Editor’s note: This commentary was submitted to True North Reports by Julia Purdy of Rutland, a freelance journalist and retired college instructor.
The following is extracted from a little-known source that helps to explain why Vermont landowners and farmers are over a barrel when it comes to the draconian and costly measures called for by Vermont’s Clean Water Act of 2015 (Act 64).
Why would anyone at all object to having clean water, clean air? Yet the subject has blown up into a full-fledged controversy with partisan overtones, complete with a rigid structure of regulations and now requiring public funding merely to cover legal expenses, let alone the expenses borne by the targets of the regulation, from the small farm to the corporate giant.
What is turning it into an almost unresolvable problem is not that there is no way to remediate polluted waters and air using laws and science that already exist. What is exacerbating the problem is the tactics used to push for an unrealizable ideal of perfection. Read on.
This article was published online in Feb. 17, 2013, by Forbes magazine, authored by contributor Larry Bell, an “endowed professor at the University of Houston” who writes about aerospace, environment, energy, Second Amendment policy.
Bell wrote “EPA’s Secret and Costly ‘Sue and Settle’ Collusion with Environmental Organizations” in 2005. I have extracted the highlights from it.
The article opens by explaining the practice of “sue and settle,” by which radical environmental groups file lawsuits against federal agencies such as the EPA for failing to adequately enforce environmental laws, which results in consent decrees permitting a settlement agreed upon by both litigants, together and privately.
Bell describes the key concept this way: “Then, rather than allowing the entire process to play out, the agency being sued settles the lawsuit by agreeing to move forward with the requested action they and the litigants both want.” This way, the whole issue sidesteps the “harsh outside glare of oversight. No public notice about the settlement is released until the agreement is filed in court … after the damage has been done.”
Bell tracked down data outlining the payouts footed by all taxpayers. The General Accounting Office reported in 2011 that payouts between 1995 and 2010 went, notably, to the Sierra Club ($966,687), Earthjustice (originally the Sierra Club Legal Defense Fund, $4,655,425, or 30% of the take), and the Natural Resources Defense Council ($252,004).
“Most of this was paid to environmental attorneys in connection to lawsuits filed under the Clean Air Act, followed next by the Clean Water Act,” Bell writes.
Contemporaneously, between 1998 and 2010, USDOJ defended the EPA in court to the tune of “at least $43 million of our money.” Further, Bell claims that “EPA doesn’t keep track of their attorney’s time on a case-by-case basis.”
Investigating further, the U.S. Chamber of Commerce blamed sue-and-settle deals for the “most controversial, economically significant regulations that have plagued the business community for the past few years” — often on environmental problems that are the most elusive to resolve, such as “regional haze.”
The pitfall here is that while chasing after a problem that almost defies resolution, millions of taxpayer and consumer dollars are often spent with little or no appreciable improvement.
The Chamber’s study author, William Yeatman of the Competitive Enterprise Institute (CEI), noted that “EPA’s abuse of its Regional Haze authority forces states to relinquish their authority,” and further, “no state is immune from having its rightful Regional Haze authority trampled by EPA at profound costs for virtually nonexistent benefits.”
Among eight states studied (Arizona, Montana, North Dakota, Oklahoma, Wyoming, Minnesota and Nebraska), each state had adopted its own regulations, presumably in compliance with early EPA guidelines. But the end result of sue-and-settle with environmental hardliners resulted in significant cost increases for such items as water, haze controls, capital improvements or even total shutdowns — overriding the states’ own standards for cost-effective compliance.
At the same time, Bell wrote, there has been some compelling evidence that the EPA is actually stonewalling FOIA requests by members of Congress.
Sen. Vitter of Louisiana called it “this often abused path to regulatory influence.” Sen. Vitter, along with Rep. Darrell Issa of California in 2013 warned the EPA’s Region 8 administrator: “The use of personal, non-official e-mail accounts raises concerns that you could be attempting to insulate this and other e-mail correspondence from a Freedom of Information Act request. Moreover, your actions may also constitute violation of the Federal Records Act,” evading congressional oversight of federal agencies.
