The 2018 Farm Bill is surprisingly climate-conscious.

Posted on January 31, 2019 by Peter Lehner

Roughly every five years, Congress revises and renews the Farm Bill to fund our nation’s food security, nutrition, and farm conservation programs. The 2018 Farm Bill, which passed with large bipartisan majorities in both chambers, is surprisingly climate-conscious. Its successes will serve as a foundation upon which future more aggressive climate-smart farm policy can be built.

The Farm Bill’s climate change benefits stem from a number of provisions that incentivize more climate-friendly practices. For example, the Farm Bill’s federal crop insurance program will now allow — rather than discourage — greater use of cover crops, a practice that has well-proven climate and water quality benefits. This program, which is now the primary federal subsidy to industrial farming, has often inhibited the use of climate-friendly practices such as cover crops and longer crop rotations, while at the same time encouraging planting on marginal lands, which are better suited as habitat for wildlife, buffers for streams, and carbon sinks. The 2018 law takes steps to end these perverse incentives.

The Conservation title of the bill contains a number of programs that will help curb climate change. This title continues to provide about $6 billion annually to the Conservation Reserve Program, the Environmental Quality Incentives Program, and the Conservation Stewardship Program, all of which saw modest improvements in the 2018 Farm Bill. The changes to EQIP, which generally provides a 75 percent cost-share for installation of approved conservation measures, best illustrate how these traditional programs can pay climate and environmental dividends, with the added twist of garnering the support of fiscal conservatives.

EQIP data from USDA indicated that only 14 percent of EQIP funding went to conservation practices identified as producing the most environmental benefits. To turn the tide, the new law allows states to identify 10 highly effective conservation practices to be eligible for a greater financial incentive. Since climate change induced farm losses harm both the farmer and the taxpayer -- for example, climate-driven natural disasters in 2012 incurred $17.3 billion in crop insurance payments – shifting to more efficient practices is a sound fiscal move as well. 

The Bill also increases funding for organic farming and for a range of practices that help store carbon in the soil and emit fewer greenhouse gases. It also lowers the set-aside for EQIP funds for livestock operators from 60% to 50%, which is critical since livestock operations are responsible for about 80 percent of agriculture's climate change impact.   

CRP pays farmers to take environmentally sensitive land out of production for 10 to 15 years.  Because producers often bring their CRP acres back into production when the contract expires, releasing any carbon stored in the soil during the off years, the benefits are often only temporary.  The bill supports climate-friendly practices like riparian buffer and prairie strips and authorizes 30-year contracts on a pilot basis.  The law also provides a minimum number of acres to be enrolled in the program that targets the most environmentally sensitive lands and pays producers to establish tree and grass buffers along streams.  These water quality provisions both have a climate impact and create a precedent for more climate-change-focused amendments in the future.

Finally, the 2018 Farm Bill increases Conservation Stewardship Program payment levels for cover crops, resource-conserving crop rotations, and management-intensive rotational grazing – all of which reduce water pollution, help slow climate change, and help producers weather climate change.  It also establishes a soil health demonstration program, funded at $15 million, setting a good precedent for larger future action by the federal government and states.

The same provisions that fight climate change, will also encourage practices that protect the drinking water of millions. Industrial-scale agriculture — the large chemical-dependent monocultures where the same crop is planted year after year and the production of grain-fed animals in enormous enclosed facilities — is one of the largest sources of water pollution in the country, such as the dead zone in the Gulf of Mexico or the eutrophication of the Chesapeake Bay. This agricultural water pollution can render water unfit for further human use and impose significant drinking water treatment costs on thousands or millions of communities and homeowners, such as when Toledo had to shut its water supply due to algal toxins, or the nitrate contamination in thousands of drinking water wells that could cause “blue baby syndrome.”  As a result of the clear and present threat, Sen. Debbie Stabenow (D-MI), a lead negotiator of the final bill, was able to build bipartisan agreement to support practices that could reduce this pollution.

