Sustainable Agriculture: The Role of the Attorney

Neil D. Hamilton

Editors' Summary: Agriculture has always been one of the engines that drive U.S. economics and society. The concept of sustainable agriculture is becoming a central issue in the development of U.S. agricultural policy. It involves a difficult balance among production, profitability, and conservation.

In this Article, the author explores the sustainable agriculture concept and the potential it holds generally for the nation, and particularly for lawyers. He exposes the differences between conventional and sustainable agriculture, and the biases built into modern U.S. agricultural production that create institutional barriers to sustainable agriculture in favor of conventional farming. The author notes how federal and state governments have begun to incorporate sustainable agricultural principles into practice and how they may be used to achieve environmental protection. He explains how opportunities for creative lawyering exist in the area of sustainable agriculture and will grow as U.S. agriculture prepares to enter the 1990s.

Mr. Hamilton is the Richard M. and Anita Calkins Distinguished Professor of Law and Director of the Agricultural Law Center, Drake University Law School. Mr. Hamilton received his undergraduate degree from Iowa State University and his law degree from the University of Iowa. Professor Hamilton has served on the Advisory Board of the Leopold Center for Sustainable Agriculture since it was created in 1987. This Article is adapted from a report to be published next year by the National Center for Agricultural Law Research and Information at the University of Arkansas School of Law. The opinions expressed in the Article are the author's.

[20 ELR 10021]

A new term has moved to center stage in the debate over the future of U.S. agriculture. The term is "sustainable agriculture,"¹ also referred to as regenerative, alternative, or low-input agriculture. The ideas and implications of sustainable agriculture make it one of the most significant developments in agricultural policy in this century. The simplest view of sustainable agriculture focuses on the methods chosen to produce food, such as rotating crops and managing pests mechanically, which reduce environmental and economic problems associated with conventional agriculture. The promise of sustainability is that by developing farm-produced nutrients and alternatives to chemicals for pest control, and by increasing attention to land stewardship concerns, we can reduce reliance on purchased inputs, improve the economic returns of agriculture, and minimize environmental degradation. The result will ensure the long-term productivity, viability, and ultimate sustainability of agriculture. Sustainable agriculture has the potential to alter the way land is farmed and to achieve incremental improvements in environmental quality and farm economics.

Sustainable agriculture offers a new way to view agriculture and the development of agricultural policy. All features of agricultural policy — whether the production methods used by farmers, the research agendas pursued by universities, the federal price support programs offered by the United States Department of Agriculture (USDA), or the initiatives forwarded by environmentalists to protect our land, air, and water — can be analyzed against the standard of how they affect the sustainability of the nation's farming sector. Sustainable agriculture has the potential to fundamentally alter the way in which the institutions and organizations that deal with agriculture operate.²

[20 ELR 10022]

Agriculture has the greatest impact of any economic sector in our nation on the environment and our natural resources, and it is important that every lawyer working with environmental issues have an understanding of sustainable agriculture and its potential. A national debate over sustainable agriculture, starting with the very definition of the term, is just now developing. The need for understanding is important because sustainable agriculture may offer the opportunity and methods to develop efficient and workable agricultural policies for dealing with the serious potential environmental problems associated with modern farming practices.

This Article introduces environmental lawyers to the meaning and potential of sustainable agriculture. By exploring the issues surrounding sustainable agriculture, this Article communicates its potential and promise, as well as the fear and uncertainty that naturally accompany a debate over the need for significant changes in a system of agricultural production that is the result of decades of research, farmer adoption, business development, and governmental policies.

Defining "Sustainable Agriculture"

A major hurdle in the debate over promoting sustainable agriculture is defining the term. Defining any movement as multifaceted as an effort to make U.S. agriculture more sensitive to the economic, social, and environmental problems associated with conventional production techniques is difficult. Nevertheless, definitions can play an important role for at least three reasons. First, considering various definitions provides those involved in the debate an opportunity to refine their thinking and to justify the policies and ideas they advocate. Second, the varying definitions illustrate that many different views of the concept exist, depending on the perspective of the speaker. Third, the identification of different perspectives allows the listener, whether policy maker, farmer, or researcher, to consider the motivations and understanding behind any proposal.

The diversity of views and reactions to the sustainable agriculture debate vividly demonstrates that what you see depends on where you sit. To many who have developed and support conventional agricultural production, sustainable agriculture may lead to declines in production and is viewed as a threat to economic self-interest and the nation's future.³ To those who decry the ills of modern chemical-intensive farming practices and advocate a return to more traditional practices, sustainable agriculture offers the nation a chance, perhaps its last, to develop a land ethic that integrates concern for people, the land, and how we produce our food. While the diversity of views and interests involved may preclude a commonly held and accepted definition of the term, greater awareness will provide at least a common understanding of what is meant by the term "sustainable agriculture."

It is valuable to consider several of the definitions of sustainable agriculture that have been developed by farmers, scholars, and legislatures. Wendall Berry offered perhaps the shortest and earliest definition, that "a sustainable agriculture does not deplete soils or people."⁴ The Iowa Legislature, in enacting landmark legislation to protect the state's groundwater, created the Leopold Center for Sustainable Agriculture to conduct research on sustainable agricultural practices, an action met originally with controversy in the state's agricultural community. The legislation creating the Center defines sustainable agriculture as "the appropriate use of crop and livestock systems and agricultural inputs supporting those activities which maintain economic and social viability while preserving the high productivity and quality of Iowa's land."⁵

Another definition, developed by the American Society of Agronomy at the 1988 annual meeting, is "one that, over the long term, 1) enhances environmental quality and the resource base on which agriculture depends, 2) provides for basic human food and fiber needs, 3) is economically viable, and 4) enhances the quality of life for farmers and society as a whole." Another definition is found in the statement of principles of the Practical Farmers of Iowa, an organization taking a lead in farm-oriented research on sustainable practices.⁶ The organization states that its philosophy is guided by "[the] higher priority needs to be given to developing farming practices which will result in higher net income for farmers, which will be less threatening to the health of farm families, and which will more adequately protect the productive capacity of the land."⁷

While the definition of sustainable agriculture depends on who is asked to define it, there are common themes reflected in all the definitions.⁸ Chief among these are the need to reduce the environmental consequences of farming practices and the need to integrate land stewardship into how we farm. By considering the potential effect of agricultural chemicals on groundwater quality and the impact of pesticide residues on consumer confidence in the nation's food supply, the agricultural community can assess the economic and social consequences of using certain [20 ELR 10023] production methods and explore the need to develop alternatives. As a result, conventional agriculture has come under scrutiny for placing increased reliance on the large scale production of crop monocultures, chemical methods of pest control, and plant fertilization as substitutes for more traditional systems, such as diversified crop rotations and livestock production.

With this scrutiny has come the primary impact of the sustainable agriculture movement: research and identification of alternative methods of farming that address identified environmental or social concerns, while maintaining or improving farm profitability and ensuring agricultural productivity.⁹ The development of alternatives that protect the natural resources used in food production gives sustainable agriculture such potential as a method of achieving environmental protection goals. The agricultural community will respond most quickly and uniformly to alternative practices that improve or at least maintain farm profitability. While regulation will undoubtedly be used in addressing the environmental consequences of farming, the possibility of making significant changes in farming practices without regulation is an exciting feature of sustainable agriculture and has added greatly to its attractiveness to farmers and conservationists alike.

The importance of maintaining farm profitability is another common theme in defining sustainable agriculture. Reducing farming costs, primarily by substituting alternative practices for purchased inputs, is the focus. Issues concerning the use of farm chemicals, both fertilizers and pesticides, are again central to the debate. Increased reliance on mechanical cultivation to control weeds and integrated pest management to reduce the frequency and amount of chemical controls by using beneficial insects and plants for pest control are part of sustainable agriculture. Similarly, the use of farm-produced sources of plant nutrients, such as animal manures and nitrogen-fixing legume crops raised as "green manures," to substitute for purchased fertilizer is part of the debate. Many of the alternatives proposed to reduce farm expenses have the added feature of reducing environmental risks. The synergistic relationship between reducing inputs (from which comes the term "low-input" sustainable agriculture¹⁰) and environmental protection makes it a central feature in the national policy debate over how we farm and how we protect the environment.

The Short but Significant History of Sustainable Agriculture in the United States

Federal Action: The LISA Program

Only several years ago, the alternative agriculture movement was considered the domain of "organic" farmers and the followers of Robert Rodale's The New Farm magazine, which advocated the concept under the title of "regenerative agriculture." In the early 1980s, when USDA researchers had the audacity to suggest that organic farming had a role in U.S. agriculture, conventional agriculture, which controlled the USDA, put an end to such heresy by terminating work in the area. Then, Congress included as part of the 1985 farm bill, the Agriculture Productivity Act, authorizing the USDA to conduct a research and education program on alternative farming systems.¹¹ This effort, finally begun in 1987, led to the creation of the low input/sustainable agriculture (LISA) program, under which almost $ 4 million was spent in 1988 and over $ 4.5 million in 1989 on research of alternative farming systems.¹² The Act focuses scientific investigation on efforts to "enhance agricultural productivity, maintain the productivity of land, reduce soil erosion and loss of water and plant nutrients," and implement soil, water, and energy conservation practices.¹³

The 1985 Act does not define sustainable or alternative agriculture and the guidance provided for the research program is somewhat vague. This has not prevented the USDA from actively developing its own view of low input/sustainable agriculture.¹⁴ The USDA's effort was in part directed by Congress which, in the Act authorizing the LISA research program, directed the Secretary to:

identify, assess, and classify existing information and research reports that will further the purposes of this chapter including information and research relating to legume-crop rotation, the use of green manure, animal manures, and municipal wastes in agricultural production, soil acidity, liming in relation to nutrient release, intercropping, the role of organic matter in soil productivity and erosion control, the effect of topsoil loss on soil productivity, and biological methods of weed, disease, and insect control.¹⁵

Based in part on this language, the USDA developed guidelines for operating a LISA research program. While adapted for each of four regions of the nation, they identify priority issues and activities for LISA funding which help provide structure for how the UDSA perceives sustainable agriculture. These priorities, as set out in the application guidelines for LISA research funds, include the following:

1. Developing economically viable crop and livestock systems which:

reduce reliance on off-farm purchased inputs, especially synthetic chemical pesticides and fertilizers that may pose environmental or human health risks;

maintain or enhance soil productivity;

reduce soil erosion and loss of soil nutrients;

conserve energy and natural resources; and

minimize environmental contamination and health risks.

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2. Develop and evaluate strategies and materials converting from high input to reduced input farming systems.

3. Facilitate technology adoption relative to low-input sustainable farming systems by:

disseminating existing and new scientifically based information in readily usable form;

developing in-service training packages for Cooperative Extension personnel and other appropriate clientele;

developing data bases;

developing information delivery systems or networks that link various data bases, identify most knowledgeable individuals on a given subject, and provide easy access to appropriate information; and

developing management decisions support systems featuring whole-farm analysis.

