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The Federal Trade Commission Website.
By: Jeffrey K. Lewis, Esq., Monday, April 29th, 2024

As April comes to a close, we bring you another edition of the Ag Law Harvest. This month’s harvest brings you laws and regulations from across the country regarding a national drinking water standard, the Endangered Species Act, Ag-Gag laws, noncompete agreements, and pollution. 

EPA Finalizes First-Ever PFAS Drinking Water Standards
Earlier this month, the U.S. Environmental Protection Agency (“EPA”) announced a final rule, issuing the “first-ever national, legally enforceable drinking water standard to protect communities from exposure to harmful per-and polyfluoroalkyl substances (PFAS), also known as ‘forever chemicals’”. The final rule sets legally enforceable maximum contaminant levels for six PFAS chemicals in public water systems. The EPA also announced nearly $1 billion in new funding to “help states and territories implement PFAS testing and treatment at public water systems and to help owners of private wells address PFAS contamination.” The EPA suggests that this final rule “will reduce PFAS exposure for approximately 100 million people, prevent thousands of deaths, and reduce tens of thousands of serious illnesses.” 

Interior Deptartment Finalizes Rule to Strengthen Endangered Species Act
The Department of the Interior has announced that the U.S. Fish and Wildlife Service finalized revisions to the Endangered Species Act (ESA). These revisions aim to enhance participation in voluntary conservation programs by promoting native species conservation. They achieve this by clarifying and simplifying permitting processes under Section 10(a) of the ESA, encouraging greater involvement from resource managers and landowners in these voluntary initiatives. For more information about Section 10 of the ESA visit the U.S. Fish and Wildlife Service’s website.

Kentucky Passes Ag-Gag Statute
On April 12, 2024, the Kentucky legislature overrode the governor’s veto to pass Senate Bill 16 into law. The new law, titled “An Act Relating to Agricultural Key Infrastructure Assets,” expands the definition of “key infrastructure assets” to include commercial food manufacturing or processing facilities, animal feeding operations, and concentrated animal feeding operations. It criminalizes trespassing on such properties with unmanned aircraft systems, recording devices, or photography equipment without the owner's consent. The first offense is a Class B misdemeanor with up to 90 days imprisonment and a $250 fine, while subsequent offenses are Class A misdemeanors with up to 12 months imprisonment and a $500 fine.

Federal Trade Commission Bans Non-Compete Agreements
The Federal Trade Commission (“FTC”) announced a final rule banning noncompete agreements and clauses nationwide. This move aims to promote competition by safeguarding workers’ freedom to change jobs, increasing innovation and the formation of new businesses. Under the FTC’s new rule, existing noncompetes for the vast majority of workers will no longer be enforceable after the rule’s effective date. However, existing noncompetes for senior executives – those earning more than $151,164 annually and in policy making positions – remain enforceable under the new rule. Employers will have to notify workers bound to an existing noncompete that the noncompete agreement will not be enforced against the worker in the future. The final rule will become effective 120 days after publication in the Federal Register.  

EPA Announces New Rules to Reduce Pollution from Fossil Fuel-Fired Power Plants 
The U.S. Environmental Protection Agency (“EPA”) unveiled a set of final rules designed to decrease pollution from fossil fuel-fired power plants. These rules, developed under various laws such as the Clean Air Act, Clean Water Act, and Resource Conservation and Recovery Act, aim to protect communities from pollution and improve public health while maintaining reliable electricity supply. They are expected to substantially reduce climate, air, water, and land pollution from the power industry, aligning with the Biden-Harris Administration's goals of promoting public health, advancing environmental justice, and addressing climate change.

 

Three women holding sign saying "Ohio preserved farm" in front of field of corn.
By: Peggy Kirk Hall, Wednesday, October 25th, 2023

An agricultural easement is a legal instrument that can protect farmland from non-farm development and preserve the legacy of family land for the future. An earlier blog post explains how an agricultural easement works and answers common questions about agricultural easements.  As we explained, an agricultural easement not only preserves farmland but can also be a valuable financial and tax tool that can enable a transition of the farm to the next generation.  But are there drawbacks to agricultural easements?  Here's a summary of potential negative implications of easements that landowners should also consider.

It's difficult to forecast the future of a farm.  The very nature of the easement requires a best estimate of how the farmland might be used for agriculture into the future--a challenging task.  The Deed of Agricultural Easement the parties agree to must predict agricultural activities that are consistent with the easement and those that would violate the easement.  There could be future problems if the predictions and forecasting aren’t flexible enough to accommodate agriculture in the future. 

The “perpetuity” requirement. While it’s possible to draft an easement that lasts only for a certain term of years, most agricultural easements remain on the land “in perpetuity,” or permanently.  The programs that pay a landowner to grant an agricultural easement and the federal income and estate tax benefits for donating all or part of an easement require that the easement is perpetual.  This differs from the conservation programs we’re accustomed to in agriculture that require shorter term commitments, and it can be a deterrent to a landowner who wants future generations to have a say in what happens to the land.  These concerns might be addressed in the deed of agricultural easement, however, which may provide sufficient flexibility to address those future concerns.

Termination can be difficult and costly.  Hand in hand with the perpetuity issue is the difficulty of terminating an agricultural easement once it’s in place. Typically, both parties must agree on a termination and a court of law must determine that conditions on or surrounding the land make it impossible or impractical to continue to use the land for agricultural purposes. Attempts to terminate without following the stated procedures can result in penalties for the current landowner.  If there was a payment for the agricultural easement, a deed of easement will likely require the landowner to reimburse the paying party for the proportionate share of the fair market value of the land with the easement removed and will also require the party receiving the reimbursement to use the funds only for similar conservation purposes.  

Eminent domain can be an issue.  As one Ohio farm family has learned, an agricultural easement might not protect the farmland from an eminent domain proceeding.  In Columbia Gas v. Bailey, 2023-Ohio-1245, the Bailey family was forced to litigate an attempt by Columbia Gas to use eminent domain for the construction of a gas pipeline across their farmland.  Their predecessor had placed an agricultural easement on the farmland in 2003, and the family argued the easement prevented the taking of land for the pipeline under the doctrine of “prior public use.”  That doctrine prohibits an eminent domain action that would destroy a prior public use.  The court agreed that the agricultural easement did create a prior public use on the land, and the court shifted the burden to Columbia Gas to prove that the pipeline would not destroy the established prior public use.  Rather than doing so, Columbia Gas withdrew its eminent domain proceeding and moved the location of the pipeline.  The court's decision to recognize an agricultural easement as a prior public use might provide some protection from eminent domain for future owners of agricultural easement land but, like the Baileys, landowners may have to fight a long, expensive battle to prove that an eminent domain action would destroy an established prior public use.