As a climate bonus, the 2018 Farm Bill also takes some steps to help reduce food waste, most of which now rots in landfills, releasing large amounts of methane.  The bill funds pilot projects in ten states to develop local composting and food waste reduction efforts and promotes the donation of agricultural commodities.  It also creates a Food Loss and Waste Reduction Liaison in the USDA to coordinate federal programs and clarifies liability protections for food donations, among other measures. 

This legislation comes at a critical moment, when our country must decide whether and how to deal with the dramatic warming of the planet. Two recent climate reports confirm that we must act on climate change quickly, and that the extreme weather climate scientists have been warning us about are here and will worsen in the years ahead.

Our agricultural activities are both contributors to and victims of the changing climate. At the same time that industrial agriculture releases tremendous amounts of greenhouse gases from excess fertilization, tillage, manure, and animal emissions, our farms and ranches are also particularly vulnerable to the floods, droughts, heat waves, pests, and other problems that climate change exacerbates. For example, the 2016 California drought resulted in over $600 million in economic loss; Hurricane Maria in 2017 devastated 80% of Puerto Rico’s agriculture and caused $780 million in losses; heat waves threaten both crops and farmworkers.  It’s to everyone’s benefit to help those who produce our food be ready for the changing weather. 

Moreover, farmers and ranchers are uniquely situated to help slow climate change simply by preparing for it. Sustainable farmers and ranchers around the country have repeatedly demonstrated that many farming practices can help both slow and withstand climate change. There are many practices that increase carbon stored in soil or that use natural systems to reduce chemical needs and thus lower greenhouse gas emissions. At the same time, they increase the amount of water the soil can absorb and enrich the fertility of the soil, thereby helping farmers endure worsening conditions. These same practices also reduce water pollution and save farmers money.

Given the scale and scope of the climate problem we face, more needs to be done in the next Farm Bill — indeed, much sooner — to accomplish the change needed in the agricultural sector so that it can produce sufficient nutritious food in more extreme weather without making climate change and other pollution worse. This won’t be easy given that the Farm Bureau, one of strongest voices shaping US agriculture policy, repeatedly and fiercely opposes any efforts to curb climate change, and the U.S. Department of Agriculture, as part of Donald Trump's administration, never mentions climate change. Yet, it’s necessary.

The 2018 Farm Bill, by lifting up practices known to have multiple environmental benefits, is a promising place to start.

New Hampshire's Great Bay, Nitrogen, and the Limits of Technology

Posted on December 26, 2012 by Gregory H. Smith

As the Clean Water Act celebrates its 40th anniversary, it has ignited a controversy in New Hampshire with potentially hundreds of millions of dollars at stake.  In the law’s early days,  publicly owned treatment works (“POTWs”), mandated and financed in large part with federal funds, were viewed as the “good guys” in the national effort to restore quality in receiving water bodies into which raw sewage was being discharged.  That view of POTWs seems to have changed in New Hampshire, at least as relates to the State’s largest saltwater estuary; the Great Bay.  Faced with the potential need to finance significant POTW upgrades or reconstruction, New Hampshire POTWs are challenging EPA’s permitting decisions in the courts, through administrative channels and in the press.

As we know, POTWs are regulated through National Pollutant Discharge Elimination System (“NPDES”) permits that monitor and control a variety of effluent criteria.  Interestingly, however, New Hampshire was and remains one of the few states that has not obtained authority to issue new and renewed NPDES permits.  Because of this status as a non-delegated state, dischargers in New Hampshire with expiring permits must apply to the federal government for renewal.  As environmental regulation has progressed, however, and as federal funds have diminished or disappeared, POTWs and the towns and sewer districts that operate them have found themselves opposed to the EPA’s efforts to impose stricter standards  to address pollutants that were not of primary concern when the POTWs were constructed and initially permitted.

