Using Indirect Regulation to Reduce Environmental Damage From Farming

• Date: 01 September 2019

9-2019 NEWS & ANALYSIS 49 ELR 10831

COMMENTS

Using Indirect Regulation

to Reduce Environmental

Damage From Farming

by Edwin Kisiel

Major Edwin Kisiel serves in the U.S. Air Force Judge Advocate General’s Corps.

Scientists have found that the planet is hurtlin g toward

a mass extinction of insect s.1 Insects are necessary

from an agricultura l standpoint because they are the

pollinators that farmers need in order to grow crops.2 How-

ever, pesticide and fertilizer (agrochemical) use is a sig-

nicant factor in the steep decline of insect populations.3

Farmers are famously resistant to regulation, and agro-

chemical use is a larg ely unregulated area.4 Howe ver, f arm s

contribute a signicant amount of air and water pollution,

especially through agrochemical use.5 Programs such as

“Swampbuster” and “Sodbuster” have been ver y eective at

curbing the decline of highly erodible land and wetlands.6

ese programs use indirect reg ulation to accomplish their

purpose by conditioning receipt of subsidies on not devel-

oping highly erodible soil or wetlands.7

e success of the Swampbuster and Sodbuster pro-

grams shows that the most eective way to regulate farms

to reduce agrochemical use and support pollinator popu-

lations would also be through indirect regulation. is

Comment proposes conditioning farmers’ receipt of sub-

sidies on their compliance with new regulations on agro-

1. Douglas Main, Why Insect Populations Are Plummeting—And Why It Mat-

ters, N’ G, Feb. 14, 2019, https://www.nationalgeographic.

com/animals/2019/02/why-insect-populations-are-plummeting-and-why-

it-matters/.

2. Id.

3. Francisco Sánchez-Bayo & Kris A.G. Wyckhuys, Worldwide Decline of the

Entomofauna: A Review of Its Drivers, 232 B C 8,

20-21 (2019), available at https://www.sciencedirect.com/science/article/

pii/S0006320718313636.

4. J.B. Ruhl, Farms, eir Environmental Harms, and Environmental Law, 27

E L.Q. 263, 266 (2000) (discussing that the environmental harms

caused by farming “have escaped serious regulatory attention even through

the recent decades of environmental awakening”).

5. Id. at 282-86.

6. See N W F, W C  

F B 2 (2018), available at https://www.nwf.org/-/media/Documents/

PDFs/Our-Lands/NWF-Wetland-Conservation-Farm-Bill.

7. Id.

chemical uses as wel l as mitigation measures. While this

may be dicult to accomplish in the current political cli-

mate, this proposal would be more politically feasible than

direct, command-and-control regulation, and more pal-

atable than the alternative of future reg ulation under the

Endangered Species Act (ESA).8

e Comment will rst discuss the problems presented

by excess usage of agrochemic als for the pollinator popula-

tion. It will then show how indirect regulation of farms

through the 1980s Sodbuster and Swampbuster programs

has worked to conserve soils and wetla nds, and lay out

how the success of these programs could be replicated a s

a targeted approach to indirectly regu late agrochemical

use, support pollinator populations, and reduce agricul-

tural pollution. Lastly, it will look at the political fea sibil ity

of the proposal as contrasted to alternatives such a s com-

mand-and-control regulation or continuing the status quo

as polli nator population declines further.

I. Background

By the end of the 20th century, agrochemical use had

become synonymous with farming. A grochemicals include

chemical pesticides and fert ilizers, such as nitrogen, phos-

phorus, and potassium.9 While per-acre applications of

phosphorus and potassium have remained “stable since

1960,” nitrogen ferti lizer application per acre has climbed

nearly vefold over the same time.10 Pesticide use stems

back to the 1870s, but the widespread use of chemical pes-

ticides began after World War II and accelerated rapidly

through the 20th centur y, especially for major crops such

as corn and soybeans.11

8. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18.

9. A Look at Fertilizer and Pesticide Use in the United States, GRO I

(June 11, 2018), https://gro-intelligence.com/insights/a-look-at-fertilizer-and-

pesticide-use-in-the-us.

10. Id.

11. C D. O  P I. S, A P U

T  P I 5, 30 (1989) (discussing, for instance, that the

rate of herbicide application stood at 10% of selected cropland in the 1950s,

increasing to more than 90% by 1980).

Author’s Note: e views expressed in this Comment are solely those

of the author and do not reect the ocial policy or position of the

U.S. Air Force, U.S. Department of Defense, or U.S. government.

Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.