There’s a lot of talk about carbon markets and agriculture these days. While carbon markets aren’t new, recent proposals in Congress and announcements by the Biden administration are raising new interests in them. Some companies are actively pursuing carbon trading agreements with farmers, further fueling the discussion in the agricultural community.
As is common for any new opportunity, the talk on carbon markets may be tinged with a bit of skepticism and a lot of questions. Do carbon sequestration practices have real potential as an agricultural commodity? That’s a tough question and the answer isn’t yet clear. There are answers for other questions, though, as well as resources that may be helpful for those considering carbon markets for the first time. Here’s a sampling.
What is a carbon market? A carbon market revolves around carbon credits generated by carbon reduction practices. In the farm setting, a producer who either lowers the farm’s carbon emissions or captures carbon through “sequestration” practices can earn carbon credits. Like other markets, a carbon market involves a transaction between a seller and a buyer. The seller sells a carbon credit to a buyer who can use the carbon credit to offset or reduce its carbon emissions.
Do carbon markets already exist? Yes, although they may be private markets with varying names occurring in different regions. For example, Bayer Crop Sciences began its Carbon Initiative last year, paying producers for adopting carbon reduction practices that will help Bayer reach its goal of reducing its greenhouse gas emissions by 30% in 2030. Indigo Ag began entering into long-term carbon agreements with producers in 2019, paying $15 per ton for carbon sequestration practices. Food companies and agribusinesses including McDonald’s, Cargill, and General Mills formed the Ecosystem Services Market Consortium, which will fully open its private carbon market in 2022.
Are legal agreements involved? Yes. Using a written agreement is a common practice in carbon market transactions, but the agreements can vary from market to market. Provisions might address acceptable practices, calculating and verifying carbon reductions including third-party verification, sharing data and records, pricing, costs of practices, minimum acreage, and contract period. As with other legal contracts, reviewing a carbon agreement with an attorney is a wise decision. Watch for more details about carbon agreements as we share our analysis of them in future blog posts.
What is President Biden considering for carbon markets? The Biden administration has expressed interest in developing a federal carbon bank that would pay producers and foresters for carbon reduction practices. The USDA would administer the bank with funding from the Commodity Credit Corporation. Rumors are that the bank would begin with at least $1 billion to purchase carbon credits from producers for $20 per ton. The proposal is one of several ideas for the USDA outlined in the administration’s Climate 21 Project.
What is Congress proposing for carbon markets? The bipartisan Growing Climate Solutions Act would require USDA to assess the market for carbon credits, establish a third-party verifier certification program overseen by an advisory council, establish an online website with information for producers, and regularly report to Congress on market performance, challenges for producers, and barriers to market entry. An initial $4.1 million program allocation would be supplemented with $1 million per year for the next five years. The Senate Agriculture, Nutrition and Forestry Committee has already passed the bill. The Rural Forest Markets Act, also a bipartisan bill, would help small-scale private forest landowners by guaranteeing financing for markets for forest carbon reduction practices.
Is there opposition to carbon markets? Yes, and skepticism also. For example, a recent letter from dozens of organizations urged Congress to “oppose carbon offset scams like the Growing Climate Solutions Act” and argued that agricultural offsets are ineffective, incompatible with sustainable agriculture, may further consolidate agriculture and will increase hazardous pollution, especially in environmental justice communities. The Institute for Agriculture & Trade Policy also criticizes carbon markets, claiming that emission credit prices are too low and volatile, leakages and offsets can lead to accountability and fraud issues, measurement tools are inadequate, soil carbon storage is impermanent, and the markets undermine more effective and holistic practices. Almost half of the farmers in the 2020 Iowa Farm and Rural Life Poll were uncertain about earning money for carbon credits while 17% said carbon markets should not be developed.
To learn more about carbon markets, drop into an upcoming webinar by our partner, the National Agricultural Law Center. “Considering Carbon: The Evolution and Operation of Carbon Markets” on May 19, 2021 at Noon will feature Chandler Van Voorhis, a leading expert in conservation and ecological markets. The Center also has a recording of last month’s webinar on “Opportunities and Challenges Agriculture Faces in the Climate Debate,” featuring Andrew Walmsley, Director of Congressional Relations and Shelby Swain Myers, Economist, both with American Farm Bureau. A new series by the Center on Considering Carbon will focus on legal issues with the carbon industry and will complement our upcoming project on “The Conservation Movement: Legal Needs for Farm and Forest Landowners.” There’s still more talking to do on carbon markets.
