Essay on Agriculture and New Laws in the United States

Since the founding of our country, the back bone of the U.S. has always been agriculture in one form or another. As technology and mechanization became more advanced, American agriculture has flourished, so much so, that the American farmer or rancher not only feeds, clothes and shelters America but the world as well.  However, as agricultural outputs continue to increase and improve our quality of life, there are those entities that are making it harder and harder each year for American agriculturists to make a living.  Each year, the increase in laws, regulations and new guidelines for all areas of agriculture are making it more difficult for agricultural producers to make a profit as compliance costs and new regulatory guidelines take away more and more profits each year.

Today, farmers and ranchers are faced with a whirlwind of requirements. From the Clean Water Act, to the Endangered Species Act, the Federal Insecticide, Fungicide, and the Rodenticide Act, Food Safety Modernization Act, immigration and labor regulations, the interpretation of the Federal Land Policy and Management Act, and that’s just naming a few. I think it’s safe to say that the Environmental Protection Agency (EPA) is quite literally piling regulation on top of regulation, and guidance on top of guidance, to the point in where they are erecting barriers to economic growth.

As the number of federal regulations increase each year it is concerning that many regulations are often based on unsound science and data, and agencies develop these regulations that extend beyond the scope of the underlying statute. For regulated entities, such as farmers and ranchers, these unsound regulations impose major compliance costs. They discourage a parties from taking an action due to fear of it being out of compliance or because the regulation prohibits the action or makes it cost prohibitive. Regulatory costs are borne not merely by those parties who are regulated, but also by third parties such as consumers who may have to pay higher prices for goods and services.

There’s also the fact that stakeholders can disagree in the statue, and the affected parties can also disagree on the science or data behind the law. Thus. leaving everything open to interpretation. For example in both 2001 and 2006, the Supreme Court handed down rulings that narrowed the definition of protected waters, but used confusing language. The result of this is people giving their opinion of the meaning of “protected waters”. Now farmers and ranchers were left uncertain on what these “protected waters” were. Farmers and ranchers fear that the EPA is using vague language to expand their power in regulating to change the way things are currently operated.

On top of that the EPA says that in order to propose a regulation they must post the new regulations online and look at the comments left by the public and use the comments to determine the finality of the law or regulation. But, if the EPA is really looking at the public’s comments, then why are ending up with so many issues?

Too often these regulations are the result of court decisions. Therefore, they aren’t passed through the Code of Federal Regulations or the rule making process. No matter how they are established, the result is often controversial. 

Some of these unnecessary regulations have failed or overstepped the boundary line. For example, in 1973, the Endangered Species Act (ESA) was enacted into law to promote the conservation of species. Unfortunately, the law has failed and, in so doing, has trampled on property rights.There are over 1,500 domestic species and 650 foreign species on the endangered species list. Only 33 species have been “recovered” and delisted from the endangered species list in the more than 40 years of the ESA. For as little success as the ESA has had, it has also had a negative impact on the rights of private property owners.

Society has determined that protecting species is an important objective. Therefore, the costs of protecting species should be paid by society as a whole, not by individual property owners. Property owners need to be compensated for restrictions placed on the use of their land, as they have not created any harm that affects anyone else beyond their boundaries; there is no “polluter-pay” issue. Instead, the federal government expects property owners, who are merely using their land without harming others, to change how they use their property.

The Animal Welfare Act (AWA) establishes basic standards of care for many animals but fails to provide any protection for at least 90% of all animals used: mice, rats and birds. At the same time, state animal protection laws—specifically anti-cruelty statutes—exempt from coverage those animals used for scientific and/or educational purposes.

It is a common misconception that the AWA protects animals against abuse and harm in the laboratory or in other areas of commerce. This is not true. The AWA regulates the use of animals in research and outlines standards for their care; it does not protect animals from harm during the course of research, nor does it prohibit their use. These are the major reasons that NAVS did not support the adoption of the legislation to create the AWA when it was first introduced—because we felt that it was not a true animal protection law. When the AWA was passed in 1966, it was in response to a growing concern for dogs and cats, primarily lost and stolen pets, used in research. 

Regulations, which are agency actions that explain how the mandates in a law will be carried out, were established for the transportation, purchase, sale, housing, care, handling and treatment of animals used for research, testing or education. In 1970, the definition of “animals” covered by these rules was expanded to include “warm-blooded animals generally used for research, testing, experimentation or exhibition,” though it excluded animals used for agriculture. However, the regulations that were adopted to carry out this amendment specifically excluded mice, rats and birds for coverage under the AWA.

