“One court using a falsified science study and a completely novel interpretation of a municipal waste law represents a clear and present danger for farmers across this nation.”
– Dan Wood

Dairy farmers will get their day in court thanks to a ruling by the Ninth Circuit Court issued August 21. The three judge panel rejected EPA’s motion to dismiss the case based on the statute of limitations. With this decision the court has opened the door to holding EPA officials accountable for farmers’ claims of falsifying science, failure to follow peer review policies and dishonesty in concealing these serious failings.

Farmers are suing the EPA over its failure to follow proper procedures in issuing a 2012-2013 report that blamed dairy farmers in the Yakima Valley for groundwater contamination. Backed by over a dozen science experts, farmers have long contended that the report was false and intentionally skewed to place blame on current farmers for long standing nitrate in area wells.

The lawsuit claims that the EPA failed to have the report peer reviewed according to federal policy and if the peer review had been completed properly the report could not have been used by the EPA to coerce dairy farms into farm-destroying enforcement action. Neither would the report have been used by an Oregon attorney and a federal judge who gave “deference” to the EPA to sue farmers and settle for large legal fees and agreements that threaten the existence of Washington’s remaining family dairy farms.

The Yakima Nitrate report was initially published in 2012 and reissued in 2013 with corrections, including noting the removal of a USDA peer reviewer, Dr. David Tarkalson. He requested his name be removed as an official reviewer after noting very substantial changes from the draft report he reviewed and the final published report.

“The internal emails released as a result of the dairy federation’s Freedom of Information Act requests show that enforcement staff, not scientists, drastically rewrote the final report, including adding conclusions about the blame of current dairy farms that were not in the draft report nor supported by the data in the report,” said Gerald Baron, Executive Director of Save Family Farming, a Washington state farm advocacy organization.

The internal emails released slowly over many months tell a story of failure to follow peer review policies and, when this failure was noted by the lead EPA scientist, reveal a desperate attempt to justify that failure. Later, when farmers confronted Region 10 staff with this failure, they made false statements about the peer review, adding to the dishonesty and cover-up.

Federal peer review policy requires federal science studies that are used for agency policy or that affect private sector decisions to be classified as “influential” and identifies the peer review appropriate for influential science. The released internal emails show that the nitrate study was initially classified as “influential” but later changed to “other,” a classification for much less significant science studies and which allows for flexibility in the agency’s peer review. EPA Region 10 staff have held that the study was never “influential” and that the peer review by one independent reviewer of the draft and no review of the much-altered final report was adequate and agency policy allowed for flexibility.

“We are gratified that we will have our day in court,” said Dan Wood, Executive Director of the Washington State Dairy Federation. The Federation, along with one of the dairy farms coerced into a punitive enforcement agreement based on the faulty report, are asking the Ninth Circuit Court to determine if proper procedures were followed. “The Court agreed that EPA’s actions here need to see the light of day and we are confident that the outcome will be finally the removal of a false and damaging study.”

Wood pointed out that this study affects not just Washington dairy farmers, but eventually all farmers, as the Oregon attorney suing farms has indicated he intends to have the decision in a Spokane federal court become a national standard. That decision, for the first time, applied a federal municipal waste law to farmers’ application of fertilizer.

“One court using a falsified science study and a completely novel interpretation of a municipal waste law represents a clear and present danger for farmers across this nation,” Wood stated.

The Ninth Circuit Court is expected to hear the farmers’ case against the EPA in October.