32 ELR 10543 | Environmental Law Reporter | copyright © 2002 | All rights reserved

Sustainable Development and Agriculture in the United States

[Editors' Note: In June 1992, at the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, the nations of the world formally endorsed the concept of sustainable development and agreed to a plan of action for achieving it. One of those nations was the United States. In August 2002, at the World Summit on Sustainable Development, these nations will gather in Johannesburg to review progress in the 10-year period since UNCED and to identify steps that need to be taken next. In anticipation of the Rio + 10 summit conference, Prof. John C. Dernbach is editing a book that assesses progress that the United States has made on sustainable development in the past 10 years and recommends next steps. The book, which is scheduled to be published by the Environmental Law Institute in June 2002, is comprised of chapters on various subjects by experts from around the country. This Article will appear as a chapter in that book. Further information on the book will be available at www.eli.org or by calling 1-800-433-5120 or 202-939-3844.]

John Davidson is a Professor of Law at the University of South Dakota School of Law.

[32 ELR 10543]

Introduction

Agriculture in the United States eludes easy categorization and description. The system is diverse in climate, geography, crops, and agronomic practices. For example, it includes the truly vast midwestern dryland grain belt as well as some 46 million acres of land in organized irrigation systems. Because this system is built upon the energies of successive waves of immigration, it also reflects a healthy diversity in its cultural approaches to farm production.

Agriculture has received support of one kind or another from the federal government throughout the nation's history. Land, railroads, farm-to-market transportation, scientific research, technology, education, rural infrastructure, electricity, and irrigation water have been provided. It was the Dust Bowl and economic depression of the 1930s, however, that made the federal government the financial partner of "commodity" agriculture which it is today. A significant part of that pattern of subsidy has been in the form of "conservation" practices. Some of these practices, such as terracing, land retirement, and improved forage crops have made important contributions to protection of the natural and human environment. Others, particularly land drainage, have damaged seriously the natural hydrologic environment.

Contemporary trends include the emergence of an innovative private research and supply system, which provides a steady stream of capital-intensive changes in production practices, and a relentless process of consolidation and industrialization. Along with these, however, the federal government continues to provide large direct payments as well as investments in conservation.

In the face of a diverse and dynamic system of agricultural production, this Article offers a rough definition of sustainable agriculture. Three criteria are developed. First, it is suggested that the system must become internally sustainable, which requires that it preserve its resource base, avoid pollution, salinization, or other degradation of the soil and water, and develops an ability to respond to plant and animal disease, pests, periodic climate variation as well as changing market conditions. Internally sustainable agriculture is able to renew its communities, maintain an infrastructure, protect its land and water from the demands of nonagriculture uses, and retain in agriculture those who possess the skills to be the next generation of farmers.

Second, the system must be externally sustainable. This requires that agriculture not impose externalities on the nonagricultural society, nor on the surrounding natural resources; it must not have an impact on environments beyond their tolerance and ability to respond.

Third, agriculture must exhibit responsive sustainability. This requires that agriculture must be sufficiently dynamic and flexible that it is able to respond to crises (unsustainability) in other sectors of the economy. Agriculture's ability to participate in global warming remedies through sequestered carbon, relieving pressures on forests by growing fibrous hemp, or easing petroleum demand by providing biomass, are examples. The point is that no system of production should be viewed in isolation.

This Article assesses American agriculture's performance in light of each suggested category. Not surprisingly, in each category there is ample evidence to support both sides of the issue, and examples are provided.

Particular concerns are highlighted. The apparent inability of the agricultural sector to protect its historically preferred access to land and water is noted. With both agricultural water and prime cropland, we encounter the irony, visible worldwide, that the growing populations that agriculture and forestry are relied upon to sustain themselves, overrun and consume the very land and water most essential for that purpose. Another concern highlighted in this Article is the element of uncertainty—factors that deny us the capacity to make sound decisions and reliable predictions. An emerging reliance on genetically modified organisms (GMOs) is among the examples suggested, as are climate, specialization in the use of genetic stock, and the traditionally disruptive effect of world markets.

Finally, the Article offers a few specific suggestions for both the near and long term. These suggestions, taken together, are not intended to provide a comprehensive prescription for sustainability. Rather, they suggest the types of steps that must be taken. The suggestions include: (1) stabilization of irrigation agriculture; (2) renewal of the campaign to reduce soil erosion; (3) a national campaign to protect our prime agricultural land from incompatible encroachments; (4) reengineering of the larger agricultural drainage systems in order to achieve systematic control of polluted runoff; and (5) affirmative steps to protect germplasm.

For the long term, it is suggested that the science of ecology must be fully integrated into agricultural research. The sustainable agriculture envisioned at the United Nations Conference on Environment and Development (UNCED) [32 ELR 10544] in Rio de Janeiro, the conservation agriculture defined by American farm policy, and the research systems that support economic growth and change in American agriculture, avoid the issue of whether agriculture can be practiced without undermining the ecosystems in which it is practiced. Until that question is addressed seriously, the question of sustainability will remain open and speculative. We do not know whether an environmental or ecosystem model for modern production agriculture is possible, because we have not tried it.

Background

The general and elusive definitions of sustainable development found in the Rio Declaration¹ and Agenda 21² are particularly difficult to apply to agriculture in the United States. This is due in part to the spectacular diversity in the nation's agricultural sector and to the equally diverse approaches found in its food, agricultural, and rural development policy. It is due also to the fact that the nation brings to the discussion a long history of investment in agricultural land and water conservation of which contemporary policy is a partial continuation.

There can be no single picture of American agriculture; in fact, it is as diverse as the nation's geography, society, and economy. Midwest grain; western irrigation; vast semi-arid ranching; big wheat in the high plains and Northwest; the intense cropping in the Mississippi Delta; confined industrialized poultry, hog and dairy production (seemingly everywhere); Minnesota-Wisconsin milk; Florida citrus—the list is as dazzling as it is diverse. And then there is California—a nation-state in itself—with an agricultural industry capable of feeding most of the continent and more. Each of these represents a distinct economy and culture, with a unique history, each producing and marketing crops in a unique natural (or artificial) setting. General descriptions seldom suffice, and a sensitivity to local conditions is essential. There are few crops known to world agriculture that are not grown commercially in the United States. Add to this the emerging aquaculture industries, and the picture is even more diverse. Scattered throughout there is also found a quiet pattern made up of independent producers growing alternative crops, specialty crops, or employing alternative agronomic techniques or marketing methods.³

Federal policy toward contemporary agriculture and agricultural production is inseparable from a history which begins during the decade of the 1930s when a great environmental disaster, known as the Dust Bowl, devastated vast segments of agriculture and rural society. Coupled with general economic depression, there was something very near to a complete breakdown in farm and rural life. The severity of the crisis led to a comprehensive response by the federal government that influences policy even today. The mechanism selected at that time to rebuild production agriculture combined two lines of development. One was the use of direct payments combined with acreage and output restrictions in order to raise farm prices and incomes. The other found its roots in the broad movement for conservation of natural resources, especially soil and water. Since then, federal policy toward agriculture has combined price and income relief with subsidies for conservation agriculture. More important, however, is the fact that since the depression of the 1930s, the federal government has been deeply involved in farming to a degree not found in other private industrial sectors. Various farm support and conservation programs still on the statute books bear a strong resemblance to the laws enacted at that time.

American agricultural policy is strongly rooted in the conservation movement, and it is important to consider the distinction between the terms "conservation" and "environment," because discussions of sustainability often use the terms interchangeably when in fact they may represent contrasting approaches.

Conservation is a utilitarian philosophy which focuses upon the practice of maintaining the productive potential of resources, resisting waste and unnecessary depletion of productive capacity, and maximizing the productivity potential.⁴ The clear focus in conservation is on managing resources for the practical use of humans; even when conservationists advocate preservation, as with national parks, they do so because of the value of the resource to humans and the human economy. Conservation is closely associated with such dynamic leaders as Gifford Pinchot and Hugh Bennett, founders of the National Park Service and Soil Conservation Service respectively, two agencies in the U.S. government that represent direct applications of conservationist philosophy. The movement has even earlier roots in this country, however. During the last half of the 19th century, such leaders as Louis Agassiz, George P. Marsh, John Wesley Powell, and Carl Schurz argued the importance to the nation of husbanding the natural resource base. A major section of President Theodore Roosevelt's first message to the U.S. Congress was devoted to natural resources conservation, and it was Roosevelt's close advisor, Pinchot, who would say to Congress: "The duty of man to man, on which the integrity of nations must rest, is no higher than the duty of each generation to the next."⁵

"Conservation" thus comes to us out of a long tradition. An early definition of conservation states that it is: "An investment (1) in maintaining productive potential, (2) in decreasing the productivity deterioration or (3) in enhancing the productivity potential."⁶ The conservation movement that developed in the early 20th century, and that influenced American farm and agriculture policy directly, was premised in a firm conviction of the absolute physical limits of supplies of essential natural resources. The words of leading chroniclers of this movement are helpful here:

The conservation movement strongly emphasized "ecological balance," and offered many useful insights into the complex interrelations among various natural resources. [32 ELR 10545] Its leaders were disturbed about ecological damage—permanent changes in the environment which would leave man poorer for future generations. Changes induced by drainage, cutting of forests, plowing of grassland, and other activities of modern life were believed to have far-reaching and seriously adverse effects. They were particularly disturbed by mineral and fuel depletion.

The waste of natural resources was a major concern of the conservation movement. Waste, in the view of the conservationists, could take one or more of several forms. One of these was the destructive use of resources. Use of fuels to generate electricity when hydropower was unused was a form of waste; so was pollution of streams, plowing of land better suited to grazing, or any one of numerous changes in natural environment. But underuse of renewable resources, such as timber, was equally wasteful in the view of this group. So was mismanagement of nonrenewable resources, such as fires in underground coal mines, flooding of mines before all the ore was extracted, and the like. Also, the wrong use of extractive or final products, such as flaring of gas for which there was no market, or failing to recover as much secondary and scrap metals as possible, was waste . . . .

