Time to Trade Farm Secrecy for Pollution Control Certainty

Commentary by Roy A. Hoagland

One of the reasons our nation turned the tide on the unabated discharge of pollution to our lands, water and air was the incorporation of a principle of public disclosure and transparency in the regulation of pollution.

Before the adoption of modern environmental laws around 40 years ago, when the Cuyahoga River burned and the Potomac River was unsafe for human contact, polluters dumped unused chemicals, degraded oil and many other contaminants into our environment, free from the watchful eye of the public.

But with the passage of landmark federal legislation like the National Environmental Policy Act (NEPA) and the Clean Water Act, the bright lights of public disclosure began to shine on polluters. NEPA required public review of an Environmental Impact Statement when significant environmental damage was possible. And the Clean Water Act required the polluter to keep publicly accessible records of what it discharged into the water.

The most dramatic change came with the Emergency Planning and Community Right to Know Act, which created the Toxics Release Inventory. This law required industries that manufactured, processed or used listed toxic chemicals above specified amounts to report annually on the disposal or release of those chemicals.

With this history, and recognized value, of public transparency, why are farmers granted so much secrecy on the pollution they create and discharge?

It’s literally a dirt-y little secret. And the time has come to shine a public light on it.

The public is unaware that most farmers are generally free from the public disclosure elements of current environmental laws. They often do not need to disclose to the public the levels of pollutants applied to the land, incorporated into the soil, or running into nearby streams and rivers.

Now, with the recognition that farmers—as well as others—need to do more to reduce pollution if we are to restore our local waters and the Chesapeake Bay, state and federal agencies are looking at a concept called “agricultural certainty.”

Agricultural certainty is an incentive program that seeks to coax farmers into doing the right thing for the environment by guaranteeing the farmer—if he or she establishes the right thing is being done on their farm—freedom, for a time certain, from future obligations to further reduce pollution. It provides a farmer with predictability by protecting him or her from changes in environmental compliance obligations in exchange for environmentally responsible stewardship.

While the devil’s in the details, the concept has the potential to provide gains in pollution control and reduction.

But farmers advocating for agricultural certainty often predicate their participation on ongoing secrecy. They do not, for example, want the public to know how much polluting manure they put in the soil or whether their farm fields are already saturated with excessive levels of pollutants coming from years of over-application of that manure.

Farmer insistence on secrecy was a leading factor for conservation organizations’ opposition to agricultural certainty legislation adopted in Virginia. The same disagreement is likely to be a significant element of debate as Maryland considers the agricultural certainty concept.

Why should the public give a farmer freedom from new pollution control obligations for a specified period of time (agricultural certainty) when he or she refuses, for example, to disclose the levels of pollution existing in the soil of the farm field, or to report information on pesticide use?

Farmers argue that this information is proprietary. In some cases, they argue that the current method of aggregating some of this information on a county or watershed level, versus a farm by farm level, is sufficient public disclosure.

But recent attempts to inventory environmental conditions as they exist on farms via online mapping systems and independent data services like Chesapeake Commons evidence that aggregated information is insufficient to educate the public on what is happening on the farm when it comes to pollution management—let alone sufficient for granting a farmer immunity from additional pollution controls.

Agriculture remains the largest contributor of pollution to the waters of the Chesapeake Bay. And in spite of the pollution reductions farmers have achieved to date, if one is to receive a new level of protection from future pollution reduction obligations, then he or she needs to step up and share, in a far more publicly transparent manner, what is happening on the farm to assure the public that proper pollution management is occurring.

Transparency and public disclosure are proven tools of environmental cleanup and protection. It is time for them to apply to farming.

Roy A. Hoagland, Esq., has worked on Chesapeake Bay issues more than 25 years, including several as a member and Chair of the Chesapeake Bay Executive Council’s Citizens Advisory Committee. Distributed by Bay Journal News Service.

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