Food Law is a distinct practice area because the law treats agricultural producers so very differently than the rest of us. Practitioners refer to this special treatment as ‘agricultural exceptionalism’.  The benefits available to agricultural producers are buried throughout various corners of the law, yet they are so pervasive they often have dramatic consequences for the wider culture. Despite their disproportionately large impact, they are obscure enough to be missed by otherwise thorough mainstream reportage that discusses important agricultural and environmental stories.

The NPR food blog recently posted a bit called “Putting Farmland on a Fertilizer Diet” which entirely misses the ‘agricultural exceptionalism’ angle to the issue of nutrient run-off from farms. The post describes a series of federal policy incentives to get farmers to limit the amount of chemicals, pesticides, and fertilizers they contribute to water pollution. It fails to take the more interesting approach to the subject, which is to explain why the programs described in the article are all incentive-based, not mandatory. The USDA can only encourage farmers to adopt good agricultural stewardship practices because the EPA has not been empowered by the Clean Water Act to prohibit pollution from nutrient runoff from agricultural land.

The EPA can regulate pollution from “point sources” using a permit system which costs polluters money in order for the privilege to pollute public resources like water. According to the Act, the term ‘‘point source’’ means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This is how paper mills, cement factories, and sewage treatment plants discharge their waste products into rivers and streams – through pipes. They pay dearly for the privilege, and the cost is passed on to their customers in the form of higher prices for their products and services.

The term “point source polluter” does not include agricultural storm-water discharges and return flows from irrigated agriculture. These are specifically excluded from the Act. This means that farmers may indiscriminately discharge nutrients, pesticides and fertilizers on to their land without paying for a costly permit to do so. The only limiting factor tending to offsett their pollution is the cost of purchasing the discharge products themselves. The agricultural exemption from the permit system saves a huge production cost, and the exemption logically results in artificially lower prices for our agricultural goods.

The EPA admits non-point source pollution is a major factor contributing to water pollution. The hypoxic dead zone in the Gulf and the barren Chesapeake are both attributable to nutrient run-off from non-point source polluters in these watersheds. Regulation that exempts farmers from profligate discharge of waste exacerbates the problem, yet federal policy continues to favor cheap food at the expense of environmental degradation.

Allowing agricultural producers to pollute a public resource without compensation is a form of subsidy, if you think about it. Excess nutrients that find their way into the navigable waters of the United States are a waste product of farming. Allowing farmers to place waste products into public resources without paying for the privilege is precisely how these costs remain unaccounted for in the price of the agricultural products we eat.

Because the Act does not authorize the EPA to prohibit farm runoff by diktat, the Act instead encourages the USDA to incentivize good behavior with grant money or subsidies for better agricultural practices. Encouraging environmental stewardship has to be a pull, not a push. Therefore the USDA pays farmers to time their nutrient application when they are least likely to run-off, or it pays them to install buffer strips around croplands which inhibit effluence of nutrients.

These incentives are the really perverse part of our agricultural policy. Farmers are exempted from rules which forbid everybody else from polluting water. They continue to pollute, then receive a payment in exchange for a modicum of responsible behavior. This is more agricultural exceptionalism – getting paid to do the right thing. It’s nuts.