4. Develop methodologies and capacity for scientifically valid on-farm experiments and test demonstrations.

5. Monitor and characterize existing low-input farming systems.

6. Analyze the effects of public policies (federal, state, and local) on farmer incentives to adopt low-input/sustainable farming methods.¹⁶

The work of the USDA has provided important legitimacy to the concept of sustainable agriculture and has helped move it into the mainstream of policy debate. But the issue is hardly free from controversy. The opponents of sustainable agriculture try valiantly to portray it as "organic" farming, a term that within U.S. agriculture carries a pejorative image of hippies raising blueberries. But the genie is clearly out of the bottle. While sustainable agriculture and organic farming may share many similar concerns, U.S. agriculture is recognizing that sustainable agriculture is much broader in its sweep and intent and does not advocate eliminating chemicals completely.The growing perception is that sustainable agriculture is oriented to increasing the profitability of farming and reducing environmental problems by reducing the reliance on purchased inputs and applying more cost-effective management practices.

At the same time it must be recognized that there are legitimate questions to be asked about sustainable agriculture. For example, just because a practice is traditional or farm produced, such as the use of animal manures for crop fertility, it does not necessarily mean the practice is free from environmental consequences. Nitrogen from mishandled manure can pollute water just as effectively as overapplication of commercial fertilizers. Further, chemical methods of pest control have been developed for important reasons and have made significant contributions to the productivity of U.S. agriculture. Unless effective and practical alternatives are available for farmers to use, the sudden removal of these pest control methods would have a significant impact on productivity. Further, if sustainable agriculture is promoted as a cure-all but is later shown not to work or if farmers cannot obtain the information needed to adopt such practices, the concept has the potential to become a fad and a failure. Worse yet, in the view of suspicious agricultural interests, sustainable agriculture may simply be a stalking horse for a regulatory agenda fousted on agriculture by environmentalists. This is one reason why so much of the work of private groups and state and federal initiatives has gone into research and demonstrations. Only by documenting the effectiveness of alternative practices, and identifying the true dimensions of environmental problems associated with conventional agriculture, will the foundation of sustainable agriculture be made sound.

The cumulative effect of conferences and of the work of those promoting sustainable agriculture is that within less than two years sustainable agriculture has moved from being the concern of a few individuals working on the fringes of mainstream agriculture to being touted by many as the central issue that will drive the drafting of the 1990 farm bill.¹⁷ Front page stories in the Wall Street Journal¹⁸ and the Des Moines Register,¹⁹ as well as increasingly frequent discussions in all levels of the farm press, have helped support this metamorphosis.²⁰

Congress to Consider Major Initiatives Promoting Sustainable Agriculture

Congress has also shown an interest in sustainable agriculture beyond simply funding the LISA program. The first congressional hearing on the subject was held in 1982 and in recent years attention to the issue has increased with a variety of committees getting into the act. For example, in October 1988, the Committee on Government Operations published a report entitled, "Low Input Farming Systems: Benefits and Barriers." In June 1989, the Senate Agriculture Committee held a hearing on low-input sustainable agriculture, and the Department Operations, Research, and Foreign Agriculture Subcommittee of the House Committee on Agriculture held a hearing in July 1989, on sustainable agriculture. All of this recent activity is aimed at developing methods for integrating sustainable agriculture ideas into the 1990 farm bill, the drafting of which will consume most of Congress' agricultural attention for the next year.

In considering the u990 farm bill, Congress will have several opportunities to study legislative initiatives designed to redirect U.S. farm policy into adopting a sustainable system. One proposal,²¹ which is designated the Farm Conservation [20 ELR 10025] and Water Protection Act, defines "low-input agriculture" as "a combination and sequence of agricultural production practices designed to improve farm profitability and minimize off-farm environmental and health risks by reducing the need for production inputs with known or potentially adverse impacts on human health and the environment."²² The Act contains a variety of initiatives designed to promote sustainable agriculture and to integrate it into the nation's agriculture policy, including the use of small grains and legumes in commodity programs, multiyear set-asides, research and demonstration grants on low-input practices, the development of technical guides on low-input production, well testing and groundwater protection efforts, and the creation of an Organic Food Commission to develop a national program to certify organic food.

Another bill contains a variety of soil and water conservation initiatives related to sustainable agriculture.²³ The proposal includes sections for broadening the coverage of the Conservation Reserve Program to include lands threatened by environmental problems, multiyear conservation and wildlife habitat improvement contracts, the certification of naturally produced food, the introduction of flexibility into federal commodity programs to plant alternative crops, and groundwater protection efforts. In considering these proposals, there will be ample opportunity for the merits and demerits of sustainable agriculture to be debated and for the public to make its views known. How Congress chooses to introduce sustainability into the 1990 farm bill will be an important factor in promoting the concept.

State Legislation and Research Efforts Promoting Sustainable Agriculture

While Congress has just begun to consider sustainable agriculture, there has already been legislative activity at the state level. In recent years several state legislature have passed laws to promote the development of sustainable agriculture and many state universities have undertaken research programs.²⁴ The state laws generally deal with three main issues: (1) appropriation of funds for research on sustainable agriculture so the serious information needs of individual farmers can be met; (2) the provision of loans and financial incentives to farmers interested in adopting sustainable practices; and (3) the development of best management practices or restrictions on farming methods to promote sustainable agriculture.

Much of the original funding for these state efforts resulted from moneys received by the states as part of the federal government's settlement of lawsuits against major oil companies for overcharging on the sale of natural gas during the 1970s, funds otherwise known as oil overcharge funds. The funds were allocated to the states on the basis of energy use and were used to fund a variety of projects designed to reduce energy consumption or to develop new energy sources. There is a strong link between sustainable agriculture and reducing energy usage. For example, practices resulting in the reduced use of petroleum-derived agricultural chemicals and on-farm production of energy, such as methane from manure and growing energy crops, are commonly considered sustainable. As a result of this linkage, Iowa, Michigan, Minnesota, Nebraska, and Wisconsin allocated portions of their oil overcharge funds to research on sustainable agriculture.²⁵ Iowa devoted $ 800,000 of oil overcharges to initiate the research program of the newly formed Leopold Center for Sustainable Agriculture.²⁶ An additional $ 750,000 was appropriated to an agricultural energy management account in the Department of Agriculture and Land Stewardship to be used to "develop nonregulatory programs to implement integrated farm management of farm chemicals for environmental protection, energy conservation, and farm profitability; interactive public and farmer education; and applied studies of best management practices and best appropriate technology for chemical use efficiency and reduction."²⁷ While oil overcharge funds were a somewhat unlikely source of agricultural research dollars, these moneys in [20 ELR 10026] many ways funded the first major research efforts concerning sustainable agriculture.

Several states have enacted legislation mandating state involvement in sustainable agriculture research. The earliest state action was California's Sustainable Agriculture Research and Education Act of 1986.²⁸ In the findings to the Act, the legislature stated that:

[t]here is a growing movement in California and the nation to change farming techniques by adopting more resource-conserving, energy efficient systems of agriculture. The objective of these changes is to produce agricultural products which may reduce the use of petrochemicals, improve means of biological pest management, improve soil productivity, improve erosion control, and improve irrigation, cultivation and harvesting techniques.²⁹

The Act directed the Regents of the University of California to establish the Sustainable Agriculture Researchand Education Program to support the provision of competitive research grants, to fund education and demonstration efforts, and to support the planning and management of the University of California's farmlands long-term research on sustainable agricultural practices and farming systems.³⁰

As previously noted, Iowa created the Leopold Center for Sustainable Agriculture in 1987 with the enactment of the innovative Ground Water Quality Protection Act.³¹ In only two years, the Leopold Center has become a leader in sustainable agriculture research, funding close to $ 2 million in competitive grants for research and education.³² The Center is funded through the agricultural management account, which is one of several accounts within the groundwater protection fund established by the law.³³ The funds for the agricultural management account are derived from a registration fee on pesticides³⁴ and from a $ .75 per ton tax on nitrogen fertilizers,³⁵ meaning that sustainable agriculture research in Iowa is funded from taxes on products believed to contribute to groundwater contamination problems.

The State of Minnesota has enacted an aggressive state program for promoting sustainable agriculture. In 1987, Minnesota appropriated $ 75,000 to endow a chair in sustainable agriculture at the University of Minnesota.³⁶ Then, in 1988, Minnesota implemented a Sustainable Agriculture Loans and Grants program with two main components.³⁷ First, the commissioner of agriculture is authorized to make loans to "enable farmers to adopt best management practices that emphasize sufficiency and the self-sufficiency in agricultural inputs, including energy efficiency, reduction of petroleum and chemical inputs, and increasing the energy self-sufficiency of agricultural producers."³⁸ Second, the commissioner is to establish "a grant program for sustainable agriculture methods that demonstrates best management practices, including farm input reduction, farm energy efficiency, or usable on-farm energy production."³⁹ Grants can be made to farmers, educational institutions, and nonprofit organizations for farm demonstrations within the state. The criteria for the grants require that projects show "(1) the ability to maximize direct or indirect energy savings or production; (2) a positive effect or reduced adverse effect on the environment; and (3) profitability for the individual farm."⁴⁰ Over $ 1 million has been appropriated for use in the program.

Several states have developed sustainable agriculture programs without the aid of direct state legislation or specific funding. For example, five years ago Ohio State University (OSU) formed a working group on Sustainable Systems for Agricultural Production, which consists of 60 members made up of OSU faculty, farmers, and state legislators. The group conducts research on sustainable issues, sponsors talks and seminars, and circulates a newsletter on the topic. Over 20 faculty members are involved in the sustainable agriculture research program, which has received funding from private foundations and from OSU research challenge funds. In 1988, OSU sponsored a major international conference on sustainable agriculture which was attended by over 1,000 people.

Nebraska is another state that has, through the University of Nebraska at Lincoln (UNL), developed a reputation for involvement in sustainable agriculture research and education. UNL was engaged in sustainable-agriculture-related research as early as 1975 and now serves as the midwestern coordinating institution for the LISA program. However, in 1989, the Appropriations Committee of the Nebraska Unicameral tabled a bill that would have appropriated $ 100,000 for sustainable agricultural research at UNL.⁴¹ The money would have been used to found a Center for Sustainable Agriculture to increase and coordinate research and extension efforts. The Institute for Agriculture and Natural Resources at UNL has included the study of sustainable agriculture in its strategic plan for future operations, so the question now is whether UNL will place a priority on requesting funding for this type of research.⁴²

Recognizing the Role of the Law in Promoting Sustainable Agriculture

How the Law Shapes the Operation of Modern Agriculture

Sustainable agriculture promises to be one of the most significant policy developments in U.S. agriculture in the [20 ELR 10027] decades ahead. Many factors will influence the nation's ability to develop a sustainable agricultural system, including: the success of agricultural researchers in developing practical, environmentally safe methods to control pests and raise crops profitably; the ability of the extension and education system to inform farmers about the availability of alternative sustainable practices; the manner in which the agricultural supply and service industries respond to sustainable agriculture that challenges many conventional methods of farming; and the degree to which farmers embrace and adopt sustainable agriculture and the environmental stewardship ideals it reflects. Another factor that will influence the development of sustainable agricultural policies is the legal system.

