Taking on Industrial Agriculture’s Pollution — and the Climate Crisis
By: Public Justice
Tags: Agriculture, Lawyers, Law, Environmental Justice, Pollution

You came to the Public Justice Food Project in 2018 after working for 17 years as an environmental justice lawyer. What brought you here?

I joined Public Justice to support the intersectional movements for a food system that works for people and the planet, and to be part of a fantastic team of advocates. I had always worked on air pollution from Big Ag — from industrial dairies and pesticides — and more recently focused on the climate justice impacts of fossil fuel corporations, industrial agriculture, and cap and trade schemes, the impacts from which low-income communities and communities of color bear disproportionately.

While doing work related to industrial agriculture, I got to know Jessica Culpepper and David Muraskin. I wanted to work exclusively on busting up Big Ag because our climate crisis demands a shift from the corporate-controlled system polluting our communities and our planet to a regenerative, just, and humane system owned by farmers. So Jessica, Dave, and I worked to expand the Food Project and envision a movement-oriented legal project to serve communities, farmers, and workers. This movement-oriented approach reflects the model of advocacy I learned and practiced as an environmental justice lawyer, where lawyers support communities to build power. I have been here for two years now and cannot say enough about the Public Justice Food Project team.

What are you currently working on?

Right now, I’m working on movement-oriented litigation to protect Iowans’ right to clean water. The Food Project filed a lawsuit on behalf of Iowa Citizens for Community Improvement (CCI) and Food & Water Watch to restore the Raccoon River watershed. After we defeated the State’s motion to dismiss our case, the State appealed to the Iowa Supreme Court. On Wednesday December 16th, 2020, Iowa’s highest court heard our case. You can watch a recording of the argument here.

The River provides 500,000 Iowans in the greater Des Moines area with drinking water. But it is polluted by manure leaching from confined animal feeding operations (CAFOs) and fertilizer coming from corn/soybean monoculture. Nutrient pollution — nitrogen and phosphorus — from these sources make the water undrinkable. The Clean Water Act defers to the states on whether to regulate agricultural water pollution, and Iowa has no mandatory controls to prevent agricultural runoff from polluting Iowa’s waterways. Instead, the state has made the voluntary Iowa Nutrient Reduction Strategy the official nutrient control policy for the state, which is widely recognized as a complete and utter failure. And the public bears the cost: the pollution harms the public’s use of the Raccoon River for recreation and as a source of drinking water, and the Des Moines Water Works must extensively treat the water to make it drinkable — a financial burden ultimately shouldered by the ratepayers.

I am the lead counsel in a team of fantastic lawyers including Tarah Heinzen with Food & Water Watch, Roxanne Conlin, a former Public Justice board member and preeminent civil rights litigator, her associate Devin Kelly, and Channing Dutton at Lawyer, Lawyer, Dutton & Drake.

Our lawsuit relies on the Public Trust Doctrine to hold the State of Iowa accountable to Iowans, who have the right to use the Raccoon River, while the state has the duty to protect the river for the public’s use. It was the law when Iowa became a state, and it is the law today. By failing to require pollution controls, the state has allowed agricultural water pollution to substantially impair the public’s right of use and has abdicated control of the river to agribusiness. The lawsuit asks the court to order the state to adopt a mandatory plan to clean-up the river, to halt construction and operation of new and expanding CAFO’s in the watershed, and declare the voluntary nutrient policy unconstitutional. And it’s a good example of how the Food Project brings legal tools to movement organizing to build more power.

Let’s be clear: agribusiness is the problem when farmers get less than 15 cents of every food dollar spent at the grocery store. We know that farmers want to see their communities flourish and restore Iowa’s rivers and lakes. While we call for mandatory pollution controls, we also support rural policy reform that ensures farmers can afford to protect our water and our climate.

Why is reforming the food system and busting up Big Ag so important for addressing climate change?

The Food Project supports farmers to implement climate solutions like regenerative agriculture to address both our water quality and climate crises. Achieving air and water pollution reductions from CAFOs and the corn/soybean monoculture is not just good for the surrounding environment — it has climate benefits as well. There is so much runoff from synthetic fertilizer and animal waste that gets into waterways. If farmers go to pasture-based farms, or grow corn/soybeans with no-till, combined with cover cropping and more crop rotations, for example, farmers will reduce water pollution, limit greenhouse gas emissions, and sequester carbon in the soil all at the same time.

