Trends in Environmental Regulation
of Agriculture
By Professor Neil D. Hamilton, Director
Agricultural Law Center
Drake University Law School

The purpose of my talk this morning is to review with you what I believe are the major environmental trends in U.S. society. I will do this by discussing 10 different trends and the questions they raise. I will focus much of my remarks on livestock-related issues. After we have discussed the trends, hopefully, there will be time for your questions.

One development which we can all see is the increased public attention to agriculture and its impact on the environment. The question is why is society focusing such attention on agriculture? There are several explanations. First, much of the history of the past 20 years of environmental protection has been focused on other economic activities such as industry. And, much progress has been made in reducing pollution from such sources under the Clean Air Act and the Clean Water Act -- acts which left agriculture largely unaffected. Secondly, recent attention to environmental quality has led people to identify the causes of environmental degradation and many environmentalists have come to view modern agriculture as a threat. Excessive soil erosion, loss of prime farmland to urban uses; draining of wetlands; conversion of prairies and other fragile lands to farmland; water pollution from pesticides, fertilizers and animal waste; destruction of wildlife habitat; loss of endangered species and genetic diversity; channelization of natural streams; and even air pollution, are all sins environmentalists argue can be attributed to modern agriculture. As a result, many in the environmental community have come to view agriculture as the unfinished business.

Arguably, no other economic activity in our society makes such an extensive use of vast quantities of natural resources. In America, farming and ranching take place on more than 1 billion acres of land. But, the potential to cause environmental problems does not mean resource degradation actually occurs, that depends on the attitude of farmers and landowners to the land and on the farming methods employed. Just as agriculture can harm the environment, it can be a major force to protect and preserve natural resources. As owners of most of the private land in the United States, farmers play a significant role in protecting environmental values ranging from woodlands to wildlife habitat. The current debate in essence focuses on the issue of how to balance agriculture’s role in producing the food and fiber society demands with its function as a steward of much of our environment.

Farmers and their organizations claim no one has a more direct or greater concern for the health of the natural environment than farmers. It is farmers who drink the water in rural areas, it is farmers who handle and apply pesticides and experience the health risks, and it is farmers and their families who bear the impact of soil erosion and land degradation through reduced yields, higher production costs and decreased land values. Many in the farm community take offense at the portrayal of agriculture as an uncaring agent of environmental destruction which must be regulated and controlled.

On the other side of the debate, the environmental community points to continued soil erosion and water pollution from non-point sources associated with agriculture, to say agriculture does threaten the environment. Environmentalists theorize farmers view some off-site environmental damage as a legitimate cost of doing business and as society’s trade-off for the production of reasonably priced supplies of food and fiber the nation demands. In contrast, environmentalists believe some productivity must be sacrificed to maintain environmental quality and that environmental protection, not production or income, should guide decisions. Environmentalists view agriculture as locked into an economic and technological system which encourages intensive practices and environmental harm.

The issue is one of contrasting perspectives on agriculture’s impact on the environment. The difference in perspective is reflected in the current policy debate on agriculture’s impact on the environment. There are at last, three central questions in the same of our national environmental laws which will be influenced by this debate. They include.

A. Who should bear responsibility for the costs of environmental protection -- farmers or the public?

B. Which corrective approaches should be pursued, voluntary programs of education and financial incentives or strict regulations and enforcement of environmental standards?

C. Who should be given responsibility for implementing and enforcing the laws, the environmental agencies, such as the EPA and the state Department of Environmental Quality or the departments of agriculture?

How we answer each of these questions will play an important role in determining the shape and effectiveness of environmental laws as well as their impact on farmers.

A second major trend developing is inherent in the structure of agriculture. Society is expressing a concern for grater environmental stewardship from agriculture. This is a call which may require not just a change in attitudes of producers buy may also require a commitment to stewardship most likely to happen when producers have a connection to the land. But, while farmers are interested in the future productivity of the land, they also operate in a world of short-term economic pressures and farm programs which emphasize maximizing present production, forces which pressure the commitment to stewardship. The increasing separation of ownership of farmland from its operation, as reflected in the fact more than 50 percent of American farmland is farmed under short-term tenancy relations, adds to the potential tension.

It is clear the public expects agriculture to perform many new tasks, such as environmental stewards, producers of safe, abundant, inexpensive food; preservers of rural culture, and engines of rural economic growth. In many ways these are the challenges the family farm and American agriculture has tried to meet in the past. What is new is the public is now more involved and specific in determining the content of how the tasks will be placed on agriculture.