. . . .

The objectives of the movement flowed rather naturally from its conception. That first American conservation movement was a major attempt to change the broad goals, ideals, and purposes of the nation, so far as these affected the use of natural resources. The earlier ideology had been directed predominantly at private profit-seeking, at acquiring and exploiting natural resources for income or material benefit. The conservationists rejected this as a sufficient or dominant objective. Instead, they sought to instill ideas based on concern for the future instead of wholly for the present, on stewardship instead of exploitation, and on some sort of higher duty instead of profit.⁷

Consider, for purposes of further explanation, a mundane example from that period of reform. The Federal Power Act⁸ was enacted in 1920 as a model of the conservation philosophy in practice, and remains on the statute books in revised form. The resource of concern is hydroelectricity and the limited number of unique natural sites for hydroelectric river dam construction. The Act requires that private builders of dams first obtain a permit from the Federal Power Commission.⁹ The original purpose was to strike a balance between promoting hydropower development on the one hand, and the larger public interest on the other, the latter including efficient use of available dam sites, protection of commercial fishing interests, national parks and, other federal reservations. The concern of the legislation was classical conservationist—a utilitarian concern aimed at maximizing the human benefit to be derived from a valuable natural resource (hydroelectric dam sites) while avoiding waste.

The system of hydroelectric dams that resulted from this system was seen then to be sustainable in that it encouraged an economically efficient and technologically sound use of a resource, while holding to a minimum its impact on other important human uses, thus meeting "the needs of the present without compromising the ability of future generations to meet their own needs."

In recent years, Congress revised the Federal Power Act by requiring that in licensing and re-licensing proceedings the agency should also establish conditions for the adequate and equitable protection and enhancement of fish and wildlife.¹⁰ Thus, as the licensees of the thousands of dams that were permitted in the 1920s through the 1950s petition for re-licensing, they must meet not just a conservationist standard but also comply with what we might now call an environmentalist standard as laid out in the revised Act as well as the Endangered Species Act.¹¹ A conservationist might, as one example, be concerned with salmon runs on the Snake River system because they represent an important renewable industry and human food source. In contrast, the environmentalist will seek to protect the salmon for its own sake, and because it is but one part of the larger ecosystem of which humans are a single part. While these two philosophies may find some common ground when the subject is salmon, where can there be common ground when human needs come into conflict with the survival of the Snail Darter, an isolated prairie pothole, the Salt Creek Beetle, or a Monarch butterfly?

Are environmental protection and sustainable development simply the phrases used to refer to a contemporary version of the conservation movement, or are they distinct? Some will argue that protection of the human environment is a concept that demands that we go well beyond mere conservation. While encompassing the need to husband productive resources in the interests of humans, and to manage resources so that they do not lead to direct harm to human health, the concept of environmental protection broadens the range of considerations to include nature itself, the ecosystem in which humans—the authors of environmental decline—reside. Environment, it will be argued, is a word that captures a philosophy of commitment to stewardship of the ecosystem, a concept with which "conservationists" are not at ease.¹²

In contrast, it can be credibly posited that concerns over environment and sustainable development are simply traditional conservation informed by modern science. Whereas early leaders such as Marsh and Pinchot saw resources in more confined or discrete categories—a forest, a farm, a coal deposit—modern science has repeatedly proven that resources do not exist in isolation, and that all are connected; environmentalism is simply conservation with a world view. Or, perhaps, modern environmentalism is simply traditional conservation made aware of externalities not appreciated during an earlier time. Both environmentalism and conservation speak of a resource use that takes into account the needs of future generations.

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Do the Rio Declaration and Agenda 21 contemplate an agriculture that is "conservationist" or "environmental"? If the former, the history of American agriculture, as we shall see, demonstrates a rich intellectual and political heritage, continuing policy commitment, and substantial investment. If the latter, we may find a policy that is not in line with the emerging world policy.

Conflicting Characteristics of Sustainability in Agriculture

Classical conservation always provides the foundation characteristics of a sustainable agriculture, although the word hardly appears in the hill of verbiage generated by the latter. This is demonstrated by early attempts in this country to define sustainable agriculture.In 1990, for example, Congress defined sustainable agriculture as

an integrated system of plant and animal production practices having a site-specific application that will, over the long term, satisfy human food and fiber needs; enhance environmental quality and the natural resources base upon which the agricultural economy depends; make the most efficient use of nonrenewable resources and on-farm/ranch resources; and integrate, where appropriate, natural biological cycles and controls; sustain the economic viability of farm/ranch operations; and enhance the quality of life for farmers/ranchers and society as a whole.¹³

This definition, it is argued, could have been written by either Pinchot or Bennett, and is rooted in traditional conservation.

What might an "environmental" definition of sustainability say? Can we aspire to an "ecologically sustainable" agriculture? The Pacific Institute provides an example in the context of irrigation agriculture: "The use of water that supports the ability of human society to endure and flourish into the indefinite future without undermining the integrity of the hydrological cycle or the ecological systems that depend on it."¹⁴

Aldo Leopold might have used the word "sustainable" when he wrote that "a thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community—it is wrong when it tends otherwise."¹⁵ Because agriculture is the practice of disrupting natural ecological functions, there will always be a tension between it and aspirations toward the environmental definition of a sustainable agriculture as one which meets the nutritional and fiber needs of society without undermining natural ecological functions. It is useful to bear in mind these conflicting approaches as we take a closer look at American agriculture today.

Several Snapshots of Commercial Agricultural Production in the United States

As already mentioned, the spectacular variety in American agriculture defies attempts at generalization. Nonetheless, it may be helpful to offer a few brief sketches of some representative agricultural projects or methods, in order to provide a partial context. When viewed together, these three pictures do much to demonstrate the overall trends in American agriculture.

Yakima Valley Irrigation

Large parts of American agriculture occur in the western states amidst a fragile geography marked by climate extremes, particularly in water supply. Yet this unlikely location for agriculture also provides some of our greatest production.¹⁶ Since 1902, Congress has invested great sums of money in order to irrigate desert lands in the West. Today there are some 46 million acres of land under federal irrigation canals, receiving 3 feet of water for every acre—140-million-acre feet of water. The resulting production occurs, nonetheless, on only about 3% of the land area in the West.¹⁷

One of the better examples of federal reclamation is the Yakima Valley in Washington State where apples, grapes, hops, dairy, grain, and forage are produced in abundance on level lands and rich soils that respond to the irrigation water arriving as the result of federal money and engineering. A series of river dams hold over one-million-acre feet of water, assuring that adequate supplies will be carried over from year to year. The water is sold to farmers at rates set well below market.¹⁸ Governed and organized by modern special governmental districts, the project is alert to the need to reinvest capital in order to avoid classical irrigation problems such as salinization of soils, as well as to modernize facilities. So long as the picture is limited to the irrigation project itself, it appears both successful and potentially sustainable.

But, in a manner not atypical of irrigation projects across the West, the Yakima project is encountering limitations and challenges that were not foreseen when the project was laid-out decades ago. In the early days of western irrigation, agriculture had the uncontested first claim on available natural resources, but that has now changed. The West, which was largely unpopulated when the reclamation program began, has become heavily populated, as well as a preferred place for human recreation, both uses that make heavy demands on water. In the West, the habitat of endangered or threatened wildlife species is, for the most part, rivers and lakes, including the free-flowing waters necessary for anadromous fish, and these also represent a new claim to a share of the waters once available by preference to agriculture. As western cities grow, they press agricultural lands for development space, and agriculture finds itself competing with suburban and recreational developers for land as well as water.

Thus, in the Yakima Valley and across all of irrigation country, the question of sustainability is about a limited water resource, competition for lands and protection [32 ELR 10547] of soil chemistry. As succinctly stated by Lawrence J. MacDonnell:

How do we share what is a highly variable but ultimately fixed amount of water with what seems to be a constantly enlarging set of users? How can the limited water resources of the West do more? When the need was for more economic uses, the answer was more water development—more dams, more wells. Now, when the needs are more complex, when additional water development may well mean unacceptable ecological loss, when out-of-stream uses compete directly with important instream values, when—nevertheless—new consumptive demands continue to grow, how can this painfully finite resource satisfy these demands?

In many respects the Yakima Basin represents a realization of the reclamation ideal. With considerable federal assistance, the water supplies of the basin were more fully developed for economically productive uses, and the irrigated lands in this fertile area expanded fourfold. Highly valuable crops are being produced, and irrigated agriculture remains the base of a healthy economy.

At the same time, the Yakima Basin also portrays many of the fundamental flaws of the reclamation vision. Its single-minded focus on irrigation neglected virtually all other values and uses for water. Salmon simply were not a consideration. Water quality was not a concern. Project planners, relying on the ability of a centrally (and presumably rationally) managed water supply to provide for ever-expanding irrigation demands, seriously over committed the basin's water supply. The policy decision to make irrigation water available at a fraction of its real cost encouraged expansion of irrigated agriculture in the Yakima Basin beyond a sustainable level.¹⁹

Feed Grains and Cotton

No one place is typical of "commodity" agriculture in the United States, so extensive is the geography and climate over which it extends. Beginning, perhaps, in Pennsylvania or Maryland, and extending westward in a swath across Ohio, Indiana, Illinois, Iowa, Missouri, Minnesota, and the Dakotas, and southward to the Gulf, is a sea of corn and soybeans, anchored by the addition of cotton and rice in the Southeast and Mississippi Delta. Within this cropping system generalities may apply, however, and it is possible to construct a hypothetical snapshot.