While not generally recognized as important to agriculture, the law plays a fundamental role in shaping the health and efficient operation of the present conventional agricultural system.⁴³ Examples of the extensiveand pervasive role of law in modern agriculture can be seen in the marketing and credit systems that allow farmers to finance and sell crop production and to be assured of payment; the land tenure system, which makes land freely transferable and protects the use of farm leases, under which almost half of the nation's land is farmed; and the multitude of state and federal laws, which provide for everything from federal price supports, production controls, and soil conservation programs, to state efforts to protect crops and livestock from disease and pests and to ensure the inputs farmers buy are safe and effective. The extensive role of the law in shaping agriculture means it will undoubtedly have a significant role to play, both directly and indirectly, in the success of efforts to promote a sustainable agricultural system.

Law can play a direct role in how land is farmed. For example, the conservation compliance provisions of the 1985 farm bill show how legislation can influence farming practices. Promulgating laws that prohibit certain farming practices, such as using pesticides in ways not included on the label, is another example of the role law can play in regulating farming. The law can also play an indirect role in shaping agriculture. The common use of short-term cash rent leases in grain-producing areas encourages maximizing crop production and may act as a barrier to establishing long-term crop rotations. Similarly, a common criticism of federal price support and production control programs is that they encourage overproduction of surplus crops through reliance on established base acreages and do not encourage multiyear crop rotations or planting flexibility. These examples demonstrate that the law can either serve as an important mechanism for promoting sustainable agriculture if used affirmatively or act as a serious impediment to promoting sustainable agriculture if biased toward agricultural practices considered antithetical to the sustainable model.

Important contributions can be made to the debate over the role of sustainable agriculture. First is by identifying biases that may exist in the legal system that support conventional agricultural practices believed responsible for causing the environmental and social problems. Second is by identifying the ways the legal system can be used to effectively and efficiently encourage producers to adopt sustainable practices and minimize injurious conventional practices. The process of identifying the role of the legal system in promoting or constraining the development of sustainable agriculture will make the parties and institutions involved in the issue, such as agricultural scientists, farmers, policy makers, and government officials, aware of how the law may encourage or hinder sustainable practices. Recognizing this ambivalent potential of the law to influence the adoption of sustainable agriculture is important. By factoring this feature into research, policy development, and decisionmaking, the agricultural practices and proposals offered to promote sustainable agriculture will be more realistic and therefore more likely to succeed.

The broad range of legal issues that arise in considering sustainable agriculture is a function of several factors, including: the complexity of the economic and institutional arrangements in modern agriculture; the pervasiveness of law in U.S. society (especially economic relations); and the involvement of the public interest in the debate over how agriculture operates. The public interest is directly involved because the problem of ensuring the nation's long-term ability to produce the food supplies needed to meet domestic and foreign demand is at the heart of the sustainable agriculture debate. The public interest in the outcome is enhanced because, to function, agriculture must make intensive use of vast amounts of natural resources. If agricultural practices are not sound or if the economic or political system does not require farmers to account for all of the consequences of production, agriculture has the potential to cause serious environmental problems. The failure to consider the true societal and individual costs of conventional agricultural practices is a fundamental issue in the debate over sustainable agriculture. Proponents include as hidden costs of conventional agriculture the contamination of groundwater from pesticides and nitrogen fertilizers, soil erosion from unsound cropping practices, economic vulnerability from reliance on crop monocultures, and dependance on petrochemicals and purchased inputs. The promise of sustainable agriculture, according to its proponents, is the opportunity to develop a profitable and productive agricultural system which recognizes these costs and attempts to minimize or remove them.

Every facet of agricultural operations — from production to marketing, credit to research, and land tenure to federal farm programs — have important legal issues associated with them. Identifying these legal issues and the questions that society must address is one function the law can perform in promoting a sustainable agricultural system. For example, in the production context, there are legal issues such as soil conservation and the landowners duty to protect their soil from erosion.⁴⁴ A broad range of pesticide issues exists, such as landowner liability for contaminating groundwater or food supplies, label restrictions on the time or method of chemical use, or the very existence of a product on the market. Similarly, many varied legal issues and options are involved in nutrient management and how to control the contamination of groundwater by nitrate [20 ELR 10028] leaching, such as placing restrictions on the time and method of fertilizer application, regulating the spreading of animals manures, taxing fertilizer products to pay for water clean-up efforts, or devising farming arrangements that value the nutrient contributions from green manures and crop residues.⁴⁵ To understand the role of the law more clearly, it is valuable to consider in more detail several examples of how legal standards may impact farming methods.

Legal Protections for Farm Practices and the Effect on Influencing Farmer Behavior

The law can play an important role in regulating the conduct of private individuals. The risk of liability fordamages caused by one's actions or the threat of governmental sanctions for violating a public duty are important factors influencing human behavior. The potential for suffering legal consequences is therefore an important force in protecting public resources or discouraging conduct with antisocial impacts. However, when viewed from the individual's perspective, the risk of either public or private legal liability can be an impediment to operating a business in the manner desired and may present serious economic risks to the financial health of the business.

There are two excellent examples of this effect in modern agriculture, both of which have a relation to sustainable agriculture. The first is the effect of a threatened nuisance suit on the viability of a livestock operation. The second is the financial impact cleaning up contaminated water may have on the user of agricultural chemicals. In both of these situations the potential for legal liability may pose serious economic risks to the business and thus is a factor influencing how farming is conducted. While the threat of legal liability minimizes any possibility that the farm violates the legal standard set for its operation, the threat may also force the business to take actions that it would not otherwise take. For example, the threat of a nuisance suit may cause a livestock facility to move or the farmer may decide to stop raising livestock.

Either of these actions would have serious economic impacts on the farm and perhaps on the public. Further, both of these decisions have important implications for the promotion of sustainable agriculture. For example, by moving in the face of urban encroachment, which might lead to nuisance actions, it is likely the agricultural land will be converted to residential use and thus lost to agricultural production. The issue of preserving agricultural land has become very significant in recent years, particularly in the Northeast where the supply of farmland is limited and the nonagricultural demand for rural land is great.⁴⁶ By ending the production of livestock, the economic diversity of the farm operation is adversely affected. Further, the farmer's ability to rebuild the soil using multiyear crop rotations of forages and legumes and animal manure as sources of plant nutrients is lost.

In response to the impacts caused by the threat of nuisance actions against livestock producers and the public costs of such actions, 49 states have in recent years adopted right-to-farm statutes.⁴⁷ While the states have chosen a variety of methods, the laws generally alter the rules applicable to nuisance actions to protect livestock facilities from encroachment by adjacent landowners who moved to the locale after the livestock operation was in production. The statutes generally provide that actions can be brought if the operation is improperly or negligently run, but otherwise livestock production is essentially given a conditional exemption from nuisance law. While the statutes raise issues such as the reasonableness of restricting other landowners' property rights, the statutes alter the law to provide an exemption for animal agriculture, and in so doing, may help assist the development or maintenance of sustainable agriculture.

Another example of how legal liability can affect agriculture is farmer responsibility for the costs of cleaning up groundwater or providing alternative supplies of drinking water when an aquifer has become contaminated by chemical use. It is very difficult to prove that one farmer's chemical use was the source of groundwater contamination and thus responsible for any damages. But however difficult, the potential liability for cleanup costs, which can be considerable, is viewed by agricultural groups as a threat and an unfair burden. They argue that if the products causing the damages were licensed for sale under public regulations and were used pursuant to label directions, also sanctioned by the government, a producer should not bear any burden of risk for using the products. Unfortunately, in their view, the common law in many states provides that someone who uses hazardous materials such as farm chemicals may be strictly liable under tort law for any damages the hazardous materials cause.⁴⁸

As a result, several states, including Georgia,⁴⁹ Iowa,⁵⁰ Minnesota,⁵¹ and Vermont,⁵² have amended their laws to provide a protection for farmers who use farm chemicals. While each state provision differs, the protections generally provide that if the farmer used the product in the manner provided for on the label, the farmer cannot be held responsible for the costs of cleanup associated with any contamination of groundwater even if it can be shown that the chemical's use was the cause of the problem. While such laws may provide an important protection for farmers who use chemicals, the laws may also limit society's ability to promote sustainable agricultural practices. By providing farmers with a protection for chemical use at the label amount, the statutes limit the government's ability to use the threat of legal liability for cleanup costs as an incentive to make farmers consider adopting practices using reduced amounts of chemicals or shifting to nonchemical methods of pest control. These examples help illustrate the [20 ELR 10029] substantial role that the law will play in the debate over sustainable agriculture and signal the important role the legal profession can play both in influencing how farming is carried out and in protecting our environment.

The Potential Use of Sustainable Agriculture to Achieve Environmental Protection

Agriculture or the Environment: A Question of Perspective

It is difficult to ignore the role that agriculture plays in environmental issues. The litany of impacts that food and fiber production have on the environment is substantial and includes the following: annual tillage of millions of acres; the largest consumptive user of water; a primary consumer of fuel and energy; and the source of the majority of nonpoint water pollution. At the same time, agriculture has proven to be one of the most difficult industries to deal with effectively from a regulatory and pollution prevention standpoint. The fundamental importance of food production, the widespread and diverse nature of farm production practices, and the inability to devise effective methods for controlling agricultural pollution, coupled with the extensive political and popular support farming has had over the years, have contributed to this fact.⁵³

Recent developments indicate that the times may be changing on the issue of environmentally based regulation of farming. Growing concerns over such issues as the presence of pesticides and nitrates in groundwater and consumer fears over the presence of pesticide residues on food products have contributed to the interest in sustainable agriculture and are also creating the potential for a serious conflict between farmers and environmentalists. The contribution of agriculture to nonpoint source water pollution has led some environmentalists to argue for increased regulation of farming practices.⁵⁴ While the conflict between farmers and environmentalists involves important issues of values and economics, it is partly a conflict in perspectives and attitudes.⁵⁵

Sustainable agriculture may provide the answer to the conflict. Because sustainable agriculture offers a combined focus on both the environmental issues associated with farming and the economic savings possible through using alternative practices, it may be possible to promote practices that farmers will adopt primarily because of economic considerations but that have a major impact on reducing the risk for environmental degradation from agriculture. Whether the goal is reducing the overuse of nitrogen fertilizers to prevent leaching into groundwater or runoff into surface water, or the reduction of post-harvest chemical application to horticultural crops to preserve cosmetic values of food, important environmental goals can be achieved by promoting policies on the basis of sustainability. It is this feature of sustainable agriculture that makes it an exciting and important concept for environmentalists, lawyers, and lay persons alike.

