Agriculture and Ecosystem Services: Paying Farmers to Do the New Right Thing
| Author | J.B. Ruhl |
| Pages | 241-261 |
Page 241
Chapter 14
Agriculture and Ecosystem Services:
Paying Farmers to Do the New Right Thing
J.B. Ruhl
American agriculture policy has been built for decades around the core principle of paying farmers
to do the right thing. e policy question, therefore, has not been whether to pay, but what is the
right thing—what do we want to pay farmers to do? For the most part, the answer has been to
produce food and ber commodities. But a new “right thing” vision ha s taken hold since the mid-1990s.
is new vision sees farms as holding tremendous untapped value a s providers of ecosystem services to
local, regional, a nd national communities. e goal in this new policy movement is to unlock the multi-
functional capacity of farms to contribute to the environmental and economic well-being of the landscape
while continuing to serve as our primary source of food and ber, and it is playing out with promise at
federal, state, and local levels.1
One might think implementing t his win-win for agriculture and t he environment is a policy “no-
brainer,” but agriculture has long been the Rubik’s Cube of environmental policy. Although agriculture
is a leading cause of pollution a nd other environmental ha rms in the United States,2 it has been resistant
to regulation and, for the most part, remark ably successful at getting the public to pay it to do the right
thing.3 While other industries have advanced to exible, market-based “second generation” environmental
policies and beyond, agriculture somehow keeps dodging the regulatory bul let.4 Federal and state agencies
have tried to overlay small pieces of conventional regulation on farms, which farm interests have resisted at
every turn,5 and the U.S. Congress opens debate on farm bills every few years with promises of innovative
policy reform, only to drift back into business as usual.6 Seldom has so much time, money, and energy been
1. See Scott M. Swinton, Reimagining Farms as Managed Ecosystems, 23(2) C 28-31 (2008), available at http://www.choicesmagazine.org/
magazine/pdf/article_17.pdf. e development of farm multifunctionality policy began in earnest with the European Union’s Agenda 2000
reforms of the Common Agricultural Policy. See omas L. Dobbs & Jules N. Pretty, Agri-Environmental Stewardship Schemes and “Multi-
functionality,” 26 R. A. E. 220 (2004). Extensive background and evaluation of the topic can be found in O. E
C-O D, M: T A F (2001) [hereinafter OECD]. e discussion
of the farm multifunctionality theme in this chapter draws from earlier work by the author published in connection with the NYU Law School
Symposium on Breaking the Logjam: Environmental Reform for the New Congress and Administration. See J.B. Ruhl, Agriculture and Ecosystem
Services: Strategies for State and Local Governments, 17 NYU E. L.J. 424 (2008).
2. For an inventory of environmental harms agriculture has caused and is continuing to cause in the United States, see J.B. Ruhl, Farms, eir
Environmental Harms, and Environmental Law, 27 E L.Q. 263, 272-92 (2000). e trend is not abating as “recent scientic assess-
ments have alerted the world to the increasing size of agriculture’s footprint, including its contribution to climate change and degradation of
natural resources.” E. Toby Kiers et al., Agriculture at a Crossroads, 320 S. 320, 320 (2008).
3. For a survey of this policy failure, describing the “safe harbor” agriculture enjoys from environmental regulation and the subsidy programs that
pay farms to meet minimal baseline standards other industries are mandated to achieve, see Ruhl, supra note 2, at 293-316, 325-27. See also
Mary Jane Angelo, Corn, Carbon, and Conservation: Rethinking U.S. Agricultural Policy in a Changing Global Environment, 17 G. M
L. R. 593 (2010) (evaluating environmental impacts of historical and current agricultural policy); J.B. Ruhl, ree Questions for Agriculture
About the Environment, 17 J. L U E. L. 395, 404-05 (2002); J.B. Ruhl, Farmland Stewardship: Can Ecosystems Stand Any More
of It?, 9 W. U. J.L. P’ 1 (2002).
4. Agriculture “never had coherent rst-generation environmental protection programs” and “no signicant environmental controls have been
placed on farm practices even where agricultural activities are a primary cause of pollution problems.” C. Ford Runge, Environmental Protection
From Farm to Market, in T E: T N G E P 200, 200-01 (Marian R. Chertow &
Daniel C. Esty eds., 1997); see also Ruhl, Farms, supra note 2, at 268 n.6.
5. For several examples of regulatory controls on agriculture, including regulation of concentrated animal feeding operations under the Clean
Water Act and regulation of habitat disturbance under the Endangered Species Act, see Ruhl, Farms, supra note 2, at 316-27.
6. For a thorough examination of farm bill politics, see W I. E’., U.S. A P 2007 F B
(Kaush Arha et al. eds., 2007), available at http://woods.stanford.edu/docs/farmbill/farmbill_book.pdf [hereinafter 2007 F B].
Page 242 Food, Agriculture, and Environmental Law
expended year after year, decade upon decade, to keep policy of any other kind exactly where it star ted out.
