American Farm Bureau Federation et al v. U.S. Environmental Protection Agency et al

Filing 115

MEMORANDUM OPINION AND ORDER denying 84 Plaintiffs' Motion for Summary Judgment; granting 91 Defendants' Motion for Summary Judgment; granting 98 Defendants' Motion for Summary Judgment (Written Opinion). Signed by Judge Ann D. Montgomery on 01/27/2015. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

American Farm Bureau Federation
and National Pork Producers Council,
Plaintiffs,
MEMORANDUM OPINION
AND ORDER
Civil No. 13-1751 ADM/TNL

v.
U.S. Environmental Protection Agency and
Gina McCarthy,
Defendants,
and

Food & Water Watch, Environmental Integrity
Project, and Iowa Citizens for Community Improvement,
Intervenors.
______________________________________________________________________________
Jay C. Johnson, Esq., Venable LLP, Minneapolis, MN for Plaintiff.
Pamela Marentette, Esq., United States Attorney’s Office, Minneapolis, MN for Defendants.
Jeffrey Gulley, Esq., Government Accountability Project, Washington, D.C. for Intervenors.
______________________________________________________________________________
I. INTRODUCTION
On December 17, 2014, the undersigned United States District Court Judge heard oral
argument on the above captioned parties’ cross motions for Summary Judgment [Docket Nos. 84 and
98] and Intervenors’ Motion for Judgment on the Pleadings, or in the Alternative, for Summary
Judgment [Docket No. 91]. For the reasons discussed below, Defendants’ and Intervenors’ motions
are GRANTED based on Plaintiffs’ lack of standing.