Lessons From Soil Conservation Legislation

Recent history provides strong precedent for the ability to combine farm economics and environmental protection. Soil conservation is the main environmental aspect of agriculture that has been subject to active government intervention, with some success. Efforts to prevent soil erosion have been actively adopted on a voluntary basis by the farm community with the financial assistance of the federal and state governments. The conservation title of the 1985 farm bill is viewed by many as the most significant soil and water protection legislation ever enacted. The Act included new initiatives, such as the conservation reserve program (CRP), which targets soil conservation funds for long-term retirement of erosive cropland; the sodbuster and swampbuster provisions, which remove incentives to drain wetlands or bring highly erodible land into production; and the conservation compliance provision, which for the first time will condition receipt of farm program benefits on implementation of conservation plans for highly erodible land.⁵⁶ The CRP program has proven to be a popular and successful program, with over 30 million acres of land now under 10-year contracts for retirement from crop production. Under the conservation compliance program, conservation [20 ELR 10030] plans must be submitted by 1990 and information from the USDA indicates that over 85 percent of the plans have been developed. The success of these initiatives shows that thoughtfully designed and implemented environmental protection programs can be applied to agriculture if the necessary financial incentives, regulatory inducements, and institutional support are present. Developing similar programs to promote sustainable agriculture and reap the benefits it promises, both economic and environmental, will be the challenge of the 1990s.⁵⁷

Farmer Support for Reducing Reliance on Chemicals

One of the major factors influencing the success of sustainable agriculture will be the degree to which farmers respond and adopt the practices. Farmer acceptance will be a function of many factors, including the availability of reliable information concerning how the practice in question works, its efficacy, the economic savings associated with the practices, the regulatory environment in which the practices are promoted, and farmers' attitudes toward sustainable agriculture and the need to make changes in the way they farm. While a core of farmers across the country, including the proponents of organic farming, wholeheartedly embrace the idea of sustainable agriculture, most farmers are just now beginning to consider the issue. Early indications are that many of these farmers are approaching the idea with cautious optimism, waiting to see the results of university research and whether the practices demonstrated in their area on their type of farming system will work.

Several recent public opinion polls conducted among farmers indicate reasons why farmers may be responsive to sustainable agriculture and its orientation toward reducing reliance on farm chemicals. The 1989 Farm and Rural Life Poll conducted by Iowa State University asked farmers a number of questions about low-input farming methods. Seventy-six percent of the over 2,000 Iowa farmers polled agreed with the statement that modern agriculture relies too heavily on chemical fertilizers, and 78 percent said they believe that modern farming relies too heavily on insecticides and herbicides. Sixty-nine percent of the respondents agreed with the statement that the increased use of low-input farming practices would help maintain natural resources.⁵⁸

The data from Iowa are not unique. In 1988, the Agricultural Law and Policy Institute conducted an extensive survey of over 560 farmers in California, Florida, Iowa, Pennsylvania, and Wisconsin. The study revealed that from 65 to 88 percent of farmers in those states agreed with the statement "In my county there is a need to reduce the infiltration of fertilizers, manure, or agricultural chemicals into ground water." Forty-five to 64 percent of the farmers admitted they were concerned about agricultural pollutants in the water they used in their homes. These concerns translated into support for the study of sustainable agriculture. The survey showed that 72 to 91 percent of the farmers interviewed favored using federal fundsto conduct research into methods of farming that rely less on chemicals.⁵⁹

Strong support for the concept of sustainable agriculture like this among farmers, as revealed in the survey, adds to the potential the concept has as a method for obtaining important environmental protection goals. To more fully understand the potential for sustainable agriculture to promote environmental protection objectives, it is valuable to consider the way in which some states are approaching concerns over the role nitrogen fertilizer use has in groundwater contamination.

A Case Study: State Efforts to Control Nitrogen Contamination of Ground Water Through Nutrient Management Plans

The Role of Nitrogen in Groundwater Pollution

While pesticides and agricultural chemicals receive considerable attention, one of the major agricultural sources of groundwater contamination is nitrates.⁶⁰ Nitrates, which are soluble, can result from the surface application of any form of nitrogen fertilizer, including animal manures, anhydrous ammonia, and liquid or dry nitrogen.⁶¹ Nitrates can cause serious health problems for humans who consume contaminated water. In particular, small children and infants are susceptible to methomoglobinemia, or "blue baby syndrome."⁶² The dangers of consuming nitrates led federal officials to set the primary drinking water standard for nitrates, reported as nitrogen, at 10 mg/L.⁶³ The growing concern over the presence of nitrogen in groundwater sources has led many states in the Midwest to undertake additional water contamination studies, many of which are confirming original concerns and leading states to consider legislative responses.⁶⁴

[20 ELR 10031]

The primary cause of nitrates leaching into groundwater is the availability of more nitrogen than plants can use. Surplus nitrogen can result from several common agricultural practices, including the overapplication of fertilizer. Applying fertilizers when there are no growing plants to utilize the nitrogen and the run-off of surface-applied fertilizers, such as manures, into watercourses, such as sinkholes and agricultural drainage wells that feed underground aquifers, are also common.⁶⁵ Because leaching is primarily a function of the overavailability of nitrogen, the problem is one that can be greatly remedied by changing farmers' practices.⁶⁶

One method of combating groundwater contamination from nitrogen fertilizers is nitrogen or plant nutrient management. The idea behind nutrient management is that a farmer applies only those amounts of nutrients the plants need in a manner and at a time that best ensure they will be used rather than possibly leach into water supplies. Because sound nutrient management plans can result in more efficient application and use of fertilizers, farm operating costs can also be reduced. Nutrient management takes advantage of natural methods of enhancing soil fertility, such as through crop rotations, the use of nitrogen-fixing legumes and green manures, and the wise use of animal manures. Further, because such plans can avoid or limit possible nitrate contamination of water supplies, the plans have an important public benefit of reducing health risks and the costs of water treatment or cleanup. For these reasons, nitrogen management can also be viewed as a fundamental part of efforts to promote sustainable agricultural policies.

While many farmers recognize the important value of nutrient management and are beginning to actively apply such plans, substantially greater amounts of nitrogen fertilizer than needed are being applied in many parts of the country, particularly on corn acreage.⁶⁷ The problem of nitrate contamination and the link to agricultural fertilizers have led some states and local governments to adopt laws and regulations designed to require farmers to undertake nitrogen management programs.⁶⁸ The idea of legislating nitrogen management is particularly attractive in areas beginning to experience groundwater quality problems because the programs can be a first preventive step to protect water quality without undertaking more costly measures of water cleanup. Because all farmers who apply nitrogen, in whatever form, have the potential to affect water quality, mandatory nutrient management programs may be one form of environmental law considered throughout the nation in the years ahead. Therefore, it is worthwhile to consider the components and operation of the laws that do exist.

One approach to groundwater problems caused by nitrogen fertilizers is to require that farmers use the best practices available to handle their plant nutrient requirements, in other words, require a form of nutrient management plan. The term that is most often applied to this concept is "best management practices" (BMPs). The use of BMPs is an outgrowth of the Environmental Protection Agency's (EPA's) enforcement experience under the Federal Water Pollution Control Act (FWPCA).⁶⁹ Under the FWPCA, the EPA developed the BMP approach to attempt to control pollution from nonpoint sources. Since then, the idea of using BMPs has been suggested by the federal and state governments as an approach to pollution in many contexts. For example, a bill entitled Agricultural Nitrogen Education Act of 1989⁷⁰ has been introduced into Congress with the support of over 30 cosponsors. The preamble to the bill states that its purpose is to "minimize the impact of nitrogen on groundwater and surface water quality by establishing a nationwide educational program aimed at American farmers, to urge adoption of agricultural best management practices."⁷¹ The proposed act defines these practices to mean

generally recognized farmer management practices designed to reduce or prevent contamination of ground water and surface water, erosion, and runoff from cropland, including the use of conservation tillage, no-till, ridge planting, strip tillage, contour farming, strip cropping, irrigation water management, judicious fertilizer application, slow-release fertilizers, soil and tissue testing, and vegetative buffer strips.⁷²

State Initiatives on Nitrogen Management

Some states have adopted the idea of BMPs as it relates to agriculture. For example, the Michigan right-to-farm law, which is designed to protect farmers from nuisance actions by those who move in nearby, was amended in 1987 to condition nuisance protection on farmers' use of "generally accepted agricultural and management practices," another way of saying BMPs.⁷³ The law defined the term as "those practices as defined by the commission of agriculture."⁷⁴ In June 1988, the Michigan Commission of Agriculture adopted interim regulations defining [20 ELR 10032] generally accepted agricultural and management practices.⁷⁵ A manure management guide resulted from the development of these definitions.

Other states have incorporated the concept of BMPs into groundwater pollution statutes. Arizona enacted a statute authorizing the director of the state department of environmental quality "to adopt by rule agricultural general permits consisting of best management practices for regulated agricultural activities" as part of the state aquifer protection program.⁷⁶ Under this program, any person who discharges pollutants, or who owns or operates a facility that discharges pollutants, is required to obtain an acquifer protection permit.⁷⁷ The Act regulates "the application of nitrogen fertilizers and concentrated animal feeding operations."⁷⁸ The standards for BMPs are those practices determined "to be the most practical and effective means of reducing or preventing the discharge of pollutants by regulated agricultural activities."⁷⁹ The Act created two BMPs advisory committees, one for nitrogen fertilizer and the other for livestock production, consisting of a representative group of farmers raising the affected commodities who were responsible for recommending the proposed BMPs to the director.⁸⁰

Nebraska authorized the designation of "special protection areas" in which the Department of Environmental Quality could adopt action plans for dealing with pollution coming from nonpoint sources such as agriculture.⁸¹ If the Department finds that the contamination of groundwater is occurring or is likely to occur in the reasonably foreseeable future, a special protection area can be designated, after a hearing.⁸² Once an area has been designated, the natural resource districts located in the area are to prepare a plan designed to stabilize or reduce the level and prevent the increase or spread of groundwater contamination.⁸³ The plans are to include requirements that water users in the area participate in educational programs and a requirement that BMPs be used.⁸⁴ If the districts do not develop and implement plans for controlling groundwater pollution, the Director of Environmental Quality is empowered to specify protective measures for the special protection area.⁸⁵ If the department determines that a plan is effective in stabilizing or reducing contamination levels below a level that is not detrimental to beneficial uses of groundwater, the special protection area designation can be removed, upon the petition of the district.⁸⁶

In Pennsylvania, the Lancaster County Conservation District wrote a manure ordinance guide, which was submitted in the fall of 1988 to Lancaster County townships for consideration.⁸⁷ Warwick Township in northern Lancaster County used the guide to develop a nutrient management ordinance, which was passed in December 1988.⁸⁸ Under the ordinance, farmers who are expanding an existing farm operation or beginning a new one must receive a permit by submitting a plan for nutrient management. The plan will deal primarily with manure handling and runoff, but may require building manure storage facilities or altering farm operations to avoid run-off. The costs of changes required by the plan are eligible for cost sharing by the Lancaster County Conservation District.⁸⁹

