Lawsuits have long been a tool of environmental advocates seeking clean water. The Chesapeake Bay Total Maximum Daily Load was born in 1998 after a lawsuit was filed by two recreational groups, the American Canoe Association and the American Littoral Society. Lawsuits in the Chesapeake Bay have led to better stormwater management, more environmentally friendly farming practices and stricter interpretations of Maryland’s Critical Area law.
But what if a state attorney general filed a lawsuit over clean water and the judge didn’t rule? Where would that leave the state, waterway and cleanup plan?
That’s what happened when the former attorney general of Oklahoma, Drew Edmondson, sued Tyson and seven other poultry companies in Arkansas over pollution that was killing the Illinois River in Oklahoma.
Growing up in Muskogee, OK, Edmondson loved to wade in the Illinois, a 145-mile-long tributary of the Arkansas River. It was pristine, with a rock bottom and spring-fed streams with water so clear he could see his feet.
But by the 1980s and 1990s, parts of the river had turned lifeless, devoid of the oxygen fish need to breathe and the benthic creatures that form the building blocks of aquatic life. Scientists and regulators identified two culprits: increased waste from municipalities and chicken manure in neighboring Arkansas.
Edmondson, who would serve four terms as Oklahoma’s attorney general before losing his 2010 bid for governor, was closely watching as the state’s beloved lakes, all man-made and fed from rivers, continued their slow march toward eutrophication. It was a problem not only for aquatic life, but also for urban residents who drew their water from the lakes.
The courts had already been brought into the dispute. In 1986, the case of Arkansas v. Oklahoma began when the city of Fayetteville, AR, wanted a discharge permit for waste and the state of Oklahoma, which had designated the Illinois River as scenic and therefore prohibited discharges, objected to the permit. Arkansas then sued Oklahoma. In 1992, the case of Arkansas v. Oklahoma went to the U.S. Supreme Court. The court ruled that upstream states, in this case Arkansas, had to meet the water quality standards of downstream ones.
The lawsuit ushered in cooperation between the states. But Oklahoma’s waterways were still impaired. Lake Tenkiller, which was so clear that scuba divers used to visit it in the 1960s, was so oxygen-deprived and full of algae by the 1990s that the divers didn’t come anymore.
Though the 1992 court decision in Arkansas v. Oklahoma was a victory for any downstream state in a situation like Oklahoma’s, it also clarified a problem. Oklahoma did not have clear water-quality standards, and it couldn’t prove the pollution was coming from Arkansas. So, scientists began developing standards. Edmondson put the municipalities that were discharging high levels of nutrients on a 10-year-plan toward cleanup. The poultry companies had been part of that conversation, but they broke off. So, in 2005, Edmondson sued eight poultry companies that operated in Arkansas, accusing them of polluting the watershed.
“Even when we filed the lawsuit, we did it with public statements that said we would like to sit back down and work this thing out,” Edmondson said. “We were trying to enforce the water quality standards of the state of Oklahoma.”
Edmondson talked about the lawsuit during a panel discussion, “The Arkansas-Oklahoma Poop Wars,” which the Bay Journal facilitated at the Society of Environmental Journalists conference in Norman, OK, from Oct. 7–11. Also on the panel: Chris Clayton, the agriculture policy editor for The Progressive Farmer and a former agriculture reporter for the Omaha World-Herald.
The case, Attorney General of the State of Oklahoma et al v. Tyson Foods Inc. et al, has more twists and turns than a soap opera. First, the poultry companies asked U.S. District Court Judge Gregory K. Frizzell to add 160 entities — among them golf courses, small cities and marinas — that they contended were also responsible for the pollution. Frizzell declined to add the entities, so the poultry companies sued them separately. Edmondson then asked the court to ban the spreading of poultry manure while the lawsuit proceeded. The judge declined to do so.
