4. The Opportunity for Carbon Farming

The modern agricultural system produces a vast amount of food cheaply, but with significant environmental and social costs. It externalizes the costs of water, air, and climate pollution, depends on resource extraction, and relies on an immigrant work force with few rights.

The system of industrialized monocultures supported by federal policy depopulated rural towns, while polluting the air and water throughout the countryside. Farmers were once a large and diverse group, both in their backgrounds and in the operations they ran; now, in large part due to policy choices, the farmers that dominate policymaking are a small and largely homogeneous group of conservative, wealthy, and white families.

Just as federal policy has largely shaped today’s system, federal policy can change it. These changes could benefit and would be supported by many groups who should have a role in policymaking. While our recommendations to accelerate regenerative farming will also benefit farmers, we need to enlist everyone in the debate. Policies that expand carbon farming can create new constituencies with Black and other non-white farmers, agricultural workers, and rural residents. These constituencies, together with farmers already on the forefront of change, will, in turn, ensure these policies are successful, that they will endure, and that they are spread across the entire agricultural system. Together these constituencies will create a more just and sustainable farm economy.

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Key Recommendations

• U.S. farm policy now largely benefits a small number of almost entirely white producers who are substantially wealthier than the average American, and who are required to do little to protect the health of their workers or neighbors or to address environmental impacts or climate change.

• The average farm household now has a higher annual income and more non-farm wealth than the average household.

• More than one-half of those the USDA includes as “farmers” are retirees, hobbyists, or taxpayers with paper farms.

• There are about 2.5 million farmworkers, about twice as many as active farmers. They do two-thirds of the manual labor on farms and have a median income under $20,000.

• Sound, sustainable, and fair agriculture policy should be built on an accurate understanding of the affected constituencies rather than on assumed and outdated images and narratives centered on the “family farmer.” In addition to “farmers” and agribusiness, policies must also consider farmworkers and rural residents, consumers, and those affected by climate change.

• Climate-friendly farm policies must consider the interests of and have the support of farmworkers, non-white farmers, and rural people as well as farmers to be successful.

• Farmworkers and rural communities demonstrate strong support for policies to reduce agricultural pollution and advance climate-friendly practices.

• Many farmers have some or all of the resources needed to shift agricultural practices. As such, regulatory, education, and outreach programs can be effective tools for accelerating climate-friendly farming, even if not linked to changes in subsidies.

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• Policies that expand carbon farming can create new constituencies with Black and other non-white farmers, agricultural workers, and rural residents.

_________________

Note: This chapter is adapted from an unpublished manuscript by Nathan A. Rosenberg, Bryce W. Stucki, and Peter H. Lehner.

1.

2. U.S. Department of Agriculture (USDA) Economic Research Service, Net Cash Income, https://data.ers.usda.gov/reports.aspx?ID=17831 (last updated Sept. 2, 2020).

3. See, e.g., Elizabeth Grieco, For Many Rural Residents in U.S., Local News Media Mostly Don’t Cover the Area Where They Live, PEW RES. CENTER: FACTANK, Apr. 12, 2019, https://www.pewresearch.org/fact-tank/2019/04/12/for-many-rural-residents-in-u-s-local-news-media-mostly-dont-cover-the-areawhere-they-live/; April Simpson, As Local News Outlets Shutter, Rural America Suffers Most, Stateline, Oct. 21, 2019, https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/10/21/as-local-news-outlets-shutter-rural-america-suffers-most; Jim Boren, Agriculture Is Huge Story in California, but Newsrooms Around the State Aren’t Paying Attention to the Details, FRESNO ST. INST. FOR MEDIA & PUB. TR., Dec. 9, 2019, https://mediaandpublictrust.com/2019/12/09/agricultureis-huge-story-in-california-but-newsrooms-around-the-state-arent-paying-attention-to-the-details/; Chris Clayton, The Agriculture Beat Is a Crucial Lens on a Changing Climate, COLUM. JOURNALISM REV., Oct. 24, 2017, https://www.cjr.org/special_report/climate-change-agriculture-food.php.

