ENVIRONMENTAL LAW: Agriculture, Food, and Environmental Policy

Vol 29 No 2


Sam Kalen is an associate professor at the University of Wyoming College of Law in Laramie, Wyoming, and of counsel with Van Ness Feldman in Washington, D.C.


Our interest in food, and by necessity agricultural policy, has expanded exponentially during the past several years. What, where, and how we grow our food transcends more than nutrition and safety. With a global population increase of approximately 2 billion people expected by mid­century and changing demographics worldwide, how to produce food for the children of the twenty-first century is becoming a dominant global question. Answering this question requires an acute appreciation for the relationship between the agricultural sector and the environment.

Unfortunately, often what is overlooked in the agricultural policy debate is how agriculture policy indirectly and yet quite dramatically affects how we perceive and respond to environmental issues. Increasingly, modern agricultural methods have separated local communities from the production of the food they eat. In response, the environmental community is focusing on how to reconnect communities with local food production.

When individuals are connected to their surroundings, they are more interested in promoting sustainability. The connection produces a “sense of place,” a greater appreciation for protecting against local environmental harms. Promoting place-based solutions to traditional environmental problems is another way of acknowledging the unique relationship that local communities have with their surrounding environment, as well as recognizing that local communities often can resolve difficult environmental problems and develop programs for protecting local environmental resources.

A host of factors have converged over the past century to alter our connection to place and, in the process, potentially dull our appreciation for our nearby environment—and consequently our desire to sustain it. The demographics of our nation, mirroring the worldwide trend, have removed and continue to remove many people from rural communities to urban, industrialized centers.

The spatial and temporal distance between us and the food we consume further removes us from our surroundings and now dominates many discussions about our modern agricultural system. Although the majority of farms in the country remain small and family owned, the majority of our food production is concentrated in large-scale operations.

The degree of concentration, whether through vertical integration or through contracting decisions, has caused many farmer organizations to press for greater scrutiny of monolith agribusinesses. This industry concentration has produced dramatic social consequences. Researchers in North Dakota have determined that local communities are particularly affected: “Case studies reported the loss of local autonomy, in which communities become increasingly subject to the influence of external business owners whose interests may not be compatible with their own.” Another commentator warns that our current farm policy, as reflected in the 2008 Farm Bill, “strips communities of their senses of identity, cultural values, and traditional heritage.”

Discussion of our alienation from our food and our loss of a sense of place has been eclipsed in literature by a focus on the environmental effects of the new farm economy. Generally, most discussions about the intersection of agriculture and the environment focus on the agriculture sector’s impact on water and air quality, including rising greenhouse gas (GHG) emissions, as well as on human health.

In a pathbreaking and comprehensive analysis, J. B. Ruhl cataloged the impact of farming on the environment, how and why our environmental laws have been ineffective at controlling environmentally harmful agricultural activities, and why those laws need to be changed. More recently, Mary Jane Angelo, building on Ruhl’s article, as well as Michael Pollan’s effort to show the ubiquitous nature and potentially destructive quality of our corn-based food system, chronicles agriculture’s impact on the environment and proposes a “complete overhaul of existing agricultural policy” to usher in sustainable agriculture.

This vibrant academic inquiry is only about two decades old, but it reflects a growing public appreciation for the intersection of agricultural, food policies, and the environment. In the 1990s, for instance, regulatory agencies increased their efforts to regulate runoff from concentrated animal feeding operations. Such operations accounted for approximately 75 percent of the world’s poultry and 40 percent of its pork supply, as of 2005. The push for regulation resulted in a variety of significant lawsuits in the United States concerning what activities can, or must, be regulated under the Clean Water Act.

More recently, the impact of agricultural policy on GHG emissions has populated environmental critiques of the agricultural sector. It is important to note that a complex dynamic exists between agriculture and GHG emissions, a dynamic with which even the best modelers struggle. The unsettled nature of whether and how to regulate air emissions from agricultural activities has led to several recent initiatives. Various factors render the regulation of agricultural emissions challenging, including the lack of sufficient data on emissions. Prompted in part by the Environmental Protection Agency’s (EPA’s) concessions on monitoring, as well as their own concern about emissions from farms and the failure to collect sufficient data, citizens unsuccessfully challenged the EPA’s policy of entering into consent decrees with animal feeding operations that allegedly violated the Clean Air Act, CERCLA, or the Emergency Planning and Community-Right-to-Know Act. In 2009 environmental groups petitioned the EPA to regulate methane and other harmful emissions from confined animal feeding operations, which led in early April 2011 to the EPA’s release of its data from a study of such emissions, a precursor to the development of methodologies for possible future regulation. In the meantime, some farmers already have begun to respond by implementing progressive policies.

But perhaps as important as strengthening the application of traditional environmental and health laws to modern agricultural activities is the development of more pathways that will connect communities and their people to nearby farms. As a result of these pathways, both the farming community and those dependent on that community will develop a greater appreciation for sustainable activities. Localism appears to be an incipient yet vibrant movement. Indeed, the “buy local” and organic trends—often discussed together and referred to as the locavore movement—are manifestations of this broader localism movement.

The emerging interest in urban farming is one illustration of how communities have become increasingly focused on buying local, organic, and fresh agricultural products. Large produce gardens now populate several major cities. Along with increased attention to urban farming is the blossoming presence of farmers’ markets and community-supported agriculture. Local food markets are a growing—albeit still small—share of agricultural production in the United States. The local and organic food movements have prompted cities to explore the development of food policies to connect their communities to nearby agricultural producers. San Francisco, for example, has adopted a progressive food policy designed to connect its community to a healthy food system. According to the 2009 report of the San Francisco Urban-Rural Roundtable, the objective of a “food system policy” is to “provide the framework for improving food security, public health, the economy and the environment by creating accessible and sustainable food systems for all residents.”

The trend over the past half-century has been to create a divide between people and the surrounding agricultural community. The localism movement holds the potential to help reverse this trend, leading to a greater appreciation for the agricultural practices that produce the food we consume.


For More About the Section of Environment, Energy, and Resources

- This article is an abridged and edited version of one that originally appeared on page 3 of Natural Resources & Environment, Summer 2011 (26:1).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.americanbar.org/environ.

- Periodicals: Natural Resources & Environment, quarterly magazine; Trends, bimonthly newsletter; The Year in Review, annual summary of legal developments; committee newsletters.

- Books and Other Recent Publications:  The Clean Air Act Handbook, 3d ed.; The Clean Water Act Handbook, 3d ed.; Principles of Constitutional Environmental Law; The Law of Clean Energy: Efficiency and Renewables; Environmental Aspects of Real Estate and Commercial Transactions: From Brownfields to Green Buildings, 4th ed.; Brownfields: A Comprehensive Guide to Redeveloping Contaminated Property, 3d ed.; The Law of Green Buildings: Regulatory and Legal Issues in Design, Construction, Operations and Financing; Endangered Species Act: Law, Policy, and Perspectives, 2d ed.; The Evolution of Natural Resources Law and Policy; Nanotechnology: Environmental Law, Policy, and Business Considerations; Environmental Litigation: Law and Strategy; Ocean and Coastal Law and Policy; and the Basic Practice Series with titles including Clean Air Act, 2d ed.

- CLE and Other Educational Programs: 41st Annual Conference on Environmental Law, March 22–24, 2012, Salt Lake City, Utah; 20th Section Fall Meeting, October 10–13, 2012, Austin, Texas.



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