A farm in, let's say, Iowa, lies in a river valley. The first European settlers received their land free from the United States and created farms by clearing the hardwood forests. The early farming practices generated nearly all human needs, from horse power and tools, to food and shelter. Over the years, the constant factors have been improvement of production capacity, consolidation of land-holdings, specialization and intensification in production practices, replacement of labor with capital, and land drainage, the last for the purpose of creating additional tillable ground. Each of these have, directly or indirectly, been supported by state and federal policies, including subsidies of every type.

Land drainage provides a useful example. Our hypothetical farm lies in a river valley drained by one large river and numerous small streams. Throughout the valley there are endless wet spots, ponds, wetlands, or sloughs. To our farmer these natural wetlands represent an impediment to increased production, and the goal is to "drain" by creating some engineered system of outlets and underground pipes in order to speed the movement of water to the river. In the 1930s through the 1950s, this was considered a laudable conservation practice, and was subsidized directly by the United States.²⁰ Millions of acres of wetlands have been drained at federal expense. States such as Illinois, Iowa, and Minnesota have been converted from rich water systems to a vast dryland of tillable fields. This federal subsidy program is comparable in scope and effect to the western irrigation reclamation program, and created what must be the world's most consistent and extensive system of dryland (not irrigated) agriculture.

Specialization in production has done much to define our hypothetical farm. Whereas the farm once raised poultry, hogs, sheep and cattle, including dairy, as well as forage and small grain crops sufficient to support a diverse animal industry, it is now rare to find animal production. Poultry is entirely industrialized and hogs nearly so. Dairy is rapidly industrializing and it is clear that beef cattle will soon "go indoors," that is, be raised in specialized industrial-type facilities. As a result, our farm need raise neither forage nor small grains, and all field production is focused on corn and soybeans (or rice, cotton, wheat), fungible "commodity" crops for which there is an international market, and, most important, a steady supply of federal money for its growers.

The demise of a dispersed animal industry combined with the relentless enlargement of land holdings by consolidation has led to another notable feature of our farm: large fields. When animals were pastured, fences were necessary. When farms were many, fields were smaller and fences sat upon property lines. Now, the fences are being removed, and fields become larger, facilitating the use of larger equipment, and the operation of large farms with a minimum of labor.

Some part of the lands being farmed by our hypothetical farmer will be leased from a nonresident owner, typically a child or grandchild of an earlier farmer. In fact, a growing percentage of the active cropland in the United States is leased by nonresident landowners.

Field agriculture—the growing of corn and beans—may utilize a system known as conservation tillage which, when combined with modern seed and chemical systems, allows our farm to achieve remarkable production efficiency. Our farmer need not plow, till, or cultivate his crops. By spraying the fields with Glyphosate herbicide and planting seeds that have been genetically modified to resist the herbicide, no field work other than planting is needed until harvest. The advantages of this system are significant. Because no cultivation is required, the soil has a year-round cover of plant material, thus reducing wind and water erosion. By reducing the number of times the farmer must move through the field there are large savings in energy, labor, and wear on farm equipment.²¹ Compaction of the soil is reduced by [32 ELR 10548] fewer trips through the field as well as by the recent introduction of tracked farm equipment.

The result is something like a grain factory, with every step in the production process reduced to a simple efficiency, requiring the least amount of human effort, and with a near perfect uniformity in the product. It is the field crop equivalent of an automobile manufacturing plant, or of factory hog and poultry production.

This grain factory is of enormous importance to the nation and the world. It is dryland agriculture, and is thus not dependent on irrigation as is so much of the world's grain production. In addition, on average, slightly more than one-third of this crop is purchased by other nations, and large reserves are nearly always on hand to meet unexpected demand.

Sun Prairie Farms on the Rosebud

On land owned by the Rosebud Sioux Tribe in Mellette County, South Dakota, a firm known asSun Prairie Farms is constructing a hog "finishing" facility which, if carried to completion, will house an estimated 850,000 hogs per year on 13 associated sites. Although the project is larger than most hog factories in the United States, it is also typical of the industrialization of animal agriculture that is rapidly nearing completion here and in other nations as well.

The technology that it will employ is standardized, and varies little from that employed in similar factories across the United States. Such facilities consist of multiple long, low-lying metal buildings set atop concrete foundations. Rows of ventilation fans are installed in the side and end walls, elevated bulk feeder tanks with feed augers move feed inside, and there is an outdoor "lagoon" to hold animal waste and the water that flushes the pens periodically. The interiors are rows of holding pens with slotted floors that allow waste to wash into a pit below.²² The commercial advantages are summarized thus:

Enclosed facilities allow better control over factors critical to growth and profits, including exposure to climate and other environmental fluctuations (particularly in temperate climates), feeding regimens, and reproduction. In addition, genetic selection provides swine that convert feed to meat more quickly and with less fat, so leaner hogs are market ready faster. Differential weaning processes based on sex, separate and frequently quarantined production facilities for each stage of growth, and the use of antibiotics all contribute to increased disease control. In addition, capital investments in technological advances reduce the amount of labor required to produce each hog.²³

Evolving Federal Agricultural Policy

Since 1985, there has been a gradual and fundamental change unfolding in federal agricultural policy. This process of change is represented by two different but related strands. First, government programs to support the prices of agricultural commodities, manage production levels, and provide direct financial relief to farmers, are being challenged by advocates of a more open marketplace, as well as by the influences of the North American Free Trade Agreement²⁴ and participation by the United States in the World Trade Organization. Second, conservation and environmental protection have moved from the margins of farm policy and have assumed a more central place in the debate over federal policy.²⁵

The most notable turn occurred with passage of the 1985 Food Security Act,²⁶ legislation that brought conservation and agricultural policy into the heart of the agricultural debate. In 1985, programs such as the Conservation Reserve Program (CRP),²⁷ Sodbuster,²⁸ and Swampbuster²⁹ were introduced, and because they, along with other programs created since 1985, represent the heart of farm conservation policy today, description in some detail is merited.

The CRP

The CRP is a voluntary, long-term cropland diversion program in which the United States pays farmers "rent" in return for a contract by the landowners or operators to commit to convert highly erodible or otherwise environmentally sensitive cropland with an active cropping history into a conserving use—usually plantings of grass or trees—for 10- to 15-year periods. Although the CRP contains objectives of supply management and financial aid to the farm sector, the principal objective is to reduce soil erosion, with secondary purposes of protecting long-term production capacity, reduce sedimentation, improve water quality and improve fish and wildlife habitat.³⁰

In 1990, Congress reauthorized the CRP and added a requirement that lands were to be selected for the program based on an environmental benefits index. This allowed bids for entry into the CRP to be ranked according to their value for reducing soil erosion, protecting water quality, preservation of soil productivity, and protection of wildlife.³¹ In 1996, the program was again reauthorized, augmented by a "continuous CRP" that allowed for inclusion of lands on which particularly desirable practices are followed, such as revegetation of riparian zones, maintenance of filter strips, tree shelter belts, living snow fences, and salt-tolerant vegetation.³² The CRP represents a massive investment in land protection, with some 36.4 million acres under contract.

Cross-Compliance

In 1985, Congress also made a major break with past policies by requiring that in order for producers of commodity [32 ELR 10549] crops to qualify for financial assistance, they must comply with minimum environmental protection land management practices. Before 1985, a farmer could employ farm management techniques that were detrimental to the land and the environment, while remaining eligible for financial assistance. For example, a farmer with a large grass pasture of highly erodible land could plow the ground, plant a commodity, and thereafter be eligible for price and income support payments based upon production from that field. Similarly, a farmer could drain a productive wetland, bring it into commodity production and likewise qualify for support. The poor land management practices and the financial support programs were not related.

After 1985, a farmer proposing to cultivate highly erodible soils and also participate in farm programs is required to first apply to the Natural Resources Conservation Service (NRCS) for an erosion control plan, and then implement that plan; this is the Sodbuster program.³³ In addition, a farmer who drains a wetland in order to grow crops becomes ineligible for participation in some federal programs; this is the so-called Swampbuster program.³⁴

Wetlands Reserve Program (WRP)

Created in 1990, the WRP³⁵ is a system whereunder a landowner may sell to the United States a permanent easement for wetland protection. The sale is usually combined with federal payments for wetland restoration on the property. As of July 2000, a total of 5,230 contracts had been executed and over 915,000 acres enrolled. The WRP is primarily a habitat protection program but is also intended to play a major role in flood prevention and water quality protection.

Environmental Quality Incentives Program (EQIP)

Created in 1996, EQIP³⁶ carries forward federal programs that provide financial assistance to farmers and ranchers who adopt practices that reduce environmental harm and enhance natural resources. Contracts are for 5 to 10 years. The majority of these contracts have focused on water quality objectives, soil erosion, and wildlife habitat.

Technical Assistance

Since the 1930s, the federal program has included a system of providing technical assistance on conservation and natural resources management issues to farmers and ranchers.³⁷ The original Soil Conservation Service, now known as the NRCS has offices in every agricultural county where free technical advice on the full range of issues is available to landowners and operators. The extent of this investment and its importance to any attempt to guide agricultural production, cannot be overemphasized.

Wildlife Habitat Incentives Program (WHIP)

The WHIP program³⁸ program was created in 1996 to provide cost-sharing assistance to landowners who develop habitat for wildlife, particularly threatened and endangered species. Plans are developed and 5- to 10-year contracts executed.

Farmland Protection Program

In 1996, Congress created a federal Farmland Protection Program,³⁹ which provides funds to state and local governments which have programs to protect farmland threatened by suburban sprawl. Up to 50% of the cost of acquiring transfers of development rights is available. These programs depend upon the initiative of state and local government.

There are numerous other federal laws that are intended to encourage farmers and ranchers to adopt conservation or environmental protection practices. Although mentioned only infrequently, the Internal Revenue Code contains many provisions especially crafted for this purpose.⁴⁰ Also not often mentioned in this context is the practice of allowing tax deductions to donors of conservation easements.⁴¹ This tax incentive specifically targets agricultural land preservation, and has become a principal device for achieving that purpose.