Minnesota passed an omnibus groundwater protection act in 1989, incorporating a variety of programs to protect the quality of groundwater.⁹⁰ The act requires the state commissioner of agriculture to appoint a task force "to study the effects and impact on water resources from nitrogen fertilizer use so that BMPs, a fertilizer management plan, and nitrogen fertilizer use regulations can be developed."⁹¹ BMPs and water resources protection requirements involving fertilizer use, distribution, storage, handling, and disposal are mandated by the act. Cooperation with other state agencies and local governments to protect public health and the environment from harmful exposure to fertilizers is encouraged. The task force, which is to assist the commissioner in developing BMPs, is to include farmers, representatives of environmental groups, the fertilizer industry, local governments, the state university, and various state agencies.⁹²

Federal Involvement in Nitrogen Management

The federal government is aware of the contribution that manure and fertilizers make to water pollution, but to date the federal government has not been directly involved in regulating the use of nitrogen fertilizer. In February 1988, EPA released the document "Agricultural Chemicals in Ground Water: EPA's Proposed Pesticide Strategy."⁹³ The proposal includes language that would encourage states to adopt the BMP approach to agricultural chemical use, which may involve the regulation of fertilizer and thus promote the idea of nitrogen and nutrient management. This proposal and the various state efforts discussed above make it clear that in coming years, the states, with the encouragement of the federal government, will take a more active and aggressive role in regulating the use of nitrogen as one important way to reduce the contribution of agriculture to groundwater pollution. These efforts will provide excellent examples of the role of law in promoting sustainable agriculture.

[20 ELR 10033]

Recognizing the Impact of Sustainable Agriculture on Individual Actions: Differences Between Conventional and Sustainable Agriculture

The goal of changing the way we farm to reduce negative consequences associated with certain modern farming practices is at the heart of the sustainable agriculture movement. For the goals of sustainable agriculture to be achieved, individual behavior of those involved with agriculture must be changed. Whether it is a restriction on the marketing of a particular agricultural chemical (such as Alar), the prohibition of certain farming practices (such as restricting sodbusting and swampbusting as now incorporated into federal farm programs), or the use of crop rotations and other agronomic practices to control pests and improve soil fertility, sustainable agriculture will only be achieved through the cumulative actions and decisions of the thousands of farmers, officials, businesses, and others involved in U.S. agriculture.

Neill Schaller, the federal official in charge of the USDA's LISA research program, recently identified four factors that will affect the adoption of sustainable agricultural practices into mainstream agriculture: (1) the availability to farmers of facts and information about sustainable agriculture, primarily involving issues of research, education, and extension; (2) the removal of policy and institutional barriers to adoption of sustainable agriculture; (3) the availability of credit and financial incentives to promote the adoption of sustainable agricultural practices; and (4) the establishment of regulations affecting the availability of production inputs and a farmer's choice of farming practices. This list demonstrates both the range of issues and actions that are implicated in the debate over sustainable agriculture and the need for evaluating and making choices about how we farm and how we protect the environment. The potential for change reflected in sustainable agriculture means that the debate will not be short or gentle. But just as sustainable agriculture provides an important opportunity for change, it is perceived as a threat by some.

Suspicion and concern over sustainable agriculture are only natural, both from farmers employing conventional methods and from those in the affiliated agricultural businesses who are concerned that it will be their input that is lowered. Thenation's agricultural sector has over fifty years invested in the development and refinement of a highly productive and efficient agricultural system that is now being labeled "conventional" agriculture and challenged as economically and environmentally unsound. A defensive response is only natural in the face of uncertainty as to the identity and motives of those promoting sustainable agriculture, the practicality of the alternative practices being suggested, the perceived threat to economic self-interest, and the changes in farming methods that sustainable agriculture may require.

However, sustainable and conventional agriculture are not mutually exclusive and do share many common practices and concerns. For example, the debate over groundwater quality and farm chemicals has illustrated that the farm families who are drinking groundwater contaminated with nitrates caused by the overapplication of nitrogen fertilizer recognize the significant health interest they have in resolving the matter. Similarly, farmers require inputs of seed, fuel, equipment, labor, and a market in which to sell, regardless of the crop produced. Both systems ultimately must rest on a foundation of profitability for the producer. Thus, rather than a difference in the reasons for producing, the main distinction between conventional and sustainable agriculture is the orientation to land stewardship and the broader set of economic and social values and concerns incorporated into sustainable agriculture.

Although there are important common starting points between the two systems — such as the role of the land resource, the need to preserve fertility, the equipment and machinery used, and the types of production activities carried on — important distinctions exist. One distinction is that the agricultural support sector, which provides inputs, supplies, and services, promotes the continuation of conventional, not sustainable, agricultural practices. For some businesses, primarily fertilizer and chemical manufacturers and suppliers, sustainable agriculture may advocate reduced or more selective levels of use. These practices could result in a reduction of overall sales and thus have a negative economic impact on those industries. But for other sectors, for example the seed industry, the economic impact of sustainable agriculture is neutral or perhaps even positive, as it may be for the livestock supply sector and the manufacturers of conventional tillage equipment. For many other agricultural-related industries, the present debate between sustainable and conventional farming is for the most part neutral in its effect.

Additionally, biases are built into modern agricultural production that favor conventional farming. For example, a producer desiring to experiment with nontraditional crops will in all likelihood experience difficulties obtaining financing from commercial lenders to undertake what may be perceived as a risky, foolish, or, at best, unfamiliar undertaking. Any decision by the producer to try a nontraditional crop must be made after considering the impact the decision will have on the producer's participation in existing federal price support programs, for example, the effect on base acres, the risk of producing a crop without price support protection, and the availability of crop insurance in that area. If the producer does not own farmland, the availability of land to rent may be a factor, as may be the willingness of a landlord to rent to one who will not be raising the normal crops or employing the usual techniques that provide some certainty of income to ensure future rental payments.

When one couples the need to overcome these institutional hurdles with the difficulties that the producer may experience, the challenge of promoting sustainable agriculture becomes clearer. Producers may experience difficulty in finding research and information needed to understand how to farm differently. Other difficulties include the resistance the producer may feel from his neighbors and the resistance that those in the agricultural service sector show toward producers employing alternative practices. Those promoting sustainable agriculture must identify and address any obvious biases in the existing policy and legal structure that serve to insulate conventional farming practices from the changes that sound economics and government policies are encouraging. Identifying the economic and marketing opportunities associated with sustainable agriculture is one way to overcome the existing institutional hurdles.

[20 ELR 10034]

Exploring Economic Opportunities Associated With Sustainable Agriculture

From a purely economic or business standpoint, sustainable agriculture has as much potential to create demand for new products and technologies as does conventional agriculture, the only difference being the sensitivity new production methods will have for the environmental and social concerns that underpin sustainable agriculture. For example, new equipment will be needed to more accurately apply the chemicals and fertilizers and to substitute for practices formerly done through chemical application. New crops will be needed, new methods of production tested, and new products and markets created. The multitude of agronomic issues that flow from sustainable agriculture are almost endless and promise to keep university and industry researchers busy for generations, if those issues can in fact obtain a place on the research agenda.⁹⁴ In other words, sustainable agriculture does not mean low technology or an unscientific system of production. Sustainable agriculture will require higher levels of management and refined technology to address the concerns that were previously disregarded in favor of the amount of production.

Sustainable agriculture will open similar economic opportunities for other affiliated agricultural industries. In the pesticide application industry, a combination of factors, including federal regulations, farmer attitudes, and increased specialization of products and equipment, have meant that a larger percentage of pesticides are being applied by certified commercial applicators.⁹⁵ An emphasis on sustainable agriculture may at first be perceived as a threat to the industry due to reduced rates. But sustainable agriculture may in fact be an opportunity because one goal is reducing pesticide use through greater precision in use. This can be achieved through banding chemicals in the row or timing applications by using integrated pest management to reveal when a pest problem has reached a threshold for economic loss. Any changes that require a higher level of management or education, or increased specialization of handling methods or equipment will create opportunities for commercial applicators who can meet these needs. Commercial applicators who can promote their services as being trained in using integrated pest management or low-input or environmentally conscious methods may have a marketing advantage.⁹⁶

Another marketing opportunity associated with sustainable agriculture may be in the area of farm management. Over 40 percent of the farms in the nation involve some form of tenancy relation.⁹⁷ Much of that land is managed by farm management companies which, for a fee, represent the landowner in locating and dealing with the farmer tenant. As landowners become more sensitive to the important economic values associated with farming in a sustainable method, farm management companies that feature a "sustainable agriculture" sensitivity may obtain a market advantage. This will be especially true if sustainable policies are written into important economic transactions, such as farm leases, the federal farm programs, or the marketing contracts under which fruits and vegetables are grown to purchaser specifications.

As time passes and the new marketing opportunities created by sustainable agriculture are recognized, practices today considered as alternative or sustainable will become mainstream agriculture. Changing attitudes toward the development of sustainable agriculture may mean that it will receive support from important economic forces within the agricultural input sector. If this happens, perhaps today's broadside challenges to sustainable agriculture as a threat to the very survival of agriculture may give way to more reasoned voices which recognize the cumulative values of a sustainable agricultural system. It may be that many of the current challenges are more the expression of threatened economic self-interest than the neutral voices of those concerned over the long-term health of the land and the people who farm it.

Recognizing Opportunities for Creative Lawyering Associated With Sustainable Agriculture

There will be many opportunities for lawyers to become involved in this debate. A primary opportunity will be in drafting legislation on the issue. As noted, congressional leaders are focusing on sustainable agriculture as the basis for at least the conservation title of the next farm bill, if not the whole bill. How well the participants in that policy debate understand the concept and how this understanding is reflected in the legislative options developed by Congress will be major factors in the future of sustainable agriculture. Similar and perhaps greater opportunities for creative lawmaking exist at the state level, where the majority of legislative activity on the issue will transpire. State initiatives like the nitrogen management programs discussed above, and promoting research on sustainable agriculture, often associated with laws to protect groundwater quality, will be important steps in the effort to make U.S. agriculture sustainable.

The development of new institutional relations and methods for promoting sustainability will be important contributions the legal system can make to the long-term health of the nation's agricultural system. Whether it is the drafting of farm leases to promote long-term tenancy relations that allow producers to develop crop rotations and utilize livestock in their operations, the integration of sustainable agricultural practices into the thinking of loan officers who decide which farmers to finance and at what levels, or in the development of flexible farm programs that protect the ability of producers to operate diversified farms based on sustainable practices, all of these actions are opportunities [20 ELR 10035] for lawyers to apply their skills. To provide an example of how the law can contribute, consider efforts to promote sustainable agriculture by creating opportunities for cooperative actions of neighboring farmers.

