- - Thursday, July 16, 2020

“It’s not the crime. It’s the cover-up.” That lesson of Watergate, sadly, has to be relearned every generation by those in positions of authority. It certainly needs to be relearned by bureaucrats at the Environmental Protection Agency, who wield an enormous amount of power. That’s accurate all over the country and is especially true of America’s farms.

The regional office of the federal agency did a number of dishonest and possibly illegal things in and around Yakima, Washington, over the last decade that put local dairy farms out of business. More farms will be driven under if the EPA’s cover-up of its actions is allowed to stand, as activists will be able to press faulty claims in court by citing the agency’s supposed authoritativeness.

Here is what happened: The EPA cobbled together an incredibly flawed study of farms and nitrates in the groundwater in the Yakima Valley region. That is by no means a good thing, but bad studies happen. There are normal scientific, bureaucratic and legal means to challenge bad studies.

But then the cover-up kicked in. Here is how the EPA currently and dishonestly describes the results, on its own website: “The study concluded that several dairies … were likely sources of elevated nitrate levels that were measured in residential drinking water.”

That “damn the dairies” conclusion was not included in the draft of the report that the EPA’s own reviewers signed off on, and that independent reviewers gave a provisional OK to, with reservations. The draft had said that no definitive source of the nitrate levels could be identified. It was rewritten by the EPA’s enforcement team of non-scientists to give them more cause for action. In fact, when one of the independent reviewers, Department of Agriculutre soil scientist Dr. David Tarkalson, learned what had been done, he forced the agency to re-publish the report with his name removed as a reviewer.

It gets worse. The agency then proceeded to issue the final report without independent review and use that for enforcement purposes. The report was identified as “influential science,” which required independent review. When challenged on the lack of independent review, the EPA claimed it was classified as “other,” a category for far less significant studies that requires no outside peer review.

The EPA did not divulge this in response to a 2018 Freedom of Information Act request. In April of last year, when staff claimed the study was never “influential,” Save Family Farming requested several times for them to produce the documents that showed who submitted it as “other,” and when. The agency stalled on answering those requests for a year.

When the “smoking gun” finally came to light in April of this year — with emails proving that they knew the report had a lack of scientific standing and thus should not be used for enforcement but decided to go ahead with it anyway — the agency’s actions have been more of the same. In negotiations with representatives of farmers, the regional office of the EPA offered to no longer use the report for the purposes of enforcement but not to retract it.

That amounted to a whole lot of nothing. The agency would have great difficulty using it for that purpose anyway, in light of the EPA’s own internal correspondence. The damage still to be done by the study will come from activist lawsuits, unless the EPA does the right thing and retracts it.

However, the EPA is not only refusing to retract the study, it is also maintaining that the statute of limitations to challenge its enforcement has run out. The law in question has a 45-day window, but also allows for revisiting actions if new information comes to light, as it finally has.

The case is heading to the Ninth Circuit Court of Appeals. Judges will decide this, unless the Trump administration decides to bring its own out-of-control agency to heel. It would be the right thing for the justices or the president to end this cover-up once and for all.

• Gerald Baron is executive director of Save Family Farming.

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