President Biden announced a major goal this week--for the U.S. to reduce greenhouse gas emissions by half over the next decade as compared to 2005 levels. Agriculture will play a key role in that reduction by “deploying cutting-edge tools to make the soil of our heartland the next frontier in carbon innovation,” according to President Biden. Several bills introduced in Congress recently could help agriculture fulfill that key role. The proposals offer incentives and assistance for farmers, ranchers, and forest owners to engage in carbon sequestration practices.
Here’s a summary of the bills that are receiving the most attention.
Growing Climate Solutions Act, S. 1251. The Senate Agriculture, Nutrition and Forestry Committee passed S. 1251 today. The bipartisan proposal led by sponsors Sen. Mike Braun (R-IN), Sen. Debbie Stabenow (D-MI), Sen. Lindsey Graham (R-SC) and Sen. Sheldon Whitehouse (D-RI) already has the backing of over half of the Senate as co-sponsors, including Ohio’s Sen. Sherrod Brown. The bill has come up in prior sessions of Congress without success, but the sponsors significantly reworked the bill and reintroduced it this week. The new version includes these provisions:
- Requires the USDA to conduct an initial assessment of the domestic market for carbon credits, to include assessing market actors, market demand, estimated credits in process, supply and demand of offsets, barriers to entry, monitoring and measurement technologies, barriers for small, beginning and socially disadvantaged operators, among other factors.
- Creates a Greenhouse Gas Technical Assistance Provider and Third-Party Verifier Certification Program to ensure that technical service assistance providers who work with farmers to establish and sell carbon credits have sufficient expertise, including agricultural and forestry knowledge. Certified parties are to act in good faith to provide realistic estimates of costs and revenues and to help farmers, ranchers and forester receive “fair distribution of revenues” derived from carbon credit sales.
- Establishes an online website providing information for farmers, ranchers and foresters interested in participating in carbon markets.
- Creates an advisory council that would oversee the certification program. At least 16 of the committee’s 25 members must be farmers, ranchers, or private forest owners.
- Charges the USDA with producing a report to Congress identfying barriers to market entry, challenges raised by farmers and forest owners, market performance, and suggesting additional ways to encourage voluntary participation in carbon sequestration practices.
- Authorizes up to $9.1 million in USDA funding for the program, including $4.1 million immediately and an additional $1 million per year for the next five years.
Rep. Don Bacon (R-NE) and Rep. Abigail Spanberger (D-VA) will soon introduce companion legislation in the House of Representatives.
Rural Forest Markets Act, S. 1107. A second proposal in Congress aims to remove barriers for small-scale private forest landowners and help them benefit from carbon markets and other climate solution markets. Senators Stabenow and Braun are also sponsors of this bill, along with Sen. Angus King (I-Maine) and Sen. Shelley Moore Capito (R-WV). The bill echoes previous similar legislative attempts and includes these provisions:
- Directs the USDA to create a Rural Forest Market Investment Program to guarantee up to $150 million to finance eligible projects for rural private forest landowners to participate in an “innovative market for forest carbon or other products.”
- States that eligible projects will be those developed by private entities or nonprofits to aggregate sustainable practices by rural private forest landowners for sales in a carbon or environmental market, using approved methodologies.
- Requires that eligible tree planting projects may take place only on historically forested lands using native species and be planted at ecologically appropriate densities without causing negative impacts to biodiversity or the environment.
The interest in carbon reduction practices and monetizing carbon sequestration at the federal level doesn’t end with these two proposals—there are several more that may gain interest. While not addressing private landowners, another Senate proposal focuses on public land reforestation. The “Repairing Existing Public Land by Adding Necessary Trees Act” (REPLANT Act), with Ohio’s Sen. Rob Portman as a sponsor, proposes increased funding in the Reforestation Trust Fund for replanting 1.2 billion trees over the next ten years on public land in need of reforestation. The USDA is weighing in on the issue as well, and has recently announced plans to target carbon reduction through existing programs such as the Conservation Reserve Program. And just after passing the Growing Climate Solutions Act today, the Senate Agriculture, Nutrition, and Forestry Committee held a hearing on “Farmers and Foresters: Opportunities to Lead in Tackling Climate Change” featuring testimony from several farmers and groups. Readers may get a sense of what more is to come by viewing the hearing on the committee’s website.
Dicamba, Roundup, WOTUS, and ag-gag: although there are important updates, this week’s Harvest topics could be considered some of the Ag Law Blog’s “greatest hits.” In addition to these ongoing issues, a bill that is meant to encourage farmers to participate in carbon markets was recently introduced in the Senate. June has certainly been a busy month.
