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EPA nominee had little to do with ‘busload of lawyers’ case

Oklahoma’s famous “busload of lawyers” case is back in the news because of president-elect Donald J. Trump’s nomination of Scott Pruitt to be administrator of the Environmental Protection Agency.

Pruitt is Oklahoma’s Attorney General. Environmental groups are saying Pruitt did not pursue a pollution case against the Arkansas poultry industry because he received  $40,000 in campaign contributions from the chicken industry.

But the facts don’t really line-up that way. The die was cast in the “Busload” case in 2009 when a federal court ruled monetary damages were off the table. Pruitt was not elected until 2010, and did assume the duties of the job until early 2011.

IllinoisRiver_406x250The “busload” case, which ran from 2005 to 2014, was filed by Pruitt’s predecessor, former Oklahoma Attorney General Drew Edmondson, a Democrat. It named 13 Arkansas chicken companies as defendants on claims that poultry litter was polluting the Illinois River Basin.

Poultry litter is a mixture of chicken manure, spilled feed, feathers and bedding materials used in poultry houses. Poultry litter is used in confinement buildings for raising  broilers, turkeys and other birds.

Edmondson cut a deal with plaintiff law firms to assist the state and help finance the case in exchange for 50 percent of any financial awards.

The “busload” moniker was born as teams of attorneys showed up to represent each of the 13 defendant poultry companies and the specially hired plaintiff lawyers arrived to help the AG’s office. Prosecuting the case proved to be ponderous, especially during the trail before U.S. District Judge Gregory K. Frizzell, which began in late 2009 and continued into 2010.

The litigation concerned the Illinois River watershed that spans the Oklahoma-Arkansas border, an area of more than 1 million acres with 54 percent located in Oklahoma. Water quality degradation has been recognized in the area, which includes the popular Lake Tenkiller, since the early 1980s.

After hearing both sides, Judge Frizzell found the state had not shown that poultry litter was any more responsible for the basin’s pollution than numerous other sources, including cattle manure and failing septic systems. Bacteria levels in state waters did not appear to change based on proximity to chicken farms.

The U.S. District Court denied Oklahoma’s motion for a preliminary injunction.  Edmondson wanted the federal court to ban or set limits on how much poultry litter could be spread in the watershed. The issue was clouded further by the fact that Oklahoma’s Department of Agriculture, Food, & Forestry had the power to enjoin poultry companies for violating state water quality standards, but never used the power.

Edmondson and the plaintiff firms wanted a ruling for a monetary award — up to $800 million plus more with punitive damages — but the money they wanted got away.

Frizzell ruled that Oklahoma could not seek monetary damages without the involvement of the Cherokee Nation because the tribe’s lands surround the watershed. He was upheld by the 10th U.S. District Circuit Court of Appeals.

Edmondson in 2010 unsuccessfully ran for governor, and Pruitt, a Republican, was elected as Attorney General. After the 10th Circuit ruling, it was left to Pruitt to clean-up.  He dropped the case, but it was clearly Edmondson who lost it before Pruitt arrived on the scene. The case was not completely closed out until after all the appellate issues played out.

In 2013, Pruitt did reach an agreement with Arkansas to reduce fertilizer runoff. A recent study shows phosphorus levels in the Illinois River have been reduced by 50 percent during the past decade by actions of both municipalities and poultry farms.

If confirmed by the U.S. Senate, Pruitt will become the 14th EPA administrator since the agency was created by President Richard M. Nixon in 1970. There have also been 14 acting administrators who’ve filled the seat for short stints during the past 47 years.

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