The proponents of sustainable agriculture point to the the socio-economic impacts of common agricultural practices. One of the social impacts that conventional agriculture has accelerated in farming areas is a decline in the opportunity for and reliance on cooperative activities among neighboring farmers. While barn raisings and cornhusking bees are now only history, the not-too-distant past involved such common practices as cooperative crop and forage harvesting and livestock management. However, increasing farm size and specialization coupled with declining rural populations have served to make cooperative neighborly activities less common. Today, neighborhood activities are usually in response to tragic accidents or the death of a neighbor or local church member. One of the possible promises of sustainable agriculture is that it will deal not only with environmental consequences but will also attempt to address the loss of the social and human values found in agriculture.

While it might appear that such efforts are only sentimental yearnings for earlier times, there are several aspects of sustainable agriculture production systems that offer opportunities for neighboring farmers to unite in joint activities that will support their farms and improve their economic security. Any agricultural production practice that requires large areas of land to operate efficiently or any practice or machine that is so expensive as to be beyond the funding of individual farmers may offer the possibility for joint cooperative action among neighboring farms. In some cases, the law may play an important role in organizing and structuring these efforts. Four examples of such opportunities that might receive attention are discussed below:

[] Neighborhood associations designed to fund, operate, and support integrated pest management (IPM) programs. The value of neighborhood activity with IPM is that the field scouting necessary to identify the presence of insect pests and the release of beneficial insects to control identified pests are more effective and economical over larger areas. In addition, the application of IPM practices over contiguous areas prevents the likelihood that a neighboring landowner will use a pesticide that will kill the beneficial insects being used on adjacent land for pest control. The formation of a district or cooperative venture to carry on IPM also provides a mechanism for funding and administering the activity, which may make the practice more available than if left to an individual farmer.

[] Formation of agricultural areas to preserve agricultural land and prevent the intrusion of nonfarm uses. In order to farm, producers must have access to productive land. In some regions of the country, the supply of productive agricultural land is shrinking and the demand from nonfarm uses threatens the long-term operation of existing farms. In addition, the intrusion of nonfarm uses, such as residential housing, into agricultural areas creates potential for conflicts, which result in nuisance actions by nonfarm newcomers against existing farm operations, particularly livestock facilities with their associated odors. The threat of nuisance actions, with the costs and possibility of an injunction closing the operation, adds to the impermanence of the farming community. In several states, for example Iowa and Wisconsin, the availability of nuisance protections is dependant on the farmland owner creating or joining an agricultural district.⁹⁸ The existence of a designated agricultural district notifies others that the land is receiving special protection. Requiring landowners to join with neighboring farmland owners in order to obtain the benefits available in the farmland protection statutes or right-to-farm laws gives landowners the opportunity and responsibility for taking action to protect their farms.

[] Cooperative acquisition of costly crop-processing equipment by growers associations. Perhaps the most common form of cooperative activity among neighboring farmers has traditionally been the formation of farmer cooperatives, a legal form of business association which is member owned, controlled, and financed. The cooperative exists to provide goods or services to the members and returns any profits to the member as savings, in proportion to their patronage of the business. One activity related to sustainable agriculture is the formation of cooperatives to facilitate the diversification of agricultural production in areas dependant on the major grain crops. One difficulty faced by an individual producer considering raising horticultural crops, for example, is the marketing opportunities available, especially for small-scale producers. Another problem may be the high costs of harvesting or processing equipment needed to properly handle and market the products. By using cooperative ventures to fund the acquisition and operation of such equipment, producers can have access to it, use it more efficiently, and not bear all of the cost. Cooperative purchasing of field refrigeration units, used to increase the market quality and shelf life of soft vegetables, is a good example of how joint activity can facilitate efforts to successfully diversify farm production by reducing the financial costs for the individual farmer.⁹⁹

[] Nutrient management cooperatives between livestock and crop producers. This concept, perhaps the newest idea for cooperative activity, resulted from the recent attention to sustainable agriculture.¹⁰⁰ What is being suggested is [20 ELR 10036] using the cooperative model to recreate some of the diversification that existed on traditional family farms but which may not be present in more specialized modern agriculture. If one farmer can produce a product that has an economic value for another but that is surplus to his own operation, such as crop residue or manure, the cooperative arrangement offers a method of utilizing the product and contributing to the sustainability of both operations.

The four examples given above represent a selection of innovative ways that cooperative activity between neighboring farmers may be used to promote sustainability in agriculture. Nothing would require that such arrangements be legally formalized to exist, in fact most traditional forms of cooperation between neighboring farmers exist on the basis of friendship and do not involve legalization. However, if the activities contemplated involve business transactions, such as the purchase of equipment or the use of property or some other action that might incur financial or legal liability, it might be important to use the law to structure the relationship. By using the law to create an agreement between the parties, it is possible to identify the duties and obligations of the parties involved, thereby minimizing any difficulties and misunderstandings that might arise about the venture. While farmers may have some concerns about the cost or need to develop legal agreements to formalize their joint dealings with neighbors, the law can operate as an important safeguard for such actions and protect the health and even the very existence of the farm. By doing so, the law can serve to promote the adoption of sustainable agriculture.

Conclusion: Will Sustainable Agriculture Be a Fad or Have Lasting Impact?

The Article has attempted to provide lawyers with an understanding of sustainable agriculture and the role law may play in the development of the concept. The relation of sustainable agriculture to the multitude of environmental, social, and economic issues associated with modern farming practices makes the debate over the issue one of the most significant in the history of U.S. farm policy. The theory of sustainable agriculture is fairly simple — the development of policies and practices that ensure our nation's ability to produce the food and fiber we need without degrading our natural resources, while preserving the economic health of farmers and agricultural businesses and the social values contributed by the agricultural community to U.S. society. The potential of the concept to serve as a new way of looking at agriculture and analyzing the impact and value of decisionmaking is significant. The controversy and uncertainty associated with the term and what it may mean for the farming practices, institutions, and businesses associated with conventional agriculture are equally great. Sustainable agriculture may provide the nation with a mechanism for protecting our environment from pollution by agricultural practices in a method that minimizes regulation and emphasizes research, education, and sound economic decisions to promote alternative production practices. The concept has great potential for our nation. Sustainable agriculture may remove the tension from the debate between the farm sector and environmentalists, it may restore and protect consumer confidence in the quality of the nation's food supply, it may justify continued federal spending on the farm sector at a time when federal price support expenditures are under fire, and most importantly, it may provide farmers with the opportunity to rightfully claim the title of land steward to which they aspire.

Important work has been undertaken by farmers, researchers, and policy makers alike. Lawyers and the law also have an equally important role to play in the process. Whether sustainable agriculture can live up to part or all of this ambitious agenda or whether it becomes a passing fad that withers in the field of farmer acceptance and public support will be determined in the coming years.

1. While the concept is relatively new in terms of the national debate over agricultural policy, the idea of sustainable agriculture has been around for decades.Many of the farm writings of Louis Bromfield in the 1940s and 1950s focused on sustainable agriculture. See L. BROMFIELD AT MALABAR: WRITINGS ON FARMING AND COUNTRY LIFE (Little ed. 1988); see also KING, FARMERS OF FORTY CENTURIES: PERMANENT AGRICULTURE IN CHINA, KOREA AND JAPAN (1911) (reissued, Rodale Press, Inc.). A good starting point for research in the area is the work of the Alternative Farming Systems Information Center, which is part of the United States Department of Agriculture's National Agricultural Library (USDA/NAL). The publication, Tracing the Evolution of Organic/Sustainable Agriculture: A Selected and Annotated Bibliography, USDA/NAL, November 1988, surveys the main literature on the topic. The Environmental Protection Agency (EPA) devoted the April 1988 issue of the EPA JOURNAL to agriculture and the environment, including the article by Roy Popkin, Alternative Farming: A Report. Much of the current scholarly writing in the area is found in the AMERICAN JOURNAL OF ALTERNATIVE AGRICULTURE, published by the Institute for Alternative Agriculture (IAA), which also publishes the monthly newsletter, Alternative Agriculture News. The editor of the journal and the executive director of the association is I. Garth Youngberg, who headed USDA's 1980 study of organic farming that created considerable controversy in the conventional agriculture community, leading to his departure from USDA and to the formation of the IAA. The National Academy of Sciences' Board of Agriculture had a major study of the topic underway for several years and published a final report on September 6, 1986. See NATIONAL RESEARCH COUNCIL, ALTERNATIVE AGRICULTURE (1989). Charles Benbrook, the executive director of the board, has frequently written and spoken on the topic before Congress and farm groups. Robert Rodale, one of the main advocates in the area of sustainable agriculture, heads Rodale Press, publisher of The New Farm, which focuses on what is referred to as "regenerative" agriculture, and ORGANIC GARDENING. The Rodale Institute and the affiliated Regenerative Agriculture Association have been major players in promoting research and education on the concept. Publications focusing on selected issues within the area have begun to appear, including: CENTER FOR SCIENCE IN THE PUBLIC INTEREST, ORGANIC AGRICULTURE: WHAT THE STATES ARE DOING (1989); ENSIGN, PRODIGAL CROPS: A REVIEW OF PROPOSALS FOR SUSTAINING AGRICULTURE (1988); MEEKS, STATE POLICY ISSUES IN SUSTAINABLE AGRICULTURE (1989); WARD, BENFIELD & KINSINGER, REAPING THE REVENUE CODE: WHY WE NEED SENSIBLE TAX REFORM FOR SUSTAINABLE AGRICULTURE (1989); AGRICULTURAL LAW AND POLICY INSTITUTE, FARMING AND GROUNDWATER: AN INTRODUCTION, ISSUES BOOKLET NO. 1 (1988) [hereinafter cited as ALPI BOOKLET]. The issue of sustainable agriculture has also become an important agenda item in European countries, such as in Great Britain where the concept is referred to as extensification. See COUNCIL FOR THE PROTECTION OF RURAL ENGLAND, CONSERVING THE COUNTRYSIDE: CASTING IT OUT (1989).

2. For an article exploring the different perspectives that environmentalists have on agriculture and that farmers have on environmental issues, see Zinn & Blodgett, Agriculture Versus the Environment: Communicating Perspectives, 44 J. SOIL & WATER CONSERVATION 184 (1989).

3. See, e.g., The Smokescreen of "Sustainable" Agriculture, PROGRESS, July-Aug 1988, at 20-1.

4. W. BERRY, MEETING THE EXPECTATIONS OF THE LAND: ESSAYS IN SUSTAINABLE AGRICULTURE AND STEWARDSHIP (1984).

5. IOWA CODE § 266.39(1) (1989).

6. There are groups of farmers organized around the concept of sustainable agriculture in many states. These groups promote research and demonstration efforts on their own farms, publish newsletters to keep members informed, and have often been responsible for state legislative initiatives funding sustainable agricultural research. For example, there are active sustainable farming groups in Illinois, Iowa, and Nebraska.

