Bill Giving Citizens Right To Sue Over Water Pollution Has Financially Strapped Farmers On Edge

May 7, 2018

A bill that would allow citizens to go to court to enforce state water pollution laws is facing fierce opposition from Vermont farmers.

The farm community says now is not the time to expose farmers to more financial or legal risk.

Sheldon dairy farmer Bill Rowell is waiting for his fields to dry out so he traveled last week from Franklin County to Montpelier for a little lunch and lobbying under the golden dome.

“Things are great, really, except for the getting paid part," said Rowell, as he summed up his life and work these days. "And then you have some disingenuous business in the Statehouse from time to time that you have to come and tend to."

The getting paid part is a familiar story for farmers facing another year of low milk prices, a financial squeeze that led to 16 farms closing in April.

The “disingenuous” business Rowell is working on in the Statehouse is legislation that would allow citizens to sue polluters under state clean water law.

"I think the legislative body has gone out of their way the last couple of years to put rules in place to ensure clean water in the future and to do something about cleaning up water today." — farmer Bill Rowell

Farmers like Rowell are upset, saying they are already making substantial investments to comply with pollution controls to reduce phosphorus runoff. And they say now is not the time to add even more risk to their businesses.

“It’s unfair to the farm. I mean, I think the legislative body has gone out of their way the last couple of years to put rules in place to ensure clean water in the future and to do something about cleaning up water today,” he said. 

Rowell chairs the Vermont Dairy Producers Alliance which represents both farms and farm-related industry.

The group has a lobbyist working the halls of the Statehouse, and Rowell met last week with lawmakers and Gov. Phil Scott.

But he hasn’t convinced Sen. Chris Pearson, a Burlington Progressive/Democrat who serves on the Senate Natural Resources Committee.

“What we’re really talking about is not a lot of lawsuits,” Pearson said.

"Your neighbor, if they are in violation, has 90 days to mitigate the problem or come up with a plan. As long as they do that within the 90-day window, there can be no lawsuit." — Sen. Chris Pearson

He said the fears of being sued are overblown. That’s because a citizen contemplating a suit has to give 90 days notice of the potential legal action. That gives a state agency and the polluter time to address the problem.

“The provision that’s in our bill, and the federal government has it in the Clean Water [Act], Clean Air Act, if you see your neighbor polluting a stream, you give notice. And you give the Agency of Natural Resources notice. And your neighbor, if they are in violation, has 90 days to mitigate the problem or come up with a plan,” he said. “As long as they do that within the 90-day window, there can be no lawsuit.”

Pearson said the bill is needed because state agencies lack the resources to do the necessary enforcement.

“We don’t have the personnel to enforce our laws in far too many cases. And we have decades of clean water work to come,” he said. “So let’s empower citizens to be partners with us.”

But Rowell said farmers already face new permit requirements to reduce manure from running into streams and lakes.

And he says the bill does not expressly prohibit someone from being sued even if they’re complying with a state permit. 

“If you have a problem, talk with the Agency of Natural Resources or the Agency of Agriculture, or whatever agency would pertain to your complaint,” he said. “And that should be good enough. The agencies have gotten to the point where they are tenacious about enforcement.”

"To have citizens off the street question our ability to produce milk with little or no background, experience or authority is not right." — Jenny Nelson, dairy farmer

Farmers are on edge over the legislation, and are flooding lawmakers with messages of concern.

One email from Ryegate Center dairy farmer dairy Jenny Nelson — a former aide to Sen. Bernie Sanders — said farm families are under the most pressure she has seen in 35 years of advocacy.

“To have citizens off the street question our ability to produce milk with little or no background, experience or authority is not right,” she wrote.

But Chris Kilian of the Vermont office of the Conservation Law Foundation notes the bill does not target farmers, but would apply to any polluter regardless of their business.

“It’s a tried and true approach and only those violating the law and harming our environment need to be concerned about it,” he said. 

Lawmakers dropped the citizen suits language from a bill that advanced in the House that raised money to pay for water cleanup programs.

But the provision is still alive in other legislation. So farmers and clean water activists will be working the Statehouse until lawmakers go home this spring.