Taken together, these mostly voluntary agricultural programs represent a vast investment in conserving practices, and there is every indication that the pattern will be continued in future legislation. Nonetheless, the consequences do not appear to be sufficient to deter the substantial externalities imposed by agricultural production. There are larger and fewer farms employing ever more intensive practices, usually in the form of monoculture. There is an almost universal reliance on inorganic fertilizers to replace lost natural soil nutrients. Chemical pesticides are heavily relied upon to deal with the vulnerability of monocultures to pests. Pollution of both surface and groundwater from agricultural sources may be the single largest source of pollution in the nation. Waterways of all types suffer from sedimentation. Pollutants that were once dispersed are now concentrated in legendary amounts, because of the manure and wash water from factory animal operations.

A close look at current farm policy leads to the conclusion that it is directing farmers from sustainability, and that paying to idle land is by itself an insufficient approach.⁴² The system of support payments, which have been the heart of farm policy for so long, are distorting. Such payments focus almost exclusively on farmers who grow so-called commodity crops—animal feeds, small grains, and cotton, with dairy and sugar to a lesser degree. Such basic and environmentally significant agriculture as livestock, fruits, vegetables, [32 ELR 10550] and forage are excluded from the programs. In 2000, commodity crops accounted for only one-fifth of total farm receipts, but received the majority of government payments.⁴³ The inevitable effect is to encourage farmers to grow commodity crops, which requires the intense industrialized field cultivation described for our hypothetical Iowa farm. Because payments are based upon a farm's capacity to produce commodity crops, smaller farmers are squeezed in the process as their larger farm neighbors receive the majority of payments. Intense commodity production not only leads to externalities such as water pollution and heavy reliance on chemicals, it almost insists on resulting crop surpluses and low prices. Farmers with grasslands, forage, or fields dedicated to other non-commodity production, feel intense pressure to plow fields and produce commodities in order to come within the safe shelter of government financial payments.

The practice of focusing government support on commodity producers is a direct agent for driving small, family, or alternative farms out of business.⁴⁴ Most government aid flows to only a few farmers, those with the largest farms. Sixty-four percent of farmers receive no farm payments at all.⁴⁵ Of those who do receive money, the top 10% collected, from 1996 to 1998, on average $ 96,000, while the bottom half collected on average $ 1,200.⁴⁶ One example of the possible distorting effects of this policy is provided in a recent report:

The narrow focus of traditional farm programs on large-scale production of a small number of crops encourages row crops at the expense of more environmentally beneficial fields of grass. Grass provides far more wildlife habitat, triggers far less soil erosion, and uses far less fertilizer and pesticides than do cotton and grain fields. Most of the country's corn and soybeans, and much of the wheat, is produced to feed beef and dairy cows, hogs, and chickens living in concentrated feedlots. Alternatively, these animals could gain more of their weight by eating hay or grazing in pastures, thereby eliminating the need to put as much land into crop production. Of the 460 million acres classified by the U.S. Department of Agriculture (USDA) as potential cropland, roughly 120 to 130 million acres are actually used from year to year to grow grass for haying or pasture, and tens of millions more could be planted in grass as part of paid conservation programs. Although most grain and cotton land would still be cropped if government programs disappeared, government programs that reward only crops probably shift millions of acres of grasslands into cropland—perhaps more than 30 million acres according to some economists.⁴⁷

This example can be applied to a broad range of alternative agronomic and marketing approaches to agriculture. Experimentation and diversification are discouraged and farmers are herded to a form of production that makes them economically vulnerable and which is most threatening to the environment.

If farm policy has failed in its professed goal of encouraging small farms and diversifying production,⁴⁸ it is equally deficient in arresting water pollution from agricultural sources. Soil erosion and water quality are, of course, linked. Soil that erodes contributes sediment to the receiving streams along with whatever nutrients and chemicals are found in farm fields, and this has been a policy concern since Dust Bowl days. Between 1982 and 1992, estimated soil erosion on land in the United States dropped by about 30%,⁴⁹ but nearly all of this gain is attributed to the CRP, with a lesser role played by the growing use of conservation tillage.⁵⁰ Of fields remaining in production, however, the soil erosion rates remain troubling. In 1992, approximately 35% of all cropland was eroding at a rate higher than that considered by soil scientists to be consistent with a goal of continued soil productivity.⁵¹

Soil erosion rates are important because they are a measure of agriculture's ability to remain productive, and also because they are the major point of origin of polluted runoff into streams, wetlands, and lakes:

Nearly 88% of the rain and snow that falls on the United States each year falls on private land before it flows into our reservoirs, drinking water faucets, and coastal nursery grounds for fish. This land can either cleanse or pollute this water before it flows into streams or ground water supplies. Because most of this precipitation falls on farmland, farm practices have a great impact on water quality.

Many farmers already implement some practices to keep sediment, fertilizers, and pesticides from running off their farms and into rivers and streams. But because farming occupies so much of the land, and frequently relies heavily on chemicals, it is not surprising that state reports to the Environmental Protection Agency list agricultural runoff as the most prevalent source of water quality problems. As a whole, state water monitoring data indicate that one-third of river miles, 45% of lakes, and 44% of bays violate water quality standards.⁵²

Federal policy on water pollution from agriculture draws in the Clean Water Act (CWA),⁵³ which was adopted in 1972 and imposes a comprehensive regulatory regime on nearly every sector of the national economy, with the important exception of agricultural production.⁵⁴ That Congress intended a broad exemption for agriculture cannot be doubted; it hoped that agriculture would solve the problem voluntarily—meaning [32 ELR 10551] by that the use of management practices familiar to traditional conservation.⁵⁵ That this approach has proved to be a failure is supported by ample data, which confirms that despite the immense federal investment, agriculture fails to arrest polluted runoff. Insofar as water quality is concerned, agriculture's performance can be assayed readily at the water's edge.

While sources of pollution in agriculture are numerous, three demand specific mention: wetlands and land drainage, irrigation runoff, and factory livestock production.

Wetlands and Land Drainage

Wetland destruction is the purpose of agricultural field drainage and, as already observed, was once subsidized by the United States in a program which, cumulatively, is comparable in scope to the federal reclamation program for irrigation. The dams, ditches, pipes, stream channels, culverts, and outlets created with federal money remain in place today and serve as the principal avenues by which water from farm fields are gathered and cast into streams, wetlands, and lakes. But for this vast system of federally subsidized engineering, the waters would be retained in the soil, and those that migrate eventually to streams would be first filtered and cleaned by natural processes.

Several problems emerge. First, this system of carriage will not disappear: the damaging infrastructure is in place. If polluted runoff from agricultural land is to be reduced, some means of treating this vast pollution must be implemented, and, to date, the discussion has not begun. Second, the long history of subsidized land drainage created an enduring culture among farmers that views land drainage as praiseworthy conservation. Third, land drainage is, in some part, an inevitable result of a sustained period of low commodity prices. One of the few means by which a farmer can increase revenue is by growing more low-value crops, and land drainage is a direct means to this end.⁵⁶

The hope was that the worst of the land drainage abuses by commodity farmers would end with enactment of Swampbuster in 1985,⁵⁷ and some statistics support this.⁵⁸ In those areas of farm country where commodity production prevails, however, wetland drainage remains a favorite outdoor sport. Drainage contractors are busier than ever and any casual drive by automobile will lead to encounters with the ubiquitous yellow machines that are designed especially to bury drainage pipes beneath farm fields. The explanation of why this condition exists in the shadow of an apparently clear prohibition is that, at ground level, the administrative process of determining what is and what is not a legal "wetland" for purposes of Swampbuster has led to an arcane web of technical interpretations which, in their net effect, authorize the destruction of endless thousands of acres of wetland—all for the purpose of producing commodities.⁵⁹ The result is not only a direct loss of the wetland resource, but also the loss of associated wetland values such as flood control habitat, and the permanent acceleration of polluted agricultural runoff.

Irrigation Runoff

A second important type of agricultural runoff is from irrigated lands. Just as with subsurface drainage in dryland agriculture, irrigated agriculture is dependent on carefully planned drainage schemes, the purpose of which are to remove excess water and reduce salinity. Excess water may induce high water tables which, if saline, contribute to the salination of soils. This is not a problem in humid areas where salt-free rain and snow are the water source, but in the arid West, where soils naturallyreceive just a few inches of rain, the addition of imported water presents the salt risk. The key to salinity control is a net downward movement of soil water through the root zone. To achieve this, subsurface and surface drainage systems are necessary, enabling the introduction of enough water to leach the salt from the soil; this leaching water must be drained away or the soil will be waterlogged, and the water table will rise.⁶⁰ This drainage water can be high in the salt content naturally found in soils. Any material added to the field, such as fertilizer or pesticides, may also be contained in this drainage water.⁶¹

This causes a severe and rapid deterioration of the water quality. As these basins gather the irrigation drainage waters, evaporation causes the levels of the dissolved materials in the water to increase. In the arid western states, this process is accelerated further, due to high levels of soluble minerals in the soil.⁶²

It is no surprise, then, that in the western states, irrigated cropland accounts for 89% of quality-impaired river mileage, and irrigated agriculture accounts for more than 40% of the pollution in the impaired lakes.⁶³ Irrigation return flows are the most common source of pollution in national wildlife refuges.⁶⁴

Factory Livestock Production

The third element of importance is the impact on water quality of the conversion of animal agriculture from farm and field to enclosed factory. As noted earlier, conversion of poultry and hog production to factory methods is nearly complete, dairy is completing the change, and the expectation is that cattle feeding will move indoors soon. The consequence for water quality is simply said—manure that was once spread somewhat harmlessly across farm fields is now concentrated in startling amounts; and to make it worse, is mixed with quantities of process water used in facility maintenance.