When a federal court declared these regulations were invalid, Congress immediately passed a new law that specifically excluded mice, rats and birds from the protections of the AWA. Instead of changing the regulations to comply with the law, the law changed to mimic the regulations.While subsequent amendments to the AWA and related regulations have improved the standard of care required for animals in the laboratory, they do not actually protect animals from harm. If a researcher insists that it is necessary to expose animals to pain and distress (with or without pain relief) as part of the experimental protocol, the experiment can still be approved under the framework provided by the AWA.

The Clean Water Act (CWA) expressly says that states are supposed to play the leading role in protecting water. It states:

It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources

The U.S. Environmental Protection Agency (EPA) is ignoring this state role and instead seeking to expand its own power. This extension of federal control is evidenced by the EPA’s efforts to address water quality in the Chesapeake Bay, where the agency is effectively seeking to regulate agricultural runoff and other nonpoint sources of pollution (pollution coming from multiple sources over a wide area, as opposed to pollution from a point source that is a specific and identifiable source).

Specifically, the EPA is allocating specific limits of pollution for numerous segments of the Chesapeake Bay by source, including nonpoint sources. There is even concern that the EPA could determine where farming is allowed. This Chesapeake Bay scheme was challenged in the Third Circuit Court of Appeals (the court upheld the agency’s actions), and petitioners, including the American Farm Bureau Federation, asked the United States Supreme Court to hear the cases. Former U.S. Secretary of Agriculture John Block warned of the consequences of the Court’s declining to hear the case: “[I]n a matter of days or at most weeks the Environmental Protection Agency (EPA) could become our national zoning board.” On February 29, 2016, the Court declined to hear the case. This overreach by the EPA has practical impacts on farming. Secretary Block illustrated this point:

Myopic rigidity, typical of federal regulators and particularly EPA, has human costs. In lower court filings, Pendleton County, West Virginia, reported that “a significant amount of farmland will have to be removed from production” as a result. Pendleton, the court document noted, is a poor county where families “displaced from farming would have little to no opportunity to replace their loss.”

In order to carry out the efforts of Mr. Block we need reform, starting with the people. The new Executive Order 13777 establishes a Federal policy to lower regulatory burdens on the American people by implementing and enforcing regulatory reform. Executive Order 13777 also directed the Department to seek input from entities significantly affected by Federal regulations. To satisfy this requirement, the Department published a Request for Information (RFI) in the Federal Register on July 17, 2017, seeking public input on identifying regulatory reform initiatives.

The RFI asked the public to identify regulations, guidance documents, or any other policy documents or administrative processes that needed reform, as well as ideas on how to modify, streamline, expand, or repeal such items. Through the end of June 2018, USDA had received and reviewed over 4,000 public comments on recommended reforms, including requests from stakeholders to extend the public comment period past its one-year time period. Executive Order 13771 directs agencies to eliminate two existing regulations for every new regulation while limiting the total costs associated with an agency's regulations. Specifically, it requires a regulatory two-for-one wherein an agency must propose the elimination of two existing regulations for every new regulation it publishes. Moreover, the costs associated with the new regulation must be completely offset by cost savings brought about by deregulation. 

The Regulatory Agenda identifies 72 rules, of which 34 rules are not subject to the offsetting or deregulatory requirements of Executive Order 13771. Of the remaining 38 rules, 32 are deregulatory and six are regulatory. Of the 32 deregulatory actions, USDA has identified 16 final rules that will be completed in FY 2019 resulting in either a cost savings or meeting the direction that an agency issue twice as many Executive Order 13771 deregulatory actions as Executive Order 13771 regulatory actions.USDA's 2018 fall Statement of Regulatory Priorities was developed to lower regulatory burdens on the American people by implementing and enforcing regulatory reform. These regulatory priorities will contribute to the mission of the Department, and the achievement of the long-term goals the Department aims to accomplish.

All-in-all there are way too many regulatory laws to process and adhere to. On top of that they are time consuming and they drive the cost up the wall for farmers and ranchers. Not to mention, the confusing language leaves everything open to interpretation based on one's opinion. But, change is happening. With the executive order President Trump has in place things will soon start looking up for those small town farmers.