Lenders and other interests must be on board.  A landowner must deal with any existing mortgages, liens, leases, or easements on the farmland before entering into an agricultural easement.  The State of Ohio’s agricultural easement, for example, requires a lender to subordinate a mortgage to the rights of the easement holder.  Renegotiation of the mortgage might be necessary, and the lender might require a paydown of the outstanding mortgage if the property’s value could reduce below that amount.  Without subordination and other approvals, a landowner will not be able to enter into an agricultural easement. 

Local governments must be on board.  Ohio’s program for purchasing agricultural easements requires a landowner to submit a resolution of support from the township and county where the land is located.  This means the local governments must agree that committing the land to agriculture is consistent with local land use plans.  An early conversation with local officials is necessary to ensuring consistency with the community’s future plans.

There will be monitoring.  An easement holder has the responsibility of ensuring there is not a violation of the easement or conversion of the land to non-agricultural uses.  This means there will be a baseline or “present condition” report of the easement property upon easement creation and monitoring of the property “in perpetuity.”  An annual visit to the property and completion of an annual monitoring report by the easement holder is common. 

It's a lengthy process.  Agricultural easements don’t pop up overnight.  Especially when applying for funding from competitive programs like Ohio’s Local Agricultural Easement Purchase Program or the NRCS Agricultural Land Easements Program, it can be a year or more before an agricultural easement is in place. 

Planning and integration with plans is necessary.  An agricultural easement is one piece of what can be a complex plan addressing a landowner’s expansion, retirement, estate, and transition needs.  A landowner would be wise to work with a team of professionals—financial planner, tax professional, attorney—to ensure that an agricultural easement integrates with all other parts of the plan.

Still interested?  Ohio landowners interested in learning more about agricultural easements may want to consider these steps:

  • Review the resources on the Ohio Department of Agriculture’s Office of Farmland Preservation.
  • Talk with other landowners who have entered into easements.  Refer to the Coalition of Ohio Land Trusts landowner resources and landowner stories.
  • Visit American Farmland Trust’s Farmland Information Center.
  • Talk with a “local sponsor” or land trust in your area.  The Office of Farmland Preservation provides a list of local sponsors for the Clean Ohio Agricultural Easement Purchase Program on its website.
  • Talk with your attorney, financial planner, and accountant about the implications of entering into an agricultural easement.
Rolling Ohio farmland with large hay bales and barns in distance
By: Peggy Kirk Hall, Wednesday, October 18th, 2023

Questions from farmers and farmland owners about agricultural easements are on the rise at the Farm Office.  Why is that?  From what we’re hearing, the questions are driven by concerns about the loss of farmland to development as well as desires to keep farmland in the family for future generations.  An agricultural easement is a unique tool that can help a farmland owner and farming operation meet goals to protect farmland from development or transition that land to the next generation.  Here are answers to some of the questions we’ve been hearing.

What is an agricultural easement?  An agricultural easement is a voluntary legal agreement by a landowner to use land primarily for agricultural purposes and forfeit the right to develop the land for other purposes, either permanently or, less often, for a term of years.  In an agricultural easement, a landowner grants an easement “holder” the legal right to enforce the easement against a landowner or other party who attempts to convert the land to a non-agricultural use. A written legal instrument details and documents this agreement between a landowner and the easement “holder.”  The agricultural easement instrument must be recorded in the county land records, and the agricultural easement is binding on all future landowners for the duration of its term.

A state legislature must authorize the use of the agricultural easement instrument, and Ohio’s legislature did so in 1999.  At that time, the legislature adopted a detailed legal definition of “agricultural easement” in Ohio Revised Code 5301.67(C):

"Agricultural easement" means an incorporeal right or interest in land that is held for the public purpose of retaining the use of land predominantly in agriculture; that imposes any limitations on the use or development of the land that are appropriate at the time of creation of the easement to achieve that purpose; that is in the form of articles of dedication, easement, covenant, restriction, or condition; and that includes appropriate provisions for the holder to enter the property subject to the easement at reasonable times to ensure compliance with its provisions.

The legislature also required in Ohio Revised Code 5301.68 that a landowner may only grant an agricultural easement on land that qualifies for Ohio’s Current Agricultural Use Valuation (CAUV) program under Ohio Revised Code 5713.31.

Is an agricultural easement the same as a conservation easement?  No, not in Ohio, but they share the same legal concept of dedicating land to a particular use.  Ohio also allows a landowner to grant a conservation easement, which is a promise to retain land predominantly in its natural, scenic, open, or wooded condition and forfeit the right to develop the land for other purposes.  A conservation easement might allow agricultural land uses, and an agricultural easement might allow some conservation uses.  The terms used in federal law and some other states vary from Ohio, and include “agricultural conservation easement” or “agricultural land easement.”

Who can be a “holder” of an agricultural easement?  Ohio law answers this question in Ohio Revised Code 5301.68, which authorizes only these entities to enter into an agricultural easement with a landowner:

  • The director of the Ohio Department of Agriculture;
  • A municipal corporation, county, or township;
  • A soil and water conservation district;
  • A tax exempt charitable organization organized for the preservation of land areas for public outdoor recreation or education, or scenic enjoyment; the preservation of historically important land areas or structures; or the protection of natural environmental systems (generally referred to as a “land trust” or a “land conservancy.”)

What kinds of land uses would be inconsistent with keeping the land in agricultural use?  That depends on the terms in the written deed for the agricultural easement.  Activities that might violate the agreement to maintain the land as agricultural include subdivision of the property, commercial and industrial uses, major surface alterations, and oil and gas development.  It’s typical to identify the homestead or “building envelope” area and allow new buildings, construction and similar activities within that area, but those activities might not be permitted on other parts of the land.  Review the  Ohio Department of Agriculture’s current Deed of Agricultural Easement through the link on this page:  https://agri.ohio.gov/programs/farmland-preservation-office/landowners.

Can a landowner transfer land that is subject to an agricultural easement?  Yes.  An agricultural easement does not restrict the right to sell or gift land, but it does carry over to the new landowner.  That landowner must abide by the terms of the agricultural easement.

Are there financial incentives for entering into an agricultural easement?  Yes.  There are several financial incentives:

  • The Ohio Department of Agriculture’s Office of Farmland Preservation oversees the Local Agricultural Easement Purchase Program, which provides Clean Ohio grant funds to certified local sponsors to purchase permanent agricultural easements in their communities.  It’s a competitive process that requires a landowner to work with an approved local sponsor to apply for the program and to donate at least 25% of the agricultural easement’s value if selected.  A landowner can receive up to 75% of the appraised value of the farm’s “development rights,” with a payment cap of $2,000 per acre and $500,000 per farm per application period.
  • Federal funds are also available through the Natural Resource Conservation Service’s Agricultural Conservation Easement Program. This program is also competitive and requires a landowner to work with an approved partner to determine eligibility and apply for easement funding.  NRCS may contribute up to 50 percent of the fair market value of the agricultural land easement.
  • There are also federal income tax incentives for donating a portion or all of an agricultural easement’s value to a qualified charitable organization.  Internal Revenue Code section 170(h) allows a landowner to deduct the value of the easement up to 50 percent of their adjusted gross income (AGI) in the year of the gift, with a 15-year carryover of excess value.  That AGI percentage increases to 100% for a “qualified farmer” who earns more than 50% of their gross income from farming.
  • There can also be federal estate tax benefits for land subject to a permanent agricultural or conservation easement.  The land is valued at its restricted value, which lowers the estate value.  Additionally, Section 2055(f) of the Internal Revenue Code allows donations of qualifying easements to a public charity to be deducted from the taxable value of an estate.  Up to 40% of the value of land restricted by an agricultural or conservation easement  can be excluded from the value of an estate if the easement meets Internal Revenue Code section 2031(C) provisions, limited to $500,000. 

