4:06 PM EDT, March 23, 2013
Nobody asked me, but here are my six recommendations in the matter of the highly publicized, closely watched, widely criticized, rift-causing lawsuit brought by the Waterkeeper Alliance against the Hudson family poultry farm over alleged pollution in a tributary of the Chesapeake Bay on Maryland's Eastern Shore:
•Everybody calm down, starting with the Maryland General Assembly. Already, the House of Delegates has authorized $300,000 — taxpayer dollars — for the legal fees of Alan Hudson, the farmer. Think what you wish about this case — many think it was weak and should never have been filed, and they might be right — but if anyone should be on the hook for legal fees incurred by the farmer it is the plaintiff, the Waterkeeper Alliance, not Maryland taxpayers. The state should not pony up for legal bills in any case the state didn't bring. Think of the precedent that sets. The matter of who should pay what is for a federal judge to settle, not for grandstanding legislators.
•Beware all overwrought condemnations of the University of Maryland Environmental Law Clinic, which agreed to represent the plaintiffs in the federal civil suit against Hudson and its customer, poultry giant Perdue. Starting with a blast from our president-wannabe governor, that clinic of law professors and student-lawyers has been slammed frequently and publicly for agreeing to take the suit.
There have been attempts to yank state funding for the clinic, which was established more than 25 years ago to help watchdog groups ensure that environmental laws enacted by Congress and the General Assembly are implemented and obeyed. Do we really want politicians sticking their noses into that process, trying to influence which cases the clinic takes and which it doesn't? Industries that use and sometimes abuse natural resources have deep pockets to defend themselves. The environmental law clinic operated last year on a $400,000 budget — the lion's share of that from foundation grants and donations. Only 13 percent of its budget comes from state general funds; 22 percent comes from tuition.
The clinic should operate free of intimidation, especially from that exercised in the Hudson-Perdue case by our ambitious governor. Not that such a fine point would have occurred to Gov. Martin O'Malley, a UM law school classmate of Perdue's corporate lawyer. The Hudson case enabled O'Malley to get his name up in lights as a defender of the small farmer; that will certainly serve him when he campaigns for president in Iowa.
•The University of Maryland School of Law should consider what else could have been done, short of a federal case, to make the Hudson farm clean up its act. I wouldn't presume to give law professors advice, but once it became apparent that the source of the farm's pollution wasn't chicken manure — the heart of the Waterkeeper case — mitigation and not litigation might have been the correct course. The clinic might have served the public interest better by negotiating an inspection of the property and overseeing remediation of the contamination.
•Beware of claims that the farm did not pollute a little run to the Pocomoke River, and that Hudson was the innocent bystander in a legal war between the Waterkeeper Alliance and Perdue. In finding for Hudson and Perdue, Judge William N. Nickerson concluded that the source of the bacteria was runoff from cow manure, which was unregulated at the time, rather than chicken manure. In a deposition, Hudson acknowledged that he did not have fencing for his 40-plus cows.
Furthermore, Hudson did not file a nutrient management plan, as required by law, for five years. According to the Chesapeake Bay Journal, Hudson also acknowledged that he never conducted a soil test on his farm, despite being required to do so every three years. So, even though he was not found to be legally at fault, there were flaws in Hudson's operation and in his compliance.
•The General Assembly might want to ask the take-away question from this whole episode: How and when does the state monitor farms for pollution runoff, and does it exercise best practices for that important function of government in this fragile ecosystem? Timely access to the Hudson property was denied to state and local inspectors, according to emails filed as part of the Waterkeeper suit. Instead of opening the taxpayers' wallets to pay the Hudson legal bills, Maryland legislators ought to be asking if oversight of potential polluters is adequate. Which gets me to my last recommendation ...
•Drones. The suspected pollution in this case was first spotted from a plane in 2009. Turns out, what was seen from the sky was not chicken manure and not a violation of the Clean Water Act. But, until we figure out a way to eliminate nutrient runoff from such farms, bay waters will be at risk. With funding from the legislature, the state could keep watch with unmanned drones outfitted with cameras, and inspectors on the ground could readily check out suspected problems. Farmers who obey the laws can just look up at the low-flying drones and wave — or make any gesture they wish.
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