EPA Can’t Deny Farmers Their Day in Court

With so much bad news circulating these days, how about some good news from an unlikely source? The Ninth U.S. Circuit Court of Appeals has been a bastion of judicial activism for decades. But maybe that’s changing.

Late last month, a three-judge panel for the Ninth Circuit ruled that the Environmental Protection Agency is not allowed to cover up evidence that they screwed up and then dodge a lawsuit by claiming the statute of limitations had expired.

The judges denied a motion by the agency to dismiss a lawsuit being brought by Washington state dairy farmers. What the farmers allege, with plenty of evidence courtesy of Freedom of Information Act requests, is a long list of actions by the EPA that are unethical, and possibly even criminal.

The Washington State Dairy Federation argues that the local branch of the EPA put together a shaky study of nitrate contamination in Yakima Valley groundwater. The farmers argue, again with plenty of documentary evidence, that EPA bureaucrats then rewrote that study over the objection of outside scientific experts to put the blame on farmers. They further state that the EPA strong-armed local farmers into signing consent decrees that cost them millions of dollars by misrepresenting the study.

The EPA filed the study as “influential” requiring a solid peer review. But no such peer review was completed. When the Region 10 staff writing the report were questioned by a senior EPA official, they claimed the study was not “influential” but “other,” requiring no real peer review. They then falsely claimed to farm leaders that the study was never classified as “influential science.”

Rather than simply apologizing and retracting the study when these facts came to light, the EPA had the effrontery to argue that since there is normally only a 45-day window to contest such studies in court, and since the hugely problematic report was issued way back in 2013, it ought to be able to get away with it.

Nice try, said the judges, but the law allows for litigation when new facts come to light. And, no, bureaucrats covering up the facts does not render them “old.”

From a legal perspective, there’s still a long way to go. By denying the EPA’s motion to dismiss the suit, the judges were only assuring that the case can move forward, not that the farmers will win it. “We’re getting our day in court, and that’s all we asked for,” Kent Krabill, attorney for the farmers, told Capital Press.

It was good to see the courts stand up for the farmers on this one, and it’s possible that there won’t even have to be a drawn-out court case.

The Trump Administration has moved on many fronts to overturn the excesses of the Obama Administration.When this administration has seen the opportunity to correct indefensible actions taken under the previous administration, it has often taken it. Rightly so.

It ought to act in this matter as well. Here is a prime opportunity for the White House to show farmers that it stands with them and with sensible, science-based environmental regulation, and against bureaucracy gone wild.

About Gerald Baron

Gerald Baron is Executive Director of Save Family Farming.

Photo: Illustration by Rafael Henrique/SOPA Images/LightRocket via Getty Images

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