Descriptions of the concentrated animal feeding operation (CAFO) phenomenon are found elsewhere and need not be recited at great length; the impacts on water quality are everywhere agreed upon. The U.S. Environmental Protection [32 ELR 10552] Agency observes that hog, chicken, and cattle waste has polluted 35,000 miles of rivers in 22 states and contaminated groundwater in 17 states.⁶⁵

What is noteworthy about each of these three sources of polluted runoff is that they are institutional in the sense that they are the end result of organized, engineered, and heavily capitalized infrastructure. The vast regions of agricultural production that rely on this infrastructure do so with the expectation that they are free to continue, largely untouched by regulatory oversight; the costs of pollution are fully externalized.

That all of these would be considerably worse were it not for the federal investment in conservation may be assumed, yet the conclusion must be that the environmental costs of agricultural production have not been internalized, and that the polluter-pays principle is not applied to the largest segments of agricultural production.

Agenda 21's Provisions Regarding Agriculture and Rural Development

At the heart of Agenda 21's provisions regarding sustainability in agriculture⁶⁶ is the numbing projection of population growth around the world.⁶⁷ As stated in Paragraph 14.1:

By the year 2025, 83[%] of the expected global population of 8.5 billion will be living in developing countries. Yet the capacity of available resources and technologies to satisfy the demands of this growing population for food and other agricultural commodities remain uncertain. Agriculture has to meet this challenge, mainly by increasing production on land already in use and by avoiding further encroachment on land that is only marginally suitable for cultivation.⁶⁸

Although many of the specific proposals found in Chapter 14 are most relevant to developing countries, the overall points of emphasis are: (1) increase food production in a sustainable way; (2) enhance food security; (3) implement an intelligent system of land use allocation; and (4) accomplish these three while also developing the human resource.⁶⁹ Even these points of emphasis are, however, too general to serve as a useful guide, and attempts at further definition are required.

Chapter 14's admonitions are laden with internal conflict. The basic action called for is that "agriculture needs to be intensified to meet future demands for commodities, . . . ."⁷⁰ Whereas a close look at agriculture in the United States demonstrates that its core weakness is the grinding intensification of production forced upon its producers by a globalized market. Principle 6 of the Rio Declaration⁷¹ extols the value of comparative advantage, while it is that economic principle that drives hog producers in the United States to ever-larger confined feeding operations. Ultimately, the issue is driven by population. Is sustainable agriculture about meeting the basic nutrition needs of a population that grows at a staggering rate, or is it protection of the working ecosystem in which people reside, and crops and animals are raised? Are these goals reconcilable, even in theory, in the face of population demands, or is the reality one of ever more intensive production?

If the reality is not an ever more intensive agricultural production system, does the Rio Declaration provide guidance that will help us achieve this thing called "sustainability" in the face of an ever-enlarging set of users? When we read in Principle 1 of the Rio Declaration that humans are "entitled to a healthy and productive life in harmony with nature," it is easy to observe that a prerequisite is a well-fed population, but will human life ever be "in harmony with nature" when the food supply is provided by an industrialized agriculture that constantly taxes the limits of the world's ecosystems? The principle seems, correctly, to recognize that a system that simply delivers a minimum acceptable food supply is not, in itself, a system based upon "sustainable development"; rather, that system must deliver the food supply "in harmony with nature." Thus, from the apparent internal inconsistencies of the Rio Declaration documents emerges a recognition that what we seek is something more than calories. A system of sustainable development is one that achieves a balance between human needs for "healthy and productive" lives, and the need for maintenance of the natural systems in which those lives must be lived.

The chasm between the need to feed a vast population and the desire to develop sustainable agricultural systems is not addressed in any specific way by the Rio Declaration, perhaps because the drafters were themselves daunted by the prospects. Nonetheless, two mediating but highly qualified and aspirational principles were included that begin, at least, to encourage pursuit of balance.

The polluter-pays principle is articulated in Principle 16 of the Rio Declaration, and the precautionary principle is stated in Principle 15.⁷² The latter principle recognizes that scientific certainty often comes too late to allow for effective policy responses to preventing potential environmental threats, and is intended to place the burden of scientific proof on those who want to sponsor an activity. The principle provides little guidance on what actions a government ought to take but does push the question of when action ought to be taken. The two principles, taken together, do bear on the question of balance, however, suggesting two practical "first steps" that can be taken.

If we read the Rio Declaration documents as a search for this balance between reliable food production and healthy natural systems, inconsistencies are muted and a search for a workable definition begins. In the section that follows, an attempt is made to define sustainability for American agriculture, and that definition is premised upon the search for the balance that is encouraged by the Rio Declaration.

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A General Definition of Sustainability for American Agriculture

Agriculture must be internally sustainable, externally sustainable, and also serve as a resource that is available to support other sectors of the economy and society. A system of agriculture that pays heed to each of these three areas is likely to be able to meet the needs of the present without compromising the ability of future generations to meet their own needs.

Internal Sustainability

For agriculture to be internally sustainable it must preserve its resource base, avoid pollution, salinization, or other degradation of the soil and water, and be able to respond to plant and animal disease, pests, and periodic climate variation as well as changing market conditions. Internally sustainable agriculture is able to renew its communities, maintain an infrastructure, protect its land and water from the demands of nonagriculture uses, and retains in agriculture those who possess the skills to be the next generation of farmers. In general, an internally sustainable agriculture should be able to achieve this without dependence on direct financial support from government.

Although American agriculture exhibits many of the elements of internal sustainability, there are concerns. In the case of irrigated agriculture a principal internal threat is salinization of soils, and although this problem persists, the U.S. Bureau of Reclamation maintains not only salinity research programs but active case-by-case remediation. In the case of dryland agriculture, soil protection is also an issue. The federal government maintains an infrastructure—the NRCS—the principal function of which is to perform research on soil protection and make that knowledge available to agricultural landowners. In addition, cross-compliance requirements mandate that commodity farmers who plow highly erodible land without first implementing approved conservation plans will be denied some federal financial support. Many of the lands now idled in the CRP are in that program because of their vulnerability to erosion. In addition to these governmental measures, soil protection has unquestionably been advanced by private sector innovation such as conservation tillage, innovation in cultivation techniques, and less intrusive chemicals.

Another important element of internal sustainability is the capacity to respond to plant and animal diseases and pests of all kinds. As with soil, there is in this case a vast and competent federal infrastructure, which is bolstered by state-financial programs. Research stations are maintained in every agricultural area, and, also as in the case of soil, there is in every agricultural county federally financed outreach (extension) offices that are capable of getting new information to farmers rapidly. This official system is bolstered by a private sector that also supports a large research infrastructure, for the commercial rewards for those who provide the adaptive seed, chemical, or veterinary medicine are potentially large.

Also providing internal sustainability are the so-called land grant colleges, which exist in every state and not only support primary research, but train students in agricultural skills. These are, perhaps, the highlight of agriculture's potential to remain sustainable. They are specific to region or type of agriculture. Thus, students at Colorado State University, for example, study grassland management, while those at Iowa State University study swine science. While these programs, which receive substantial support from the federal government, are sometimes controversial, they provide a deep and capable infrastructure. These colleges also serve as an important resource for agriculture worldwide, and it is no accident that state "aggie" schools now enroll students from every nation. The capacity for innovation is in place.

State and federal laws are also in place that provide the authority for governments to respond vigorously to disease or infestation. Whether it is to quarantine or condemn herds or flocks, stop the flow of diseased animals in commerce, or maintain disease emergency response plans, the supporting legal system is in place.⁷³

Thus we can say that as to the traditional threats of soil, plant, and livestock, American agriculture has in place all of the tools of internal sustainability. In other areas, however, there may be reason for concern.

An essential feature of any sustainable agriculture is a commercial community infrastructure that supports agriculture. Farms and ranches do not function in isolation. They need to be serviced efficiently by transportation, markets, suppliers, veterinarians, equipment and parts dealers, stockyards, packing houses, and any number of other essential services. For these things to exist in an area, there must be an economically viable "critical mass" of agricultural producers available. When an agricultural area is fragmented by nonagriculture uses, or when many farmers cease to participate in some area of production, such as livestock, then the support services begin to leave and this raises the cost of production for those who remain. Thus, to take one example, when hog production changes to confined, factory-like operations, an independent hog producer, no matter how knowledgeable, will find that the competitive markets, feed and equipment suppliers, and packers are either too far away, not available at all, or unwilling to do business with small producers. In part, this is a problem associated with the invasion by non-farm development and, in another part, it is the result of consolidation and concentration, but the result remains the same. Elsewhere in this paper the problem of conversion of land and water to non-farm use is discussed. Here it suffices to conclude what must be obvious: an internally sustainable agriculture must be protected, either by its own initiative or by imposition from outside. This protection is lacking in American agriculture, although there is no shortage of experimentation with innovative possibilities.⁷⁴ A growing population and a high-value commercial and industrial system will always be able to outbid agriculture for its fundamental resources. This factor, which exists nearly everywhere in the world, remains the consistent threat to internal sustainability.

External Sustainability

To be externally sustainable, agriculture must not impose burdensome externalities on the nonagricultural society, nor on the surrounding natural resources; it must not have an impact [32 ELR 10554] on surrounding environments beyond their tolerance and ability to respond. We have already visited some of agriculture's more visible externalities, but the drainage of wetlands continues to provide a useful example. Wetlands are among the most biologically diverse and productive habitats on the planet. They are the major natural mechanism of flood control in a world where floods create disaster. Wetlands are remarkable water purification devices, able to absorb and break down natural and artificial toxins and pollution. For agriculture to impose on society the costs associated with wetland drainage is to defy any notion of sustainability.

Externally sustainable agriculture must not impose adverse economic impacts on the larger community. A simple example may be midwestern fertilizer pollution, whichis reported to have had significant negative effects on economically important fisheries. The externalization of a cost that must be born by another sector of the economy or society is evidence of unsustainable production.

