The agricultural industry is no stranger to federal regulation.
Although the industry avoids regulation in several legal realms through federal safe harbors, there is both a cabinet position and an entire agency responsible for the industry’s financial well-being.1 The industry heavily relies on federal support through crop insurance, conservation payments, and commodity programs.2
Although some may fear that the Biden Administration may result in increased regulation for the ag industry, many expect President Biden to look to the industry as a partner – rather than an enemy – in battling climate change.3 President Biden’s campaign website states that he plans to aid farmers “as they tackle the challenge of sequestering carbon, reducing emissions, and continue their track record as global leaders in agricultural innovation – making American agriculture the first in the world to achieve net-zero emissions and create new sources of income for farmers in the process.”
The Ag Industry and Climate Change
The agricultural industry’s relationship with climate change is unique, in that agricultural processes both contribute to and are affected by climate change.4
Christina Puhnaty, is a 3L at U.W. Law School. This fall she joins Babst Calland in Pittsburgh as an associate attorney in its environmental law section.
The industry contributes to climate change by being primarily responsible for global increases of methane and nitrous oxide.5 The industry is affected by climate change, as increasing average temperatures shift growing seasons, increase soil evaporation rates, increase the chances of severe drought, and increase disease pressure.6
Because of the industry’s close connection to climate change, policymakers are beginning to look to the industry as a potential, partial solution to the climate crisis, through reducing agricultural emissions and using agricultural systems to sequester – or remove – carbon from the atmosphere.
Through carbon sequestration7 and responsible crop and soil management practices, farms have the potential to shift from carbon sources to carbon sinks.8 Current federal programs create incentives for “climate-friendly” agricultural practices that minimally disturb soil, allowing for maximum carbon sequestration.9 Such agricultural activities include agroforestry, no-till farming, cover crops, crop rotation, soil amendments, and efficient crop use.
Several existing USDA conservation programs are at the center of both agricultural and climate change proposals drafted by President Biden and other policymakers.10 Three existing federal programs that encourage climate-friendly agricultural practices are:
the Conservation Reserve Program (CRP). Under the CRP, the federal government pays farmers to take environmentally sensitive land out of production for 10 to 15 years. The USDA estimated that this program resulted in the sequestration of over 43 million metric tons of carbon dioxide equivalent in 2014.11
the Environmental Quality Incentives Program (EQIP). Under the EQIP, farmers receive financial and technical assistance for conservation practices, with the government paying up to 75% of the new conservation practices, and 100% of any income lost as a result of the new practices; and
the Conservation Stewardship Program (CSP). Under the CSP, the federal government enters into a five-year contract with farmers to financially assist them in improving, maintaining, or adopting conservation practices.
The Carbon Market
Although the expansion of federal conservation programs is widely supported due to the programs’ success12 and the ag industry’s familiarity with the programs,13 there is little to no consensus on the best way to fund these expansions.
Many suspect that the funding necessary to expand these programs will be generated through a carbon market that directly involves farmers. Such a market would pay farmers for switching to climate-friendly agricultural practices that increase carbon sequestration on their farms.
Once a farmer implements these practices, “a verifier comes in and calculates how much carbon is being captured. It then will certify that work and create a credit to sell on the market, most often to corporations looking to offset the carbon emissions they aren’t able to cut in their own process.” 14
Conservation and Market
Tying together the expansion of conservation programs and a carbon market appears to be President Biden’s plan.15
Climate 21 Project’s USDA Transition Memo – written in part by Robert Bonnie, the recently-appointed deputy chief of staff for policy and senior advisor on climate in the U.S. Department of Agriculture – recommends that the president establish a carbon market system within the first 100 days of his presidency. Specifically, the memo suggests that the Biden Administration should “invest in natural climate solutions by establishing a Carbon Bank using the Commodity Credit Corporation to finance large-scale investments in climate smart land management practices.”
