This is not a substitute for legal advice.
Many of you may have seen the news that Food and Water Watch (FWW) was challenging the decision of the Farm Service Agency (FSA) in approving an application for a loan guarantee for a poultry operation on the Eastern Shore of Maryland. FWW is challenging the FSA’s Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) as apart of the National Environmental Policy Act (NEPA). FWW is looking to have the decision set aside the decision to grant the loan guarantee causing FSA to start the environmental review again. At this point, the case is just the initial stages with just the complaint file by FWW. This case will be playing out over the next few months.
NEPA requires federal agencies to prevent damage to the environment and directs agencies to assess the environmental impacts of all proposed actions that could significantly impact the environment. Agencies must prepare a detailed statement called an Environmental Impact Statement (EIS) when the actions would have a significant impact on the environment. An agency completes an EA to determine if the project will require an EIS. At the time of FSA’s decision, required a complete EA to be done on all actions involving concentrated animal feeding operations.
The EA needs to show the need for the proposed action (in this case guaranteeing the building of a poultry farm), alternatives to the project, environmental impacts of the proposed action and the alternatives, and a list of all agencies and persons that consulted. In this case, FWW is arguing that the EA is incomplete by not taking into account how the poultry house will impact the quality of life for the neighbors and additional water problems not addressed in the EA. FWW is also arguing that FSA failed to properly an adequate range of alternatives.
FWW is challenging the adequacy of the EA that FSA relied on when deciding to issue a FONSI and approve the loan guarantee. First FWW is arguing that FSA should have considered more alternatives. With the alternatives, FWW believes that FSA should have looked more closely at the alternatives related to relocating on the property, relocating to a new property, or engage in a different form of agriculture. FWW is arguing FSA did nothing to look at these alternatives or consider them in the EA.
Second, FWW is arguing that FSA did not consider the impact on relevant biological resources, such as migratory birds. FWW is arguing that FSA should have considered the project’s impact on wildlife in the area.
Third, FWW is arguing that FSA did not consider the impact of the project on groundwater quality and quantity. The project was not required to get a groundwater permit from the State, but FWW is arguing that FSA still should have considered the impact of the project on local groundwater supplies.
Fourth, FWW is arguing that FSA should have considered the impacts of the project on surface water quality. FWW is arguing that the project will have large impacts surface water quality in the area and FSA should have considered these impacts in the EA. According to FWW, FSA issued the EA before Maryland finalized the nutrient management plan.
Next, FWW is arguing that FSA failed to consider air quality in issuing the EA. FSA’s regulations require the agency to consider air quality. Reviewing current Draft EAs available on the Maryland FSA website, FSA is considering air quality. FWW is arguing that FSA should have considered the amount of emissions from the proposed CAFO. FWW also wants the EA to consider vehicle traffic beyond construction and emissions that will result from land applications of manure.
FWW is arguing that FSA relied too heavily on the nutrient management plan, stormwater management plan (SMP) and conservation plan in granting the EA. These documents contained mitigation methods that were mentioned in the EA but not provided with the EA. The issue with this could be that many of the documents FWW wants to be provided in the EA are confidential under Maryland state law. FSA could be respecting state law or considering an exemption to the Freedom of Information Act that protects disclosure of personal data. FSA might have reviewed these plans, communicated with state officials, etc. that allowed FSA to understand the mitigation practices to be implemented. We will have to pay attention to FSA’s response to this claim.
FSA requires a NEPA review that the cumulative impacts. According to FWW, FSA only considered the impacts in isolation to only the farm requesting the loan guarantee. FWW is arguing that FSA should have considered the fact of the concentration of the poultry industry on the Eastern Shore and the larger impacts from poultry farms that do not have FSA loan guarantees.
Finally, FWW is arguing that the FONSI was inadequate and FSA should have
developed an EIS. FWW is looking that the court set aside the EA and the FONSI decision, which would set aside the loan guarantee. This decision would require FSA to revisit the EA and potentially develop an EIS.
What Does All These Mean?
FWW is challenging the decision of FSA to grant this loan guarantee. It is important to remember that the EA/FONSI being invalidated in this case would only impact this individual loan guarantee. The decision would not impact existing loan guarantees. Future loan guarantees may have to go through a higher level of NEPA scrutiny depending on the outcome of this case.
FWW is going to have some initial issues to address. FSA will probably challenge FWW’s standing to bring this action. We have previously discussed standing, but these will be an area to pay attention to as this case moves forward. This will potentially be an issue to watch moving forward.
As to the challenge that FSA failed to evaluate the environmental impacts of granting the guarantee this is a new and developing area of the law. Other groups to challenge decisions to approve loan guarantees by FSA have used this approach. In a case out of Arkansas, the court found that FSA was improper in not completing an EIS. This case may provide us additional guidance on what FSA needs to do in meeting its requirements under NEPA.
At this point, the case is only in the initial steps. We will have to see how FSA answers these arguments and potentially challenging FWW’s standing. This case will potentially be winding through the federal court system for coming months.
Buffalo River Watershed Alliance v. USDA, No. 4:13-cv-450-DPM, 2014 WL 6837005 (E.D. Ark. Dec. 2, 2014).
Complaint, Food & Water Watch v. USDA, No. 17-1714 (D. D.C. August 23, 2017).