4. Labor law scholars have dubbed the phenomenon “agricultural exceptionalism” and environmental law scholars refer to the “anti-law” of farming and the environment due to the sector’s almost total exclusion from environmental regulations. E.g., Juan Perea, The Echoes of Slavery: Recognizing the Racist Origins of Agricultural and Domestic Worker Exclusion From the National Labor Relations Act, 72 OHIO ST. L.J. 95-138 (2011) (discussing agricultural exceptionalism); J.B. Ruhl, Farms, Their Environmental Harms, and Environmental Law, 27 ECOLOGY L.Q. 263, 295-305 (2000) (arguing that the environmental law of agriculture constitutes an “anti-law”).

5. PHILIP L. MARTIN, GIANNINI FOUNDATION, IMMIGRATION AND FARM LABOR: CHALLENGES AND OPPORTUNITIES 2 (2017).

6. Craig Gundersen & Susan E. Offut, Farm Poverty and Safety Nets, 87 AM. J. AGRIC. ECON. 885, 885 (2005).

7. See Nathan A. Rosenberg & Bryce Wilson Stucki, The Butz Stops Here: Why the Food Movement Needs to Rethink Agricultural History, 13 J.

8. Id. at 20-22.

9. Id. at 14.

10. Id.

11. Id. at 20-22.

12. Seventy-five percent of limited-resource farmers sold less than $10,000 of agricultural products in gross sales. Agricultural Resource Management Survey Special Tabulation Request From USDA ERS to Nathan Rosenberg (June 25, 2019) (on file with authors).

13. Jesse Newman & Jacob Bunge, “This One Here Is Gonna Kick My Butt”—Farm Belt Bankruptcies Are Soaring, WALL ST. J., Feb. 6, 2019, https://www.wsj.com/articles/this-one-here-is-gonna-kick-mybuttfarm-belt-bankruptcies-are-soaring-11549468759.

14. Nathan A. Rosenberg, Farmers Who Don’t Farm: The Curious Rise of the Zero-Sales Farmer, 7 J. AGRIC. FOOD SYS. & COMMUNITY DEV. 2-4 (2017), available at https://papers.ssrn.com/sol3/papers. cfm?abstract_id=3104703.

15. Calculated by the authors from CPS March supplement data. Nat’l Bureau of Econ. Res., NBER CPS Supplements, available at https://data.nber.org/data/current-population-survey-data.html (last visited Jan. 23, 2021).

16. NATIONAL AGRICULTURAL STATISTICS SERVICE, USDA, 2017 CENSUS OF AGRICULTURE, U.S. NATIONAL LEVEL DATA VII (2019) [HEREINAFTER 2017 CENSUS OF AGRICULTURE].

17. A total of 47.9% of all farms in the 2017 Census of Agriculture sold less than $5,000 in agricultural products.

18. See Freedom of Information Act (FOIA) Response No. 2019-REE-02265-F From USDA to Authors (Sept. 30, 2019) (on file with authors) (showing the point values used by USDA); Maggie Koerth, Big Farms Are Getting Bigger and Most Small Farms Aren’t Really Farms at All, FIVETHIRTYEIGHT, Nov. 17, 2016, https://fivethirtyeight.com/features/big-farms-are-getting-bigger-and-mostsmall-farms-arent-really-farms-at-all/.

19. See FOIA Response No. 2019-REE-02265-F, supra note 18.

20. See Rosenberg, supra note 14 (describing methodological changes to the census that lead to higher numbers of zero-sales and other point farms).

21. 2017 CENSUS OF AGRICULTURE, supra note 16, at 9 tbl.2.

22. Calculated by the authors using Special Tabulation Request From USDA to Nathan Rosenberg (Nov. 20, 2019) (on file with authors) and 2017 CENSUS OF AGRICULTURE, supra note 16. In comparison, less than 6% of farms had zero-sales in 1992, the last agricultural census administered by the Census Bureau. Rosenberg, supra note 14, at 3.

23. See NATIONAL AGRICULTURAL STATISTICS SERVICE, USDA, 2012 CENSUS OF AGRICULTURE, FARM TYPOLOGY 1 tbl.1 (2015) [hereinafter 2012 CENSUS OF AGRICULTURE].

