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Environmental activists – should have sued the cows

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The Waterkeeper Alliance was looking for a big chicken processor to sue for violation of the Clean Water Act.

They thought they found their victim, a family farm and the company it contracted with, Perdue.

But it was cows, not chickens, causing the pollution, and on those grounds, Waterkeeper lost the suit, and perhaps some respect.

A four-year legal battle between environmental activists, a large poultry buyer and a Maryland family farm came down to one simple determination. The activists should have gone after the cows, not the chickens.

It began when Waterkeeper Alliance, which is led by Robert F. Kennedy, Jr., starting flying around Maryland farms near Chesapeake Bay, apparently to uncover something that would make an example of “big poultry.”

They thought they found their pot of gold, a pile of uncovered chicken litter on a flyover of a farm belonging to Alan and Kristin Hudson, in Berlin, Md. Thefamily farm contracted with the poultry company, Perdue.

When an investigation by the Maryland Department of the Environment determined that the pile was not chicken litter, the Alliance went ahead with the suit anyway, theorizing that dust from poultry litter had polluted local waterways via poultry house exhaust fans and through foot traffic from the Hudsons entering and exiting their two chicken houses.

Last year, Judge William Nickerson ruled against the Alliance, writing, “citizen suits under the Clean Water Act can play a significant role in filling the void where state regulatory agencies are unable or unwilling to take appropriate legal action against offenders. When citizen groups take up that mantle, however, they must do so responsibly and effectively. The Court finds that in this action, for whatever reason, (the Alliance) did not meet that obligation.”

The biggest problem with the Alliance’s suit, according to Nickerson, was simply that they didn’t prove their allegation that chickens were the source of the pollution. There was pollution, the judge noted, but the Hudson’s cows were the more likely source.

I suppose the Catch-22 for the Alliance was that the cows, which were allowed to roam freely on the Hudson farm, were not under contract to a large chicken processor. Since the Alliance was determined to take one down, they continued to pin the caper on the chickens, despite evidence to the contrary. In any event, the judge wouldn’t bite.

Last month, Judge Nickerson denied the Hudsons and Perdue a bid to recover $3 million in legal fees from the suit. Nickerson cast blame on the Hudsons for allowing pollutants from their cows to enter a tributary, but reiterated once again that the chickens were in the clear.

Perhaps the most significant thing the judge said was, “It is disappointing that no agreement that could have actually benefited the Chesapeake Bay came from these negotiations.”

In other words, it would have been so much better for everyone to sit down, talk about their concerns and demonstrate willingness to compromise. This type of calm, open, discussion would certainly have benefited the tributaries of Chesapeake Bay. Instead it was just another huge payday for lawyers.

 

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