The poultry companies insisted that the Cherokee Nation be included because Cherokee lands envelop much of the Illinois River watershed; Frizzell agreed, but said the state of Oklahoma, under Edmondson, could not represent the nation. The judge further said Edmondson could not ask for monetary damages without including the Cherokee Nation. Though Cherokee attorneys would have liked Oklahoma to represent their interests, the nation filed to join the lawsuit on its own. Frizzell said no, because the motion was not timely. The Cherokee Nation appealed to the U.S. Appeals Court in Denver, which did not make a decision by the time of trial.
Frizzell heard the case in 2010, the same year Edmondson ran for governor. He has yet to rule, an unusually long time to consider a case.
Edmondson’s lawsuit may not have yielded the result he hoped for, but it and a prior lawsuit in Arkansas over poultry litter pollution to Lake Eucha and Lake Spavinaw have helped to usher in similar lawsuits elsewhere. The two lawsuits also encouraged companies to truck their waste out of the watershed, and phosphorus levels in the Illinois River have dropped.
In 2013, environmental groups in Washington State sued Cow Palace, an 11,000-head industrial dairy, claiming that its manure lagoons were polluting the water supply of the Yakima Valley. In January 2015, a federal judge ruled that Cow Palace’s manure was the source, and posed an “imminent and substantial endangerment,” according to the New York Times.
Two months after the Cow Palace decision, the Des Moines Water Works sued three rural Iowa counties, alleging that their inadequate drainage tiles were leaching nitrates into the rivers that feed the Des Moines and Raccoon rivers. The nitrate comes from fertilizer that is applied to cornfields and flows into the rivers, which is the water that the Water Works treats and then makes available to Des Moines residents.
In the stomach, nitrate can convert into nitrite, which can interfere with blood’s ability to carry oxygen. This problem is most pronounced in infants, who would ingest the nitrate with water-based formula. Iowa occupies only 5 percent of the Mississippi River Drainage Basin, but it is responsible for 25 percent of the nitrate that the Mississippi River delivers to the Gulf of Mexico. Des Moines Waterworks will need to spend $180 million over the next five or six years to address the nitrate problem, according to the Des Moines Register.
Clayton, who lives in Iowa, said the lawsuit has been contentious there, with most state officials criticizing the water authority for suing farming interests. Tile drains essentially channelize the underbelly of streams and deliver huge loads of nutrients, but they have never been considered a point source. Clayton said Iowa farmers have been putting in best management practices, but they have also been planting more corn since the renewable fuel standard encouraged ethanol derived from corn.
“You have some farm groups that have really pushed for different innovative practices. But so far, the conservation practices have not been effective enough,” Clayton said. “You can drive up after harvests north of Des Moines every year and see new tile lines.”
EPA officials are watching the Iowa lawsuit closely. Within the state, opinion is split along geographical lines. Des Moines ratepayers who pay into the system and have seen huge spikes in their rates, believe the rural counties need to do their part, while residents of the rest of the corn-growing state predominantly support the agricultural camp. State Sen. Randy Feenstra, who represents Iowa’s rural reaches, is even proposing legislation to block the suit. (He also called for an economic boycott of Des Moines.)
The Chesapeake Bay’s total maximum daily load also had its roots in a lawsuit, the one filed in 1998 by the American Canoe Association and the American Littoral Society. The lawsuit led to a 1999 consent decree for the Chesapeake Bay that set up a 10-year timeline for cleanup, after which the six states and the District of Columbia would have to enter into a regulatory TMDL. When the states missed their deadline, the TMDL came to pass in the Chesapeake. The EPA has defeated two major court challenges to its authority to enforce the TMDL, and may face a last challenge at the Supreme Court.
“You have all these different litigations going on to try to crack the nut, so to speak,” Clayton said. “The Chesapeake had years of litigation and court rulings before you actually got a ruling for a TMDL. It feels like it’s a career-long soap opera of water-quality issues.”
Edmondson said he has no regrets about filing the lawsuit, even though he acknowledges it may have cost him the governorship. The Illinois River is cleaner now, he said, because of the changes he helped to bring about. And he said he has no idea when the judge will rule.
“It was absolutely the right thing to do,” he said. “We tried to avoid doing it. But those efforts proved unsuccessful.”