EPW’s New Bill of Old Attacks

This blog was written with contributions by Brian Siu, Director of Federal Affairs for NRDC.

Why are members of the Senate planning to weaken environmental protections? In a prelude to voting on anti-environmental legislation, Senator Barrasso, chair of the Senate Environment and Public Works Committee, will hold a hearing on a new bill of old and bad ideas, the so-called “Agriculture Creates Real Employment Act.” The bill more accurately should be called the Phony Farm Act, as it seeks to weaken a broad swath of public protections for one specific industry—agribusiness. The Phony Farm Act is a mash up of highly controversial ideas that would harm water, wildlife, and public health, as I will outline below. Trying to dress up their attacks on the environment as helping family farms, the bill, if enacted, would be a big gift to corporate polluters and have nothing to do with “real employment.” The provisions include:

Public health and air quality: The Phony Farm Act gives even the largest industrial animal production facilities a free pass from reporting dangerous releases of massive amounts harmful substances, something other industrial facilities are obligated to do under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). CERCLA requires industrial sources of harmful air pollution to report their emissions when threshold amounts are reached. The surrounding communities should have the same protections from dangerous substances around them as other frontline communities across the country. CERCLA requires that facilities provide the National Response Center with information about what’s in the air. This bill completely writes out even the largest livestock operations that emit industrial quantities of ammonia and hydrogen sulfide. Breathing these substances can cause horrible health effects like scarring and burning of lungs, and even death. What’s more, this is yet another exemption from a bedrock environmental statute for this industry.

Undermines protections for marine life: The bill exempts sea urchins and sea cucumbers from export licensing requirements under the Endangered Species Act (ESA). In doing so, it would make it nearly impossible for the U.S. Fish and Wildlife Service to monitor and ensure that these species are not overexploited due to trade, and would hamper the Service’s ability to enforce existing reporting requirements under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). At a time when the United States must continue to represent the gold standard for fulfilling this vital treaty, this bill threatens to severely handicap our ability to monitor trade in highly coveted ocean species.

Pesticides in the water: The bill allows pesticides to be freely sprayed into lakes, rivers, and streams by exempting them from the Clean Water Act’s permitting program. Pesticides are designed to kill. For that (very good) reason, EPA’s unique permit program helps protect our waterways from these toxic chemicals by requiring pesticide applicators to first consider highly relevant factors like whether the lake is used for fishing or swimming or whether the stream is already suffering from too much pesticide pollution before spraying. The simple permit program also plays the vital role of helping communities know what is in their water. There is no justification for creating these types of blanket exemptions. In fact, for public health emergencies like the Zika virus, applicators don’t even have to wait for the permit—they can get them after spraying. NRDC has written about this in the past.

Water pollution and public information: The Phony Farm Act creates a loophole that would make it harder to hold industrial livestock operations responsible for their pollution discharges. The bill would prohibit EPA from disclosing basic information about livestock factories, if such operations or state pollution control officials provide it to the agency under the Clean Water Act or any other law. Information about all kinds of industrial polluters, including large livestock operations, has long been available from EPA; the agency’s Envirofacts database, for instance, enables concerned citizens to learn about operations in their communities. The bill’s new secrecy provision would require EPA to hide this information from the public, and likely would obligate the agency to scrub industrial livestock factories from their public databases.

 This new loophole is dangerous, because the information it would hide is vital for protecting the surrounding communities against environmental hazards. Large livestock facilities generate an enormous amount of waste- sometimes as much waste as an entire city. The waste, which may contaminate nearby waters, contains bacteria and viruses, pharmaceuticals, and nitrogen and phosphorus that can cause oxygen-depleting and toxic algae outbreaks. The public needs to understand what hazardous contaminants are in the water and how much. NRDC has written about a similar provision when it was floated in the past. You can find more information here.

Hinder enforcement of Clean Water Act violations: The Phony Farm Act has another sweeping secrecy provision that would help operations escape notice when they pollute our waters. Section 8 of the bill would prohibit EPA, in carrying out its obligations under the Clean Water Act, from conducting “aerial surveillance of agricultural land” without express permission of the landowner or authorization from a court. The bill goes on to define “aerial surveillance” to include “the use of aerial or satellite images, regardless of whether the images are publicly available.”

To take an example of how this provision could work, EPA enforcement staff would be barred from using Google Maps’ satellite photos to look for huge livestock factories that are polluting nearby waterways and haven’t obtained proper permits for their discharge.

Even if the provision weren’t so absurdly broad, it’s still very poor public policy. This new limitation attempts to deprive EPA of a modern enforcement tool that is already commonly used in other types of law enforcement (traffic violations, for instance). And it does so for no purpose—there’s no reason to think that aerial photography is unreliable evidence that operations are discharging unlawfully or otherwise running afoul of their clean water obligations. The only evident purpose of this section is to make it more difficult to enforce bedrock environmental requirements and make it easier for industrial polluters to conceal their activities. You can read more about this issue from when it arose in the 2012 farm bill here.

Oil in our waterways: The Clean Water Act requires EPA to establish rules specifying the steps that many facilities must take to prevent and respond to oil spills. Under current regulations, farms are already treated more leniently than other industrial operations. For instance, farms can handle more oil than other facilities before having to comply with EPA’s precautionary rules. In 2014, Congress increased the amount of oil agricultural facilities can have before triggering some of the spill prevention requirements, and directed EPA to conduct a study to determine whether agricultural operations ought to have special exemption triggers.

EPA’s study concluded that relaxing the requirements to prevent oil spills from agricultural facilities was a bad idea. The agency found no evidence that farms are inherently safer or less prone to spills than other facilities. And there is also no evidence that oil spilled by a farm is somehow less damaging to human health and the environment than oil spilled by another polluter. EPA even concluded that the Congressionally-set exemption trigger (aggregate storage capacity greater than 2,500 gallons) was inappropriate:

Based on evidence that small discharges cause significant harm and lack of evidence that farms are inherently safer than other types of facilities, this study shows that its existing threshold aggregate aboveground oil storage capacity of 1,320 gallons is appropriate for all facilities in order to provide an adequate level of environmental protection of the nation‘s waters.

Despite this Congressionally-mandated analysis, the Phony Farm Act would enable agricultural operations that have the capacity to store as much as 10,000 gallons of oil to qualify for an exemption from the spill prevention and response requirements, and weaken the requirements applicable to even larger facilities. This wholly irresponsible provision will undoubtedly lead to more oil spills in our waterways.

These measures are highly controversial collectively and individually. Most have been introduced in the past and met fierce opposition. And with good reason. They attack things that Americans care about—clean water, wildlife, fresh air, enforcement of our laws and a life free of hazardous contaminants.

About the Authors

Scott Slesinger

Legislative Director

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