U.S. District Judge D. Price Marshall has ruled two federal agencies clearly violated their own regulations and environmental laws by guaranteeing $3.6 million in loans that allowed the controversial C&H Hog Farms to take root in the Buffalo National River watershed at Mount Judea.
And I suspect the wise judge is no more an environmental radical than me. His injunction order issued last week was based solely on what he deemed was the arbitrary, improper and illegal way the USDA's Farm Service Agency and the Small Business Administration blew off their obligations to thoroughly assess the potential environmental impact of a hog factory housing up to 6,500 swine before guaranteeing its taxpayer-supported loan.
As a result, the court enjoined the agencies from making payments on the loan guarantees, allowing them a year to come into compliance with laws.
"The public interest is best-served by ensuring that federal tax dollars aren't backing a farm that could be harming natural resources and an endangered species," the judge wrote.
This means both agencies now have a year to prepare satisfactory and thorough reports that analyze the potential environmental impact to this sensitive region from the factory farm they brought into existence through their loan guarantees.
The plaintiffs in this case consisted of local, state, and national conservation groups represented by environmental law firm Earthjustice in New York and attorneys Hank Bates and Hannah Chang.
The court found both agencies acted capriciously by simply failing to examine potential environmental effects of creating, in this ecologically sensitive watershed, the first hog factory permitted under the state's new General Permit. The agencies also failed to properly notify the public or follow requirements that protect threatened and endangered species like the gray bat.
Responses from plaintiff groups gushed forth following Price's decision.
In a press release, Chang said: "The court saw the federal government agencies' actions for what they were--a disdain and complete disregard for the laws that protect our environment. We believe the court's decision will help to set things straight in this debacle that has put more than $3.6 million in federal taxpayer dollars on the line to support a massive swine factory farm upstream of a treasured national resource."
Robert Cross, president of the Ozark Society, said his group was satisfied by the decision. "The flaunting of federal regulations by the Farm Service Agency and the Small Business Administration in the loan guarantee process that allowed the construction of C&H Hog Farms was a severe blow to the people of Arkansas and the nation who believe in the protection of our unique and beautiful natural resources such as the Buffalo River. The decision can undo only some of the damage done, but it will hopefully serve as a message to others who consider similar egregious acts in the future."
Bob Allen of the Arkansas Canoe Club said: "It isn't a question of if, but rather when and how much, pollutants from the hog factory, including excess nitrogen, phosphorous and bacteria, will make their way to the Buffalo National River. The court's decision today means that the federal government will actually have to consider the environmental impacts of the hog factory that it made possible--something the involved agencies should have done from the very start."
Emily Jones of the National Parks Conservation Association called the order a vital step forward in helping protect the river. "The Buffalo River belongs to the nation and the American people for this and future generations to enjoy and its protection is the responsibility of the federal government. This ruling squarely calls into question the adequacy of the Farm Service Agency's and Small Business Administration's prior environmental review, and requires that both agencies undertake the procedures necessary to ensure adequate protections of this national treasure."
On page 5 of his order, Judge Marshall specifically addresses the fact that the factory generates about 1,780,000 gallons of waste each year stored in two small settling lagoons beside the barns. "The ponds seep," he writes. "It's uncertain how much waste water will seep out, but C&H's engineers estimated that several thousand gallons a day could. Each year in the spring and in the fall, C&H plans to drain the ponds. After testing nutrient levels in certain nearby fields, C&H will spray the water on them. ... The Buffalo River watershed is characterized by karst geology--underground limestone which has been eroded over time."
Therein the judge identifies the problem caused, not by a decent Newton County family of caring and responsible hog farmers, but by our state's Department of Environmental Quality (cough) that wrongheadedly permitted this factory in the state's most environmentally sensitive region.
Dr. John Van Brahana and his volunteers continue to show how rapidly and far subsurface water flows from the areas around this factory.
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Mike Masterson's column appears regularly in the Arkansas Democrat-Gazette. Email him at [email protected].
Editorial on 12/07/2014