But, at time when it is clear we expect more of farmers, the structure of agriculture and, thus, its ability to fulfil the public expectations is moving the other way. We have an agriculture system that in some ways is in the last stages of industrialization with ever larger farms and now new forms of organization in the production of food. This is especially true in livestock production where the development of contract feeding and ultra-large scale confinement facilities result in an industrialized structure quite different than the family farm size operations which may have been the model around which environmental laws and incentive programs were written. Food production has become increasingly specialized to the point when the traditional diversified family farmer with wide knowledge to different crops and farming systems has disappeared.

The question is: Can the agriculture we are building yield the harvest we desire? The issue is clearly illustrated by the current changes underway in livestock production.

The relation between livestock production in the United States and the application of local land use controls, environmental regulations, and nuisance law has grown more tense in recent years. Several factors promise to make the issue even more significant in the near future. The changes underway in the structure of the livestock industry increase the potential for conflicts between agriculture and nonfarm land uses. At the same time, increased public awareness and attention to environmental concerns will place demands on agriculture as local governments consider using land use laws to control siting of large livestock facilities. The convergence of these forces raise real challenges to livestock producers.

Consider these factors of the changes and pressures affecting the relationship between the livestock sector and others:

A. Concentration of animals into larger production units, in particular confinement operations, results in larger and more concentrated waste handling and disposal problems.

B. Often, facilities involve both producer-owned livestock and animals owned by others, either under contract feeding arrangements or other commercial ventures, which changes at least in some people’s minds the nature of the operation.

C. Courts have held confinement slurry has a peculiar and especially pungent odor and is more offensive than good old manure.

D. Changes in the size and technology of livestock production facilities increase costs and investments in such facilities, raising the financial risk of nuisance based injunctions or local government decisions restricting expansion or operation.

E. Environmental concerns, especially over water quality, may make complying with state livestock facility licensing requirements more costs. And, as a result, successful applicants will want certainty that subsequent nuisance suits won’t override compliance with environmental laws.

F. Local concerns for environmental protection may lead to NIMBY (non in my backyard) challenges to new facilities. But, it is also important to recognize environmental concerns, nuisance suits or land use controls may serve as a pretext for other social fears which underpin local "opposition" to large-scale facilities. For example, concerns about the impact large operations or contract feeding may have on traditional producers or on local markets.

It is because of factors such as these you are seeing in many states renewed attention to state laws regulating animal production. These may take the form of more stringent licensing and permit approval procedures, or new guidelines for the disposal of animals wastes, such as separation distance requirements or manure storage rules.

All of the factors noted above are reflected in nuisance suits and local land use disputes filed in the Iowa courts in recent years involving livestock production. These factors are also reflected in increased local activity in other states. It is important for leaders of the livestock industry to consider these factors because they help define the legal environment in which livestock production operates, and will determine whether it will grow. The most important issues in local control of livestock production include: issues related to nuisance complaints and right to farm laws, special protection districts, such as agricultural areas and local land use matters, most notably county and municipal zoning.

These are important issues, especially to producers, because it is at the local level that opposition and local innovation in regulation can have its most direct effects on a producer’s plans to expand or construct a new facility. These are not ideal concerns, just consider these recent examples from my state:

Hancock County -- A recent fight over a new hog facility, resulting in a district court opinion the county has no authority to zone livestock production. The case is being appealed to the Iowa Supreme Court and has helped trigger legislative consideration of an amendment to allow local zoning of large swine facilities.

Boone County -- An agricultural area petition for the National Swine Nutrition Research facility was originally denied by the board of supervisors, although it was later granted.

Pottawatomie County -- A board of supervisor’s recent decision to approve an agricultural area petition resulted in a legal challenge by the neighbors to the constitutionality of protecting farmers from nuisance.

Cherokee County -- A local compromise left in place county zoning rules which apply to all feedlots.

Story County -- A proposed county zoning reform which would place significant restrictions on all feedlots which need state permits, including placing large parts of the county off limits for their operation.

There are other examples from perhaps 20 other Iowa counties concerning controversies over local efforts to regulate livestock feeding, especially the location of new, large-scale operations. Just one year ago, the Iowa Supreme Court rejected a county’s attempt to require approval of the county board of health of the location of any animal waste handling facility.