7. For a discussion of the work of this group and the growing significance of the sustainable agriculture movement, see Soth, Case for Sustainable Agriculture, Des Moines Reg., May 8, 1989, at 10A.

8. There have been an increasing number of articles and other writings about sustainable agriculture which provide helpful background for understanding the topic. Articles suggested for further reading include the following: Sustainable Agriculture Research Needs and Imperatives: Invited Testimony Before the Subcommittees on Agricultural Research and General Legislation and Conservation and Forestry of the Senate Committee on Agriculture, Nutrition, and Forestry, 100th Cong., 2d Sess. (Apr. 28, 1988) (testimony of Charles M. Benbrook, Executive Director of the Board of Agriculture, National Research Council/ National Academy of Sciences); Edwards, The Concept of Integrated Systems in Lower Input/Sustainable Agriculture, 2 AM. J. ALTERNATIVE AGRIC. 148 (1987); Alternative Agriculture Gains Attention, AGRIC. OUTLOOK (USDA/ERS), Apr. 1988, at 26; More Farmers, Ranchers Trying "Alternatives," FARMLINE (USDA), Mar. 1988, at 8; Low Input Farming Faces Profitability Issue, FARMLINE (USDA), Feb. 1989, at 12; Benbrook, Society's Stake in Sustainable Agriculture, (Paper Presented at the International Conference on Sustainable Agricultural Systems in Columbus, Ohio, Sept. 19-23, 1988).

9. For a discussion of the need for sustainable agriculture to ensure that the productivity of U.S. agriculture is not limited, see Ruttan, Sustainability Is Not Enough, 3 AM. J. ALTERNATIVE AGRIC. 128 (1988).

10. The debate over the nomenclature applied to the concept of sustainable agriculture is a significant issue within the farm community. For example, many have criticized the term "low-input" arguing that it creates the mistaken impression that it means lower productivity and poor farming practices, when in reality sustainable agriculture will require higher levels of management and more understanding of production techniques by farmers.

11. 7 U.S.C. §§ 4701-4710 (1988).

12. Continuing Agriculture Appropriations, Pub. L. No. 100-202, 101 Stat. 1329 (1988); Pub. L. No. 100-460, 102 Stat. 2235 (1988).

13. 7 U.S.C. § 4703(1) (Supp. IV 1986).

14. For a discussion of the LISA program by the director of the effort, see Schaller, Mainstreaming Low-Input Agriculture, presented at the Soil and Water Conservation Society conference in Omaha, Nebraska, Mar. 1989. For a discussion of the early research efforts under the programs, see Madden, Hubbard, O'Connell & Jennings, Low-Input/Sustainable Agriculture Research and Education Projects Funded Under the Agricultural Productivity Act, USDA/CSRS, July 28, 1988, and Madden & O'Connell, Early Results of the LISA Program, USDA/CSRS/LISA, Apr. 20, 1989.

15. 7 U.S.C. § 4704(b)(1) (1988).

16. See COOPERATIVE STATE RESEARCH SERVICE, SPECIAL PROJECTS AND PROGRAM SYSTEMS, USDA, LISA 89 GUIDELINES, LOW-INPUT/SUSTAINABLE AGRICULTURE RESEARCH AND EDUCATION GRANTS PROGRAM (Nov. 2, 1988).

17. See, e.g., Anthan, LISA Wins New Support, Des Moines Reg., May 7, 1989, at J1.

18. Shellenbarger, Back to the Future: A Movement to Farm Without Chemicals Makes Surprising Gains, Wall St. J., May 11, 1989, at A1.

19. Anthan, Senate Farm Bill Stresses Less Chemicals, Safer Food, Des Moines Reg., May 3, 1989, at A1.

20. The acceptance of sustainable agriculture by farmers and others is both a recognition of the significance of the issues encompassed in the concept and also proof that while exports may be important, the most important issues in farm policy are primarily domestic. Sustainable agriculture encompasses a wide array of issues, such as farm profitability, water quality, soil conservation, safety of our food supply, and the protection of natural resources; issues that affect the health, safety, and welfare of both the nation's farmers and those who depend on the food they produce and the land on which it is produced. As such, the surprise should not be that the topic is now being recognized but perhaps why it took the nation so long to consider the issue of how, not just how much, we produce.

21. S. 970, 101st Cong., 1st Sess., 135 CONG. REC. S5164 (daily ed. May 11, 1989). The Findings section of the bill contains the following concerning federal agricultural policies and programs:

(1) existing Federal agricultural policies and programs encourage agricultural producers to adopt large-scale, highly-specialized, high-input farming systems;

(2) existing barriers and disincentives to environmentally sound crop rotations, diversification, and reduced input strategies impede progress toward more sustainable agricultural systems;

(3) increasing numbers of producers, concerned about farm profitability, soil erosion, water depletion, and the impact of agricultural chemicals on health and the environment, desire alternatives to the intensive cropping practices such producers employ;

(4) alternative agricultural systems exist such as low-input agricultural production systems, that reduce the on-farm and off-farm environmental impacts of farming while maintaining or increasing farm profitability and enhancing family farm and rural opportunity;

(5) all Federal agricultural programs (including commodity, conservation, credit, crop insurance, and grading standards) need to be flexible enough to permit and encourage producers to use more sustainable practices including extensive crop rotations, reduced input techniques, strip cropping, conservation tillage, integrated pest management, and alternative crops; and

(6) producers need reasonable assurances that the risks such producers take in protecting and renewing the environment will be shared in part by the public through a reorientation of existing disincentives to sound stewardship.

22. Id. at § 102(c).

23. S. 1063, 101st Cong., 1st Sess., 135 CONG. REC. S5678-79 (daily ed. May 18, 1989) (bill reprinted). The Findings section in § 301 of the bill, concerning planting alternative crops, provide the following:

(a) FINDINGS. — Congress finds that —

(1) there is an increasing interest among farmers, agribusiness leaders and consumers to facilitate the increased use of low-input sustainable practices among farmers;

(2) Federal agricultural programs should be designed and implemented to encourage and promote sound conservation practices among farmers who participate in such programs;

(3) Federal agricultural programs should be evaluated periodically to determine whether such programs unintentionally discourage sound conservation practices; and

(4) the initial evaluation of current agricultural programs indicates that the present system for determining farm acreage bases, crop acreage bases and other allocations of acreage to farmers may be inadvertently promoting undesireable environmental effects by —

(A) creating incentives for farmers to make planting decisions based on the need to maximize deficiency payments during the current year and to preserve crop acreage bases for program participation in future years rather than in response to market signals;

(B) discouraging farmers from using sound rotational practices; and

(C) encouraging the continued planting of crops that increasingly bleed from the soil essential minerals and moisture that would be conserved or even replaced by planting other crops.

24. For an excellent overview of state efforts in this area see Meeks, State Policy Issues in Sustainable Agriculture (National Conference of State Legislatures, Denver, Colorado, May 1989).

25. See Oil Pays for Low-Input Research, RODALE'S AGRILETTER, Feb. 1989, at 6.

26. IOWA CODE § 455E.11(2)(e)(6) (1989).

27. IOWA CODE § 455E.11(2)(e)(7) (1989).

28. CAL. AGRIC. CODE §§ 550-554 (West 1989).

29. Id. at § 551(a).

30. Id. at § 553.

31. IOWA CODE § 266.39 (1989).

32. The Center has three primary missions:

1. to conduct and sponsor research to identify and reduce negative environmental and socio-economic impacts of agricultural practices;

2. to research and assist in developing emerging alternative practices that are consistent with a sustainable agriculture; and

3. to develop in association with the Iowa cooperative extension service in agriculture and home economics an educational framework to inform the agricultural community and general public of its findings.

33. IOWA CODE § 455E.11(2)(b) (1989).

34. IOWA CODE § 206.12(3) (1989).

35. IOWA CODE § 200.8(4) (1989). In 1989, the Iowa legislature increased the funding of the Leopold Center by making a direct $ 600,000 appropriation from the general fund.

36. 1987 Minn. Laws ch. 396, art. 12, § 6.

37. MINN. STAT. §§ 17.115, .116, 1988 Minn. Laws ch. 688, art. 15.

38. MINN. STAT. § 17.115(1).

39. MINN. STAT. § 17.116(1).

40. Id. at (2).

41. See CENTER FOR RURAL AFFS. NEWSL. (Nebraska), May 1989, at 1. The Act tabled was LB 430.

42. The agriculture colleges of the state universities in Minnesota and Wisconsin are also involved in research programs focusing on sustainable agriculture.

43. For a discussion of this relationship, see Hamilton, The Role of the Law in Shaping the Future of American Agriculture, 38 DRAKE L. REV. (1989, at press).

44. For example, Iowa law makes it the duty of every landowner to protect his or her land from erosion, subject to an administrative order to do so. IOWA CODE ANN. § 467A.43 (West 1989); Woodbury County Soil Conservation District v. Ortner, 279 N.W.2d 276 (Iowa 1979) (upholding the statute against constitutional challenge).

45. For a discussion of state efforts to promote nutrient management see the textual discussion infra p. 10030.

46. FLORIDA ATLANTIC UNIV. JOINT CENTER FOR ENVTL. & URB. PROBLEMS, MONOGRAPH NO. 88-2, PLOWING THE URBAN FRINGE: AN ASSESSMENT OF ALTERNATIVE APPROACHES TO FARMLAND PRESERVATION (1989).

47. See generally Hamilton & Bolte, Nuisance Law and Livestock Production in the United States, 10 J. AGRIC TAX'N & L. 99 (1988). For examples of such statutes, see IOWA CODE ANN. ch. 1720 and §§ 176B.6-.11 (1989); N.Y. PUB. HEALTH LAWS § 1300c (Consol. 1988); 3 PA. CONS. STAT. ANN. §§ 951-957 (1989 Supp.).

48. See, e.g., T. CENTNER, GROUNDWATER QUALITY REGULATION: IMPLICATIONS FOR AGRICULTURAL OPERATIONS (1988).

49. GA. CODE ANN. § 2-7-170 (1988).

50. IOWA CODE § 455E.6 (1989).

51. 1989 Minn. Laws ch. 326, art. 1, § 5 (to be codified at MINN. STAT. § 103H.111).

52. VT. STAT. ANN. § 1410 (1987 Supp.).

53. For an excellent discussion of environmental protection issues in an agricultural context, see Davidson, Thinking About Nonpoint Sources of Water Pollution and South Dakota Agriculture, 34 S.D.L. REV. 20 (1989). For more on the relation between agricultural practices and water pollution, see Davidson, Little Waters: The Relationship Between Water Pollution and Agricultural Drainage, 17 ELR 10074 (1987).

For an alternative view on the worth of farmers to society and the need for government farm programs, see H. MENCHEN, The Husbandman, in PREJUDICES 43 (1924).