Although the incorporation of farmers into the carbon market is a widely-proposed solution to climate change and conservation program funding, the idea raises valid concerns for both conservation and agricultural organizations. Some consider carbon markets in ag to “perpetuat[e] pollution, environmental injustices, and fraud.”16
In addition to the overarching issues that suggest a carbon market will not even prove beneficial in combating climate change,17 the market may also impose significant burdens on farmers. A widely-accepted, accurate, and reliable method for measuring soil carbon content does not currently exist.
Recent studies show significant variation in results between current methods.18 These variations could result in major differences between the carbon credits a farm expected to receive based on their personal soil measurements, and the carbon credits the farm actually receives based on the government’s soil measurements, potentially leading to costly disputes.
Further, carbon sequestration is reversible and limited.19 Carbon that was stored in soil for several years through climate-friendly agricultural practices can be released within minutes through “[c]limatic events, such as droughts or wildfires, or human actions, such as resumed tillage, increased grazing, or deforestation.”20 For a carbon market to be effective, it would need to take into consideration this volatility.
Conclusion: A Big Change Is Likely
The Biden presidency likely means big change for the agricultural industry, as President Biden is currently poised to view the industry as a partner in combating climate change.
While this could mean a revamping of federal conservation programs and an increase in resources for farmers looking to transition to climate-friendly practices, it could also mean the implementation of farmers into a carbon market that may not be ready for the agricultural industry.
This article was originally published on the State Bar of Wisconsin’s Environmental Law Section Blog. Visit the State Bar sections or the Environmental Law Section web pages to learn more about the benefits of section membership.
1 Peter Lehner & Nathan A. Rosenberg, “Legal Pathways to Carbon-Neutral Agriculture,” 47 ELR 10845, 10858 (2017) (quoting Susan Schneider, “A Reconsideration of Agricultural Law: A Call for the Law of Food, Farming, and Sustainability,” 34 Wm. & Mary Env’t L. & Pol’y Rev. 935, 937 (2010)).
2 Lehner & Rosenberg, supra note 1, at 10858, 10862.
3 Janelle Atyeo, What Does Biden’s Climate Policy Mean for Agriculture?, Midwest Messenger(Dec. 2, 2020).
4 Jack A. Morgan, et al., “Carbon Sequestration in Agricultural Lands of the United States,” Journal of Soil and Water Conservation (January 2010).
5 See Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, Climate Change 2007: The Physical Science Basis 2 (2007) (hereinafter IPCC 2007 Report).
6 ATTRA, Agriculture, Climate Change and Carbon Sequestration1 (2009).
7 Agriculture, Climate Change and Carbon Sequestration, at 5.
8 Lehner & Rosenberg, supra note 1, at 10848.
9 Charles L. Mohler and Sue Ellen Johnson, Crop Rotation on Organic Farms: A Planning Manual 3 (2009).
10 See, e.g., id.; see also Climate and Agriculture Legislation Roundup, National Sustainable Agriculture Coalition (Oct. 1, 2020).
11 Lehner & Rosenberg, supra note 1, at 10864
12 See Ken Root, USDA Conservation Programs: Underfunded and Oversubscribed, Iowa Agribusiness (July 3, 2017); More Than 140 Million Acres in Federal Farm Conservation Programs, American Farm Bureau Federation (May 18, 2019); and Lara Bryant, Just in Time: Climate Stewardship Act for Farms and Forests, NRDC (Aug. 8, 2019).
13 Lisa Held, Cory Booker Wants to Pay Many More Farmers to Practice Carbon Farming, Civil Eats(Aug. 8, 2019).
14 Sarah Bowman and London Gibson, There Is A Lot of Money on the Table with Carbon Markets. But Farmers Are Skeptical, Indy Star(Jan. 18, 2021).
15 Chuck Abbott, Biden Vows to Pay Farmers to Plant Cover Crops and Put Land in Conservation, Successful Farming(Dec. 14, 2020).
16 IATP & NFFC, Carbon Markets Have No Place in Climate Policy, Will Not Help Agriculture (Feb. 5, 2020).
17 IATP & NFFC, Why Carbon Markets Won’t Work for Agriculture (2020).
19 Lehner & Rosenberg, supra note 1, at 10848.
20 Id. at 10845.