A federal judge in Minnesota ruled the U.S. Environmental Protection Agency (EPA) may release information regarding livestock farms subject to concentrated animal feeding operation (CAFO) regulations.

The lawsuit (0:13-cv-01751-ADM-TNL, American Farm Bureau Federation and National Pork Producers Council v. U.S. Environmental Protection Agency, et. al) was initially filed July 5, 2013 in the U.S. District Court for the District of Minnesota. The American Farm Bureau Federation (AFBF) and National Pork Producers Council (NPPC) had sought a court injunction to prevent EPA from publicly releasing data under Freedom of Information Act (FOIA) requests until a court could clarify EPA’s obligation to keep personal information about citizens private. Oral arguments were heard Dec. 17.

In her 10-page opinion issued Jan. 27, Judge Ann Montgomery, of the U.S. District Court for the District of Minnesota, concluded the farm groups lacked standing because the information released by EPA in response to FOIA requests was already publicly available, and the CAFOs have yet to see any injury due to the release of the information.

AFBF and NPPC have 60 days to file an appeal.

AFBF disappointed

“Farmers, ranchers and citizens in general should be concerned about the court’s disregard for individual privacy,” said Bob Stallman AFBF president. “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.”

The AFBF statement goes on to say:

“The court concluded that no federally permitted livestock or poultry farmer is injured by such disclosure because the Clean Water Act mandates disclosure of information concerning permit issuance. For livestock and poultry farmers without a Clean Water Act permit, the court concluded that so long as the farmer’s personal information can be found somewhere on the Internet, EPA’s distribution of that same information does not result in any injury to the farmer. The court noted that a farmer with a public Facebook page used to promote the farm, or whose information could be found via search engine or any state regulatory website in any form, has no right to sue to stop the federal government from compiling and distributing that information.”

Some history

Long term, the case stems from EPA oversight of CAFOs through National Pollutant Discharge Elimination System (NPDES) regulations, dating back to about 2000. On 2008, the General Accountability Office issued a report concluding EPA did not possess reliable information it needed to identify and inspect CAFOs.

In October 2011, EPA published a proposed CAFO reporting rule, which would have required all CAFOs nationwide to submit basic information to EPA; or required EPA to collect basic information from CAFOs in specific watersheds. The proposed rule would have allowed EPA to collect information, like locations and animal population sizes, and make it publicly available and readily searchable through an EPA website.

Farmers, agricultural organizations, USDA and even the Department of Homeland Security expressed concerns that the proposed rule was not only a serious overreach of EPA’s authority, but would create a road map for activists to harass individual families, aid and abet terrorism, and provide a threat to the nation’s food security.

EPA withdrew the proposed rule in July 2012, saying it was more appropriate to obtain CAFO information from existing sources, including USDA and state agencies already collecting the information.

In fall of 2012, environmental advocacy organizations submitted FOIA requests, seeking the release of information EPA already had on reporting CAFOs. In January 2013, EPA released data containing personal information about thousands of livestock and poultry farmers and ranchers in about 30 states. The massive data release contained tens of thousands of lines in spreadsheets often including home phone numbers, home emails, employee contact information, home addresses and in some cases personal notes about the families.

In addition, the National Cattlemen’s Beef Association (NCBA) said it was notified by EPA that CAFO information released through a FOIA request included many family farmers and ranchers who feed less than 1,000 head and were not subject to regulation under the Clean Water Act.

After the initial release, EPA attempted to recall some of the records, replacing it with a new set of data after redacting some of the personal information.

However, one of the environmental advocacy groups, Food & Water Watch, said it would retain all original records.

In its July 2013 lawsuit, AFBF and NPPC sought the court order to stop further FOIA releases in Minnesota, California, Idaho, Nevada, Oklahoma and Washington, until a court could clarify EPA’s obligation to keep personal information about citizens private.

In early September of 2013, several environmental advocacy groups, including the Environmental Integrity Project, Food & Water Watch and Iowa Citizens for Community Improvement, filed a motion to intervene in the Minnesota lawsuit. Members of the coalition asked the court to allow them to intervene to “protect the rights of citizens to safeguard their waterways and communities from the many detrimental impacts of the factory farm industry represented by FB and NPPC.” The groups were represented by attorneys from the Government Accountability Project.

Legislative attempts

Outside the courts, members of Congress also sought to block EPA release of confidential CAFO information.

In July 2013, U.S. Reps. Rick Crawford (R-Ark.), Lee Terry (R-Neb.), Mike McIntyre (D-NC) and Jim Costa (D-Cal.) introduced the Farmer Identity Protection Act (H.R. 4157). That and a companion bill (S. 1343), introduced in the Senate by Sen. Chuck Grassley (R-Iowa) and Joe Donnelly (D-Ind.), would have allowed the agency to provide information to outside parties only in aggregate, without individual identifying information, or with the producer’s consent.

Both bills died in committee.

Another lawsuit

Another lawsuit related to EPA’s CAFO reporting rule is still pending. The Center for Food Safety, Environmental Integrity Project, Food & Water Watch, The Humane Society of the United States and Iowa Citizens for Community Improvement filed a lawsuit in August 2013 in the U.S District Court for the District of Columbia, challenging EPA’s withdrawal of the proposed reporting rule (http://environmentalintegrity.org/news_reports/08_28_2013.php). They alleged the reporting rule and information collected on CAFOs was critical to protect water quality and the public. That case (Environmental Integrity Project, et. al v. U.S. Environmental Protection Agency, Case 1:13-cv-01306) was reassigned to Judge Randolph D. Moss, on Nov. 19, 2014.