Agricultural economist David Freshwater sums up this history well:
With each farm bill cycle there are ca lls for a major rethinking of U.S. farm policy to mak e it better suit current
farm conditions and the expectations of the broader American public about the roles of agr iculture. ese calls
for reform have been for the most part unsuccessf ul bec ause there has been no argument compelling enough to
overcome advocates of the status quo. But as time passe s the wisdom of maintaining a set of policies that have
their basis in the 1930s and were designed to support a structure of ag riculture that no longer exist s becomes
more questionable.7
Paying farmers to do the “right thing” environmentally has been a theme of federal farm policy for decades,
embodied in programs such as the Conservation Reserve Program (CRP), which pays farmers to take land
out of production for dened periods to enhance its conservation values, and the Conservation Stewarship
Program (CSP) and Environmental Quality Incentives Program (EQIP), which pay farmers to employ better
practices on working lands.8 A nd either paying or forcing farmers to preserve agricultural land uses at the
urban fringe has become a standard component of state and local land use policy.9 In this sense, farms have
long been understood as land units that have the capacity to contribute to environmental and cultural values.
In recent years, however, ecologists and economists focusing on agriculture have forged a more complete
vision of the capacity of a gricultural lands. ey see farms as housing the natural capital capable of pro-
viding a stream of diverse good a nd services, including ecosystem services such as increased biodiversity,
carbon sequestration, pollination, groundwater recharge, and improvement of water quality.10 To be sure,
farms taking this model to heart would look and behave dierently from conventional operations based on
intensive monoculture and concentrated livestock, but they unmistakably would be active and potentially
prosperous agricultural operations. It is not overly optimistic to think that “the scientic and politica l
planets a re aligning to create both the demand for policy-relevant research into the [ecosystem services]
available from agriculture and the means to create incentives for farmers to provide those services.”11
Unfortunately, federal policy has been slow to move in this direction. W hile it has become a rite of
passage to begin each ve-year cycle of farm bill work with great fanfare over the prospect of stepping up
the green subsidy and farm preservation programs, the rhetoric and content each time are steadily watered
down until the programs look about as t hey started. e long-prevailing s ystem of farm income supports,
including green subsidies, simply does not tap into or promote a sense that there is more to agriculture than
supplying food, ber, and energy commodities, with a dose of cultural nostalgia.12
It is unlikely, therefore, that federal farm polic y alone will align t hese interests. It will be important for
farm multifunctionality to respond to demand-driven signa ls, whereas even the green subsidy component
of federal farm policy is supply-driven and tailored to what is possible and convenient for conventional
agriculture. As K atherine Smith explains:
7. David Freshwater, Applying Multifunctionality to U.S. Farm Policy 1 (Univ. of Ky., Econ. Sta Paper No. 437, 2002) (unpublished manuscript
on le with author), available at http://www.uky.edu/Ag/AgEcon/pubs/sta/sta437.pdf. See also J.P. Reganold et al., Transforming U.S.
Agriculture, 332 S. 670 (2011) (discussing the history of farm bill environmental policy and the need for reform).
8. For thorough reviews of agricultural land retirement and working land conservation subsidy programs, see Craig Cox, U.S. Agriculture Conser-
vation Policy & Programs: History, Trends, and Implications, in 2007 F B, supra note 6, at 113; Neil Hamilton, Feeding Our Green Future:
Legal Responsibilities and Sustainable Agricultural Land Tenure, 13 D J. A. L. 377 (2008).
9. For a comprehensive overview of this state and local land use regulation trend, see J C J T E. R,
L U P D R L 815-71 (2d ed. 2007).
10. Ecosystem services are economically valuable benets humans derive from ecological resources directly, such as storm surge mitigation provided
by coastal dunes and marshes, and indirectly, such as nutrient cycling that supports crop production. Natural capital consists of the ecological
resources that produce these service values, such as forests, riparian habitat, and wetlands. For descriptions of natural capital and ecosystem
services, see M E A, E H W-B: S (2005), available at http://www.wri.
org/publication/millennium-ecosystem-assessment; N’ S: S D N E (Gretchen C. Daily
ed. 1997); Robert Costanza et al., e Value of the World’s Ecosystem Services and Natural Capital, 387 N 253 (1997). For coverage of
the emergence of the ecosystem services concept in law and policy, see J.B. R, S E. K C L. L, T L
P E S (2007); James Salzman, A Field of Green? e Past and Future of Ecosystem Services, 21 J. L U E.
L. 133 (2006); J.B. Ruhl & James Salzman, e Law and Policy Beginnings of Ecosystem Services, 22 J. L U E. L. 157 (2007).
11. Scott M. Swinton et al., Ecosystem Services From Agriculture: Looking Beyond the Usual Suspects, 88 A. J. A. E. 1160, 1164 (2006).
An excellent survey of the literature supporting this movement is found at G. Philip Robertson & Scott M. Swinton, Reconciling Agricultural
Productivity and Environmental Integrity: A Grand Challenge for Agriculture, 3 F E E’ 38 (2005).
12. See David Abler, Multifunctionality, Agricultural Policy, and Environmental Policy, 33 A. R E. R. 8 (2004); Katherine R.
Smith, Public Payments for Environmental Services From Agriculture: Precedents and Possibilities, 88 A. J. A. E. 1167, 1167-68 (2006).
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