24. ROBERT A. HOPPE & JAMES M. MACDONALD, USDA, UPDATING THE ERS FARM TYPOLOGY 11 (2013) (EIB-110).

25. Koerth, supra note 18.

26. JOHN E. ANDERSON, AGRICULTURAL USE-VALUE PROPERTY TAX ASSESSMENT: ESTIMATION AND POLICY ISSUES 1 (2011).

27. For example, a 2005 Miami Herald investigation into Florida’s property tax expenditures for farmland found that local property appraisers awarded tax breaks on land that had been purchased for more than three times its agricultural value, rezoned for development, and not kept up to farming standards. Beth Reinhard & Samuel P. Nitze, Law Fails to Save Florida Farmland, MIAMI HERALD, Sept. 8, 2014, https://www.miamiherald.com/latest-news/article1928900.html.

28. See, e.g., Jordan Weissman, America’s Dumbest Tax Loophole: The Florida Rent-a-Cow Scam, Atlantic, Apr. 17, 2012, https://www.theatlantic.com/business/archive/2012/04/americas-dumbest-taxloophole-the-florida-rent-a-cow-scam/255874/.

29. Richard Rubin, Goat Herd Helps Trump Lower Tax Bite, WALL ST. J., Apr. 20, 2016, https://www.wsj. com/articles/goat-herd-helps-trump-lower-tax-bite-1461191607.

30. S.C. CODE ANN. §12-43-232 (2020).

31. More than 73% of taxpayers filing Schedule F reported net losses. IRS, Table 1.3. All Returns: Sources of Income, Adjustments, Deductions, Credits, and Tax Items, by Marital Status, Tax Year 2017 (Filing Year 2018), https://www.irs.gov/pub/irs-soi/17in13ms.xls (last updated Sept. 3, 2020).

32. Id.

33. USDA Economic Research Service, Tailored Reports: Farm Structure and Finance, https://data.ers. usda.gov/reports.aspx?ID=17882 (last updated Dec. 10, 2019).

34. Id. (reporting approximately one million operators who said their primary occupation was farming); 2017 CENSUS OF AGRICULTURE, supra note 16, at 62 tbl.52 (reporting more than 1.4 million operators who said their primary occupation was farming).

35. Calculated by the authors using 2018 CPS March Supplement data. Nat’l Bureau of Econ. Res., supra note 15. To produce the estimates, the authors used the standard methodology. U.S. CENSUS BUREAU, CURRENT POPULATION SURVEY 2018 ASEC SUPPLEMENT, available at https://www2.census. gov/programs-surveys/cps/techdocs/cpsmar18.pdf. We calculated “farm households” by calculating the number of households with someone who said their longest job in the previous year was as a farmer in the household. We calculated farmers as the count of people who said their longest job in the previous year was as a farmer.

36. 2017 CENSUS OF AGRICULTURE, supra note 16, at 7 tbl.1, 62 tbl.52. Farm groups sometimes argue most low-sales farms like those excluded from USDA’s farm business count would expand their operations if they had the financial wherewithal. However, the evidence strongly suggests that this is not the case. USDA data show that “farms” with low and very low sales are almost exclusively owned by households with comfortable incomes and above average wealth (even excluding farm assets).

37. The series began in 1929. See USDA Economic Research Service, supra note 2.

38. Ana Swanson & Jim Tankersley, As Trump Appeals to Farmers, Some of His Policies Don’t, N.Y. TIMES, Jan. 7, 2018, https://www.nytimes.com/2018/01/07/us/politics/trump-farmers-agriculture-trade-taxes.html.

39. USDA Economic Research Service, Tailored Reports: Operator Household Balance Sheet, https://my.data.ers.usda.gov/arms/tailored-reports (last updated Dec. 18, 2020).

