THE BLOG

Snatching Defeat From the Jaws of Victory

02/09/2015 04:55 pm ET | Updated Apr 11, 2015

The Environmental Protection Agency (EPA) walked into court in Minnesota last week and asked a judge to issue an order to stop the federal agency from sharing information about some of the biggest polluters of our nation's waterways with the American public. That's right, the agency that is charged with protecting your environmental health is working hard to make sure you're not protected and that you don't have access to information. It would be shocking if it weren't so sadly commonplace.

The court case, which has been going on for a year and a half, was decided in EPA's favor at the end of January when the judge dismissed the plaintiffs -- the American Farm Bureau Federation (FB) and the National Pork Producers Council (NPPC) -- because the industry groups could not show that they or their members were harmed by EPA's 2013 release of factory farm data to concerned citizens. EPA had released the data to several environmental NGO's pursuant to Freedom of Information Act (FOIA) requests, before asking for it all back when industry threw a temper tantrum. Then EPA released some of it again, before asking for it all back. Again. On their third attempt, they finally released a subset of data that largely conformed to industry's demands.

Food & Water Watch (FWW), one of the recipients of the original data, declined EPA's request to return the public information it received. Unlike EPA, FWW cares about what this industry is doing to our waterways and communities. The rapid industrialization of our food systems, particularly with meat production, is having devastating impacts on the environment. EPA admits that agricultural operations, including these animal factories, "now account for a significant share of the remaining water pollution problems in the United States." Twenty-nine states have listed factory farms as contributors to water quality problems. Health professionals report that "states with high concentrations of [factory farms] experience on average 20 to 30 serious water quality problems per year as a result of manure management problems." The people of Toledo, Ohio lost their drinking water last summer, in part, because of nutrient pollution from industrialized ag operations in the region.

Despite this well-documented problem, and the Clean Water Act mandate that EPA protect citizens from the harm these facilities cause, the industry remains largely unregulated and free to pollute. If you want to know why, you don't need to look any further than the agency's underhanded actions in Minnesota.

The case began in the summer for 2013 when FB and NPPC sued EPA seeking a court order preventing the agency from ever again releasing "personal" factory farm data to citizens. FWW intervened in the case knowing that EPA would sell the American people down the nutrient-impaired river first chance it got. EPA did not disappoint.

At the outset, EPA immediately cut a deal with the plaintiffs to keep industry data secret pending the outcome of the litigation. That litigation, and EPA's agreement with industry, ended on January 27, 2015 when the judge threw the case out because, despite all the industry's hysterical claims of food security Armageddon and rampaging eco-terrorists that open government would bring, they could not point to a single example of harm resulting from EPA's release.

Having been handed their victory, EPA should have finally complied with the law and responded to the many outstanding FOIA requests for additional factory farm data that it had been illegally sitting on during the litigation. But instead, on February 4, in response to an industry motion asking the judge to stay her decision, EPA asked the court to issue an order to expressly prevent the agency from responding to any current FOIA requests from citizens. As EPA stated in its motion, it "would subject itself to the risk of litigation brought by FOIA requesters if it continues to defer pending FOIA requests under a voluntary agreement with plaintiffs."

To add hypocritical insult to public injury, in the very same motion, EPA also argued that the judge should deny industry's attempt to undue her decision because "the public has a significant interest under FOIA to access agency records" and "the Clean Water Act prioritizes and emphasizes citizen awareness and participation in the preservation of the nation's waters."

On February 7, the judge granted EPA its wish and took those very rights away from citizens. She ordered EPA not to release the industry data despite the fact that FB and NPPC lost the case. Now EPA can claim, with a wink and a smirk, that they would have provided the American people with the information it has every right to access, except that a judge won't let it.

Despite all the orchestrated outrage by the industry over EPAs "overreach" and conservative Congress's constant complaints of the agency's kowtowing to environmentalists, the reality is that industry and EPA are pretty much on the same polluting page. There was never any need for FB and NPPC to sue - EPA just handed them what they wanted.

Even when EPA wins, the public loses.