II. BACKGROUND
A. Concentrated Animal Feeding Operations
Farms that confine large numbers of animals for more than 45 days during a growing season in
an area that does not produce vegetation are called Concentrated Animal Feeding Operations
(“CAFOs”). The Environmental Protection Agency (“EPA”) has identified agriculture in general, and
CAFOs in particular, as a leading source of pollution in our nation’s rivers and streams. Nagle Decl.
[Docket No. 69] ¶ 13. The Clean Water Act (“CWA”) names CAFOs as “point sources” of pollution.
Id. ¶ 7; See also 33 U.S.C. § 1311(a).
B. The Environmental Protection Agency’s duties under the Clean Water Act
The CWA requires the EPA to “restore and maintain the chemical, physical and biological
integrity of the Nation’s waters.” Nagle Decl. ¶ 4; See 33 U.S.C. § 1251(a). The CWA also restricts
the pollutants that are permitted from point sources, like CAFOs. 33 U.S.C. § 1311(a). Agriculture
pollution discharges are generally regulated under the National Pollutant Discharge Elimination System
(“NPDES”) permit program. Nagle Decl. ¶ 7; See 33 U.S.C. § 1342. NPDES permits for CAFOs
require disclosure of the farm’s location and other operational details. Nagle Decl. ¶ 10; See 40
C.F.R. §§ 122.21(i), 122.23(d). Most states are authorized to administer NPDES programs and state
and federal regulations require that information collected by the states be made public. 40 C.F.R. §
123.41(a).
C. EPA’s collection of CAFO information
In 2008, the General Accountability Office issued a report concluding that the EPA did not
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possess the “reliable information it needs to identify and inspect CAFOs nationwide.” Nagle Dec. ¶¶
15, 74. Initially, the EPA proposed a regulation that would have required CAFOs to report
information to the Agency directly. Id. ¶ 18. The EPA withdrew the proposed rule after receiving
many comments in opposition from industry representatives. Nagle Decl. ¶ 21. Instead, the EPA
began gathering public data about CAFOs that was already publicly available from state databases. Id.
D. Freedom of Information Act requests for CAFO information
In the fall of 2012, the EPA received two Freedom of Information Act (“FOIA”) requests for
CAFO information. Id. ¶ 31. The EPA first released responsive information in January and February
2013. Id. ¶ 34. After Plaintiffs and other interest groups expressed concern about their privacy rights
being violated through the EPA’s disclosure of CAFO information, the EPA conducted further review
of the information it had already disclosed. Id. ¶ 31. The EPA subsequently amended its response to
the FOIA requests on April 4, 2013 and again on April 30, 2013. Id. ¶ 42. The EPA has yet to
release CAFO information related to Minnesota and Iowa farms at issue in this case and has agreed to
postpone its response to the outstanding FOIA requests until this litigation is resolved. Id. ¶ 50.
E. Basis for Plaintiffs’ suit against the EPA
Plaintiffs move under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706, to prohibit
the EPA’s release of their members’ personal information—including the physical address and other
operational details about the farms—in response to FOIA requests. Pls.’ Mem. Supp. Summ. J.
[Docket No. 86] 8. Plaintiffs argue the EPA acted arbitrarily and capriciously, or contrary to law, in
releasing personal information of farmers that is protected under a FOIA exemption. Id. Specifically,
Plaintiffs argue that their members’ personal information is protected by FOIA Exemption 6, which
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safeguards “personal, medical, or similar file[s], the release of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Id.
III. DISCUSSION
Defendants and Intervenors argue Plaintiffs lack standing to bring this lawsuit because none of
the individuals on whose behalf Plaintiffs seek relief have suffered or will imminently suffer direct injury
as a result of Defendants’ anticipated actions. Defs.’ Mem. Supp. Summ. J. [Docket No. 100] 17;
Interv. Mem. Supp. Mot. J. Plead. / Summ. J. [Docket No. 93] 15. Plaintiffs argue that their
members’ privacy interests will be injured if and when the EPA disseminates relevant CAFO
information. Pls.’ Reply Mem. Supp. Summ. J. [Docket No. 104] 23. Plaintiffs also argue their
members are “justifiably concerned that invasions of privacy are directly linked to physical invasion of
property—at least one member has already experienced such an invasion.” Id. at 24.
“No principle is more fundamental to the judiciary’s proper role in our system of government
than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (internal quotations omitted). One element
of the constitutional case or controversy requirement is standing. Raines v. Byrd, 521 U.S. 811, 818
(1997). Three elements must be shown to establish standing: (1) an injury that is concrete and
particularized, or actual and imminent—not conjectural or hypothetical; (2) a causal relationship
between the injury that is “fairly traceable” to the challenged action of the defendant; and (3) it must be
“likely” as opposed to merely “speculative” that the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) ( internal citations omitted).
Membership organizations, like Plaintiffs American Farm Bureau Federation and National Pork
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Producers Council, have standing to sue on behalf of their members so long as the remedy sought will
benefit the individual members who allege injury. Hunt v. Wash. State Apple Adver. Comm’n, 432
U.S. 333, 343 (1977). At summary judgment, plaintiffs must set forth specific facts by affidavit, which
taken as true, demonstrate the nature of the injury suffered. Lujan, 504 U.S. at 561.
Plaintiffs submitted one affidavit from American Farm Bureau member Patrick Lunemann with
their Complaint. Lunemann Decl. [Docket No. 10]. Plaintiffs attached five additional member
declarations (“Other Declarations”) to their brief in opposition to the EPA’s Motion for Summary
Judgment.1 Other Decls. [Docket No. 105-1] 7-21. Lunemann’s declaration, like each of the other
five declarations, states that “I consider the uncontrolled distribution of my personal information to be
an invasion of our privacy.” Lunemann Decl. ¶ 7; See also Other Decls. 7-21. The Other Declarations
also express sentiments such as “[w]idespread disclosure of my personal information, uncontrolled by
me, makes me and my family more likely to receive disturbing threats and potentially targeted criminal
activity” and “[w]idespread, uncontrolled disclosure of personal information makes my farm more
vulnerable to agroterroism—including the introduction of animal diseases into the food supply—which
the Federal Bureau of Investigation (“FBI”), Department of Homeland Security, and many state
agencies have identified as a current and serious threat.” Other Decls. 8, 14 and 9, 15.

