The owners of Highland Dairy Farm (“Highland”) in Clovis, New Mexico are being forced to close down due to chemical contamination which has been sourced to a nearby Air Force Base. The farm is owned by Art Schaap, a 54-year-old, 4th generation dairy farmer in CurryCounty. The property was contaminated by a blend of chemical toxins known as PFAS that spread from Cannon Air Force Base. Though PFAS contaminations have been known to occur around military bases, this particular exposure is especially noteworthy because it is the first time PFAS toxins have directly threatened the United States’ food supply.

The widespread nature of the toxic exposure has caused Highland to close its doors. It has had to dispose of 15,000 gallons of milk, a volume roughly equivalent to 240,000 children’s lunch cartons. Its 4,000 cows, which have also been contaminated, cannot be sold for either their milk or beef, and the farm plans to exterminate them. The farm has also been forced to lay off all 40 of its employees, and its contaminated land is thought to be unsellable. More personally, Schaaf has expressed concerned for his health, as well as his wife’s, fearing that they may suffer life threatening consequences from possible exposure.

The Department of Defense (“DoD”) has reportedly known about the issue for years but has failed to make public disclosures. The Air Force also had knowledge of the danger of these chemicals, but likewise, failed to provide adequate warning. PFAS chemicals have been known to be toxic to humans and the environment since 2000. Exposure to these toxins have been linked to cancer, liver problems, thyroid disease, immune system damage, high cholesterol, and many other health problems. Last year, the DOD acknowledged that groundwater around 121 military bases has been contaminated.

PFAS is the abbreviation for a family of family of toxic compounds known as per-and-polyflouralkyl substances. While there are thousands of chemical sub-types within the family, the most widely understood are the perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) variants. However, the less common variants are also harmful. What makes the PFAS chemicals so dangerous is their ability to harm a wide variety of biological systems, even if exposure levels are low. The concern is that the environmental harm won’t just end at Highland farms. Also located closeby is the Ogallala Aquifer, the nation’s largest Aquifer, which stretches 174,000 miles and touches parts of eight states. If the contaminants infiltrate the water, the Aquifer’s sheer size could rapidly spread the poison over a large geographic area.

In causing Highland to close, the PFAS contamination has harmed New Mexico’s dairy business, one of the state’s most important economic sectors. Indeed, the dairy industry is the leading agricultural industry in the state and generates more than $1.3bn annually. Curry County, where Highland is located, is home to 25 dairies alone, which make it one of the top 20 counties for milk production in the nation. In turn, these 25 farms host a total of ~82,000 milk cows producing 1.9 billion pounds of milk.

The problem has gained the attention of New Mexico lawmakers. Senator Tom Udall has met with Schaap and other dairy farmers. Governor Michelle Grisham, Congressman Ben Lujan, and Senator Martin Heinrich have called for deeper EPA involvement. Specifically, they want federal regulations and drinking water standards for PFOS and PFOA chemicals developed and enforced. The EPA has stated its plan to regulate the chemicals but has not proposed language that would require immediate cleanup, something which has not gone unnoticed by residents.

Because the government’s action stripped the Schaaps’ dairy of its value, they may have standing to sue the Federal Government for damages. Such a case would proceed under an inverse condemnation theory, a sub-type of eminent domain which applies to instances where the government has taken private property but has failed to pay the just compensation required by the Constitution’s 5th Amendment. It is still unclear how the Schaaps’ will choose to proceed. But given the near-zero salvage value of their farm, an inverse condemnation action may be one of the few options available in the effort to recover some of Highland’s value.

Written by Christopher Chan