How can a family use an agricultural easement to enable farm transition goals?  Here’s an example.  John and Sue are fourth generation owners of 250 acres of farmland they plan to leave to their child Lee, and they want the land to remain as farmland into the future.  Lee is committed to farming and wants to farm, and John and Sue would like Lee to have more land to improve the viability of the farming operation. They find a local sponsor and apply to Ohio’s Local Agricultural Easement Purchase Program, offering to donate 25% of the agricultural easement value to the program.  They are selected for the funding and receive a payment of $2,000 per acre for the agricultural easement.  They use the $500,000 in easement proceeds to purchase additional farmland for Lee.  John and Sue receive a federal income tax credit for the portion of the easement value they donated to qualify for the program, and carryover the amount until it is fully used, up to 15 years.

What are the drawbacks of agricultural easements?  There are challenges and drawbacks of agricultural easements, and we’ll discuss those in our next blog post.

Agricultural easements require legal and tax advice and careful planning.  Our short Q&A doesn’t address all of the nuances of agricultural easements.  It’s a big decision, and one that should align with current goals and estate and transition plans.  To determine if an agricultural easement works for your situation, seek the advice and planning assistance of knowledgeable legal and tax professionals.

A chicken looking directly at the camera.
By: Jeffrey K. Lewis, Esq., Friday, May 26th, 2023

We’re back! We are excited to bring back our regular Ag Law Harvest posts, where we bring you interesting, timely, and important agricultural and environmental legal issues from across Ohio and the country. This month’s post provides you with a look into Ohio’s ongoing legal battle of some provisions in the recently enacted “Chicken Bill”, a brief dive into the U.S. Department of Labor’s new H-2A wage rules, a warning about conservation easement fraud, and an explanation of a court’s recent decision to release an insurance company from its duty to defend its insured in a lawsuit. 

Battle of “Chicken Bill.”
Ohio House Bill 507 (“HB 507”), sometimes referred to as “the Chicken Bill” went into effect last month and was widely known for reducing the number of poultry chicks that can be sold in lots (from six to three). However, HB 507 contained other non-poultry related provisions that have caused quite a stir. Environmental groups have sued the State, seeking a temporary restraining order, a preliminary and permanent injunction to prevent HB 507 from going into effect, and a declaratory judgement that HB 507 violates Ohio’s Constitution. Two provisions within HB 507 have specifically caught the attention of the Plaintiffs in this case: (1) a revision to Ohio Revised Code § 155.33 that requires state agencies to lease public lands for oil and gas development (the “Mandatory Leasing Provision”); and (2) a revision to Ohio Revised Code § 4928.01 that defines “green energy” to include energy generated by using natural gas, so long as the energy generated meets certain emissions and sustainability requirements (the “Green Energy Provision”). 

Plaintiffs argue that the Mandatory Leasing Provision will cause irreparable harm to their members’ “environmental, aesthetic, social, and recreational interests” in Ohio’s public lands. Additionally, Plaintiffs assert that the Mandatory Leasing Provision and Green Energy Provision violate Ohio’s Constitution by not following the “One-Subject Rule” and the “Three-Consideration Rule” both of which require transparency when creating and passing legislation in Ohio. The Franklin County Court of Common Pleas recently denied Plaintiffs’ request for a temporary restraining order, reasoning that no new leases would likely be granted until the Oil and Gas Land Management Commission adopts its rules (as required by Ohio law) and that there is “no likelihood of any immediate and irreparable injury, loss, or damage to the plaintiffs.” Since the hearing on Plaintiffs’ request for a temporary restraining order, the State of Ohio has filed its answer denying Plaintiffs’ claims and currently all parties are in the process of briefing the court on the merits of Plaintiffs’ request for a preliminary injunction. 

New H-2A Wage Rules: Harvesting Prosperity or Sowing Seeds of Despair? 
On February 28, 2023, the U.S. Department of Labor (the “DOL”) published a final rule establishing a new methodology for determining hourly Adverse Effect Wage Rates (“AEWR”) for non-range farm occupations (i.e. all farm occupations other than herding and production of livestock on the range) for H-2A workers. The new methodology has been in effect since March 30th. Late last month Rep. Ralph Norman and the Chairman of the House Committee on Agriculture, Rep. Glenn “GT” Thompson, introduced a resolution of disapproval under the Congressional Review Act, seeking to invalidate the DOL’s final rule. Similarly, the National Council of Agricultural Employers (“NCAE”) released a statement declaring that it has filed a Motion for Preliminary Injunction against the DOL’s new methodology. 

Opponents of the new rule argue that the increased wages that farmers and ranchers will be required to pay will put family operations out of business. On the other hand, the DOL believes “this methodology strikes a reasonable balance between the [law’s] competing goals of providing employers with adequate supply of legal agricultural labor and protecting the wages and working conditions of workers in the United States similarly employed.” Producers can visit the DOL’s frequently asked questions publication to learn more about the new H-2A wage rule. As it stands, the new H-2A regulations remain in effect and producers should be taking all possible steps to follow the new rules. Make sure to speak with your attorney if you have any questions about compliance with H-2A regulations. 

Conservation Easement Fraud – Protecting Land or Preying on Profits? 
For a while now, conservation easements have been utilized by farmers and landowners to preserve their land while also obtaining a substantial tax benefit. But not all actors in the conservation easement sphere are good ones. Earlier this month, a land appraiser in North Carolina pled guilty to conspiring to defraud the United States as part of a syndicated conservation easement tax shelter scheme. According to a press release by the U.S. Department of Justice (“DOJ”), Walter “Terry” Douglas Roberts II of Shelby, North Carolina conspired with others to defraud the United States by inflating the value of conservation easements which led to $1.3 billion in fraudulent tax deductions. Roberts is guilty of inflating the value at least 18 conservation easements by failing to follow normal appraisal methods, making false statements, and manipulating or relying on knowingly manipulated data to achieve a desired tax deduction amount. Roberts faces a maximum penalty of five years in prison and could be forced to pay back a specified amount to the U.S. Government. 