Another example of an unacceptable externality produced by American agriculture is that of polluted runoff from fields and CAFOs, described earlier.⁷⁵ It is particularly noteworthy because it represents a serious breach of the polluter-pays principle. Although in most respects the federal CWA is a comprehensive regulatory statute, it exempts runoff from farm fields. This wholesale exemption has led to the predictable result that agriculture is now the leading source of water pollution. The cost of the pollution is being born by other sections of the economy and society.

Yet another externality of American agriculture is the economic and social disruption caused by factory methods of dairy and livestock production. Odors; water pollution; air pollution; low wages; unhealthy employment; and loss of large numbers of small, independent hog producers are all costs born by the community rather than by the agricultural producer. As land holdings are consolidated, and as other pieces of production agriculture are converted to industrial-style production, these externalities will become more common. In fact, the ability to externalize so many costs may be an incentive for concentration and industrialization in agriculture.

Responsive Sustainability

Last, to be sustainable, agriculture must be sufficiently dynamic and flexible that it can respond to crises (unsustainability) in other sectors of the economy. We have already observed that conservation in irrigated agriculture can help meet urban water shortages in the American West. There is discussion of agriculture's ability to participate in global warming remedies by sequestering carbon, relieving pressures on forests by growing fibrous hemp, or easing petroleum demand by providing biomass for fuel. No system of production should be viewed in isolation, and a sustainable agriculture's capacity must include its ability to respond to needs as yet not fully defined.

Similarly, to be sustainable, agriculture must be capable of generating surplus production sufficient to help respond to shortages that may arise elsewhere in the world. This internal response capacity provides the essential link between agriculture in one nation or region, and world agriculture. A sustainable agriculture must be so structured that it serves as a building block to sustainable agriculture elsewhere.

This three-part definition can provide a practical goal for agriculture in a developing country, and serve as a sometimes severe reminder to agriculture in developed countries.

A Particular Concern: The Possible Demise of Agriculture's Preferred Access to Resources

Water

Until fairly recently there was an assumption, either implicit, or made explicit in law, that agriculture held the preferred position in the competition over productive resources. This was particularly visible in the case of irrigation water in the West. When irrigation projects were built, the West did not invite human occupancy in any great numbers. Today, the West "no longer seems to limit human occupancy,"⁷⁶ and irrigator's find their land and water threatened by urban and suburban demands. Recreationists lay claim to flows which, when previously diminished by summer irrigation, were hardly noticed. Efforts to protect threatened and endangered species, nearly all of which reside in streams that also serve as the source for irrigation projects, join the kayakers, swimmers, and boaters in demanding that diversions be restricted. Competition for the resource raises the question whether western irrigation can ever be sustainable so long as it is subjected to this unbalanced competition for essential water. How do we share what is a highly variable but ultimately fixed amount of water with what seems to be a constantly enlarging set of users?⁷⁷ With both agricultural water and cropland we encounter the irony, visible worldwide, that the growing populations that agriculture and forestry are relied upon to sustain overrun and consume the very land and water most essential for the purpose.

For western irrigation there may be a partial solution from within the districts. The age of facilities combine with wasteful water systems to create opportunity for water conservation without reducing the amount of land in production, and there is ample evidence that irrigators are, district by district, moving in that direction.⁷⁸ More changes are essential and in many cases provide economic advantage to irrigators. Nonetheless, the opportunities for water conservation are finite, whereas growth in competing demand seems infinite. Moreover, in a free market for resources, the competing demands must be assumed to have the advantage. In this situation, we find the challenge of sustainability.⁷⁹

Farmland

In a more dispersed way, the competition for the nation's farmland provides an example similar to that of irrigation water—competition for the essential resources of agricultural production. It is, of course, necessary that undeveloped land will be developed as population growth and changing economies demand additional space. It is also certain that most of the land converted will have been farmland at one [32 ELR 10555] time or another. This constant dynamic is an issue for agriculture when the land being converted contains prime topsoil, and when the pattern of conversion contributes to a fragmentation of a viable agricultural economy and society.

A statistical example suggests the issue. From 1992 to 1997, just over 11.2 million acres of land were converted to urban uses. One in four of these acres, or about 3.2 million acres, was prime farmland, and this translates into an annual prime farmland rate of 645,000 acres, or about two-tenths of the total prime farmland in the United States.⁸⁰ As in the case of irrigation water, the competing demand for farmland, fueled by population growth and demand for high-value development, has the clear upper hand. While state and local governments, particularly on the coasts, experiment regularly with farmland protection schemes, and creative, energetic nongovernmental organizations push hard for a farmland protection agenda, the relentless march of development continues.

A Particular Concern: Uncertainty

Attempts to evaluate the sustainability of the nation's agriculture compels us to consider the element of uncertainty. There are indeed powerful forces at work that can influence agricultural productivity for better or for worse. For the most part, these defy reliable predictions, although there is rarely a shortage of cocksure commentators on both sides.

One example of uncertainty may be the role of GMOs, including transgenic organisms. As we noted in our description of a typical Iowa farm, the use of GMO seeds, especially for feed grains and oilseed, has, within just a few years, become commonplace, and there is no reason to believe that this trend will change.⁸¹ On one level, there do not appear to be reasons for concern; we know of no harm that has resulted. From the farmer's point of view this is simply a technological innovation that will reduce the numbers of herbicide treatments or mechanical tillage passes through farm fields. In other words, just another capital-intensive change in production methods. On the other hand, there are those who insistently ask: "What if they are wrong?"⁸² Are there unseen agronomic or ecological consequences? The answer is that we don't know. GMOs, both in plants and later in livestock, may serve to make agriculture more sustainably productive, or give it the needed flexibility with which to respond to the pressures placed on it by population growth, climate change, or new pests. Or, we may be wrong.

Perhaps the clearest example of uncertainty facing agriculture is that of climate change, and again, forecasts can be for the better or for the worse. More rain—less rain; more pests—fewer pests; larger cultivable areas—fewer cultivable areas; there is only uncertainty.

A central difficulty with climate change is how little we know about it. We do not know how or when climate will change, though most experts now agree that global average temperatures will increase 1.5 to 4.5 degrees Celsius (2.4 to 7.2 degrees Fahrenheit) in the next 50 to 100 years. We do not know pace or the nature of such changes. Both are critically important. If climate change occurs slowly and is limited to changes in average temperature and precipitation, then adaptation in the agricultural sector may not be a major problem. But, if climate changes in some surprising and dramatic way, disaster could ensue. Further, if the average level and variability of precipitation increases, then adaptation will be significantly more taxing. These factors combine to present a potentially large threat to agricultural sustainability.⁸³

The uncertainty of climate change is buffered by the diverse and extensive character of agriculture in the UnitedStates. Similarly, climate change cannot be interpreted only on the lines of national political boundary. Changes may enhance the productivity of world agriculture or reduce it. Just as with GMO production, we just don't know.

A third example of uncertainty is the effect of specialization in the use of genetic stock. Despite the vast scope of American agriculture, within particular crops or livestock category, we operate a system which is very close to monocultural. The risk is that we may lose the basic genetic stock from which we will derive solutions to future pests, diseases, or human dilemmas. The failure to maintain a diverse germplasm base creates needless uncertainty, a vulnerabiltiy that can be reduced by preservation of the existing base.⁸⁴ In Agenda 21, Paragraph 14.54, states: "Plant genetic resources for agriculture are an essential resource to meet future needs for food."⁸⁵

Lastly, world markets themselves create a nearly uncontrollable uncertainty. It now appears that the economic policy of the United States may limit the ability and desire in federal government to protect domestic agriculture from the most disruptive effects of world markets. Although this Article is not the place in which to debate economic policy, a fair conclusion is that most of the elements of sustainability found in American agriculture today can be traced to the fact that the federal government has in the past interceded to insulate farmers from the most disruptive effects of market extremes, thus leaving the basic capacity and infrastructure intact. Today, such acts are sometimes characterized as protectionist.⁸⁶ Government involvement in agriculture has also provided the only meaningful leverage through which a conservationist policy has been encouraged. Experience leaves little doubt that without government intervention in agriculture, many conservation practices will be abandoned. Whatever the economic theory, current economic and trade policy has injected a new element of uncertainty.

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Specific Recommendations—The Near Term

Stabilize Irrigation Agriculture

A great resource of American agriculture is its standing investment in western irrigation. If this huge system is modernized and completed it has the clear potential to provide a continuing supply of food. By regularly investing in distribution works that reflect the latest developments in water conservation, irrigation can be continued while simultaneously releasing "conserved" water to other uses, such as municipal and ecosystem services.

Equally important is a continuing resolve in the struggle with salinity in irrigation soils. This struggle has been waged, of course, since ancient times in the Fertile Crescent, but it is in the United States that we may have the knowledge and resources with which to prevail.⁸⁷ There is a federal agency in place that deals exclusively with the problem, contemporary irrigation organizations have achieved an unparalleled sophistication, and research institutions are established. When viewed across history, few achievements would be a more likely candidate to earn the sustainable label as stabilization of salinity in irrigation.

Finally, irrigation projects should be "completed" in the sense that they must deal with drainage—the end result of irrigation. The polluted irrigation sinks, many of which serve double-duty as wildlife refuges, must be either cleaned or eliminated. It is likely that the problem can be dealt with at the front-end of irrigation, through water conservation, but this external impact of irrigation must be addressed.

Renew the Campaign to Reduce Soil Erosion

On the issue of topsoil erosion due to the action of air and water, policy in the United States has been and remains conflicted. On the one hand billions of dollars have been invested in farms whose owners undertake conservation practices voluntarily while, on the other hand, the policy has been to continue price and income support for farmers whose land management practices lead to erosion. The tragic aspect in this tale is that we know what to do. The tillage and agronomy practices that retard and control erosion are well understood in modern agriculture, and need only to be broadly applied. Regrettably, as landholdings are consolidated and smaller numbers of farmers attempt to farm larger acreages, there is a strong economic compulsion to abandon or ignore prudent topsoil protection.

