On Monday, the EPA Region 7 defended the aerial surveillance program in the Midwest, by emphasizing the surveillance is “a legal and cost-effective way to help protect Nebraska and Iowa streams from runoff contamination.” Per Joe Duggan’s article in the Omaha World Herald.
Senator Mike Johanns, R-Neb., is not buying it and believes the EPA does not have congressional authority to conduct aerial surveillance. Others believe the EPA’s surveillance unnecessarily duplicates the state’s CAFO regulations. So….which is it? Is the surveillance legal or is the EPA overstepping its congressional authority?
Congress has not prohibited the EPA from using aerial surveillance in the past. Furthermore, the EPA’s jurisdiction runs alongside a state’s authority (e.g. Nebraska Department of Environmental Quality) to enforce the Clean Water Act. However, the aerial surveillance is done without notice or permission by the feedlot owner and feels a lot like spying. On its face, the surveillance appears to be an unwarranted search prohibited by the 4th amendment of our Constitution.
Now we can blow hard about privacy concerns and congressional authority all we want. However, the EPA’s right to conduct aerial surveillance without specific congressional or statutory approval and without a warrant was approved by the United States Supreme Court back in 1986. In Dow Chemical Company v. United States, Dow Chemical sued the United States after the EPA took aerial photographs of Dow’s chemical plant in Midland, Michigan. Dow alleged that the photographs violated the the Fourth Amendment and was beyond the EPA’s statutory investigative authority. Sound familiar? The United States Supreme Court disagreed and found that the EPA “needs no explicit statutory provision to employ methods of observation commonly available to the public at large” and that aerial photographs from navigable airspace was not a a search prohibited by the Fourth Amendment.
Admittedly, there are some important differences between a chemical plant and a feed yard located near or next to an operator’s home. But with the current case law, the EPA will continue to conduct flyovers until a court decides feedlots deserve Fourth Amendment protection.