Conservation easement fraud is not new, however. The Internal Revenue Service (“IRS”) has been monitoring the abuse of the conservation easement tax deductions for some time. The IRS has included these fraudulent transactions on its annual “Dirty Dozen” list of tax avoidance scams. The IRS has seen taxpayers, often encouraged by promoters armed with questionable appraisals, take inappropriately large deductions for these types of easements. These promoters twist the law to develop abusive tax shelters that do nothing more than “game the tax system with grossly inflated tax deductions and generate high fees for promoters.” The IRS urges taxpayers to avoid becoming entangled by these dishonest promoters and that “[i]f something sounds too good to be true, then it probably is.” If you have questions about the tax benefits of a conservation easement, make sure to speak with your attorney and/or tax professional.  

Alleged Intentional Acts Not Covered by Insurance. 
An animal feed manufacturer is in hot water, literally. A city in Mississippi has accused Gold Coast Commodities, Inc. (“Gold Coast”), an animal feed manufacturer, of intentionally dumping hot, greasy wastewater into the City’s sewer system. Prior to the City’s investigation into Gold Coast’s alleged toxic dumping, Gold Coast purchased a pollution liability insurance policy from Crum & Forster Specialty Insurance Company (“Crum & Forster”). After an investigation conducted by the City and the Mississippi Department of Environmental Quality, the City filed a lawsuit against the feed manufacturer alleging that it intentionally dumped toxic waste into the City’s sewer system. Gold Coast then notified its insurance company of the potential claim. However, Crum & Forster denied coverage for Gold Coast’s alleged toxic dumping. According to the insurance policy, coverage exists for an “occurrence” defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Crum & Forster refused to provide a defense or coverage for Gold Coast in the City’s toxic dumping lawsuit because the City alleges multiple times that Gold Coast acted intentionally, and therefore, Gold Coast’s actions were not an accident and not covered by the policy. 

In response, Gold Coast filed a lawsuit against Crum & Forster asking a federal district court in Mississippi to declare that Crum & Forster is required to defend and provide coverage for Gold Coast under the terms of the insurance policy. On a motion to dismiss, the federal district court in Mississippi dismissed Gold Coast’s lawsuit against the insurance company. The district court reasoned that in the underlying toxic dumping lawsuit, the City is not alleging an accident, rather the City asserts that Gold Coast intentionally dumped the toxic waste. Thus, Crum & Forster is not obligated to provide a defense or coverage for Gold Coast, under the terms of the policy. Gold Coast appealed to the Fifth Circuit Court of Appeals (which has jurisdiction over federal cases arising in Texas, Louisiana, and Mississippi). 

The Fifth Circuit affirmed the decision of the federal district court, rejecting Gold Coast’s claim that Crum & Forster is obligated to provide a defense and coverage for Gold Coast in the City’s toxic dumping lawsuit. Gold Coast argued that the City seeks to recover under the legal theory of negligence in the toxic dumping case, therefore Gold Coast’s actions are accidental in nature. The Fifth Circuit was unconvinced. The Fifth Circuit explained that when reading a complaint, the court must look at the factual allegations, not the legal conclusions. The Fifth Circuit found that the factual allegations in the City’s lawsuit all referred to Gold Coast’s intentional or knowing misconduct and any recovery sought under the theory of negligence is not a factual allegation, instead it is a legal conclusion. The Fifth Circuit concluded that using terms like “negligence” do not “transform the character of the factual allegations of intentional conduct against [Gold Coast] into allegations of accidental conduct constituting an ‘occurrence.’” Thus, the Fifth Circuit affirmed the federal district court’s decision to dismiss Gold Coast’s lawsuit against its insurer. Unless the Supreme Court of the United States decides to take up the case, it looks like Gold Coast is all on its own in its fight against the City. The lesson here is that although insurance is important to have, its equally as important to speak with your insurance agent to understand what types of incidents are covered under your insurance policy. 

United States Department of Agriculture
By: Peggy Kirk Hall, Tuesday, February 07th, 2023

Sometimes a legislative proposal stalls, appears dead, then emerges in another piece of legislation in a slightly different form.  That’s exactly what happened with the Growing Climate Solutions Act and its plan to help farmers with carbon and environmental credit markets.  First introduced in 2020, the bill gained some momentum and passed the U.S. Senate before coming to a standstill in the House. But Congress added the bill, with some negotiated changes, into the Consolidated Appropriations Act it passed in the final days of 2022. The USDA is now charged with implementing its provisions.

Purpose of the bill

The bill aims to reduce barriers for farmers, ranchers, and foresters who want to enter into voluntary markets that establish environmental credits for greenhouse gas emission reductions resulting from agricultural or forestry practices (also known as carbon credits).  It allows the USDA to create the “Greenhouse Gas Technical Assistance Provider and Third-Party Verifier Program” if it appears, after an initial assessment, that the program would accomplish these purposes for farmers, ranchers, and private forest landowners:   

  • Facilitate participation in environmental credit markets
  • Ensure fair distribution of revenues
  • Increase access to resources and information on environmental credit markets

Advisory Council

If the USDA determines that the program would meet the above purposes, it must establish an Advisory Council to help guide the program.  At least 51% of the Advisory Council must be farmers, ranchers, and private forest landowners, including beginning, socially disadvantaged, limited resource, and veteran members.  Other members on the Advisory Council would include representatives from agencies, the agricultural and forestry industries, the scientific research community, non-governmental organizations,  and professionals and private sector entities involved in credit markets.

Protocols

A primary concern with the environmental credit market is uncertainty and variations in how to establish, quantify, and value environmental credits.  An important component of the new program is for USDA to publish lists of widely accepted protocols that are designed to ensure consistency, reliability, effectiveness, efficiency, and transparency of the markets along with documents relating to the protocols.  The act directs the USDA to include protocol documents and details on calculations; sampling methodologies; accounting principles; systems for verification, monitoring, measurement, and reporting; and methods to account for issues such as additionality, permanence, leakage, and double counting of credits.

Vendor registry

Another concern for landowners who want to participate in environmental credit markets is knowing who to turn to for technical assistance.  To address this issue, the program would require the USDA to create a registry of third-party vendors of environmental credits who can help farmers, ranchers, and forest landowners measure the carbon reduction benefits of different types of practices.  Unlike an earlier version of the bill, the USDA would not establish a certification program for these vendors, although the agency must ensure that the vendors possess demonstrated expertise in practices that prevent, reduce, or mitigate greenhouse gas emissions. 

Assessments

The USDA, in concert with the Advisory Council, must submit an initial and ongoing assessments to the agricultural committees in the Senate and House.  The initial assessment must examine ways to ensure certainly for farmers, ranchers and forest landowners in the marketplace.  Ongoing assessments would examine the environmental credit market itself, including actors in the market, participation, credits generated and sold, barriers to entry, opportunities for other voluntary markets, and more.

Program funding

The act provides an appropriation of at least $1 million per year to fund the program through 2027 and another $4.1 million of potential unobligated American Rescue Plan Act funds.  It specifically prohibits the USDA from using funds from the Commodity Credit Corporation for the program, a demand of the House Agriculture Committee Chairman Glenn Thompson, who states that those funds are obligated for Farm Bill program payments.

What’s next?