The weak point in the erosion control effort has been its dependence on voluntary action. Thus, those who are conservation-minded from the outset tend to participate while those with erosion-prone land and a disinclination toward conservation remain untouched. The latter group has the clear majority.

Suggestions of a federal mandate in this area have been viewed in traditional politics as "federal land use planning," and are avoided by Congress. It may be possible to imagine, however, a state-federal soil erosion control campaign which, while based in voluntarism, creates an atmosphere in which unsustainable practices are defined as less acceptable than they are today. In much of contemporary agriculture, soil-eroding practices remain a norm, accepted as part of the way farming is done.

A National Campaign to Protect Our Prime Agricultural Land From Encroaching Development

Here again are internal conflicts. Agriculture is asked to provide for an ever-increasing population while that population heedlessly spreads across the land that is essential for food production. This is a circle that must be broken.

There is ample space in which to accommodate growth, but not all space is equal. What must be protected primarily are the most productive tracts of topsoil. Usually referred to by soil scientists as Type 1 and Type 2 soils, and found in every region of the country, these soils are at the heart of our ability to produce on a sustainable basis. The nation must search for a method by which we can create a presumption against conversion of significant tracts of prime topsoil, just as we naturally presume against development of parks, historical sites, and wilderness areas.

Secondarily, we must protect cohesive, economically efficient, communities of agricultural producers. Nonagricultural uses can balkanize farm areas to a point where the infrastructure is ineffective or inefficient, or the community norms and attitudes no longer support agricultural practices.

No single approach to this issue has proved workable. Market-based incentives such as federal tax recognition of conservation have proved to be remarkably vital, although standing alone they are unlikely to provide a thorough resolution. Many state and local farmland protection programs have provided both innovation and energy to the issue, and should be encouraged. The tentative and experimental federal Farmland Protection Program⁸⁸ brings the benefit of support for local initiatives, financial support, as well as a platform from which to base a national campaign of awareness and action. The problem has been that federal agencies have been shy about advancing the idea. Congress must make the Farmland Protection Program a vigorous centerpiece of the national farm policy.

Reengineer Larger Drainage Systems in Order to Achieve Systematic Control of Polluted Runoff

Although polluted runoff enters the nation's water through small works on individual farms, the largest amounts are gathered by complex systems, some legally organized under state laws and some not, which gather great amounts of polluted drainage water from farms and carry it to natural watercourses. Whether characterized as drains, channels, or straightened waterways, the effect is the same. In addition, the majority of these systems were encouraged and financed by the federal government as part of the federal farm policy. As the source of the problem, the federal government should finance the reengineering of these systems so that control is achieved. Such an approach will bring an economy of scale to control of polluted runoff, and will also mitigate the effect of the argument that farmers, being "price takers" in the marketplace, are unable to pass the cost of pollution control on to consumers.

Once we recognize that a considerable portion of polluted runoff from agriculture is through systems designed, promoted, [32 ELR 10557] and financed by the federal government, the polluter-pays principle stands in a new light. When a farmer's field drains into a system built by the United States, who is the polluter, and who should pay?

Protect the Germplasm

Remarkably, fewer than 20 species of food provide the bulk of the world's food supply. The trend in agricultural production is always toward monocultures and a uniform final product. A fundamental application of the precautionary principle requires that we take aggressive steps toward protecting the existing stocks of diverse germplasm. While seedbanks exist, their capacity has been questioned. Reinvigoration of this banking process is required.

Specific Recommendation—The Long Term

If the nation's agriculture is to be sustainable in the long term the science of ecology—the study of ecosystems—must be fully integrated into agricultural research. Earlier in this Article⁸⁹ it was suggested that the Rio Declaration and Agenda 21 define what is at best a conservationist agriculture. In the face of vast population expansion, that may be all that the leaders at Rio can hope for, and even that seems optimistic. The sustainable agriculture envisioned at Rio, the conservation agriculture defined by American farm policy, and the research systems which support economic growth and change in American agriculture, avoid the issue of whether agriculture can be practiced without (finally) undermining the ecosystems in which it is practiced. Until that question is addressed seriously, the question of sustainability will remain open.

In American agricultural research, particularly in the research stations and the land-grant colleges, there is a notable absence of serious and continuing collaboration with ecologists, and agricultural researchers "have not pursued biodiversity preservation aggressively," and ecological researchers "have remained focused on non-agricultural ecosystems."⁹⁰ In other words, we don't know whether an environmental or ecosystem model for modern agriculture is possible, because we have not tried it.

Conclusion: Integrating Polluter-Pays and Precautionary Principles

This Article seeks to create a picture of American agriculture which can provide a practical basis for a further discussion of sustainability. Important features in this picture are: (1) an agricultural system that is diverse in climate, geography, crops, and cultural practices; (2) a long tradition in federal agricultural policy of subsidizing "conservation" practices, some of which, such as land drainage, have proven damaging to the natural hydrologic environment; (3) a history of federal investment in agricultural science, technology, and education; (4) a consistent process of consolidation and industrialization of agriculture; and (5) the emergence of an innovative private research and supply industry that provides a steady stream of capital-intensive changes in agricultural practices.

This Article also offers a rough definition of sustainable development suitable for application to a modern system of industrializing agriculture, of which the system in the United States is a leading example. In outline, that definition requires that agriculture should be internally and externally sustainable and that it also should be sufficiently responsive to needs in other sectors of the economy, as well as food shortages in other parts of the world. The Article also highlights the free-standing element of uncertainty, represented by climate change and unpredictable technology, which requires that we discount any specific application of the definition of sustainable agriculture.

Last, in order to provide a sharper focus, the Article offers a nonexclusive list of specific and, it is thought, practical suggestions that may serve to convert American agriculture to a condition that may qualify it as sustainable. An important long-term suggestion is that agricultural research and science must be broadened to fully include the ecological sciences.

Bringing the discussion full circle is the fact that the proposed definition of sustainable agriculture, and the specific suggestions, share the common theme of consistency with the precautionary and polluter-pays principles which are at the core of the Rio Declaration as well as Agenda 21.⁹¹ Principle 17 of the Rio Declaration states: "Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant impact on the environment and are subject to a decision of a competent national authority."⁹²

American agriculture policy has carefully avoided application of the polluter-pays principle. When viewed historically, this approach is, perhaps, understandable. In the past, agriculture has been seen as more sinned against than sinning when it came to the externalization of environmental costs. In addition, an earlier economy provided a basis for the argument that a vast number of small farmers were pure "price takers" in the marketplace, and thus unable to pass costs to the consumer. The picture of contemporary agriculture, however, converts these arguments into relics. Agriculture's externalization of environmental costs is now fully documented, and as a rapidly consolidating and industrializing sector of the economy it is now able to pass pollution control costs into the price of goods sold.⁹³ Internalization of environmental costs is an obligation of contemporary agriculture.

Application of the precautionary principle to American agriculture will also serve to bring it within the definition of [32 ELR 10558] sustainability offered in this Article. This principle "ensures that a substance or activity posing a threat to the environment is prevented from adversely affecting the environment, even if there is no conclusive scientific proof linking that particular substance or activity to environmental damage."⁹⁴ It requires regulatory intervention to the minimum extent of evaluating the relative costs of regulatory inactivity. Invariably this evaluation involves a balancing of social, political, cultural, and economic factors.⁹⁵ The key is irreversible damage. As this Article has highlighted, agriculture is deeply influenced, and deeply influences, important areas of uncertainty where damage, should it result, may bear the "irreversible" character. Examples may include loss of germplasm, eradication of species, global warming, and release of toxic substances.⁹⁶

Sustainability in agriculture seems to be a remote possibility for many regions of the world. In the United States, however, it appears as a feasible and practical goal, and perhaps that provides the most compelling reason for seeking to achieve it. Sustainable agriculture in the United States will assure a continued supply of food for North America while also providing reserves for export to regions of the world where population will surely defeat attempts to develop a sustainable production system.

1. Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1, 31 I.L.M. 874 (1992) [hereinafter Rio Declaration].

2. U.N. Conference on Environment and Development (UNCED), Agenda 21, U.N. Doc. A/CONF.151.26 (1992) [hereinafter UNCED].

3. NATIONAL RESEARCH COUNCIL, COMMITTEE ON THE ROLE OF ALTERNATIVE FARMING METHODS IN MODERN PRODUCTION AGRICULTURE, ALTERNATIVE AGRICULTURE (1989).

4. BURNELL HELD & MARION CLAWSON, SOIL CONSERVATION IN PERSPECTIVE 15 (1965). See also generally PERSPECTIVES ON CONSERVATION: ESSAYS ON AMERICA'S NATURAL RESOURCES (Henry Jarrett ed., 1958); FREDERICK R. STEINER, SOIL CONSERVATION IN THE UNITED STATES: POLICY AND PLANNING (1990).

5. AGRICULTURAL THOUGHT IN THE TWENTIETH CENTURY 34 (George McGovern ed., 1967).

6. HELD & CLAWSON, supra note 4, at 14.

7. Id. at 33-34.

8. Pub. L. No. 280, 41 Stat. 1063 (1920).

9. Now known as the Federal Energy Regulatory Commission.

10. Electric Consumer Protection Act of 1986, Pub. L. No. 99-495, 100 Stat. 1243 (1986). Section 3 states that in deciding whether to issue licenses, the commission "shall give equal consideration to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality." 16 U.S.C. § 797(e) (2000).

11. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

12. Prof. A. Dan Tarlock states: "I define environmentalism as an emerging philosophy or value system which posits that we living humans should assume science-based ethical stewardship obligations to conserve natural systems for ourselves as well as future generations." A. Dan Tarlock, The Future of Environmental "Rule of Law" Litigation, 17 PACE ENVTL. L. REV. 237, 238-39 (2000).