54. The issue of agriculture's contribution to environmental problems is reaching the general public. See, e.g., Easterbrook, Cleaning Up Our Mess, Special Report, NEWSWEEK, July 24, 1989, at 29. Easterbrook discusses five keys to environmental policy for the 1990s, one of which is to regulate farms, not just factories, because only 9 percent of the pollutants flowing into U.S. streams come from industry, while 65 percent come from nonpoint sources.

55. Zinn and Blodget do an excellent job of summarizing the perspectives of the two groups. They write the following:

Agriculturalists believe that some environmental degradation may be a legitimate cost of maintaining productivity and farm income. They believe they are the best judges of the threat from this degradation — after all, such degradation, if excessive, will threaten the health of farm families and the sale of tainted products. Environmentalists take a different view, believing that some productivity may have to be sacrificed to maintain environmental quality. While agriculturalists believe that production and farm income should guide this debate, environmentalists believe that standards of environmental quality should remain paramount.

Zinn & Blodgett, supra note 2, at 187. In noting that this difference in perspective may be the result of differences in scale, they write that

[w]here agriculturalists tend to think of off-site impacts as society's trade-off for reasonably priced supplies of food and fiber, environmentalists tend to think of impacts beyond the fenceline or beneath the soil as an unrecognized and inappropriate subsidy to farmers. Furthermore, environmentalists tend to view farmers as locked into an economic and technological system that institutionalizes and encourages some polluting practices: for example, the fact that commodity programs encourage monocropping and discourage crop rotations that could reduce agrichemical use and that agricultural research has fostered agronomic practices that rely on the intensive use of agrichemicals and other inputs, rather than on maximizing their efficient use.

Id.

56. For a discussion of the historical background of the 1985 farm bill conservation provisions, see Malone, A Historical Essay on the Conservation Provisions of the 1985 Farm Bill: Sodbusting, Swampbusting, and the Conservation Reserve, 34 KAN. L. REV. 577 (1986). For a discussion of how the CRP can be used to promote sustainable agricultural initiatives, see Hamilton, State Initiatives to Supplement the Conservation Reserve Program, 37 DRAKE L. REV. 251 (1987-88).

57. For a discussion of this potential, see Nunn, Agricultural Policy: Ripe for Reform, ISSUES IN SCIENCE AND TECHNOLOGY, Winter 1988, at 56 (National Academy of Science).

58. Farmers Say Low-input Farming Would Help Protect Environment, May 23, 1989 (Extension News, Iowa St. Univ.).

59. AGRICULTURAL LAW AND POLICY INSTITUTE, AGRICULTURAL AND GROUND WATER QUALITY: FARMERS' PERCEPTIONS IN FIVE DIVERSE SITES (1989).

60. See, e.g., Cantor, Blair & Zahm, Health Effects of Agrichemicals in Groundwater: What Do We Know? (Conference Proceedings, Oct. 22-23, 1987), reprinted in Agricultural Chemicals and Groundwater Protection: Emerging Management and Policy (published by Freshwater Foundation). For a general discussion of the issues raised by groundwater contamination from agricultural chemicals, which are defined to include fertilizers, see ALPI BOOKLET, supra note 1.

61. For an excellent bibliography of the scientific literature concerning the presence of nitrates in groundwater, see ENVTL. PROTECTION COMMISSION AND THE IOWA DEP'T OF NATURAL RESOURCES, IOWA GROUNDWATER PROTECTION STRATEGY 1987, AGRICULTURAL USE OF NITROGEN FERTILIZER, at 96 (1987). For a discussion of much of this literature, see Hallberg, Agricultural Chemicals in Groundwater: Extent and Implications, 2 AM. J. ALTERNATIVE AGRIC. 3 (1987). For a discussion of the technical aspects of how nitrogen enters the groundwater, see Bundy, Development of a Nitrogen Management Model: Potential for Site-Specific Groundwater Protection (at 111-16) and Randall, Effective Nitrogen Management: Considerations for Growers (at 117-23), in Agricultural Chemicals and Groundwater Protection, supra note 60.

62. For a discussion of the medical science behind blue baby syndrome, see Cantor et al., supra note 60, at 28.

63. The primary drinking water standard for nitrogen was promulgated by the Environmental Protection Agency in 1986. See Maximum Contaminant Levels, part 141(B), National Interim Primary Drinking Water Regulations, 40 C.F.R. § 100-149 (1986).

64. See, e.g., U.S. GEOLOGICAL SURVEY, WATER RESOURCES INVESTIGATIONS REPORT 88-4104, FACTORS AFFECTING LEACHING IN AGRICULTURAL AREAS AND AN ASSESSMENT OF AGRICULTURAL CHEMICALS IN GROUND WATER OF KANSAS (1988). For a discussion of the research findings concerning nitrogen levels at the Big Springs research project managed by the Iowa Geologic Survey, see Fruhling, Big Spring Farms to Try Using Fewer Chemicals, Des Moines Reg., Oct. 12, 1986.

65. Examples of environmental problems caused by the misuse or spillage of fertilizers are provided in Lamberto, Fowl Manure Could Endanger Fish in Streams, Des Moines Reg., May 18, 1989, at M1; Beach, Fertilizer in Creek Kills 37,000 Fish, Des Moines Reg., May 5, 1989; Wiley, Farmer Dumps Hog Manure in River, 15,000 Fish Killed, Des Moines Reg., Sept. 8, 1988, at M1.

66. See, e.g., Jackson, Agricultural Management Practices to Minimize Groundwater Contamination and a Site-Specific Farm Assessment Process, in AGRICULTURAL CHEMICALS AND GROUNDWATER PROTECTION, supra note 60, at 125.

67. ALPI BOOKLET, supra note 60, at 17; see also, Looker, Little Benefit Seen in Use of Much Nitrogen on Corn, Des Moines Reg., Dec. 15, 1989, at S6.

68. See, e.g., NEB. REV. STAT. §§ 46-674.02-.16, establishing Special Protection Areas. The operation of these areas is discussed in Fee, Pollution Gets the Death Penalty, SUCCESSFUL FARMING, May, 1988, at 16; see also ARIZ. REV. STAT. ANN. §§ 49-247, -248 (1988) (part of the Aquifer Protection Permit Act, which authorizes the Department of Environmental Quality to issue general permits setting out best management practices to farmers who are applying nitrogen fertilizers).

69. FWPCA, 33 U.S.C. § 1344, ELR STAT. FWPCA 054; ALPI BOOKLET, supra note 60, at 52.

70. See S. 779, 101st Cong., 1st Sess. (1989) (as described in a dear colleague letter from Senator Pryor, dated Mar. 21, 1989).

71. Id. at 1.

72. Id. at § 2(f).

73. 1987 Mich. Pub. Acts 240; S. 534 (amending MICH. COMP. LAWS §§ 286.472, -.473 (1989)). For a discussion of right-to-farm laws and the impact of nuisance suits on livestock operations, see text accompanying notes 46-52.

74. 1987 Mich. Pub. Acts 240(2)(d).

75. MICH COMMISSION OF AGRICULTURE, RIGHT TO FARM (1988). The guidelines list accepted practices for different types of farm operations and for each provides standards for the application of fertilizers and organic wastes. These standards incorporate the work done at Michigan State University noted in the manual entitled Manure Management Practices for Land Application.

76. ARIZ. REV. STAT. ANN. § 49-247(A) (1989).

77. ARIZ. REV. STAT. ANN. § 49-241(A) (1989).

78. Id.

79. ARIZ. REV. STAT. ANN. § 49-247(B) (1989).

80. ARIZ. REV. STAT. ANN. § 49-248 (1989).

81. NEB. REV. STAT. §§ 46-674.01 to .16 (1986).

82. Id. at § 46-674.07.

83. Id. at § 46-764.08(1).

84. Id. at § 46-674.09.

85. Id. at § 46-674.13.

86. Id. at § 46-674.15.

87. See Risser, Farmers Should Regulate Manure Usage Before They're Forced To, Lancaster (PA) Farming, Mar. 20, 1989, at A1. The 1988 legislation was House Bill 2616.

88. Id.

89. See Safe Manure Use — It's the Law, RODALE'S AGRILETTER, May 1989, at 4.

90. 1989 Minn. Laws ch. 326.

91. Id. at art. 7, § 33(1).

92. Id.

93. EPA, Agricultural Chemicals in Ground Water; Proposed Pesticide Strategy; Availability of Documents and Request for Comment, 53 Fed. Reg. 5830 (Feb. 26, 1988).

94. For an example of the type of marketing opportunity that consumer concerns over chemical use on food products is creating see, Dickstein, Pioneer Markets Technology to End Users, BUSINESS RECORD, June 12, 1989, at 2 (Des Moines, Iowa). The article concerns Pioneer, the nation's largest hybrid seed producer, creating a subsidiary called Specialty Plant Products, to market pesticide free grains.

95. For an example of the state laws controlling the testing and certification of individuals as certified applicators, see IOWA CODE §§ 206.5 to .7, (1989).

96. For a discussion of these opportunities, see Cramer, Fighting Pests with "Pests," THE NEW FARM, July/Aug. 1989, at 12; Freese, Biologicals: The Chemicals of the "90's," SUCCESSFUL FARMING, Apr. 1989, at 64-P; Naj, Can Biotechnology Control Farm Pests, Wall St. J., May 11, 1989, at B1; Integrated Pest Management Movement Creating New Industry, AGRICULTURE, Aug. 14, 1989, at 17. For a discussion of the legal and economic problems the beneficial insect producer has had with the FDA, see Sharpe, Buddy Maedgen is … Bugged, TEXAS MONTHLY, Mar. 1989.

97. 1 BUREAU OF CENSUS, U.S. DEP'T OF COMMERCE, 1982 CENSUS OF AGRICULTURE, pt. 15, at 2 (1984).

98. IOWA CODE ANN. §§ 176B.6-.11 (West 1989) and WIS. STAT. ANN. § 823.08 (West 1989).

99. Several states have passedwhat are known as linked deposit laws in which state funds are deposited in banks that make loans to producers diversifying into horticultural production. See, e.g., IOWA CODE ANN. §§ 12.31-.39 (West 1989); OKLA. STAT. ANN. tit. 2, §§ 1761-1769 (West 1988); TEX. AGRIC. CODE ANN. §§ 44.001 to .012 (Vernon 1989).

100. See Viewpoints, LISA Programs Will "Evolve," Says USDA Official, Feedstuffs, July 17, 1989, at 8. Charles E. Hess, the assistant secretary for science and education at the USDA, suggested the concept in testimony before the Senate Agriculture Committee hearing on sustainable agriculture, held June 22, 1989. He noted when talking about the future of sustainable agriculture and how it will effect conventional practices, that

[w]hat is likely to happen is the evolution of social/business institutions such as "nutrient cooperatives." Just as cooperatives now exist to provide market leverage for the benefit of members, members of such a nutrient cooperative would cooperate to the production advantage of its members. Crop producers practicing crop rotation would be able to supply livestock growers in the cooperative with forage in return for waste bedding, which would be returned to the land.