Farm Bill negotiations this year and other climate initiatives recently undertaken by the Biden administration, such as the USDA’s Partnerships for Climate-Smart Commodities, could reduce the focus the Growing Climate Solutions Act would have received if it had passed when first introduced back in 2020.  Even so, the timeclock has started for the USDA to make its initial determination of whether the program would meet the intended purposes. Secretary Vilsack must make that determination by late September, and the expectation is that the program will proceed.  We should then see the Advisory Council established by fall and and can expect program outputs such as protocols and the third-party registry as early as 2024. 

Read the provisions of the new law beginning on page 1,512 of the Consolidated Appropriations Act of 2023, H.R. 2617.

Ants and aphids on a plant stem.
By: Jeffrey K. Lewis, Esq., Friday, February 04th, 2022

Did you know that ants are the only creatures besides humans that will farm other creatures?  It’s true.  Just like we raise cows, sheep, pigs, and chickens in order to obtain a food source, ants will do the same with other insects.  This is particularly true with aphids.  Ants will protect aphids from natural predators and shelter them during heavy rain showers in order to gain a constant supply of honeydew.

Like an ant, we have done some heavy lifting to bring you the latest agricultural and resource law updates.  We start with some federal cases that deal with the definition of navigable waters under the Clean Water Act, mislabeling honey products, and indigenous hunting rights.  We then finish with some state law developments from across the country that include Georgia’s right to farm law and California’s Proposition 12.  

Supreme Court to review navigable waters definition under the Clean Water Act.  The Supreme Court announced that it would hear the case of an Idaho couple who have been battling the federal government over plans to build their home.  Chantell and Mike Sackett (“Plaintiffs”) began construction on their new home near Priest Lake, Idaho but were halted by the Environmental Protection Agency (“EPA”).  The EPA issued an administrative compliance order alleging that Plaintiffs’ construction violates the Clean Water Act.  The EPA claims that the lot, on which the Plaintiffs are constructing their new home, contains wetlands that qualify as federally regulated “navigable waters.”  Plaintiffs are asking the Court to revisit its 2006 opinion in Rapanos v. United States and help clarify how to determine when a wetland should be classified as “navigable waters.”  In Rapanos, the Court found that the Clean Water Act regulates only certain wetlands, those that are determined to be “navigable waters.”  However, two different tests were laid out in the Court’s opinions.  The Court issued a plurality opinion which stated that the government can only regulate wetlands that have a continuous surface water connection to other regulated waters.  A concurring opinion, authored by Justice Kennedy, put forth a more relaxed test that allows for regulation of wetlands that bear a “significant nexus” with traditional navigable waters.  Justice Kennedy’s test did not take into consideration whether there was any surface water connection between the wetland and the traditional navigable waters.  In the lower appellate court, the Ninth Circuit Court of Appeals used Justice Kennedy’s “significant nexus” test to uphold the EPA’s authority to halt Plaintiffs’ construction.  Now, Plaintiffs hope the Supreme Court will adopt a clear rule that brings “fairness, consistency, and a respect for private property rights to the Clean Water Act’s administration.”  

SueBee sued for “bee”ing deceptive.  Sioux Honey Association Cooperative (“Defendant”) finds itself in a sticky situation after Jason Scholder (“Plaintiff”) brought a class action lawsuit against the honey maker for violating New York’s consumer protection laws by misrepresenting the company’s honey products marketed under the SueBee brand.  Plaintiff claims that the words “Pure” or “100% Pure” on the Defendant’s honey products are misleading and deceptive because the honey contains glyphosate.  Defendant filed a motion to dismiss the class action lawsuit and a federal district court in New York granted Defendant’s motion in part and denied it in part.  Defendant asked the court to find that its labels could not be misleading as a matter of law because any trace amounts of glyphosate in the honey is a result of the natural behavior of bees interacting with agriculture and not a result of Defendant’s production process.  However, the court declined to dismiss Plaintiff’s mislabeling claims.  The court concluded that a reasonable consumer might not actually understand that the terms “Pure” or “100% Pure” means that trace amounts of glyphosate could end up in honey from the bees’ foraging process.  The court also declined the Defendant’s request to dismiss Plaintiff’s unjust enrichment claim because of the alleged misrepresentations of the honey.  However, the court did dismiss Plaintiff’s breach of express warranty claim and request for injunctive relief.  The court dismissed Plaintiff’s breach of express warranty claim because Plaintiff failed to notify Defendant of its alleged breach of warranty, as required by New York law.  Plaintiff’s request for injunctive relief was also dismissed because the court could not find any imminent threat of continued injury to Plaintiff since he has now learned that the honey contains trace amounts of glyphosate.  The court ordered the parties to proceed with discovery on Plaintiff’s remaining claims, keeping the case abuzz.

Indigenous Hunting Rights.  Recently, two members of the Northwestern Band of the Shoshone Nation (“Northwestern Band”) were cited for hunting on Idaho lands without tags issued by the state.  The Northwestern Band filed suit against the state of Idaho declaring that its members possessed hunting rights pursuant to the Fort Bridger Treaty of 1868 (the “1868 Treaty”).  The 1868 Treaty provided that the Shoshone Nation agreed to permanently settle on either Fort Hall Reservation, located in Southeastern Idaho, or Wind River Reservation, located in Western Wyoming.  By agreeing to settle on one of the two reservations, the Shoshone Nation was granted hunting rights on unoccupied lands of the United states.  However, the Northwestern Band ended up settling in Northern Utah and not on one of the two named reservations.  After considering the 1868 Treaty, the Federal District Court of Idaho dismissed Northwestern Band’s lawsuit.  The court held that the hunting rights contained in the 1868 Treaty were tied to the promise to live on one of the reservations, and that a tribe cannot receive those hunting rights without living on one of the appropriate reservations.  Thus, the court found that because the Northwestern Band settled in Northern Utah and not on one of the reservations, the hunting rights of the 1868 Treaty did not extend to the Northwestern Band of the Shoshone Nation.  

Tensions rise over Georgia’s Freedom to Farm Act.  A few days ago, Georgia lawmakers introduced legislation that seeks to further protect Georgia farmers from nusiance lawsuits.  House Bill 1150 (“HB 1150”) proposes to change current Georgia law to protect farmers and other agricultural operations from being sued for emitting smells, noises, and other activities that may be found offensive by neighboring landowners.  Georgia’s current law, which became effective in 1980, does provide some protection for Georgia farmers, but only from neighboring landowners that have moved near the farm or agricultural operation after the current law went into effect.  All neighboring landowners that lived near the farming operation prior to the current law going into effect have retained their right to sue.  HB 1150, on the other hand, will prevent these nuisance lawsuits by all neighboring landowners, as long as the farm or agricultural operation have been operating for a year or more.  Passing a right to farm law has proven to be difficult in Georgia.  In 2020, House Bill 545, also known as the “Right to Farm bill” failed to pass before the final day of the 2019-2020 legislative session. Private landowners, farmers, and their supporters, are divided on the issue and seek to protect their respective property rights. It doesn't look like HB 1150 will have the easiest of times in the Georgia legislature. 