Dirty pool is not confined to the right. The so-called left is taking a page from that playbook. The stakes are just that high.
The stakes are equally high for landowners found in violation who literally cannot afford to comply with more stringent regulations. Encounters with U.S. Fish & Wildlife/Department of the Interior over new rules for endangered species are especially bitter. To many, such regulations constitute a taking, uncompensated but also more expensive to administer.
As an example of “sue and settle” involving Fish & Wildlife and Interior, in 2011 Fish & Wildlife settled a massive lawsuit filed by environmental groups by promising to review for stronger protections “more than 250” species backlogged under the Endangered Species Act as well as “hundreds more” proposed species. That many species inhabit private land aroused vociferous pushback from landowners and politicians throughout the West in particular.
Case in point: the lesser prairie chicken. Bell quoted Congressman Tim Huelskamp of Kansas as saying: “Amid historic drought in the Great Plains, the last thing we need is another federal agency intruding into the lives and private property rights of Americans. In this case, we are talking about a bird that is populous enough that we can still hunt them in Kansas.” New Mexico Congressman Steve Pearce said: “The Endangered Species Act is one of the most heavy-handed unbending laws we have … it gives bureaucrats the power to destroy entire economies with hardly a second thought.”
How does this apply to Vermont?
On Thursday, Aug. 27, 2015, a public information meeting was held at the Fox Room in the Rutland Free Library for the purpose of bringing to Vermonters the message of Vermont’s new Clean Water Act, Act 64, also known as H.35.
The panel consisted of a full-court press of key state of Vermont department and agency representatives: Agency of Transportation (VTrans), Agency of Natural Resources (ANR), Agency of Agriculture, Food & Markets (AAFM), and the Dept. of Environmental Conservation. With them was Stephen Perkins, project manager with the federal Environmental Protection Agency.
Vermonters in general have always been careful of the environment that supports us, as well as live-and-let-live and trusting of local government. But seemingly overnight, and outside the view of the public, Vermont’s former Accepted Agricultural Practices that governed farm production with the blessing of the EPA and which seemed adequate, were jettisoned and became Required Agricultural Practices, applicable to farms as small as 10 acres with at least 50 head of beef or dairy cows.
The panelists clearly were attempting to put a good face on what is probably the most draconian campaign to cleanse surface waters this state has ever seen, focusing on Lake Champlain.
The audience nearly filled available seating in the Fox Room. The mood swung between the smiles and head-noddings of government staffers and other backers of the plan and the sober faces of those who stoically absorbed the information.
Deb Markowitz, then secretary of the Agency of Natural Resources, opened with a big smile and a big pitch to bring everyone on board with the current phase of the Lake Champlain cleanup project. She cited the millions of dollars that have been invested so far — the “work of generations,” as she put it. Vermont’s future “prosperity” is “closely tied to the cleanliness of the lake,” she said, and it is “necessary for us as Vermonters” to address the threat of polluted water for the sake of “our children and grandchildren.”
The panel members all expressed great optimism in the new cleanup plan. It was stated by one of the panelists that “for all those who own property [on the lake] right now and are living with colored water, it’s a tremendous lift.”
Markowitz, who elsewhere has described environmental stewardship in terms of a near-religious mission, praised the EPA as a “tremendous partner” in this endeavor. She cited the all-new aspect of the program — new regulations, new funding sources, a new spirit of collaboration across agencies within Vermont to get the job done, and new methods of enforcement.
Chuck Ross, then AAFM secretary, followed with the usual talking points about the urgency of cleaning up Lake Champlain. Among them were the amenities of being able to swim in its waters and the effect on the market value of lakefront residential properties. Saying that he has been a farmer in the Basin, he cited his “personal connection” with the lake and his belief that the condition of Lake Champlain pervades all economic functions and everyday activities throughout Vermont. Therefore, he said, we all need to be “better stewards.”