The reaction of these local efforts is "who can blame them." I don’t know if I would like to wake up and learn a 2,000-sow operation is going in across the road from my house. But, the practical legal effect is it may create another layer of regulatory compliance or another hurdle for a producer to clear before expanding an operation. The challenge will be for livestock producers, state lawmakers and local officials to develop process which accommodate both the legitimate concerns of neighbors and the needs of producers. Questions of odor control, scale of operations, waste handling and location will be essential ingredients in this process.

One effect is that an increasing number of states are amending their right to farm laws to make the nuisance protections conditioned on compliance with state environmental rules. This make it even more important for producers to comply with these standards. But, there is one irony that must be noted. While most of the environmental rules relating to livestock production are designed to protect water quality, the majority of concerns by neighbors and local governments relating to new facilities concern odors. The implication is we must put more time and effort into addressing odor issues. That is why organizations like the NPPC have made odor control and reduction a key research priority.

As you know, the EPA has established guidelines for licensing large animal feeding operations under the Clean Water Act. In addition, the states may establish rules which further regulate livestock feeding, such as requiring licenses for smaller operations. In most states, the Department of Natural Resources (DNR) is responsible for regulating the operation of concentrated animal-feeding facilities. As a result, the legal environment for producers is determined by the attitude the agency has toward livestock production. It is safe to say that in most agricultural states, the attitude has been one of only minimal attention. In other words, most state environmental officials are fairly lenient with livestock producers. For example, in Iowa and most states, the DNR uses primarily a complaint-only basis to regulate and investigate livestock operations meaning the state does not regularly inspect operations to determine if they have necessary permits or are operating according to the rules. The agencies are not anti-livestock. But, you must recognize if they receive a complaint, the state must investigate and they can investigate any size operation -- whether they are large enough to have a license or not. The state can require installation of waste handling measures if needed to protect the state’s waters.

But, a state’s attitude toward livestock production can vary depending upon who the officials are in charge of environmental enforcement and in light of the public’s attitudes. Violation of environmental rules while most often treated as a civil matter, subjecting producers to fines and penalties, can also be treated as a crime. That is what happened in a recent Iowa case, where criminal charges were filed against a swine producer for polluting a river with animal wastes. State of Iowa v. Ted B. Hiehls, d/b/a Marywood Farms, Inc., Criminal No. 13347, in Warren County, filed Sept. 11, 1992. The charges were filed by the Iowa Attorney General’s Environmental Crimes Team who alleged the producer violated the state’s water pollution laws when wastes from the operation entered the South River over a four day period resulting in a substantial fish kill. The testimony indicated the waste discharge came in connection with an attempt to reduce the level of wastes in a lagoon by pumping the wastes onto the land in a form of surface gravity flow irrigation. The wastes also included wastes from a dairy operation in Des Moines. The action was tried in March 1993 and resulted in conviction on four counts of negligently polluting the river and the assessment of a fine of more than $25,000.

Perhaps the most important trend in environmental law is in the next few years Congress will consider a range of new laws which could greatly change both the duties and obligations placed on farmers and how the nation addresses environmental issues in agriculture. The legislation to be considered includes:

1. The Clean Water Act reauthorization, which will involve enactment of new mechanisms for dealing with non-point pollution from agriculture. This could prove to be the most significant new legislation shaping farming practices since the 1985 Farm Bill conservation provisions. The bill be considered in the Senate -- SB1114, would use the identification of impaired watersheds as the basis for identifying which farmers will need to adopt new methods. The program would continue to be administered by the state with greatly increased federal funding for cost-sharing practices. The act includes reliance on management practices (BMP’s) and may require site specific plans for some farmers to protect water quality.

The law being considered in the Senate would require the states to develop regulations for controlling pollution from animal feeding operation which presently are not considered point sources. In other words, all livestock producers may, in the future, need to develop plans for such things as waste management. The issue of nutrient management plans is something a number of states already require under the state laws and the CZMA, Pennsylvania and Maryland being good examples.

B. The 1995 Farm Bill, which will address the issues of implementing soil conservation provisions and what to do with lands currently under the CRP. The future of farm programs and whether they are turned into some for of green payment system or converted to an income assurance system will be a central issue in debate. Another manor question will be the future of the 36 million acres of CRP lands. What form of program we can develop and afford will be one of Congress’ greatest challenges. How the CRP lands are treated will also raise important issues in the livestock sector, such as if grazing is allowed under modified contracts, and will offer opportunities for linking efforts to prevent NPS with long-term land retirement.