Decisions on dicamba. If you’ve been following along with our blog posts over the past few weeks, you know that the Ninth Circuit Court of Appeals vacated the registration of several over-the-top dicamba products, and in response, the EPA announced that all such products in farmers’ possession must be used before July 31, 2020 (our last post on the topic is available here). The Ohio Department of Agriculture went a step further, making the final date for dicamba use in the state June 30, 2020, due to the state registrations expiring on that day. Since the Ninth Circuit decision, the companies that produce dicamba products such as Engenia and, FXapan, and XtendiMax have filed numerous motions with the Ninth Circuit. On June 25, the court declined a motion from the BASF Corporation, which makes Engenia, asking the court to pause and withdraw their decision from the beginning of the month. What does this mean? Basically, at this moment, the court’s ruling still stands, and use of certain over-the-top products will have to cease on the dates mentioned above. That’s the latest on this “volatile” issue.
Bayer settles Roundup lawsuits, but this probably isn’t the end. Bayer, the German company that purchased Monsanto and now owns rights to many of the former company’s famous products, has been fighting lawsuits on multiple fronts. Not only is the company involved in the dicamba battle mentioned above, but over the past few years it has had a slew of lawsuits concerning Roundup. On June 24, Bayer, the German company that now owns the rights to Roundup, announced that it would settle around 9,500 lawsuits. The lawsuits were from people who claimed that Roundup’s main ingredient, glyphosate, had caused health problems including non-Hodgkin’s lymphoma. The amount of the settlement will be between 8.8 and 9.6 billion dollars. Some of that money will be saved for future Roundup claims. Although many are involved in this settlement, there are still thousands of claims against Bayer for litigants who did not want to join the settlement.
Updated WOTUS still not perfect. As always, there is an update on the continuing saga of the waters of the United States (WOTUS) rule. If you recall, back in April, the Trump administration’s “final” WOTUS rule was published. Next, of course, came challenges of the rule from both sides, as we discussed in a previous Harvest post. Well, the rule officially took effect (in most places, we’ll get to that) June 22, despite the efforts of a group of attorneys general from Democratically-controlled states attempting to halt the implementation of the rule. The attorneys general asked the U.S. District Court for the Northern District of California a nationwide preliminary injunction, or pause on implementation of the rule until it could be sorted out in the courts. The district court judge denied that injunction on June 19. On the very same day, a federal judge in Colorado granted the state’s request to pause the implementation of the rule within the state’s territory. Remember that the 2015 rule was implemented in some states and not others for similar reasons. The same trend seemingly continues with Trump’s replacement rule. In fact, numerous lawsuits challenging the rule are ongoing across the country. A number of the suits argue that rule does not go far enough to protect waters. For instance, just this week environmental groups asked for an injunction against the rule in the U.S. District Court for the District of Columbia. Environmental organizations have also challenged the rule in Maryland, Massachusetts, and South Carolina district courts. On the other hand, agricultural groups like the New Mexico Cattle Growers Association have filed lawsuits arguing that the rule is too strict.
No more ag-gag in NC? We have mentioned a few times before on the blog that North Carolina’s ag-gag law has been embroiled in a lawsuit for several years (posts are available here). North Carolina’s version of “ag-gag” was somewhat different from other states, because the statute applied to other property owners, not just those involved in agriculture. The basic gist of the law was that an unauthorized person entering into the nonpublic area of a business was liable to the owner or operator if any damages occurred. This included entering recording or surveilling conditions in the nonpublic area, which is a tool the plaintiffs use to further their cause. In a ruling, the U.S. District Court for the Middle District of North Carolina was decided largely in the plaintiffs’ (PETA, Animal Legal Defense Fund, etc.) favor. In order to not get into the nitty gritty details of the 73-page ruling, suffice it to say that the judge found that that law did violate the plaintiffs’ freedom of speech rights under the First Amendment to the U.S. Constitution. Another ag-gag law bites the dust.
Carbon markets for farmers? And, now for something completely different. In the beginning of June, a bipartisan group of four U.S. senators introduced the “Growing Climate Solutions Act.” On June 24, the Senate Committee on Agriculture, Nutrition, and Forestry held its first hearing on the new bill, numbered 3894. The text of SB 3894 is not currently available online, but it would create “a certification program at USDA to help solve technical entry barriers that prevent farmer and forest landowner participation in carbon credit markets.” The barriers “include access to reliable information about markets and access to qualified technical assistance providers and credit protocol verifiers” and “have limited both landowner participation and the adoption of practices that help reduce the costs of developing carbon credits.” You can read the Committee’s full press release about the bill here. It is backed by several notable businesses and groups, including the American Farm Bureau Federation, the National Corn Growers Association, the Environmental Defense Fund, and McDonalds and Microsoft.