40. Id. Note that “low-sales farms” are sometimes called “intermediate farms” in USDA’s collapsed typology.

41. Calculated by authors using National Council of Real Estate Investment Fiduciaries (NCREIF), NCREIF Farmland Property Index, https://www.ncreif.org/data-products/farmland/ (last visited Jan. 23, 2021); David A. Lins et al., Institutional Portfolios: Diversification Through Farmland Investment, 20 REAL ESTATE ECON. 549-71 (1992); Roger G. Ibbotson & Laurence B. Siegal, Real Estate Returns: A Comparison With Other Investments, 12 REAL ESTATE ECON. 219-42 (1984). A study of tax returns suggests farmers also seriously understate their incomes to save even more money. Naomi E. Feldman & Joel Slemrod, Estimating Tax Noncompliance With Evidence From Unaudited Tax Returns, 117 Econ. J. 327, 347 tbl.7 (2007) (estimating substantially lower rates of tax compliance among farm businesses than other types of businesses).

42. Statistics are for primary producers. 2017 CENSUS OF AGRICULTURE, supra note 16, at 62 tbl.52.

43. Trina Shanks, The Homestead Act: A Major Asset-Building Policy in American History, in INCLUSION IN THE AMERICAN DREAM: ASSETS, POVERTY, AND PUBLIC POLICY 29 (Michael Sherraden ed., Oxford University Press 2005).

44. Id. at 36; Keri Leigh Merritt, Land and the Roots of African-American Poverty, AEON, Mar. 11, 2016, https://aeon.co/ideas/land-and-the-roots-of-african-american-poverty.

45. E.g., Perea, supra note 4. Thus, when Congress passed the National Labor Relations Act of 1935, which extended organizing and collective bargaining rights to workers, and the Fair Labor Standards Act of 1938, which extended minimum wage and overtime requirements, farmworkers were excluded.

46. Donald H. Grubbs, Lessons of the New Deal, in THE PEOPLE’S LAND 19, 20 (Peter Barnes ed., Rodale Press 1975).

47. We refer to these groups as “new constituencies” not because they are new to agriculture but rather because farm policy does not currently serve their interests.

48. See, e.g., Tim Marema & Bill Bishop, White House Adviser Erroneously Calls Ag the “Primary Driver” of Rural Economy, DAILY YONDER, Apr. 25, 2017 (explaining that agriculture is not the “primary driver” of the rural economy, contrary to the statement of a White House adviser), https://dailyyonder.com/chief-white-house-adviser-erroneously-calls-ag-primary-driver-rural-economy/2017/04/25/.

49. Nick Shaxson, Rural America Doesn’t Have to Starve to Death, NATION, Feb. 18, 2020, https://www.thenation.com/article/economy/big-agribusiness-finance-farming/.

50. JAMES M. MACDONALD, USDA, THREE DECADES OF CONSOLIDATION IN U.S. AGRICULTURE 37 (2018) (EIB-189).

51. Kenneth M. Johnson & Daniel T. Lichter, Rural Depopulation: Growth and Decline Processes Over the Past Century, 84 RURAL SOC. 3, 14-15 (2019).

52. Linda Lobao & Curtis W. Stofferahn, The Community Effects of Industrialized Farming: Social Science Research and Challenges to Corporate Farming Laws, 25 AGRIC. HUM. VALUES 219-40 (2008).

53. Jeremy G. Weber et al., Crop Prices, Agricultural Revenues, and the Rural Economy, 37 APPLIED ECON. PERSP. 459-76 (2014).

54. J. MICHAEL HARRIS ET AL., USDA, AGRICULTURAL INCOME AND FINANCE OUTLOOK 69 (2009) (AIS-88).

55. Calculated by the authors using Economic RESEARCH SERVICE, USDA, RURAL AMERICA AT A GLANCE: 2019 EDITION 1 (2019) (EIB-212) (reporting approximately 45 million people in non-metro areas), and our estimate, supra Chapter II.A.2, of approximately one million farmers.

56. U.S. Bureau of Economic Analysis, Regional Data, https://apps.bea.gov/iTable/iTable.cfm?reqid=70&step=1&isuri=1 (last visited Oct. 26, 2020).

57. Timothy Parker, Updated ERS County Economic Types Show a Changing Rural Landscape, AMBER WAVES, Dec. 7, 2015, https://www.ers.usda.gov/amber-waves/2015/december/updated-ers-countyeconomic-types-show-a-changing-rural-landscape.