13. Agricultural Reconciliation Act of 1990, Pub. L. No. 101-508, 104 Stat. 1388.

14. LAWRENCE J. MacDONNELL, FROM RECLAMATION TO SUSTAINABILITY: WATER, AGRICULTURE, AND THE ENVIRONMENT IN THE AMERICAN WEST 232 (1999).

15. ALDO LEOPOLD, SAND COUNTY ALMANAC 201, 224-25 (1968). On this, see MEETING THE EXPECTATIONS OF THE LAND: ESSAYS IN SUSTAINABLE AGRICULTURE AND STEWARDSHIP (Wes Jackson et al. eds., 1984).

16. MEETING THE EXPECTATIONS OF THE LAND, supra note 15, at 1-2.

17. Id. at 3.

18. Id. at 196.

19. Id. at 7-8, 219.

20. John H. Davidson, Little Waters: The Relationship Between Water Pollution and Agricultural Drainage, 17 ELR 10074 (Jan. 1987), ECONOMIC RESEARCH SERV., U.S. DEPARTMENT OF AGRICULTURE, FARM DRAINAGE IN THE UNITED STATES: HISTORY, STATUS, AND PROSPECTS (1988) (Misc. Pub. No. 1455).

21. In the 1980s, just a few million acres were covered by various forms of conservation tillage. By 1997, 37% of all cropland was under some conservation tillage regime. The soil responded as soil erosion rates dropped sharply between 1982 and 1997. Despite these improvements, reports lead to a conclusion that 90% of U.S. cropland is still losing soil more quickly than it can be replenished. THE LAND STEWARDSHIP LETTER, July/Aug. 2001.

22. PIGS, PROFITS, AND RURAL COMMUNITIES 6-7 (Kendall M. Thu & E. Paul Durrenberger eds., 1998).

23. Id.

24. North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States, and the Government of the United States, Dec. 8-17, 1992, 32 I.L.M. 289, 605 (entered into force Jan. 1, 1994).

25. Michael R. Taylor, The Emerging Merger of Agricultural and Environmental Policy: Building A New Vision for the Future of American Agriculture, 20 VA. ENVTL. L.J. 169, 172-73 (2001).

26. Pub. L. No. 99-198.

27. 16 U.S.C. § 3831.

28. Id. § 3801.

29. Id.

30. Id. § 3831.

31. Food, Agriculture, Conservation, and Trade Act of 1990 (FACT), Pub. L. No. 101-624, 104 Stat. 3359.

32. Federal Agriculture Improvement and Reform Act of 1996 (FAIRA), Pub. L. No. 104-127, 110 Stat. 888.

33. 16 U.S.C. § 3801.

34. Id.

35. Id. § 3837.

36. Id. § 3841.

37. See, e.g., id. § 2001.

38. Id. § 3836a.

39. 7 U.S.C.A. §§ 4201-4209.

40. See Treas. Reg. § 1.170A-14, 26 C.F.R. § 1.170A-14 (2000).

41. Id.

42. It is assumed without discussion in the text that for the United States or any other nation to set-aside as a conservation reserve almost 40 million acres of cropland during a time of surplus is an act consistent with any practical definition of sustainability. This must be true apart from whether the motive is to deliver financial support to farmers, reduce polluted water runoff, or reserve land against future demand.

43. TIMOTHY SEARCHINGER, FOOD FOR THOUGHT. THE CASE FOR REFORMING FARM PROGRAMS TO PRESERVE THE ENVIRONMENT AND HELP FAMILY FARMERS, RANCHERS, AND FORESTERS iv (Environmental Defense 2001).

44. Id.

45. Id.

46. Id.

47. Id. at 4-5. The 1996 farm legislation was intended to address this, theoretically freeing farmers to plant as they choose. Two factors have limited any variations from the status quo. First, farmers have invested in the equipment for growing and marketing commodities, and are reluctant to change. Second, subsequent federal payments—through Loan Deficiency Payments or crop insurance—are tied directly to commodity crops production.

48. SEARCHINGER, supra note 43, at 5, states: "In the calendar year 2000, according to [the U.S. Department of Agriculture], nearly all the net income of grain and cotton producers resulted from government payments. Yet, because the government keeps paying farmers to grow surplus grains, the market never adjusts, and prolonged surpluses keep farm prices low."

49. FRONTIERS OF SUSTAINABILITY: ENVIRONMENTALLY SOUND AGRICULTURE, FORESTRY, TRANSPORTATION, AND POWER PRODUCTION 59 (World Resources Institute 1997).

50. Id.

51. Id. at 60.

52. SEARCHINGER, supra note 43, at 7.

53. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

54. John Keene, Managing Agricultural Pollution, 11 ECOLOGY L.Q. 135 (1983); John H. Davidson, Nonpoint Sources of Water Pollution, 34 S.D. L. REV. 20 (1989).

55. See Robert E. Beck, The Water Quality Approach, in 5 WATERS AND WATER RIGHTS 383, 407-15 (1998).

56. See Davidson, Little Waters, supra note 20.

57. Id.

58. FRONTIERS OF SUSTAINABILITY, supra note 49, at 69.

59. John H. Davidson & Philip P. Chandler, The Minimal Effects Exemption and the Regulation of Headwater Wetlands Under Swampbuster, With a Coda on the Theme of SWANCC, 31 ELR 11417 (Dec. 2001).

60. REPORT OF THE WESTERN WATER POLICY REVIEW COMM'N, WATER IN THE WEST: CHALLENGE FOR THE NEXT CENTURY 2-31 (1998).

61. Id.

62. Id. at 2-32.

63. Id. at 2-31.

64. Id.

65. Data from the U.S. Environmental Protection Agency gathered and reported at Global Resources Action Center for the Environment, Grace Factory Farm Project, at http://www.factoryfarm.org (last visited Jan. 18, 2001).

66. UNCED, supra note 2, ch. 14 (entitled Promoting Sustainable Agriculture and Rural Development).

67. The United Nations Population Fund forecasts that world population will reach 9.3 billion by 2050, and that 4.2 billion will be living in countries where their basic needs cannot be met. The report also says that 2 billion already lack sufficient food, and water use has increased six times over the past 70 years. U.N. Says Four Billion Will Be Living in Hunger by 2050, N.Y. TIMES, Nov. 8, 2001, at A12.

68. Id.

69. Id.

70. UNCED, supra note 2, ch. 14, P14.25.

71. Rio Declaration, supra note 1, princ. 6.

72. Id. princs. 16, 15.

73. See, e.g., 7 U.S.C. § 450.

74. KEITH G. MEYER ET AL., AGRICULTURAL LAW: CASES AND MATERIALS 779-85, 839-910 (1985).

75. See supra notes 21-22 and accompanying text.

76. MacDONNELL, supra note 14, at 4.

77. Id. at 7-8.

78. Id.

79. Id.

80. LAWRENCE W. LIBBY & MICHAEL R. DICKS, RURAL-URBAN INTERFACE ISSUES: FARMLAND PROTECTION (2000).

81. "Agricultural biotechnology is still in the first generation of genetically engineered products. However, innovations by way of biotechnology already appear to be on their way to becoming one of the most rapidly adopted types of technology in agricultural history." Evert Van der Sluis, Biotechnology—Some Implications of Its Use in Agriculture, 423 ECONOMICS COMMENTATOR (2001).

82. In general, see ALAN McHUGHEN, PANDORA'S PICNIC BASKET: THE POTENTIAL AND HAZARDS OF GENETICALLY MODIFIED FOODS (2000) and JANE RISSLER & MARGARET MELLON, THE ECOLOGICAL RISKS OF ENGINEERED CROPS (2001).

83. FRONTIERS OF SUSTAINABILITY, supra note 49, at 81. See U.S. GLOBAL CHANGE RESEARCH PROGRAM, CLIMATE CHANGE IMPACTS ON THE UNITED STATES (2000).

84. Id. The authors there point out that although humans have used as many as 5,000 species as food, only 150 have become commercially important and fewer than 20 provide the bulk of the world's food supply.

85. UNCED, supra note 2, P14.54.

86. Elizabeth Becker, Treaties May Curb Farmers' Subsidies, N.Y. TIMES, Aug. 31, 2001, at Al.

87. SANDRA POSTEL, PILLAR OF SAND: CAN THE IRRIGATION MIRACLE LAST? (1999).

88. 7 U.S.C. § 4201-4209.

89. See supra notes 11 and 12 and accompanying text.

90. David Tilman et al., Forecasting Agriculturally Driven Global Environmental Change, 292 SCIENCE 281 (2001).

91. Rio Declaration, supra note 1, princ. 15. Principle 15 states: "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." Id. Principle 16 further states: "National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment." Id.

92. Rio Declaration, supra note 1, princ. 17.

93. See generally John Moffet & Francis Bregha, The Role of Law Reform in the Promotion of Sustainable Development, 6 J. ENVTL. L. & PRAC. 1 (1996); Ben Boer, Institutionalizing Ecologically Sustainable Development: The Roles of National, State, and Local Governments in Translating Grand Strategy Into Action, 31 WILLAMETTE L. REV. 307 (1995).

94. J. Cameron & J. Abouchar, The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment, 14 B.C. INT'L & COMP. L. REV. 1 (1991), quoted in LAKSHMAN D. GURUSWAMY ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND WORLD ORDER 483 (2d ed. 1999).

95. Id.

96. See, for discussion purposes, Marc Victor, Precaution or Protectionism? The Precautionary Principle, Genetically Modified Organisms, and Allowing Unfounded Fear to Undermine Free Trade, 14 TRANSNAT'L LAW. 295 (2001).

32 ELR 10543 | Environmental Law Reporter | copyright © 2002 | All rights reserved