As noted above, it is likely the non point source pollution provisions of the Clean Water Act will employ some form of site specific planning process for farm operations located in watersheds impacted by agricultural pollution. The development of these plans, and the technical advice from the agencies assisting farmers, will no doubt bear a great similarity to the conservation planning requirements for producers who farm highly erodible land. Many feel farm level planning offers the most effective way of reducing environmental impacts, while offering local control and farmer flexibility.

The one possible development which could challenge this faith concerns how well the conservation compliance provisions currently in place are implemented. Some environmental and conservation groups are concerned about the willingness of the USDA to enforce conservation plans when 1995 comes. Past spot checks reveal great leniency and wide variations in how conservation planning has been implemented. The challenge for the USDA is to enforce conservation plans as written while being sensitive to the financial and weather forces facing farmers. The risk to agriculture is if conservation planning is seen as a failure, the environmental community will press for more aggressive use of mandates and demand that enforcement responsibility rest with the EPA and not the agricultural agencies.

One of the most fundamental issues in society is the balance between private property and the power of the state to restrict the use of property to protect the public health and project societal values. The issue political dimensions as to the form of society we create, and a constitutional dimension because of the Fifth Amendment prohibition against taking private property for public use without compensation. Use and enjoyment of private property is a fundamental component of American life and a major factor in our economic freedom. But, the quality of life and the success of the economy is greatly shaped by the actions of the state, such as environmental protection, land use planning and protection of public safety.

As society has developed, our understanding has evolved both as to what is recognized as private property and what activities are seen as potentially injurious to the public. Perhaps no better example is the dramatic shift in policies toward the use of wetlands. From the nation’s earliest history, wetlands were considered undeveloped swamps which could be trained for economic use -- and drain them we did. But, in the last 20 years, the important values of wetlands have been recognized for flood protection, water purification, wildlife habitat and aquifer recharge. As a result, federal and state policies on draining wetlands have shifted dramatically, perhaps much faster than the public awareness of the value of wetlands. But, regulations to protect remaining wetlands have unleashed a storm of controversy by owners who claim their private lands are being taken for public use and, therefore, compensation must be paid.

The agricultural community has a fundamental stake in this issue. First, the discussion has illustrated the range of issues involving public recognition of agricultural land. Whether the issue is wetland protection, disposing of animal wastes, controlling soil erosion or preventing water pollution, important public goals can not be achieved without effecting the actions of private landowners.

Second, in recent years, a growing and vocal "property rights" movement has emerged in the United States comprised primarily of politically conservative groups and individuals who argue for strict interpretation of the taking clause. Laws such as the Endangered Species Act and wetland protections have been their prime targets. The goal of the movement is a realignment of American property law to place private desires to develop land paramount to public welfare concerns and require compensation to landowners whenever a regulation reduces the value of the property.

Constitutional protections for private property are of fundamental importance, but it appears there are risks if the farm community stakes its response to public desires for environmental protection on a position which in essence says "if the public wants me to protect the environment, pay me." One risk is the position may be judicially incorrect and will be rejected by the courts. Court rulings such as the Iowa Supreme Court’s rejection of a taking claim in upholding the state soil conservation law show considerable precedent exists, both at common law and in statutes, for regulating farming practices. Another risk is the clamor about "property rights" and "takings" fails to recognize the important public benefits agriculture receives, either in the form of public sharing of conservation costs and more direct subsidies found in various farm programs and local property tax breaks such as homestead credits and special use valuations. By focusing on claims the public cannot limit use of private property, farmers and other landowners may risk a political and social backlash which could cause the public and lawmakers to reexamine public support for agriculture.

A final risk is that by diverting the current policy debate on environmental protection to a referendum on "property rights" the agricultural community may miss an important opportunity to help society develop creative alternatives which accommodate both the public interest and land owner’s desires.

Another trend which could develop concerns the role of private litigation in establishing environmental rules for agriculture. In many ways, private nuisance suits are an example of this. For example, the Iowa Supreme Court has held in two cases producers had to incorporate swine wastes the same day they were spread and could not dispose of wastes within one-quarter of a mile from neighbors’ homes. Iowa does not have environmental rules requiring either same day incorporation or distance separation, but the effect of the court rulings is to establish this standard for future cases. This illustrates how private litigation to protect what people feel are their environmental rights can establish new duties for producers. One potential source for such suits is the "citizen suit" authority often found in environmental laws, such as the Clean Water Act. These provisions authorize private citizens to bring suit to enforce the laws if, after notice, the government does not. Under the suits, the citizens can recover damages and attorneys fees.

There have been very few citizen suits involving agriculture, but they are a potential tool.

