USDA farm loans vulnerable to environmental lawsuits

From let to right: Tom Buchele of Earthrise Law Center, Tarah Heinzen of Food & Water Watch, Kevin Cassidy of Earthrise Law Center and Elisabeth Holmes of Blue River Law spoke about environmental lawsuits over federal lending to “factory farms” during the recent Public Interest Environmental Law Conference in Eugene, Ore.

Federal loans to “concentrated animal feeding operations” may be vulnerable to lawsuits opposing the construction of “factory farms,” according to environmental attorneys.

Public policy — rather than the free market’s “invisible hand” — has spurred the proliferation of CAFOs in the U.S., said Tarah Heinzen, an attorney with the Food & Water Watch environmental group.

Filing lawsuits can affect which facilities are funded by USDA’s Farm Service Agency and how they’re constructed, Heinzen said.

“We want to cut out the root cause of this, which is the FSA lending in a way that’s not in the public interest,” she said.

The possibility of using federal statutes to influence USDA lending to CAFOs was discussed by attorneys during the recent Public Interest Environmental Law Conference in Eugene, Ore.

The USDA’s environmental review of such loans can be challenged as cursory and insufficient under the National Environmental Policy Act.

The agency can also be faulted for failing to properly consult with the U.S. Fish and Wildlife Service about the effect of such loans on protected species, as required under the Endangered Species Act.

“We’re looking for more robust, substantive analysis,” said Kevin Cassidy, an attorney with Earthrise Law Center.

Cassidy said one serious problem is the USDA looks at CAFOs in a “piecemeal” fashion rather than examining the full impact of multiple operations.

“The biggest thing is the lack of a cumulative impacts analysis,” said Tom Buchele, an attorney with Earthrise Law Center.

Loans are becoming a target for environmental litigation because the federal government is supporting large-scale operations with more significant pollution hazards, said Heinzen.

The value of FSA ownership loans — which are used to buy or expand farm — was roughly $3.5 billion for beef operations, $2.25 billion for chicken operations, $2 billion for dairy operations and $550 million for hog operations, according to 2017 data obtained by Food & Water Watch.

“Advocates have become more aware of the scope of federal financing,” said Heinzen.

If public money is being used for lending to CAFOs, it’s reasonable to rely on federal statutes to increase public oversight of the process, said Amy van Saun, staff attorney for the Center for Food Safety.

“Another federal hook is a good thing,” she said.

In a lawsuit over federal loans to a hog farm in Arkansas, several environmental organizations prevailed in their claims under the National Environmental Policy Act and Endangered Species Act.

The groups did not succeed, however, in winning a court order withdrawing government guarantees for the loans, which would have likely eliminated financing entirely, said Cassidy of Earthwise Law Center.

“It probably would have been the end of the farm and the judge wasn’t willing to go that far,” he said.

Even so, the lawsuit did result in the lining of manure lagoons and installation of methane gas controls, Cassidy said. “There were some real good environmental outcomes from the case.”

In another instance, the possibility of litigation forestalled loans to poultry operations in Arkansas even though no lawsuits were filed.

Environmental groups submitted a petition seeking a higher level “programmatic” study of the poultry houses being built and also made Freedom of Information Act requests about financing from USDA and the Small Business Administration.

The aggressive FOIA actions were able to “scare the bejesus” out of people seeking to build the CAFOs, and at this point, none have been funded, said Elisabeth Holmes, an attorney with Blue River Law.

“What is great is there have been no monies allocated,” she said. “We consider this a victory.”

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