We are also working with communities and allies to call B.S. on false climate solutions like manure-to-energy biogas production. Corporations like Smithfield and the industrial dairy and hog industry want to greenwash the massive greenhouse gas pollution from the gigantic “lagoons” of manure at factory-sized hog and dairy facilities, the methane from which is 84 times more powerful than carbon dioxide during the 20-year period between now and 2040 when we must make massive reductions to save our planet. So they want to install systems to capture the methane and then blend it with fracked gas in the pipeline — paid for by the public — to help prop-up gas utilities and fossil fuel use. This entrenches the industrial food production system and prevents a shift to regenerative agriculture. We need a clean energy and food future to get us to where we need to be in 2040, not dirty biogas that just entrenches and greenwashes industrial agriculture and fossil fuel corporations. But we won’t get the agricultural system our planet and communities need while a handful of corporations make up all of the rules. Busting up Big Ag and empowering farmers are a huge part of tackling our water quality and climate crises.

How do independent farmers embrace your message on climate?

The farmers I talk to are really excited about what they’re doing to address climate change. They know there is a problem — they don’t have their heads in the sand. They know what they are doing is not only good for the climate but also for their farm. They are spending less money on fertilizer because they are intentionally farming in a way that requires less synthetic fertilizer. They are keeping what fertilizer they do use on their fields, so it’s not running off into local waterways. They’re using pasture-based methods because their cows do well on pasture, they’re able to sell their product for more profit, there are less input costs, and they are proud that their farming puts CO2 into the soil. It’s a win-win-win-win for a lot of issues.

Farmer-based organizations like the Iowa Farmers Union are leading the way. I was recently at Farm Aid, and heard about the dairy crisis in Wisconsin — small operators are having such a hard time when industrial dairies are flooding the market with milk. A dairyman gave me a sticker that said “#BustUpBigAg” that had a picture of a robber baron stealing money from a family farm. Farmers get it — we can all work together to support family farms, dismantle Big Ag’s stranglehold on rural communities, and solve our climate crisis.

“We won’t get the agricultural system we need while a handful of corporations make up all of the rules. Busting up Big Ag and empowering farmers are a huge part of tackling our water quality and climate crises.”

You won an award for your legal work fighting industrial dairies in California while you were at the Center for Race, Poverty & the Environment. Tell us a little about that.

This is another good example of what movement-oriented litigation looks like. Rural communities in the San Joaquin Valley of California were suffering a massive expansion of the California dairy industry in the late 1990s and early 2000s. As I worked with some community leaders to develop a response in 2001, I learned that state law allowed these facilities to spew air pollution into one of the most polluted air basins in the United States by exempting agricultural sources from air pollution controls. This was especially egregious when dairy factories in the San Joaquin Valley were the largest source of ozone-forming volatile organic compounds, and where one in five kids had to carry an inhaler to school. So, I collaborated with Bruce Nilles, an Earthjustice attorney at the time, to develop the legal strategy to secure air pollution controls from industrial dairies and diesel-powered irrigation engines. Federal law is the supreme law of the land thanks to the Supremacy Clause in the U.S. Constitution, so we argued that the Clean Air Act trumped the inconsistent state law exemption. Representing several San Joaquin Valley community-based organizations including the Association of Irritated Residents (AIR), we sued the U.S. EPA for allowing this exemption to persist. EPA quickly agreed to a settlement which required EPA to issue a demand to California to remove the exemption from state law or lose federal highway funding.

I then helped write legislation — Senate Bill 700 — and supported an environmental justice campaign with a coalition of environmental justice leaders and San Joaquin Valley community based-organizations to remove the exemption and impose additional substantive air pollution controls on Big Ag. I later litigated several cases on behalf of AIR to ensure the law was faithfully implemented, and received the Clean Air Award for Leadership from Breathe California in 2008.

Why are legal strategies such an important part of organizing for a better food system?

Legal strategies on their own are not going to win this fight. Industry is adept at rolling back our wins because they have a lot of resources and political influence. I see our work to bring movement-oriented litigation as providing legal tools to the movement to secure real wins. We have to build power to change politics and institutions, and we cannot just do that in court. We’re working with allies and communities on the ground that are building a new narrative about agriculture.

As a lawyer, I shouldn’t be driving the stagecoach. I should ride shotgun — helping those driving change. We are lawyers that are serving a greater movement, responding to what it needs, not deciding what’s best for everyone. It’s never top-down — to quote preeminent environmental justice scholar Dr. Robert Bullard, we are “on tap, not on top.”