In the one citizen suit involving a dairy farm and the Clean Water Act, Concerned Residents v. Southview Farms, a U.S. District Court judge in New York recently overturned the jury verdict against an agricultural operation. A group of neighbors filed suit in January of 1991 complaining liquid manure had leaked from the dairy’s lagoons and manure spread on local fields had polluted the ground water. The suit alleged violations of the Clean Water Act as well as negligence, trespass, nuisance, and assault and battery. The suit asked for $3 million in actual damages, $1 million in punitive damages and a $150,000 civil penalty. In May of 1993, the jury found the dairy had committed five violations of the CWA, but awarded a total of only $4,101 to the six families who sued. The finding left open potential penalties for the violation and the attorney fees by the plaintiffs. However, in October, the judge reversed the jury’s finding. After reviewing the evidence, the judge ruled the acts in question could not be violations of the CWA.

The judge’s opinion is important because it is one of the first to rule on how the CWA applies to waste running off farm fields. The court ruled the fact the storm water runoff from the fields contained animal wastes did not remove it from an exception Congress provided for agricultural runoff. The court also considered whether such runoff can be labeled a "point source," subject to stricter pollution rules simply because it was collected in a ditch. The court ruled the runoff involved was not in a "ditch" as the term is used to describe a point source, but instead was natural surface drainage. The court noted "Congress has been reluctant to attempt outright federal control of agricultural and other non-point source pollution, preferring instead to leave most of the responsibility in this area to the states and to use incentives rather than compulsion."

A final trend to discuss is how we can create opportunities to improve both the performance of agriculture and the protection of our environment. In recent years, one concept that has received increased attention is sustainable agriculture. Sustainable agriculture is defined in various ways, but, in its simplest form, it means developing agricultural practices which protect the environment while preserving the profitability of farmers. By focusing on how decisions affect the "sustainability" of agriculture, decisions can be made which incorporate a concern for the environment with attention to the economics of farming, sustainable agriculture offers a way to harness the producer’s natural concern for the economics of farming.

In Iowa, the results from sustainable agriculture research on how to reduce nitrogen fertilizer use rates are already being seen. Recent studies indicate the average rates of nitrogen fertilizer used per acre in Iowa have dropped from 145 pounds in 1985 to 127 pounds in 1990 without affecting yields. This means Iowa farmers are saving $80 million a year in reduced fertilizer costs while reducing the potential for excess nitrates to enter water supplies. Application rates in Illinois increased during this same period.

By merging economics and environmental stewardship, sustainable agriculture holds great potential for the United States. It may offer a way to reduce the tension between the environmental community and the farm sector, and help preserve consumer confidence in the quality of our food. It may provide a basis for justifying continued public funding of agricultural programs. If farmers adopt new practices to protect the environment, the negative environmental effects creating public pressure to regulate agriculture should subside. If this happens, increased reliance on laws and legal institutions to limit the effects of modern farming will diminish.

Perhaps the best example of private-public compromise is the use of conservation easements. Conservation easements operate by having the public acquire a property right in exchange for the landowner agreeing to permanently protect the resource or environmental protection values set out in the easement. The purchase of conservation easements, especially on a voluntary basis, is an effective compromise between regulatory approaches which attempt to force the landowner to do the same thing, but without any compensation, and the public acquisition of the title to the property. Using conservation easements leaves the property in private ownership and available for other economic uses not incompatible with the easements while placing responsibility for funding on the public, which reaps most of the benefits.

The potential to sue conservation easements to promote environmental protection in agriculture is illustrated by the Wetlands Reserve Program (WRP) implemented by the USDA. The 1992 pilot program was funded to acquire 50,000 acres of permanent easements for wetland restoration. However, when the results of the sign-up period for landowners to express and intention to bid were released, USDA officials were surprised to find more than 2,700 farmers expressed interest in bidding 466,000 acres into the program. Congress has recently provided additional funding for the WRP as part of the flood relief and conservation spending. The nation needs to continue searching for ways to accommodate economic activity on private land while protecting important resource values.

I have reviewed for you what I see as the major trends in environmental regulation and how it may affect agriculture. It is clear the future will be full of new programs and challenges unlike those we have faced. Farmers should recognize the legitimate interest of the public in developing a sustainable agriculture system, and use this public support to justify substantial support for agriculture. By doing so, the nation can identify and address any real threats agriculture production may present. Only then will farmers and agriculture be able to claim the mantle of stewardship to which they aspire.