January 16 2014
The EPA’s Privacy Problem
Jillian Kay Melchior
The fire at San Joaquin Valley’s Harris Farms burst out suddenly and rapidly, consuming 14 trailer trucks in the dawn of January 8, 2012. Wreaking more than $2 million in damage, it constituted one of the biggest acts of agro-terrorism in American history.
An anonymous news release issued by the Animal Liberation Front, a radical animal-rights group, explained that unnamed activists had placed containers of kerosene and digital timers beneath the trucks, linking them with kerosene-soaked rope to carry the fire down the row, “a tactic adapted from Home Alone 2.” The statement concludes threateningly: “until next time.” The perpetrators remain uncaught.
Two years later, farmers and ranchers in 29 states worry they’ll be similarly attacked; last year, the Environmental Protection Agency released to environmental groups extensive personal information about 80,000 to 100,000 agricultural operations.
The data released included names of owners, addresses, global-positioning-system coordinates, phone numbers, e-mail addresses, and, in some instances, notes on medical conditions and inheritances. Though environmental groups had requested information about “concentrated animal feeding operations” — “CAFOs” in the bureaucratic lingo, and “feedlots” in the vernacular — some of the information released clumped in data about crop farms, too.
Farm groups say the EPA violated farmers’ and ranchers’ privacy, increasing their risk of agro-terrorism as well as harassment or litigation from animal-rights and environmental activists. The EPA has admitted to having improperly released farmers’ data on two occasions, and has twice attempted to claw back those records.
The American Farm Bureau Federation and the National Pork Producers Council are now suing the EPA to prevent it from releasing even more information. Though it hasn’t been much covered, the case has significant implications regarding privacy. It also raises questions about whether the EPA acted politically, cooperating with environmental groups to help them achieve long-term regulatory goals.
“This is really important to farmers and ranchers because this is not just a place of business — this is where they live, this is where their children play,” says Danielle Quist, senior counsel for public policy at the American Farm Bureau Federation. “We are not opposed to transparency in agriculture. In fact we are a huge supporter of transparency. But that’s not what we’re talking about with this lawsuit. All citizens in this country deserve the protection of their private home information. Our farmers and ranchers deserve that same protection.”
Agro-terrorism is a primary concern, say agricultural groups, but there are others: Because the information released is so comprehensive, some worry that it may be used by activist trespassers or scoured over by class-action litigators who could profit from suing feedlots for any shortcomings.
Ashley McDonald, environmental counsel for the National Cattlemen’s Beef Association, tells National Review Online that “we’ve actually heard from folks that, yes, there has been some suspicious activity that they think might be tied to [the EPA] release.” And Grace Boatright, legislative director for the National Grange, says it has been “pretty disconcerting for families to have their private information accessed by groups that have made it pretty clear they don’t agree with all their current business practices.”
Yet environmental groups say the data collected and released by the EPA is standard for other industries and that farmers and ranchers shouldn’t be treated exceptionally.
“Sometimes the owner or the operator of the facility lives at the facility, so I think that’s given rise to some questions about personal privacy,” says Eve C. Gartner, staff attorney at Earthjustice’s Northeast office. “But it does seem to me like a very difficult question: If someone chooses to locate their home at an industrial facility, does that automatically mean that everything about that facility becomes private?”
Animal-rights activists claim the feedlots systemically abuse animals. PETA, for instance, cites everything from manure smells that cause cows “chronic respiratory problems, making breathing painful” to “a highly unnatural diet” that causes “chronic digestive pain — imagine your worst case of gastritis that never goes away.”
Environmental groups say feedlots increase emissions, cause pollution, and contaminate drinking water. Jon Devine, the senior attorney at the water program of the Natural Resources Defense Council, recently wrote that such operations “generate nasty waste” because “animal manure contains bacteria, viruses and other pathogens, as well as organic compounds, heavy metals, antibiotics, pesticides, and hormones.”
Farm groups dispute these claims, questioning the environmental effect and highlighting improved humane practices with respect to feedlot animals.
Regardless, environmental and animal-rights groups have long sought more federal control of CAFOs, pushing for two specific policy goals: requiring the government to collect extensive data about feedlots, and requiring feedlots to be regulated and permitted under the Clean Water Act.
