New data on the total number of farms in the U.S. is out, and the overall numbers continue to dwindle. According to USDA, there were 2 million farms in the U.S. in 2022.
These 2 million farms are required to abide by numerous laws enacted on state and federal levels each year. More recently, those laws, including the Waters of the U.S. (WOTUS) and Proposition 12, have been challenged in the U.S. Supreme Court (SCOTUS).
Ray Starling, general counsel at the North Carolina Chamber of Commerce, details what the recent rulings mean for growers and the ag industry as a whole.
WOTUS
EPA published its final definition of WOTUS on Dec. 30, 2022, which gave federal protection to large waterways, such as interstate rivers and streams, and adjacent wetlands starting in March 2023.
The definition was challenged by numerous organizations at the state level, with U.S. District Court Judge Daniel Hovland effectively blocking the rule in April, until SCOTUS officially ruled against the EPA’s definition in May.
How does the ruling impact growers?
SCOTUS’s ruling quickly caused confusion in various states, as many properties are in low-lying areas by rivers, streams and other waters that the federal government could deem a wetland. While the ruling might have disrupted operations, the EPA’s “jurisdictional arm” on-farm is much shorter now, than it was a few weeks ago, according to Starling.
“Growers in the past would say, ‘I have this piece of land that may be wet several weeks of the year. Is that subject to being deemed a wetland by the federal government?’ The new ruling says growers should only have that concern if the water, or very wet spot, has a surface water connection, or is clearly connected to navigable water. Only then can EPA interfere,” he says.
SCOTUS says the EPA’s definition of WOTUS is too broad and needs tweaked. EPA announced it plans to rectify the definition—a move Starling anticipates will come this fall.
“Once EPA shares what their new rule is, there will then be another round of litigation. Time will tell, but for the big picture, it will give ag more certainty,” says Starling.
Proposition 12
California enacted prop 12 in 2018, effectively banning the sale of pork within the state unless pregnant pigs are allowed at least 24 square feet of space and the ability to stand up and turn around in their pens.
Ag organizations quickly pushed a lawsuit to California’s side of the table, which then moved over to SCOTUS. In May, SCOTUS ruled prop 12 is constitutional, detonating a major blow to pork and the ag sector, according to Jim Wiesemeyer, policy analyst for Pro Farmer/Farm Journal.
Starling fears interstate commerce could take a foothold in the ag industry as a result of prop 12, and he’s not alone.
“There’s nothing stopping California from saying, for example, you can only sell corn in California if it’s harvested with an electric combine,” says John Dillard, principal at OFW law.
Those fears have only amplified and revealed themselves at the state level, according to Starling.
“I’ve been asked, ‘What can we ban from California,’ and that’s not exactly what we want to hear at the Chamber of Commerce in North Carolina. But it does create that race to the bottom instinct,” says Starling.
What can growers do to create change in the cases of WOTUS and prop 12?
These legislative measures didn’t develop overnight; they were crafted over many years, according to Starling. In order for these laws to be undone, or future laws to be blocked, he says it will take equally as many years of advocacy.
Here are Starling’s suggestions for growers:
1. Educate yourself
“The gateway of media is very fluid now compared to 20 or 30 years ago. Using blog posts and clearly unvetted information to defend ag is not the way to win,” says Starling. “We have to do better on the academic front. Find reputable sources and learn how to properly cite them.”
2. Band together
“In many cases, like in prop 12, it’s a threat to all sectors of ag. We have to figure out how to horizontally work together instead of in verticals. Crop farmers need to learn to work alongside livestock growers to create change. Ask questions and fight for each other.”
