Arkansas Democrat Gazette 8/7/13

Earthjustice, a New York-based environmental litigation group, filed the suit in the U.S. District Court for the Eastern District of Arkansas, located in Little Rock. The suit’s plaintiffs include the Buffalo River Watershed Alliance, the Arkansas Canoe Club, the National Parks Conservation Association and the Ozark Society.

The suit names seven defendants including the U.S Department of Agriculture and U.S. Secretary of Agriculture Tom Vilsack; the U.S. Small Business Administration and its chief administrator, Karen Mills; Farm Service Agency Administrator Juan Garcia; Linda Newkirk, Arkansas state executive director for the Farm Service Agency; and Linda Nelson, Arkansas district director for the Small Business Administration.

The suit comes after a July 6 notice of intent to sue, which Earthjustice mailed to the defendants listed in the suit. Hannah Chang, a lawyer for Earthjustice, said none of the defendants responded to the original notice.

The 49-page document outlines the legal framework under which the Farm Service Agency and the Small Business Administration must consider environmental impacts, endangered species in a given region and other factors when deciding whether to guarantee a business loan. According to court documents, the two agencies issued guarantees for an amount totaling about $3.4 million to the owners of C&H Hog Farms.

The suit sharply criticizes the Farm Service Agency, which is part of the USDA, for the level of attention given to assessing potential environmental impacts posed by the farm’s operation. “FSA’s analysis consists of five pages of ‘Executive Summary,’” reads the complaint. The rest of the agency’s environmental assessment consists of about 600 pages of documents including the farm operators’ Nutrient Management Plan and copies of existing permits.

The suit alleges about 20 failures on the part of the government in conducting the environmental review, including the Farm Service Agency’s “finding of no significant impact” and its failure to consult with other agencies including the National Park Service before issuing the environmental assessment. The complaint then lists 12 causes of action,citing violations of the Administrative Procedure Act, the National Environmental Protection Act, the Endangered Species Act and the Buffalo River Enabling Act.

In the final part of the suit, the plaintiffs ask the court to declare the Farm Service Agency’s environmental assessment and finding of no significant impact unlawful, enjoin implementation of the loan guarantees issued by the agencies and require the agencies to conduct a new environmental assessment in consultation with the National Park Service.

Nelson of the Small Business Administration declined to comment when contacted. Calls to Newkirk’s office seeking comment were not returned.

Chang said that although the farm has been in operation for several months, and that the suit, even if successful, would likely not lead to the revocation of the farm owners’ operational permits, a successful case would require agency officials to take steps to address possible environmental problems that could stem from the farm.

“I don’t think we’re talking about time travel,” Chang said. “There are certain mitigation measures that can be taken. It’s [the Farm Service Agency’s] responsibility to consider what conditions can be attached to loan guarantees. Our suit is based on the fact that they didn’t follow procedures. It was the agencies’ job to do this work, and they did not.”

C&H Hog Farms, which is permitted to house about 2,500 full-grown sows and as many as 4,000 piglets at a time, is the first and only such facility in Arkansas to receive a general water discharge permit through the National Pollutant Discharge Elimination System.

The owners of the farm, Jason Henson and his cousins Philip and Richard Campbell, have land-use agreements that provide about 630 acres of grasslands upon which to spread the nitrogen- and phosphorous-rich manure produced by the hogs. According to the farm’s nutrient management plan, hogs in the facility are calculated to produce more than 2 million gallons of waste each year, which is collected in two large open-air lagoons before being spread over the surrounding grasslands.

Jack Stewart, an organizer with the Buffalo River Watershed Alliance, said multiple concerns within the organization’s membership led to the decision to join the suit.
“American tax payers should not be backing something like this,” Stewart said. “This is a [concentrated animal feeding operation] that’s been placed next to a national river, which is property of all American people.

“The environmental assessment that was done was rushed through. Once any judge takes a look at this, he’s going to see that it needs to be looked at all over again.”

The government has 60 days in which to reply to the filing, Chang said.
“They could come to the table and talk about what they’re willing to do, or they may simply file their answer,” Chang said.

Stewart said he expected a long legal battle to unfold from Tuesday’s filing.
“The long-term effort is really just getting started,” Stewart said. “The whole issue is so egregious, we expect this is going to be a long-haul fight.”