In New Hampshire, this is seen vividly in NPDES renewal efforts EPA is undertaking for several POTWs that discharge under expired and expiring permits, directly or indirectly, into the Great Bay estuary located on the State’s coast.  Once a rich habitat for oysters, eel grass and other sea life, Great Bay is now stressed by a variety of factors including both point and non-point discharges as well as other environmental factors.   At the heart of the controversy  in New Hampshire is EPA’s intention to reduce effluent limitations for nitrogen to as low as three parts per million (the limits of technology) in order to ameliorate nitrogen related problems in Great Bay.  From the municipalities and POTWs perspective, the costs to comply with these new lower limits are exorbitant.  One widely cited study estimates that, for the Great Bay estuary POTWs to comply with the new nitrogen limit, it will cost in excess of one half billion dollars in capital,operation and maintenance expenses.  Those costs will, of course, be passed along to a relatively small population of ratepayers. 

A coalition of communities with affected POTWs has joined forces in response, proposing “adaptive management programs” combining somewhat lower discharge limits with comprehensive non-point controls aimed together at achieving EPA’s stated goals.  It is unclear at this time whether those efforts will be successful.  The coalition communities certainly have in mind the experiences in Chesapeake Bay, or closer to home in neighboring and similarly non-delegated Massachusetts, where EPA is using its  Residual Designation Authority (“RDA”) to require permits in the Charles River watershed.  EPA has been public with its view that the Charles River RDA program may become a model for watersheds elsewhere in New England and nationwide.  It is thought that an adaptive management program as proposed by New Hampshire’s coalition communities would obviate the need to utilize RDA for Great Bay, but that issue remains to be addressed in the future.

COURTS FRIENDLIER TO EPA IN CLEAN WATER ACT CONTEXT THAN CLEAN AIR ACT?

Posted on September 19, 2012 by Rick Glick

In his blog post of August 27, Rob Brubaker reported on three cases in which the courts refused to grant deference to EPA decisions under the agency’s Clean Air Act authority.  EPA has fared a bit better in two recent Clean Water Act cases.

In Upper Blackstone Water Pollution Abatement District v. EPA case, the issue was whether EPA properly issued a stringent NPDES permit renewal to a sanitary district to control excessive nitrogen and phosphorus loading.  The First Circuit Court of Appeals rejected the district’s argument that EPA should have waited until the district could complete its modeling effort, even though the model did not seem close to ready, and that EPA did not apply the best science.  The court declined to conduct a de novo review of EPA’s scientific analysis, limiting its inquiry to whether EPA followed the appropriate administrative process, based its decision on record evidence and clearly articulated its reasoning. So long as the criteria imposed are within the “zone of reasonableness”, the court will not strike it down.

Interestingly, the Upper Blackstone court also rejected the district’s argument that the new permit is improper because even with stricter criteria, it would not be sufficient to correct the eutrophication problem in the watershed.  The court set that aside, noting that the CWA contemplates multiple sources of contamination and no one party is responsible for cleaning up the river. 

The Upper Blackstone case is consistent with the U. S. District Court’s decision in the Northwest Environmental Advocates v. EPA, which I discussed in my March 23 post.  In the latter case, the court upheld EPA’s approval of Oregon’s numeric temperature standards, deferring to the EPA’s scientific expertise.  It took issue with the narrative Natural Conditions Criteria because it was so broad that the court concluded it supplanted numeric standards.  The court left the door open for the Oregon Department of Environmental Quality to rewrite the narrative standard for EPA review, based on the agencies’ own review of the science and a good explanation in support of the standard. 

It appears the theme running through three Clean Air Act cases cited in the Brubaker post is that the reviewing court found no authority supporting EPA’s action, or that EPA’s interpretation defied the plain meaning of the statute.  In the Clean Water Act cases, EPA overreaching on the Upper Blackstone permit or approval of Oregon water quality standards was not at issue.  The focus instead was on whether EPA demonstrated it properly considered the best science available under the authority it had, and then explained how it got to its decision.  In that context, EPA and state regulatory agencies will win more than they lose.