In the last decade, the EPA has mounted a largely unsuccessful effort to increase permitting requirements for feedlots. But environmental groups were able to work out a settlement with the agency in 2010, compelling it to begin collecting CAFO data.
The EPA initially sought to collect that information directly from the feedlots — which many farmers and ranchers considered a significant paperwork burden. The EPA eventually withdrew that proposal, instead obtaining information from state governments.
In the fall of 2012, Earthjustice, the NRDC, and the Pew Charitable Trusts filed a public-records request for the information collected — “before any of the CAFO data collected by the EPA was made public,” according to a recent report from the Senate Environment and Public Works Committee. That timeline, the report continues, “raises the possibility that EPA may have been collecting data on the groups’ behalf.” In early 2013, the EPA released to the three groups wholly unredacted data about farms and ranches in 29 states.
Michael Formica, chief environmental counsel for the National Pork Producers Council, said the EPA waited to notify him until the information had already been released. “I thought it was my wife yelling at me that I had not left the office yet, and we had a babysitter that night to celebrate her birthday,” he says. “When you’ve got a senior government official calling on a Friday night, you know there’s not going to be good news. The EPA had turned over what was essentially private information on about 100,000 farmers across the country.”
Several farm groups soon wrote to the EPA expressing their concerns. Acting Assistant EPA Administrator for Water Nancy K. Stoner said in February she would conduct a review and “address any legitimate privacy concerns.” Before coming to the EPA, Stoner worked as the co-director of the water program for the NRDC — one of the groups that had requested records. The NRDC said no one was available to comment on both days National Review Online requested an interview.
In April, the United States Senate Environment and Public Works Committee also expressed concerns about the EPA’s information release.
The EPA admitted that the information it released “included private information of CAFO owners in ten states,” the Senate committee report says, adding that the agency asked environmental groups and Pew to “either destroy or return the EPA’s original FOIA response.” There was no legal compulsion that the information be returned, Formica says.
After the EPA reviewed the data, it re-released it on April 4 with some redactions. But only a few weeks later, the EPA acknowledged it had again provided information that should have been withheld. Once again, the EPA asked the three requesters to destroy or return the agency’s response.
The EPA sent a written statement to National Review Online: “After a release by EPA of CAFO- and [Animal Feeding Operations]-related information under a Freedom of Information Act request, the agricultural community raised a number of privacy concerns. In response, EPA determined that some personal information that could have been protected under FOIA was inadvertently released. EPA redacted that information and asked the FOIA requesters to return the information. All requestors have returned the original data.”
However, an August 2013 newsletter from Food & Water Watch stated that the FOIA documents had been “shared with several organizations, including Food & Water Watch. On April 4, 2013, the EPA took the uncharacteristic move of asking for the original set of documents back due to pressure from the livestock industry and Congress, offering a limited subset of the documents as a replacement. Food & Water Watch declined to return the original documents to EPA.” It’s unclear how widely the unredacted records were distributed, or who has retained them.
Meanwhile, the EPA continued to collect additional information about feedlots from state governments, and environmental groups submitted requests for these records, also. To prevent the release, the American Farm Bureau Federation and the National Pork Producers Council filed a lawsuit.
Pamela Marentette, the attorney representing the EPA, said although she cannot comment on the legal proceedings, she anticipates the case will be resolved in court sometime this summer. That decision will also affect the EPA’s plan to create a searchable database that includes similar personal information about farmers and ranchers.
The legal battle over the EPA’s release of farmer data isn’t the first time the agency has found itself in controversy over its FOIA practices. Last year, a congressional review of 1,200 pages of EPA correspondence obtained by the Competitive Enterprise Institute appeared to show that the agency acted with a bias toward environmental groups and against conservative groups. The EPA approved green groups’ requests for fee waivers 92 percent of the time, while conservative think tanks saw their requests denied 73 percent of the time.
The legal battle over the EPA’s feedlot data also calls into question whether the agency acted politically, helping environmental allies while caring little about the effect on farmers. Finally, the outcome could set an important precedent for how the federal government weighs the release of personal information.
— Jillian Kay Melchior is a Thomas L. Rhodes Fellow for the Franklin Center for Government and Public Integrity. She also writes about energy and environmental policy as a senior fellow for the Independent Women’s Forum.