Confining California's Proposition 12.  Meat processors and businesses that sell whole pork meat in California (collectively the “Petitioners”) have delayed the enforcement of California’s Proposition 12 (“Prop 12”), for now.  Prop 12 is California’s animal confinement law that has sent shockwaves across the nation as it pertains to raising and selling pork, eggs, and veal.  Last week, the Superior Court for Sacramento County granted Petitioners’ writ of mandate to delay the enforcement of Prop 12 on sales of whole pork meat.  Petitioners argue that Prop 12 cannot be enforced until California has implemented its final regulations on Prop 12.  To date, California has yet to implement those final regulations.  California, on the other hand, suggests that final regulations are not a precondition to enforcement of Prop 12 and the civil and criminal penalties that can be brought against any farmer or business that violates Prop 12.  The court disagreed.  The court found that the language of Prop 12, as voted on by California residents, explicitly states that California voters wanted regulations in place before the square-footage requirements of Prop 12 took effect.  Therefore, the court granted Petitioners’ writ of mandate to prevent the enforcement of Prop 12 until final regulations have been implemented.  The court’s writ will remain in effect until 180 days after final regulations go into effect.  This will allow producers and businesses to prepare themselves to comply with the final regulations.  Opponents of Prop 12 believe this is another reason why the Supreme Court of the United States should review California’s Proposition 12 for its constitutionality.  

Ohio Farmland Leasing Update photo with farm field
By: Peggy Kirk Hall, Tuesday, February 01st, 2022

Winter is a good time to review farm leases, for both economic and legal reasons.  We'll provide you current information to help with the farmland leasing process in our Ohio Farmland Leasing Update webinar on February 9, 2022 from 7 to 9 p.m.   Barry Ward, Leader of Production Business Management for OSU Extension, will address the economic issues and our legal team of Peggy Hall and Robert Moore will provide the legal information.  

Our agenda will include:

  • Current economic outlook for Ohio row crops
  • Research on cash rent markets for the Eastern Corn Belt
  • Rental market outlook fundamentals
  • Negotiating conservation practices
  • Using leases in farmland succession planning
  • Ohio's proposed law on providing notice of termination
  • Ensuring legal enforceability of a lease

There is no fee for the webinar, but registration is necessary.  Register at https://go.osu.edu/farmlandleasingupdate.

Nile Crocodile with jaw open.
By: Jeffrey K. Lewis, Esq., Tuesday, September 28th, 2021

Did you know that the Nile Crocodile has the strongest bite of any animal in the world?  The deadly jaws can apply 5,000 pounds of pressure per square inch, which is about 10 times more powerful than the crunch of the Great White Shark. Humans?  Well, they can apply about 100 pounds of pressure per square inch.  

This edition of the Ag Law Harvest takes a bite out of some federal lawsuits, Department of Labor developments, and USDA announcements affecting agriculture and the environment. 

Animal advocates lack standing to sue poultry producer.  In 2020, animal advocacy groups In Defense of Animals (“IDA”) and Friends of the Earth (“FoE”) (collectively the “Plaintiffs”) filed a lawsuit against Sanderson Farms (“Sanderson”), a Mississippi poultry producer, alleging that Sanderson engaged in false advertising as it relates to its chicken products.  According to Plaintiffs, Sanderson advertises that its chickens are “100% natural” with no “hidden ingredients.”  However, Plaintiffs allege that Sanderson has been misleading the public after many of Sanderson’s products tested positive for antibiotics and other unnatural substances.  This however is not the first court battle between FoE and Sanderson.  In 2017, FoE sued Sanderson for the same false advertising.  However, the 2017 case was dismissed because the court held that FoE did not have standing to bring the lawsuit.  The 2017 case was appealed to the Ninth Circuit Court of Appeals where the decision to dismiss the lawsuit was upheld.  Fast forward to 2020, FoE joined forces with a new plaintiff, IDA, hoping to file a lawsuit that would finally stick.  Recently however, a federal district court in California dismissed the most recent lawsuit because FoE was precluded, or prohibited, from suing Sanderson again on the same claims and because IDA lacked the standing to bring the lawsuit.  The California district court found that FoE could not bring its claims against Sanderson because those same claims were litigated in the 2017 lawsuit.  This legal theory, known as issue preclusion, prevents the same plaintiff from a previous lawsuit from bringing the same claims against the same defendant in a new lawsuit, when those claims were resolved or disposed of in a prior lawsuit.  Issue preclusion did not affect IDA, however, because it was a new plaintiff.  But the California district court still found that IDA lacked standing to bring this lawsuit against Sanderson.  IDA argued that because it expended resources to launch a campaign against Sanderson to combat the allegedly false advertising, it had organizational standing to bring the lawsuit.  Standing requires a plaintiff to show they suffered an “injury-in-fact” before they can maintain a lawsuit.  Organizational standing is the theory that allows an organization like IDA to establish an “injury-in-fact” if it can demonstrate that: (1) defendant frustrated its organizational mission; and (2) it diverted resources to combat the defendant’s conduct.  IDA argued that because it diverted resources including writing letters to Sanderson and the Federal Trade Commission, filing a complaint with the Better Business Bureau, publishing articles and social media posts, and diverting staff time from other campaigns to focus on countering Sanderson’s advertising, it had the organizational standing to bring the lawsuit.  The Court disagreed.  The Court reasoned that the diverting of resources by IDA was totally voluntary and not a result of Sanderson’s advertising.  The Court determined that in order to obtain organizational standing, IDA must have been forced to take the actions it did as a result of Sanderson’s advertising, the diverting of resources cannot be self-inflicted.  The Court held that Sanderson’s advertising did not ultimately frustrate IDA’s organizational mission and that any diverting of resources to counter Sanderson’s advertising was the normal course of action taken by a group like IDA.  

Joshua trees, a threatened species?  WildEarth Guardians (“Plaintiff”), a conservation organization, brought suit against the U.S. Secretary of the Interior and the U.S. Fish and Wildlife Service (“Defendants”) for failing to list the Joshua tree as a threatened species under the Endangered Species Act (“ESA”).  Plaintiff argued that the Defendants’ decision not to list the Joshua tree as threatened was arbitrary, capricious, contrary to the best scientific and commercial data available, and otherwise not in line with the standards set forth by the ESA.  In 2015 Plaintiff filed a petition to have the Joshua tree listed as a threatened species after Plaintiff provided scientific studies showing that climate change posed a serious threat to the continued existence of the Joshua tree.  The U.S. Fish and Wildlife Service (“FWS”) issued a 90-day finding that Plaintiff’s petition presented credible information indicating that listing the Joshua tree as threatened may be warranted.  However, the FWS’s 12-month finding determined that listing the Joshua tree as threatened or endangered under the ESA was not necessary due to the Joshua tree’s long lifespan, wide range, and ability to occupy multiple various ecological settings.  That’s when Plaintiff decided to bring this lawsuit asking the federal district court in California to set aside the 12-month finding and order the Defendants to prepare a new finding, and the Court agreed.  The Court held that Defendants’ decision was arbitrary, capricious, and contrary to the ESA and ordered the Defendants to reconsider Plaintiff’s petition.  The Court reasoned that the FWS’s climate change conclusions were arbitrary and capricious because it failed to consider Plaintiff’s scientific data and failed to explain why in its 12-month finding.  Further, the Court noted that the FWS’s findings regarding threats to the Joshua tree posed by climate change and wildfire were unsupported, speculative, or irrational.  And finally, the Court determined that the FWS’s conclusion that Joshua trees are not threatened in a significant portion of their range was arbitrary and capricious.  The FWS must now prepare a new finding that addresses all the above deficiencies.  