58. In 2019, for example, the Washington Post ran at least seven articles on the fi fortunes of farmers, but only three on farmworkers, and each of those articles discussed farmworkers from their employers’ perspective. Annie Gowen & David Nakamura, Rallying Farmers, Trump Pushes Border Wall but Opens Door to More Immigrants in Agriculture Jobs, WASH. POST, Jan. 14, 2019, https://www.washingtonpost.com/politics/rallying-farmers-trump-pushes-border-wall-but-opens-door-to-moreimmigrants-in-agriculture-jobs/2019/01/14/0c8062a6-1835-11e9-8813-cb9dec761e73_story.html; Danielle Paquette, Farmworker vs. Robot, WASH. POST, Feb. 17, 2019, https://www.washingtonpost. com/news/national/wp/2019/02/17/feature/inside-the-race-to-replace-farmworkers-with-robots/; Kevin Sieff & Annie Gowen, With Fewer Undocumented Workers to Hire, U.S. Farmers Are Fueling a Surge in the Number of Legal Guest Workers, WASH. POST, Feb. 21, 2019, https://www.washingtonpost.com/world/the_americas/with-fewer-undocumented-workers-to-hire-us-farmers-arefueling-a-surge-in-the-number-of-legal-guest-workers/2019/02/21/2b066876-1e5f-11e9-a759-2b8541bbbe20_story.html.

59. Bryce Wilson Stucki & Nathan Rosenberg, How a Simple CDC Error Inflated the Farmer Suicide Crisis Story—And Led to a Rash of Inaccurate Reporting, COUNTER, June 21, 2018, https://thecounter.org/farmer-suicide-crisis-cdc-study/.

60. MARTIN, supra note 5.

61. JBS INTERNATIONAL, INC., FINDINGS FROM THE NATIONAL AGRICULTURAL WORKERS SURVEY (NAWS): A DEMOGRAPHIC AND EMPLOYMENT PROFILE OF UNITED STATES FARMWORKERS 2015-2016, at 36 (2018).

62. S.E. Smith, Heat Is Now the Deadliest Threat to Farmworkers. Only Two States Protect Them From It, TALK POVERTY, June 20, 2019, https://talkpoverty.org/2019/06/20/farmworkers-heat-illness-deaths/.

63. Heather E. Riden et al., Wildfire Smoke Exposure: Awareness and Safety Responses in the Agricultural Workplace, 25 J. AGROMEDICINE 1 (2020).

64. Danielle Paquette, During California Wildfires, Farmworkers Say They Felt Pressure to Keep Working or Lose Their Jobs, WASH. POST, Nov. 20, 2018, https://www.washingtonpost.com/business/economy/during-california-wildfi es-farm-workers-felt-pressured-to-keep-working-or-lose-theirjobs/2018/11/20/757f92a0-ec06-11e8-baac-2a674e91502b_story.html.

65. Riden et al., supra note 63.

66. Jessica A. Shoemaker, An Introduction to American Indian Land Tenure: Mapping the Legal Landscape, 5 J.L. PROP. & SOC’Y 1, 22-23 (2020).

67. Jess Gilbert & Gwen Sharp, The Loss and Persistence of Black-Owned Farms and Farmland: A Review of the Research Literature and Its Implications, 18 J. RURAL SOC. SCI. 1, 2 (2002).

68. See, e.g., PETE DANIEL, DISPOSSESSION: DISCRIMINATION AGAINST AFRICAN AMERICAN FARMERS IN THE AGE OF CIVIL RIGHTS (2013); Nathan Rosenberg & Bryce Stucki, How USDA Distorted Data to Conceal Decades of Discrimination Against Black Farmers, THE COUNTER, June 26, 2019, https://thecounter.org/usda-black-farmers-discrimination-tom-vilsack-reparations-civil-rights/.

69. Calculated by the authors using 2012 CENSUS OF AGRICULTURE, supra note 23, at 9 tbl.1.

70. Vann R. Newkirk II, The Great Land Robbery, THE ATLANTIC, Sept. 29, 2019, https://www.theatlantic.com/magazine/archive/2019/09/this-land-was-our-land/594742/.