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The EPA argues that the five additional affidavits are untimely filed under Federal Rule of
Civil Procedure 6(c)(2) and therefore should not be considered by the Court. However, in addition to
stating that “[a]ny affidavit supporting a motion must be served with the motion,” Rule 6(c)(2) also
states that “any opposing affidavit must be served at least 7 days before the hearing, unless the court
permits service at another time.” Because Plaintiffs additional affidavits were served as exhibits to their
memorandum in opposition to the EPA’s Motion for Summary Judgment more than 7 days before the
hearing, the affidavits were timely filed and will be considered.
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Declarant Rick Grommersch avers that in 2006, environmental activists associated with the
group Compassionate Action for Animals climbed over a fence on his property to take photos of items
on his farm. Grommersch Decl. ¶ 11. Another declarant, David Rydberg, states that “I am aware of
farmers who receive threatening letters and telephone calls from extreme animal rights activists” and
“[i]n recent months, there has been news coverage of one activist’s campaign to employ drones to fly
over and photograph farms.” Rydberg Decl. ¶¶ 9 and 10.
The affidavits submitted by Plaintiffs fail to establish standing on behalf of any of their individual
members. First, Plaintiffs fail to demonstrate an actual or imminent injury. The primary anticipated
injury alleged by Plaintiffs is that they will “lose control of their personal information.” Pls.’ Mem. Opp.
Summ. J. [Docket No. 104] 24. However, Plaintiffs fail to establish how the EPA’s potential release of
already public information constitutes a loss of control over their personal information. All six
declarants acknowledge that they provided the physical address and a description of their farms to
government officials as part of the NPDES permit process. Lunemann Decl. ¶ 4; Other Decls. 7-21.
This information is required to be public by law. 40 C.F.R. § 123.41(a).2
Plaintiffs rely on the Supreme Court’s decision in United States DOJ v. Reporters Comm. For

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Plaintiffs do not dispute that the information they seek to prevent the EPA from disclosing is
already publicly available through the Minnesota Pollution Control Agency’s (“MPCA”) website and
the Iowa Department of Natural Resources (“Iowa DNR”) website. For example, any member of the
public can search the MPCA’s website under “data” and “What’s in My Neighborhood” tab and
identify a large spectrum of environmentally sensitive activities—including CAFOs—by searching
owner names, type of activity, city, and more. In addition, information about the farms owned by at
least four of the declarants, including the farm’s address, is also available through a simple Google
search. Declarant Patrick Lunemann’s farm, Twin Eagle Dairy, lists the farm’s address on its
promotional Facebook page.
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Freedom of Press for the proposition that a farmer’s privacy interest in his personal information does
not evaporate simply because the farmer is required to disclose certain information to obtain a permit.
489 U.S. 749, 763 (1989). As argued by Plaintiffs, “[t]he past public availability of piecemeal
information does not eliminate the ‘potential invasion of privacy’ that results from the present disclosure
of information.” Pls.’ Mem. Supp. Summ. J. at 18.
Reporters Committee is distinguishable on several grounds. The Court in Reporters Committee
held that the FBI could not respond to FOIA requests that sought summaries of criminal rap sheet
information without violating those individual’s right to control information concerning his or her person.
489 U.S. 74 at 763. Critical to the Court’s decision, published in 1989—well before widespread use
of the internet—was the distinction between “scattered disclosure of the bits of information contained in
a rap sheet” that were a matter of public record but difficult to obtain, and “revelation of the rap sheet
as a whole.” Id. The Court also noted the “web” of federal and state laws that limited, and often
shielded, nonconviction rap sheet information from the public. Id. at 764-65.
In this case, the relevant web of federal and state laws make disclosure of the NPDES data
Plaintiffs seek to protect mandatory. See 33 U.S.C. §§ 1342(b)(3) (setting forth guidelines for state
permit programs, including “[t]o insure that the public . . . receive notice of each application for a permit
and to provide an opportunity for public hearing before a ruling on each such application.”); see also 33
U.S.C. §§ 1342(b)(3) (“A copy of each permit application and each permit issued under this section
shall be available to the public. Such permit application or permit, or portion thereof, shall further be
available on request for the purpose of reproduction.”). These public engagement regulations are
designed by the EPA to fulfill its duties under the CWA, which seeks to protect the integrity of our
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nation’s waterways. The public’s interest in clean water sources, and thus transparency related to
identified pollution sources, is certain.
The other critical distinction to draw between Reporter’s Committee and this case is the
ease with which the information Plaintiffs seek to protect can be found on the internet. Whereas some
of the information in Reporter’s Committee was public, it was difficult to obtain. 489 U.S. 749, 764
(1989) (“Plainly there is a vast difference between the public records that might be found after a diligent
search of courthouse files, county archives, and local police stations throughout the country and a
computerized summary located in a single clearinghouse of information.”). Here, the information
Plaintiffs want protected is easily accessible and widely available, often times voluntarily so by the
farmers who seek to promote their business. Under these circumstances, the EPA’s distribution of
already public information does not establish an injury for purposes of constitutional standing.3
Plaintiffs also argue that their members are “likely to be further victimized as a result” of the
EPA’s disclosure of their personal information by environmental activists and animal rights groups.
Grommersch Decl. ¶ 9; Rydberg Decl. ¶ 9. This argument does nothing to cure Plaintiffs’ lack of actual
injury. Rick Grommersch is the only declarant who has experienced environmental activists entering his