Smoothly he went on to reveal the iron fist in the velvet glove: referencing “a few bad apples,” he drove home the point that “personal accountability will be enforced in ways we have not seen before.”
The state and the EPA would also be meeting with activists to make sure their expectations are met. A main area of enforcement centers on preventing or slowing farm runoff into streams that feed eventually into Lake Champlain.
Stephen Perkins, visiting from the EPA-Boston office, whose job it was to monitor levels of polluting organic “nutrients” (phosphorus) reaching Lake Champlain, described the new regulations as “tailored to Vermont.” Of all the contributions to lake pollution, based on computer modeling, agriculture (read: manure, the spreading and storing thereof) accounts for 80% of the phosphorus entering the lake.
Perkins made little attempt to be affable. He stated there would be “rigorous tracking.” The role of the EPA is to monitor phosphorus reduction, to “keep score,” and to enforce accountability. He expressed optimism that Vermont “will perform.”
The presenters admitted all this would cost money, which in 2015 was still being figured out. The carrot would be a few “small grants” and the Clean Water State Revolving Loan Fund available to municipalities.
The “stick” was a definite, however. It included penalties up to $50,000 per violation, removal of the offending land from the current use program and/or confiscation of a portion of a cattle herd, to “right-size” it to conform to the new yardstick allowable for phosphorus.
And the tab for Vermont taxpayers and communities, as a whole? When questioned, the panel admitted there were “no hard figures” on the total cost. It was stated as an example that wastewater upgrades would cost communities $78 million per facility.
According to Alyssa Schuren, commissioner of the Dept. of Environmental Conservation, “H.35 raises approximately $7.4 million in new revenue for FY16.” Virtually all of that revenue is generated by fees and distributed as follows:
- To the new Clean Water Fund: $5.2 million from a new 0.2 percent surcharge on the property transfer tax, after the first $100,000 of purchase price
- To the Department of Environmental Conservation: $1.54 million from regulatory fees, for the creation of 13 new positions
- To the Agency of Agriculture, Food & Markets (AAFM): $621,000 in fees, plus $450,000 from the Clean Water Fund to create eight water quality positions, plus $250,000 “in programmatic work in FY16”
- Fees to be levied on farming operations by AAFM include an annual fee of $2,500 annual fee for “Large Farm Operations, an annual fee of $1,500 for “Medium Farm Operations,” a $30 increase to the tonnage fee on non-agricultural fertilizers, and an increase from $110 to $125 in the annual registration fee for pesticides.
The farmers in the audience were becoming uneasy.
So what is driving the drive to achieve nearly pristine waters in Lake Champlain, and why does a powerful agency like the EPA engage in such backroom deals? Is it the ugly algae that develops naturally at certain times of year? Is it the need to go swimming at Burlington’s waterfront? Is it the threat to property values of the condos and private lakefront homes in Chittenden and Franklin counties and the islands? Is it the worry that the million-dollar vista of the lake and the Adirondacks will be harmed because the lake is not playing its role in enhancing the Romantic scenery?
Vermont already had an accepted clean water program in response to earlier pressure from the EPA, in addition to promoting the abovementioned benefits of the lake.
The man from the EPA referenced a “lawsuit that propelled us down this road.” He stated that the lawsuit had been brought by the Conservation Law Foundation and had resulted in a settlement that in turn dictated the benchmarks and goals of the program. The EPA website provides a lengthy list of actions it has brought against violators, from mega-corporations to municipalities to dairy farms, for anything from criminal acts to inadequate stormwater management.
A search for Conservation Law Foundation reveals a multistate organization, an ambulance chaser for environmental purity, that maintains a stable of attorneys in Montpelier. Its website outlines the ongoing drive to rescue Lake Champlain in the same dramatic, simplistic language that gins up a cause: “feeds thirsty farms throughout its large watershed … dying a slow death … unchecked pollution.”