71. Megan Horst & Amy Marion, Racial, Ethnic, and Gender Inequities in Farmland Ownership and Farming in the U.S., 36 AGRIC. & HUM. VALUES 3 (2019).

72. Nathan Rosenberg & Bryce Wilson Stucki, USDA Gave Almost 100 Percent of Trump’s Trade War Bailout to White Farmers, COUNTER, July 29, 2019, https://thecounter.org/usda-trump-tradewar-bailout-white-farmers-race/.

73. See, e.g., Nadra Nittle, The People’s Agroecology Process Brings a Global Lens to U.S. Food Justice Work, CIV. EATS, Sept. 10, 2020, https://civileats.com/2020/09/10/the-peoples-agroecology-process-brings-aglobal-lens-to-u-s-food-justice-work/.

74. U.S. Bureau of Economic Analysis, supra note 56.

75. Id.

76. ROBERT BONNIE ET AL., DUKE NICHOLAS INSTITUTE, UNDERSTANDING RURAL ATTITUDES TOWARD THE ENVIRONMENT AND CONSERVATION IN AMERICA 15 fig.4 (2020).

77. Id. at 15 fig.4 & 19 fig.9.

78. Id. at 21 fig.11.

79. Id. at 19 fig.9.

80. Id.

81. DANIEL J. MALLINSON ET AL., CENTER FOR RURAL PENNSYLVANIA, ATTITUDINAL SURVEY OF PENNSYLVANIANS, 2019, at 105 (2020).

82. J. GORDON ARBUCKLE ET AL., IOWAN’S PERSPECTIVES ON TARGETED APPROACHES FOR MULTIPLE-BENEFIT AGRICULTURE 2 fig.1 (Iowa State University, Sociology Technical Report No. 1038, 2015).

83. Id. at 4 tbl.2.

84. Id. at 6 tbl.3.

85. Kelley Donham et al., Community Health and Socioeconomic Issues Surrounding Concentrated Animal Feeding Operations, 115 ENV’T HEALTH PERSP. 317, 319 (2007).

86. Polk County: Thank You! CAFO Ordinance Stalls Under Mountain of Negative Comments, KNOWCAFOs, July 9, 2020, https://knowcafos.org/2020/07/09/polk-county-thank-you-cafo-ordinance-stallsunder-mountain-of-negative-comments/.

87. See, e.g., Emily Moon, Missouri Outlaws Rural Residents’ Last Line of Protection Against CAFOs, Pac. Standard, May 17, 2019, https://psmag.com/news/missouri-outlaws-rural-residents-last-line-ofprotection-against-cafos; Morgan Niezing et al., Government Eases Up on CAFOs as Residents Fight Their Expansion, MISSOURIAN, Aug. 9, 2018, https://www.columbiamissourian.com/news/local/government-eases-up-on-cafos-as-residents-fight-their-expansion/article_d758dcf2-9c3d-11e8-82ff271a9483e031.html; Chris Braun, “Keep Makin’ Bacon”: Indiana’s Right to Farm Act Statute Upheld as Constitutional, AMERICAN COLLEGE OF ENVIRONMENTAL LAWYERS, Jan. 11, 2021, http://www.acoel.org/post/2021/01/11/Keep-Makin%E2%80%99-Bacon%E2%80%9D-Indiana%E2%80%99sRight-to-Farm-Act-Statute-Upheld-As-Constitutional.aspx.

88. Barry Yeoman, Jury Awarded Hog Farm Neighbors $3.25 Million. Will Three-Wuarters of That Be Erased?, CHARLOTTE OBSERVER, Jan. 31, 2020, https://www.charlotteobserver.com/news/business/article239694633.html.

89. McKiver v. Murphy-Brown, LLC, No. 19-1019 (4th Cir. 2020).

90. Id.

91. Clementine Dereumeaux et al., Pesticide Exposures for Residents Living Close to Agricultural Lands: A Review, 134 ENV’T INT’L (2019), https://doi.org/10.1016/j.envint.2019.105210.

92. Aaron Blair et al., Pesticides and Human Health, 72 OCCUPATIONAL & ENV’T MED. 81 (2015).

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