of legal action and its use as a weapon against our family farms. Specific actions planned include:
1. Request a legislative review of the Department of Ecology and its permitting and enforcement practices which we believe are tacitly or directly enabling these environmental groups to engage in this shakedown.
2. Seek legislative action if needed to improve the permitting issues identified.
3. Pursue national awareness of the abuse of the law permitted by a roundly criticized Ninth Circuit Court decision.
4. Review every legal action under the citizen’s enforcement provisions in Washington state and use all available means to alert the public to what is happening and how these funds are used.
5. Investigate federal legislative changes to the Clean Water Act to eliminate environmental mitigation payment abuse and require payment of penalties to the treasury rather than allowing these groups to use these funds for their own organizational outreach, fundraising and development purposes.
6. Seek support for legislative changes to the Clean Water Act to eliminate reimbursement of legal fees to law firms and environmental groups taking legal action.
Water quality is improving in areas of dairy farms such as Whatcom County. Despite this RE Sources and Puget Soundkeeper promote false accusations against farmers and push on regulations that would destroy most dairy farms.
The CWA [Clean Water Act] citizen-suit model is relatively straightforward; find a defendant, review the defendant’s publicly available discharge monitoring reports, file a 60-day notice and bring a lawsuit alleging permit violations based on exceedance of EPA thresholds which were not ever intended to be a “standard” applicable to the defendant’s permit. These lawsuits are very time-consuming and costly to defend and most defendants elect to settle rather than litigate. Dollars paid through those settlements are then used to fund additional litigation, and the cycle continues.
It is little wonder that this attorney and others who observe this abuse of the court system for fundraising purposes call it a “shakedown.”
Puget Soundkeeper touts its 170 “victories” on its website, while neglecting to mention that these so-called victories violate the intent of Congress and the US Supreme Court. This group and the others who benefit from them operate under a blanket of legal protection provided only by the Ninth Circuit Court, well known as the most extreme in the nation. All other federal courts have respected Congress and the US Supreme Court.
Since federal law prevents those bringing these citizen suits from profiting from them, the environment groups suing have found a way around this inconvenient provision. The negotiated settlement provides for payment to an environmental mitigation fund managed by the Rose Foundation in California instead of penalties paid to the federal treasury. The Rose Foundation turns around the gives these funds back to the environmental groups through grants. While they say the grants are for environmental restoration, many of the grants have been used to develop the false and malicious attacks against farmers including in the “What’s Upstream” campaign. RE Sources has used the $144,000 received from the Rose Foundation from this “restitution” money to pay for fundraising activities including “constituent management database” systems.
Did you know farmers are responsible for spawned out salmon? This is just one of a long series of false impressions, distortions, misleading statements and outright falsehoods in the What’s Upstream campaign.
Grants from the Rose Foundation from these dubious lawsuits were used by the Western Environmental Law Center to build their document of distortions against farmers that were used as the primary content of the What’s Upstream campaign. This group received $85,000 from the Rose Foundation for lobbying purposes as seen even in their grant application. The Rose Foundation may protest their restitution funds are used for environmental purposes, but instead they are being used to develop a false campaign to build anger against farmers and lobby for unneeded and costly regulations.
RE Sources request for funding including use for data management and management database systems. It also was for developing materials, which likely included the false accusations that this group widely promoted about dairy farmers.
Puget Soundkeeper references the citizen lawsuit provision of the Clean Water Act on its website. Why does it not include the information that because of the rampant abuse of these lawsuits, Congress clarified their intention that government agencies, not citizens, were to enforce the pollution law. The US Supreme Court further supported that. But the intent of Congress and the Supreme Court means nothing to these groups as long as they can operate under the protection of the most extreme federal court in the nation – the Ninth Circuit Court.
Here’s what one legal expert said: Congress’ intent that government agencies should enforce the Clean Water Act. The Supreme Court has recognized this congressional goal, and further restrained citizen suits.
Another legal expert wrote:
Such deviation from congressional intent and the plain language of the Act results in an overabundance of citizen-suits flooding the already polluted dockets.
Without future direction from the Court, the role of the citizen-suit will inevitably expand past its supplemental birth and muddy the waters of the Act with vengeance and personal self-interest.
A screen capture from Puget Soundkeeper’s website. Farmers are incensed with these lies about our family farms and that the manure – organic fertilizer – our cows produce is”far beyond the capacity” of our farmers to manage. This demonstrates complete ignorance of the laws and practice of farmers, or worse, a willingness to make viciously false statements knowing they are far from the truth.
Why are environmental groups like Puget Soundkeepers and RE Sources attacking farmers rather than partnering with them? We understand their lawyer friends want to keep their huge legal fees coming. But that is no reason to turn their backs on farmers, who are working to protect the environment every day. When farmers go, the farmland gets converted, often to urban uses which is the real source of environmental degradation. Most environmentally concerned citizens understand them. It’s up to them, to you, to let the leaders of these groups know that they need to stop their assault on family farmers and accept farmers as willing partners in environmental improvement.