Department of Labor announces expanded measures to protect workers from extreme heat.  The U.S. Department of Labor (“DOL”) announced that the Occupational Safety and Health Administration (“OSHA”) is working on ways to protect workers in hot environments and reduce the dangers associated with exposure to high heat.  According to the DOL, OSHA will be implementing an enforcement initiative on heat-related hazards,  developing a National Emphasis Program on heat inspections, and launching a rulemaking process to develop a workplace heat standard.  Current and future extreme heat initiatives and rules apply to indoor and outdoor worksites in general industry, construction, agriculture and maritime where potential heat-related hazards exist. 

Deadline to apply for pandemic assistance to livestock producers extended.  The USDA announced that it is providing additional time for livestock and poultry producers to apply for the Pandemic Livestock Indemnity Program (“PLIP”).  Producers who suffered losses during the Covid-19 pandemic due to insufficient access to processing may now apply for relief for those losses through October 12, 2021.  Payments are based on 80% of the fair market value of the livestock and poultry and for the cost of depopulation and disposal of the animals.  Eligible livestock include swine, chickens, and turkeys.  For more information on PLIP, and how to apply, visit farmers.gov/plip.

Pistol shrimp on reddish orange coral.
By: Jeffrey K. Lewis, Esq., Tuesday, September 07th, 2021

Did you know there is a sea creature capable of producing bubbles that are louder than a gun and hotter than lava?  Pistol shrimp, also known as snapping shrimp, are the super-powered creatures under the sea that no one talks about.  These bite-sized crustaceans have a special claw that allows them to form the deadly bubble to shoot at unsuspecting victims or enemies.  The sound of the pop of the bubble has been measured at 218 decibels, which is louder than a speeding bullet, and the heat generated by the bubble has been measured to reach almost 8,000 degrees Fahrenheit, making the bubble four-times hotter than lava.  Like the pistol shrimp, we have brought you the heat in this edition of the Ag Law Harvest.  

This Ag Law Harvest brings you agricultural and resource issues from across the country that have created their own noise, including animal liability laws, the reversal of relaxed environmental regulations, and requiring federal agencies to consider the impact of future agency activities on the environment. 

Farmers and ranchers begin to enjoy new protections under Texas animal liability laws. Texas House Bill 365, which expands protections under Texas’ Farm Animal Liability Act (“FALA”), went into effect on September 1, 2021.  House Bill 365 was passed in response to a 2020 Texas Supreme Court ruling which found that farmers and ranchers were not protected under FALA and could be liable for injuries that occur on working farms and ranches.  The new law prevents an injured individual from holding a farmer or rancher liable for their injuries, so long as the injuries are a result of the inherent risks of being involved in routine/customary activities on a farm or ranch.   

Federal Court revokes Trump Navigable Waters Protection Rule. The U.S. District Court in Arizona recently ruled that the Trump Administration’s Navigable Waters Protection Rule (“NWPR”) must be vacated because the rule contains serious errors and the Trump Administration’s rule could do more harm than good to the nation’s waters if left alone.  Opponents of the NWPR argued that rule disregards established science and the advice of the EPA’s own experts in order to redefine the phrase “waters of the United States.”  Specifically, opponents to the Trump Administration’s rule voiced their concern that the NWPR failed to take into consideration the effect ephemeral waters would have on traditional navigable waters. And the Court agreed.  The Court found that the NWPR must be vacated because the rule “could result in possible environmental harm.”  The Court also reasoned that because the EPA is likely to alter the definition of “waters of the United States” under the Biden Administration, the NWPR should not remain in place.  Proponents of the NWPR claim that the Court’s ruling creates uncertainty for farmers and ranchers across the country.  

EPA revokes Minnesota attempts to relax feedlot regulations. Earlier this year, Minnesota passed a law that relaxed the requirements to obtain a “Feedlot General Permit.”  The Feedlot General Permit is usually only for Minnesota’s largest feedlots, some 1,200 farms.  The permits are required under federal clean water laws but enforced by the state.  Prior to the law being passed, the Minnesota Pollution Control Agency required those farmers that applied manure during the first two weeks of October to implement one of four approved nitrogen management practices.  However, Minnesota lawmakers wanted to relax those regulations by prohibiting regulatory authorities from requiring farmers to take new steps to limit nitrogen runoff during October.  But, the EPA “vetoed” Minnesota’s relaxed regulations, which it can do when a state’s law conflicts with a federal law or regulation.  The EPA sent a letter notifying Minnesota that the relaxed regulations would be inconsistent with the Clean Water Act (“CWA”) and would result in an improper modification to the Minnesota Pollution Control Agency’s authority to administer the National Pollutant Discharge Elimination System (“NPDES”), which administers the feedlot permits.  Proponents of the new Minnesota law claimed that the existing permits were not flexible enough and that regulatory authorities focused on an arbitrary calendar date rather than focusing on natural conditions when limiting a farmer’s ability to spread manure.  Opponents to Minnesota’s law argue that the EPA did the right thing by using “common sense improvements to prevent manure runoff.” 

Department of Homeland Security found to have violated environmental regulations for its border-enforcement activity.  The Center for Biological Diversity and U.S. Congressman Raul Grijalva (the “Plaintiffs”) filed suit in federal court claiming that the Department of Homeland Security and its agency, Customs and Border Protection, (the “Defendants”) violated the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”).  Plaintiffs alleged that Defendants failed to update their programmatic environmental analysis for border-enforcement activity since 2001, as required by NEPA, and that Defendants failed to consult with the U.S. Fish and Wildlife Service (“FWS”) about the impacts of border-enforcement activity on threatened or endangered species, as required by the ESA.  In its opinion, the U.S. District Court of Arizona ruled that the Defendants did violate NEPA but not the ESA.  The Court found that NEPA has two primary goals: (1) require every federal agency to consider the environmental impact of the agency’s actions; and (2) require the federal agency to inform the public that it has considered the environmental impact.  NEPA also requires a federal agency to supplement its environmental impact statement if there is ongoing action being taken by the federal agency.  The Defendants claimed they did not violate NEPA because they conducted and provided site-specific or project-specific environmental assessments.  However, the Court ruled that although the Defendants did conduct project-specific analysis, they are required to supplement their environmental impact statement for the activity/program, as a whole, unless they legally opt out of the supplementation, which Defendants did not do until 2019.  Therefore, the Court found the Defendants did violate NEPA prior to 2019.  The Court also ruled that the ESA does not require federal agencies to consult with the FWS on a broad and continuing basis.  The Court felt that the Defendants had met any requirements under the ESA by meeting with the FWS for any site-specific or project-specific analysis.  Although the Court found that Defendants had violated NEPA, the Court concluded that Plaintiffs had waited too long to bring the lawsuit and that no remedy was available to Plaintiffs for the previous procedural violations of NEPA.  

