Ag keeps eye on environmental lawsuits

News
Feb 3, 2012
by DTN

While 2011 may be the year agriculture interests went after the Environmental Protection Agency (EPA) on a number of fronts, 2012 could be remembered for precedent-setting environmental lawsuits that could alter the way farmers do business.

Two major lawsuits hang in the balance—one filed by environmental groups and another by ag interests. Farm groups also have concerns about potential lawsuits on the horizon.

A Center for Biological Diversity (CBD) lawsuit filed last January could lead to restrictions or the outright banning of many pesticides and other chemicals to protect endangered species. Ongoing settlement negotiations between CBD and agriculture groups could wrap up this spring, assuming a settlement can be reached.

“It’s a tremendously important case,” said Rod Snyder, public policy director for the National Corn Growers Association (NCGA) . “This highlights a consultation process that is fundamentally broken. My concern is that farmers will be caught up in an administrative process issue between agencies in the Beltway and farmers are collateral damage in this.”

NCGA is one of several ag and other groups intervening in the case.

The suit alleges EPA failed to consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service on the potential effects chemicals have on endangered species. CBD wants the agency to review hundreds of ag chemicals to determine their effects on hundreds of endangered species.

If the case goes to trial, Snyder said, there is concern the judge will rule in favor of CBD.

“The folks hurt by that are growers who use these tools to grow a crop,” he said. “Our concern is that a court will arbitrarily require buffer zones or otherwise. In the interim, we believe farmers are using these products appropriately. There is a real economic impact, especially when you consider how big this suit is.”

NCGA said in a Dec. 27, 2011, newsletter that EPA has lost similar cases, resulting in federal judges establishing buffer zones and product restrictions while farmers wait for interagency consultations. A buffer zone often is used to protect areas managed for biodiversity importance.

CBD Executive Director Kieran Suckling told a House committee in December that he would like to see many of the chemicals banned and more buffer zones required.

TMDL concerns

Last January, the American Farm Bureau Federation, NCGA and other agri culture groups sued EPA on the implementation of total maximum daily loads, or TMDLs. TMDLs are used to reduce nutrient loads into the Chesapeake Bay.

“We expect lawsuits will start popping up around the country in 2012.”

The groups allege the TMDL goes beyond the scope of Clean Water Act (CWA) authority, the science used by EPA is flawed, and the regulatory process lacks transparency. Part of the concern is the bay TMDL doesn’t credit farmers for current conservation measures taken.

“That process unlawfully circumvented the Clean Water Act procedures that give primary authority to the states to protect water quality,” the American Farm Bureau Federation (AFBF) lawsuit says.

AFBF Public Policy Director Paul Schlegel said there is concern the TMDL will be a model for watersheds across the country, as an alternative to states creating models unique to individual watersheds.

NPDES concerns

A new federal requirement for pesticide applicators to have National Pollution Discharge Elimination System, or NPDES permits, has agriculture groups on edge about the potential for more lawsuits directed at individual farms.

NPDES requires applicators who apply chemicals over waters of the U.S. to have permits. EPA officials have told DTN that it doesn’t apply to farmers who apply chemicals to crops.

“We legitimately question the need for this tremendous expansion of the NP- DES permit program in view of the additional burden and unwarranted legal jeopardy it now imposes on pesticide users,” said Chandler Goule, vice president of government relations for the National Farmers Union.

Tyler Wegmeyer, director of congressional relations for AFBF, said the new NPDES requirement will become more relevant in the spring when spring field work begins.

“We are already seeing effects in Hawaii as farmers are starting to not apply pesticides as a result of not having a permit to get and having a threat of being sued,” he said. “We expect lawsuits will start popping up around the country in 2012. Getting Congress to pass legislation to fix this problem will continue to be a top priority for AFBF.”

Other challenges

Turning to other challenges, Schlegel said agriculture groups continue to watch how EPA regulates greenhouse gases after the agency deemed carbon dioxide a pollutant.

The Clean Air Act requires permits for all new major emitting facilities that emit 100 or 250 tons of a regulated pollutant.

The thresholds could require permits for both large industrial sources like power plants and smaller sources such as farms. The agency’s tailoring rule was designed to limit the number of emitters required to have permits.

“That is a real potential threat on whether ag sources will be regulated,” Schlegel said.

A new EPA guidance document for the CWA has farm groups’ attention. The guidance is designed to help field inspectors identify waters of the U.S. for enforcement of the act.

Schlegel said the concern is that more farmers will face penalties for CWA violations as a result of an expansion of the number of U.S. waters subject to the act.

On the atrazine front, Wegmeyer said he expects ag groups will have to “fight to keep” the chemical available.

EPA is scheduled to convene another scientific advisory panel meeting to review potential cancer links to atrazine in 2012. EPA is slated to begin the actual review in 2013.

“Continuing pressure from the environmental community to get rid of it will persist,” he said. — Todd Neeley, DTN

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