WATER POLLUTION

Court backs EPA, greens in CAFO privacy lawsuit

Updated at 1:55 p.m. EST.

A federal judge ruled for U.S. EPA yesterday in a lawsuit filed by agribusinesses angry about the agency providing information on large livestock farms to environmentalists.

U.S. District Judge Ann Montgomery for the District of Minnesota denied the American Farm Bureau Federation and the National Pork Producers Council's motion for summary judgment, saying they lacked standing because the information's release didn't cause "actual or imminent injury" to the livestock farm operators who had provided data to EPA under Clean Water Act permitting.

"It's not only a win for environmental groups and EPA, but for open government," said Scott Edwards, co-director of the nonprofit Food and Water Justice.

At issue was EPA's release in early 2013 of hundreds of pages of documents on concentrated animal feeding operations (CAFOs) to Earthjustice, the Natural Resources Defense Council and Pew Charitable Trusts, which had requested the data under the Freedom of Information Act. These documents disclosed farmers' names, addresses and geographical coordinates, as well as information on pollution discharges (Greenwire, Feb. 21, 2013).

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After the farm groups complained, EPA asked the environmental nonprofits to return the materials so the agency could resend versions that had personal data redacted. Then EPA accidentally provided too much information a second time in May 2013 (Greenwire, May 3, 2013).

FOIA safeguards personal or medical information that would "constitute a clearly unwarranted invasion of personal privacy."

Environmental groups filed the request to know more about nutrient runoff from the farms. Manure from CAFOs can release excessive nitrogen and phosphorus, which feed algae blooms in waterways that smother aquatic life and contaminate municipal water supplies.

"The real importance [of this case] is that the states and the federal government have not done a good job of regulating agriculture and CAFOs," Edwards said. Edwards' group, a part of Food and Water Watch, had intervened in the case on EPA's side with the Environmental Integrity Project and Iowa Citizens for Community Improvement.

In her opinion, Montgomery added that the agriculture groups' argument failed to prove farmers were likely to be further victimized as a result of the information's release. Swine producer Rick Grommersch told the court that activists with the group Compassionate Action for Animals entered his property to take photographs of his farm, in a declaration submitted by the trade associations.

But the incident on Grommersch's farm took place in 2006 -- years before EPA received the FOIA requests, Montgomery said. This underscores "the ease with which activist groups can identify the location of large farms," she wrote.

The Farm Bureau and Pork Producers Council also presented an affidavit to the judge from Minnesota dairy farmer Patrick Lunemann, who alleged that his privacy had been violated. Environmental groups soundly disputed this claim when they discovered that Lunemann's name, his wife's name and their farm's address were available on his dairy's website and Facebook page.

The agriculture and livestock groups submitted five other declarations in which CAFO operators claimed the information would make them "more likely to receive disturbing threats and potentially targeted criminal activity," as well as acts of terrorism like the introduction of diseases in the food supply.

The CAFO document release sparked bipartisan outcry from Capitol Hill in 2013 as lawmakers called for investigations into the incident and introduced bills to block the agency from releasing such data (E&ENews PM, June 6, 2013).

The story drove an even deeper wedge between EPA and the agriculture community, which has traditionally distrusted the agency.

Michael Formica, chief environmental counsel for the National Pork Producers Council, said he is almost certain his group will appeal the "ludicrous" decision.

Montgomery is "arguing that if someone's name appears in the phone book, it means you can get all sorts of other information on them and release it," Formica said.

Furthermore, he said, the judge didn't mention whether EPA was required to protect the farmers from threats by handing the data to groups that could use it to invade private property. The fact that addresses were publicly available online does not nullify the responsibility to protect parties, he added.

As far as the groups' standing to look out for their members, Formica points to the Supreme Court case Friends of the Earth Inc. v. Laidlaw Environmental Services Inc., in which a complaint from a single member of the environmental group was enough to justify Friends of the Earth's representation.

"We're disappointed. It's very disappointing," Formica said.

If an appeal is granted, the case will be considered in the 8th U.S. Circuit Court of Appeals.

Bob Stallman, president of the American Farm Bureau Federation, released a statement saying the decision should be concerning to farmers, ranchers and citizens in general.

"This court seems to believe that the Internet age has eliminated the individual's interest in controlling the distribution of his or her personal information. We strongly disagree," Stallman said.

The plaintiffs have 60 days to appeal the decision.

Twitter: @TiffanyStecker | Email: tstecker@eenews.net

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