USDA announces changes to CFAP 2. The USDA’s Farm Service Agency announced changes to the Coronavirus Food Assistance Program 2 (“CFAP 2”).  As a result of the changes, contract poultry, egg, and livestock producers, and producers of “sales-based commodities” – mostly specialty crops – can modify existing or file new applications by October 12, 2021, using either 2018 or 2019 to measure lost revenue in 2020.  The changes were published on August 27, 2021, and can be found here.

U.S. Capitol Building under blue sky.

Written by Zach Ishee, J.D. Candidate '23, University of Mississippi, Research Fellow, National Agricultural Law Center
Zach has been working with OSU's Agricultural and Resource Law Program thanks to our partnership with the National Agricultural Law Center. 

A major piece of environmental legislation currently making waves is the Growing Climate Solutions Act (GCSA), S. 1251. The GCSA passed through the Senate with overwhelming bipartisan support, by a final tally of 92-8. The bill sponsored by Senator Mike Braun (R-IN) had 27 Democratic co-sponsors, 26 Republican co-sponsors, and one independent co-sponsor. Although it has been criticized by some for not doing enough, the final vote shows a willingness by this Senate to grapple with the issues surrounding the environment and the climate. 

Purpose of the Growing Climate Solutions Act

The goal of the GCSA is to ease the burden on farmers, ranchers, and foresters entering the voluntary carbon markets through the creation of the Greenhouse Gas Technical Assistance Provider and Third-Party Verifier Certification program. The program’s efforts will be focused on removing the technical barriers of entry into the marketplace. The program calls for certification of certain entities to improve accurate information flow to farmers, ranchers, and foresters. 

Timeline and Advisory Council

The Agriculture Secretary will have eight months from the bill’s passage to create the Greenhouse Gas Technical Assistance Provider and Third-Party Verifier Certification program. If the Secretary decides against the program, he must publish a detailed explanation of why he has decided against the program.  

An advisory council will be established to help the USDA create protocols for calculating, sampling, accounting, verification and reporting methodologies. The advisory council will be comprised of United States Department of Agriculture (USDA) representatives, Environmental Protection Agency (EPA) representatives, and agriculture industry representatives, among other qualified participants. The council must have at least twelve members from the agriculture industry and at least six active farmers or ranchers. The council is also required to have at least four members from the forestry industry. Other groups of participants are capped between two and four members but include members from the scientific research community, members of the private sector who deal in voluntary credits, and experts/professionals in the verification field.  In total, over half of those serving on the council will be farmers, ranchers, and private forest owners.

Certification

Once the protocols have been created, the USDA must provide information for how entities self-certify and instructions on how to assist the farmers, ranchers, and private forest owners. The bill will require the creation of a website exclusively dedicated to assisting the potential market participants on best practices. 

The certification granted by the USDA will allow an approved entity to claim they are a “USDA-certified technical assistance provider or third-party verifier for voluntary environmental credit markets”. Other entities, not approved by the USDA, that claim this certification or something substantially similar are subject to a monetary fine of $1,000 and become ineligible to participate in the program for five years. The certified entities will be audited at least annually to ensure compliance with USDA guidelines. 

Funding

The GCSA will receive $1 million in funding from 2022-20226 along with $4.1 million rescinded from the American Rescue Act of 2021. This relatively small amount of new funding is likely one of the reasons for such strong bipartisan support for this bill. 

Public Reception

Although this bill is a welcome start to addressing climate issues through agriculture participants, a few large questions remain. The bill does nothing to address some of the main concerns that industry experts have, for example the bill does not directly mention farmer data. Of course, data is an extreme concern for the participants in voluntary credit markets because of how much data must be turned over prior to verification of their created credits. It seems the advisory council will certainly address this issue, among others, but this bill does not create certainty with respect to data. It will be extremely important to keep track of the recommendations made by the advisory council and the USDA’s final decision on best practices as they will set the standard for voluntary credit markets moving forward. 

Multiple organizations have come out in opposition of this bill. Family Farm Action has criticized the GCSA for playing into the hands of the major agribusinesses, stating “Without strong, preemptive antitrust protections, a carbon credit program would pay these agribusinesses for their pollution, compounding the already-substantial challenges they pose to the food system and the planet.” Senator Jeff Merkley (D-Ore) has also vocalized his reasoning for being part of the minority voting against the bill saying, “I don’t believe that an offset system that subsidizes corporations’ continued pollution in front-line communities is the best strategy. Let’s set incentives that reduce pollution in both agriculture and front-line neighborhoods.” The opposition to this bill has almost completely been in the camp that the bill does not do enough, rather than outright opposition against the overarching theme of combating climate change. 

On the other hand, support for the GCSA has been easy to find. Kameran Onley, the Director of North American Policy and Government Relations for The Nature Conservancy has come out in support for the bill stating, “American farmers know that sustainability and profitability go hand in hand. This bill will help farmers improve their operations, build new revenue streams, and implement climate-smart practices to safeguard our environment for the future.” American Farm Bureau Federation President Zippy Duvall thanked lawmakers for the bipartisanship and further said, “The Growing Climate Solutions Act acknowledges the potential of climate-smart farming while ensuring farmers would be respected as partners who can build on our strong foundation of environmental stewardship." The support for the bill has been focused on the Senate’s ability to work across the aisle to begin structuring a unified approach towards carbon credit markets. 

What’s next?

Clearly the bill still awaits a vote in the House of Representatives to make it to the President’s desk to become law. Although no timeline exists for a house vote at this point, good reason exists to believe it could make its way through the House quickly. As of right now a companion bill exists in the house, H.R. 2820, which goes by the same name, Growing Climate Solutions Act. The companion bill is substantially the same as the Senate bill, calling for the same advisory council and certification process. The House bill is sponsored by Rep. Abigail Davis Spanberger (D-VA-7) and co-sponsored by 33 Democrats and 19 Republicans, which is only further proof of the bipartisanship seen in the climate arena. The latest action on the House version of the Growing Climate Solutions Act was its referral to the House Committee on Agriculture April 22nd of this year. The Senate bill was received and held at desk in the House as of June 24th of this year. Although the House Agriculture Committee has yet to schedule a markup if the legislation, the bipartisan Problem Solvers Caucus has endorsed the bill. 

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