Nitrate study putting dairy farmers in litigation crosshairs

Dairy coalition asks EPA for science review of nitrate study, which it claims is flawed and damaging.

Dairy farmers are appealing to Environmental Protection Agency Administrator Andrew Wheeler to take long-delayed action on conducting a real peer review of the 2012-13 EPA "Yakima Nitrate Report." After months of effort with new EPA Region 10 administrator Christopher Hladick, farmers have turned to the national leader of EPA to put the agency’s commitment to transparency in science into action.

The American Dairy Coalition (ADC) sent a letter to Wheeler requesting that he submit a 2013 EPA nitrate report to attain the science review it never received, claiming that it was “flawed and damaging.” ADC is concerned for the farmers that have already been severely affected by this so-called scientific research study report and believes EPA must stop a dangerous precedence from being set that could affect other farmers throughout the U.S.

Wheeler was also urged to remove the study from further enforcement action and litigation pending the review.

This follows a similar request submitted by Rep. Dan Newhouse (R., Wash.) on June 26. The Washington State Dairy Federation, Idaho Dairymen’s Assn. and Oregon Dairy Farmers Assn. met with Region 10 EPA staff in February, joining with Save Family Farming in its call for EPA to allow the missing peer review and to retract the study pending that review.

“It is vital that the Administration demonstrate their commitment to maintaining the integrity and transparency of science. The current status of this report sets a very unfortunate precedence for the value of science-based actions and represents a profound opportunity to preserve fundamental principles and standards,” ADC chief executive officer Laurie Fischer said. “Support for this Administration has been strong from the farm community because of positive changes in the EPA. However, the lack of action in carrying out this scientific peer review may cause that support to wane.”

The letter submitted to Wheeler states, “This report, proven false by 15 national agricultural science experts, was developed without the peer review required on ‘influential science information,’ as the study was categorized. When approached about the error, staff attempted to conceal the failing by falsely claiming the report was not categorized as ‘influential’ but ‘other,’ allowing for full discretion in peer reviews.”

The EPA "Yakima Nitrate Report" began in 2010 and was published in 2012 and 2013. Despite some of nation’s top scientists and agronomists finding the study to be deeply flawed and other government agencies cautioning its use, EPA Region 10 staff still used the study, ADC noted.

This led to highly disciplinary enforcement and threats of federal litigation, which has devastated four large dairy farms. Specifically, these four dairies were pressured into signing a very punitive administrative order on consent, resulting in the loss of one dairy and requiring the remaining to spend upwards of $15 million to comply. Further, the report has been used by an Oregon environmental attorney to force extremely costly settlements with a number of Washington dairy farms, resulting in the loss of farms and creating extreme distress within the entire Washington dairy community.

Larry Stap, a small dairy farmer in northwest Washington and president of Save Family Farming, noted, “This false or falsified study has cost me and a few-hundred other dairy farmers like me endless sleepless nights. The constant fear of EPA using false accusations to take action against me like they did the others is one thing, but the lawyer using this study to sue farmers has already cost me tens of thousands of dollars I can’t afford.”

Stap pointed out that a number of farms in his area and around the state are being sold or are going out of business in part because of the concerns related to this study and the actions of the litigation industry.

Deepening the concern, the same Region 10 leadership supported the use of $550,000 of taxpayer money on public relations and lobbying campaigns against farmers. With this finding in 2016, more than one-third of the members of Congress were compelled to write the EPA director complaining of this action, which prompted an Office of Inspector General investigation that found that the campaign did involve state lobbying.