None of which may be actually true. The Cuyahoga River or Love Canal, Lake Champlain is not. The “2015 State of the Lake Report,” published by the Lake Champlain Basin Program steering committee, reported that: “It is important to know that 85% of Lake Champlain’s water is consistently of excellent quality and another 13% of the water is in usually good condition. In the remaining 2% of the Lake, conditions are seasonally alarming.” In particular, the report comments, blue-green algae is a summertime problem, and the water in the south lake “tends to be muddy.” The report was available on a table in the back of the room, but these particular alternative facts were not included in the Lake Champlain cleanup pitch at the meeting.
The Lake Champlain cleanup campaign was projected to cost potentially more than $1 billion in the foreseeable future, reported Gov. Phil Scott when he took office in 2017. He based that figure on the $25 million annual price tag State Treasurer Beth Pearce included in her initial briefing to him. At that time, legislators admitted they had no idea how they would tackle the challenge.
One year ago this month, the Conservation Law Foundation blogged the cheery opinion that lake cleanup — their project for Vermont — could improve Vermont’s economic picture. Once again plugging the tourism and recreation aspect, the blog likens the condition of the lake to climate change in doomsday terms: “algae outbreaks and cyanotoxins are slow-motion public health and economic catastrophes.” And it asserts — with no citations — that “recent studies reveal how cyanotoxin exposure harms ecological and human health, even miles inland from polluted waterbodies.”
But in the same breath, CLF mentions that the state has earned an “A for effort” from the EPA in April, and CLF is not shy about claiming the major responsibility for the “admirable job” Vermont has done. On the other hand, CLF continues to chide and nag the state for not doing more. In fact, the blog takes on the Agency of Natural Resources for beginning to pull back “essential” programs and staff. These would include water quality testing, wetlands restoration, river corridor protection, and funding to assist with stormwater management.”
Did the CLF not notice in July 2020 that Vermont’s economic house of cards was collapsing? The CLF, the EPA, the state of Vermont, and Vermonters cannot have their cake and eat it too. The projected more than $1 billion just got pushed that much further in the future.
But zealots like CLF and other activists, whose attorneys make their living to a great extent on settlements paid for by taxpayers, are idealists: they are blinkered to anything but their own cause and its supposed long-term benefit, regardless of the fact that it is always a zero-sum game — the pie just isn’t big enough.
The unfortunate result of such single-issue drumbeating has been a noticeable contempt for farmers among non-farmers, who love the outdoors, love seeing cows in the fields, love knowing “where their food comes from” and who religiously patronize summertime farmers markets, but who heap contempt upon farmers for wilfully or ignorantly “polluting” Lake Champlain, ponds and rivers.
One of the most effective counters to that attitude is the small, green bumper sticker that reads: “No Farms No Food.”
The farming community is closeknit and respected in the towns where they live and do business. In its Sept. 19, 2019 edition, titled, “What Do Act 64 Regulations Mean for Addison County?” the Addison-Independent of Middlebury printed the third in its series examining the impact of Vermont’s ramped-up Clean Water Act on Addison County farmers. Addison County, with 170,000 acres of prime ag land, is one of the most prolific producers of milk and livestock, along with the crops that feed them.
The newspaper was refreshingly blunt: “Act 64’s expression of the acute problem in Lake Champlain is rooted in solid data. But it uses a broad brush to paint a picture of agriculture with its statement that 41 percent of phosphorus loading into Lake Champlain comes from farming.”
The Addie-Indie wrote: “Alongside pressures like falling milk prices and increasing production costs, farmers are charged with the financial, physical and emotional task of remediating Otter Creek’s water quality. What does this mean for Addison County farmers, and is their burden a fair one?”
Many farmers manage to comply as best they can under trying circumstances, with help from cost-share grants from the Vermont Housing & Conservation Board and the Clean Water Initiative Program, plus additional funds from the Natural Resource Conservation Service, a USDA program.
Said Kristen Workman, agronomy specialist with the UVM Extension Service in the same article: “You have farmers who are doing everything right. They’re following their nutrient management plan, they’ve got their buffers, and they say, ‘I feel like a criminal every time I go out there to spread manure because of all of this.’”