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Plaintiffs also argue that the Eighth Circuit’s decision in Campaign for Family Farms v.
Glickman supports their position that disclosure of some information to the government for a limited
purpose does not mean that the information should necessarily be available to the general public. 200
F.3d 1180, 1188 (8th Cir. 2000). However, Glickman involved the disclosure of names and other
information of farmers who signed a petition that the Court deemed equivalent to a secret ballot.
“While we need not decide whether there is a constitutional right to a secret ballot, we do not hesitate
to hold that there is a strong privacy interest in a secret ballot and that this privacy interest is no less
compelling in the context of FOIA’s personal privacy exemption than it is in other contexts.” Id. In this
case, the law requires that basic information about CAFO operations be public. There is no analogous
secret ballot to support Plaintiffs’ position.
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property. Grommersch’s experience, which occurred nearly ten years ago, combined with the other
declarants’ concern that they are “likely” to be victims of such activist tactics, is speculative, falling short
of an actual or imminent injury.
Even if Plaintiffs could establish an actual injury, highlighting Grommersch’s experience
demonstrates the difficulty Plaintiffs have in establishing the second and third elements of standing.
First, the incident on Grommersch’s property occurred in 2006, years before the EPA ever responded
to any FOIA request with CAFO information, underscoring the ease with which activist groups can
identify the location of large farms. Furthermore, “[w]hen the injury alleged is the result of actions by
some third party, not the defendant, the plaintiff cannot satisfy the causation element of the standing
inquiry.” Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 935 (2012). The potential injuries
of which Plaintiffs express concern are alleged to be executed by third parties, not the EPA.
Finally, establishing redressability, the third element of standing, will likewise be very difficult.
Because the Plaintiffs’ member farmers’ information, including their physical addresses, is publicly
available from multiple sources, Plaintiffs face an seemingly impossible task of showing that prohibiting
the EPA’s distribution of already public information will redress the speculative injuries they currently
allege. For all of these reasons, Plaintiffs do not have constitutional standing in this matter.

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IV. CONCLUSION
Based upon all the files, records, and proceedings herein, IT IS HEREBY ORDERED that
Defendants’ and Intervenors’ Motions for Summary Judgment [Docket Nos. 98 and 91] are
GRANTED and Plaintiffs’ Motion for Summary Judgment [Docket No. 84] is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.

BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: January 27, 2015.

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