RE Sources ups the ante in its assault on our family dairy farms
Bellingham group files lawsuit against a key dairy farm supplier
Farmers call on the Bellingham environmental group to stop its legal attacks on farmers and farm businesses
It apparently is not enough that RE Sources is widely promoting and publishing false accusations against our farmers and participating in legal action that, if successful, would drive most of our dairy farmers out of business. Now, along with a partner Seattle environmental group, they are suing one of our leading dairy feed suppliers in a highly questionable lawsuit that could further damage our farm community.
A report in the August 21 Capital Press states that Bellingham-based RE Sources has joined with Puget Soundkeepers to sue the owners of one of the county’s major feed suppliers, Ferndale Grain. This longtime business was locally owned until purchased by Cargill in 2003 and supplies feed to many of our local farms.
We don’t have any information from the company specific to this situation other than this statement:
“We are aware of the citizen lawsuit filed by the Puget Soundkeeper Alliance of Seattle and Re Sources for Sustainable Communities of Bellingham. Environmental stewardship is important to Cargill, and we take this action seriously. Over the last several years, we have worked very closely with the state of Washington Department of Ecology and city officials in Ferndale to ensure our plant is compliant with local and state stormwater regulations. We will continue to work with city and state officials, as well as the two organizations involved in this dispute, to resolve this matter.”
These environmental lawsuits are a far too common strategy of some environmental groups. Teaming up with a Seattle law firm that specializes in this type of suit, they identify targets with deep pockets, conduct in-depth research into their regulatory compliance record and, if any discrepancies are found, they file a lawsuit. Legal experts note that the complicated discharge permits with detailed reporting requirements are very difficult if not impossible to comply with to the minutest detail. Yet, when even very minor compliance issues are found, a lawsuit is filed referencing the maximum penalties on a per day basis that, when added up over an extended period of time, often amount to many millions of dollars. Companies usually settle for far less than the claim because an environmental lawsuit will mean spending significant funds on legal defense, not to mention the negative publicity. Settlement usually involves paying the groups’ attorney fees, expert witness fees and making a contribution to a Supplemental Environmental Project (‘SEP”) designated by the environmental group. The cost of this to a business can range from tens of thousands of dollars to a few hundred thousand dollars.
The environmental organizations filing the suit, such as RE Sources, cannot be paid directly for the SEP but their lawyers can as well as their so-called expert witness, who are used over and over again by the same Seattle law firm. Beyond the legal fees and expert witness fees, SEP payments go through organizations like the Rose Foundation in California. These organizations then can make contributions or provide grants back to the environmental group filing the suit. Information on the Rose Foundation’s website explains how the money from the settlement goes to them, then flows back to a local group, such as RE Sources:
Over the past 22 years, Rose has received approximately 400 settlements related to consumer and environmental issues. Through this program, the Foundation has been entrusted with over $36 million in settlement funds and has helped enable grants in California, Washington, Oregon and nationally. In accordance with charitable law, each settlement document assumes the force of a deed of gift and specifies the allowable uses of the funds. As part of aligning grant awards with the nexus of the settlement, to the extent possible, the Foundation prefers to award grants to organizations that are active in the communities which suffered the original harm.
RE Sources has already used this tactic against several local businesses. One specific lawsuit resulted in a family-owned business being forced to settle with RE Sources because of record keeping problems dating back to a previous owner. Facing court action and penalties that accumulate at tens of thousands per day totalling millions of dollars, the company’s settlement cost them about $250,000. $75,000 of that was paid to RE Sources’ attorney and “expert” and indirectly to RE Sources using a third party which then offered RE Sources grant funds. This strategy, some would call extortion, provides the law firm with a steady source of funds and their environmental partners a relatively easy means of fundraising.
The action against Ferndale Grain appears to be particularly suspect as according to the news report, the company violated state water quality standards involving turbidity, or suspended solids in a stream. According to the news report the turbidity was related to heavy rains. However, the cloudy water violations referenced were apparently resolved in 2013 and 2015. It appears based on the information we have is that four years ago heavy rains caused runoff which included zinc and copper. For that RE Sources’ suit says the company should pay penalties of $52,414 per day or $20 million per year. Capital Press report stated:
"The lawsuit alleges violations over several years and seeks penalties of up to $52,414 per day. Cargill can afford to pay a significant penalty, according to the suit."
The “several years” RE Sources is claiming could amount to $100 million for what appears to be a minor issue that was resolved years ago. It is telling that, according to the news report the lawsuit filed by RE Sources stated: “Cargill can afford to pay a significant penalty.” In other words, filing a highly questionable lawsuit is fully justified because the merits of the violation do not matter as long as the target has sufficient ability to pay.
Cargill’s ability to pay should have no bearing on an issue of environmental concern. Because the lawsuit references their ability to pay this gives credence to those who call this a form of legal extortion.
What concerns Whatcom Family Farmers is the Ferndale Grain operation is very small in the Cargill business, but very significant for our farmers. It may be to the company’s financial interest to determine that Whatcom and Skagit counties are simply not friendly places to do business and leave. Certainly, facing this kind of legal attack from a local group can lead to such a conclusion, particularly if this is not the only such attack. Farmers are already concerned as we continue to lose more and more dairy farmers that a tipping point will be reached in support infrastructure which will raise costs for all remaining farmers and make the future even more uncertain.
RE Sources’ action against a key farm supplier is seen by farmers as another attack on farmers which included false accusations against our dairy farms and active participation in the legal challenge to Ecology’s CAFO permit. If their challenge is upheld either by Ecology or by the courts, then we would see almost all our local dairy farms go out of business. Those supporting RE Sources in this completely unjustified attack on our farmers and now key farm suppliers can cheer as they see more and more of our declining farmland converted to homes, shopping centers and office parks.
Farmers are frustrated that RE Sources’ and Puget Soundkeepers’ attacks on farmers, and now on Ferndale Grain, completely overlook far more significant sources of pollution. If there was real concern about pollution from the zinc and copper involved in the Ferndale Grain action, these activist groups should be focusing on where the problems really lie – on urban runoff. The Encyclopedia of Puget Sound provides this information:
On average, more than 52,000 – 66,000 lbs of pollutants are released into the Puget Sound Ecosystem each day (Ecology, 2011b). This includes oils and grease, petroleum, zinc, copper, and polycyclic aromatic hydrocarbons. In addition, an estimated 1,189,880 lbs of total suspended sediment enters the Puget Sound Ecosystem each day from surface runoff (Ecology 2011b).
The Encyclopedia makes clear this runoff is not from farms or feed suppliers but from urban development:
The Puget Sound drainage basin encompasses 8,768,000 acres (USGS, 2000), of which 357,840 acres are made up of impervious surfaces (Parametrix, 2010). With an average annual rainfall at SeaTac airport of 38.2-inches (Rosenberg et al, 2009), Puget Sound basin sees an average of more than 370 billion gallons of stormwater runoff from these surfaces each year.
We call on RE Sources to recognize that increasing impervious surfaces through conversion of farmland to development, is the real issue of concern to the environmental community. Why is RE Sources’ working so hard to rid our community of our remaining dairy farms, and now, farm suppliers? The 100,000 acres of farmland in Whatcom County are very much needed to filter water and provide habitat. Instead of persisting in legal attacks against our farms and farm businesses, wouldn’t it make sense to focus RE Sources’ resources on where it can do some real good? Or, is fundraising through this highly questionable means more important than real environmental activism?