Let’s review where we are, in this 20-day build-up to the March 20th vote by the Michigan Commission of Agriculture and Rural Development, on whether the Site Selection GAAMPs should be used to impede Right to Farm Protection for Small Farms on residentially zoned properties.
On March 1st I told the story of what happened in 2006, when MDARD simply did their job of determining which GAAMPs were applicable to the Papesh Farm, and then whether the applicable GAAMPs criteria had been met. As a result of that work the Papesh family was able to successfully argue that their residentially-zoned farm operation was legally protected by Right to Farm. The Papesh family has since built a thriving business that provides fresh eggs to local customers in their community.
On March 2nd we moved on to what happened in Detroit in late 2011, and that ended with the abrupt passage of the 2012 GAAMPs. This change to the 2012 GAAMPs effectively excludes from Right to Farm protection the 1.5 million people living in one of the 7 cities in Michigan which has over 100,000 residents.
And then yesterday, on March 3rd, I argued that neither the approved change to the 2012 GAAMPs nor the proposed change to the 2014 Site Selection GAAMPs has anything to do with small farm operations themselves; it is simply not difficult to create a well-functioning small farm operation, even in urban residential areas. Instead, what the 2012 and the 2014 GAAMPs changes are really about is keeping Right to Farm off of the legislative radar, and well outside of the public eye.
So let's take a look at what is so important to keep hidden, and consider what Right to Farm actually protects.
Easiest to understand are the protections that are written into the Act itself:
1. Right to Farm protects farming operations from nuisance lawsuits from neighbors.
2. Right to Farm protects farming operations from local regulations such as zoning and ordinances.
In addition, the statute contains a line requiring a Memorandum of Understanding between the MDEQ and MDARD, suggesting that farmers who meet RTF protection are given special consideration when it comes to certain environmental complaints. The content of that MOU is available below, but lacks clarity since it refers to other documents that are not readily available. I FOIA’d both MDEQ and MDARD for those secondary documents, and received different documents in response from the two agencies. Six documents later I remain unable to discern any clear policy direction, but present them here:
3. MDARD/MDEQ MOU for farmers meeting RTF and/or GAAMPs requirements
As I understand it, these are all of the Right to Farm protections provided within the statute itself, but other protections have been established outside of the RTFA itself.
In March 1991, when Bill Schuette was the Director of the Michigan Department of Agriculture, he articulated the additional protections that farmers who meet Right to Farm guidelines also enjoy, that aren’t spelled out in the Right to Farm Act itself. According to Director Schuette, those additional protections included exemption from air quality permit requirements, exemption from water quality permit requirements, and exemption from liability under the 1990 Polluter’s Pay Law. Note that the particular laws that Schuette referred to in 1991 were later repealed and rolled into a new law, the Natural Resources and Environmental Protection Act, or NREPA, which was enacted in 1994.
So let’s take a look at Senate Bill 351, which amended NREPA last year, to see how much mischief can be accomplished by referring to Right to Farm and/or the GAAMPs in other state laws.
The bill would amend Part 201 (Environmental Remediation) of the Natural Resources and Environmental Protection Act to revise exceptions to the definitions of "release" and "hazardous substance" for substances applied according to or consistent with generally accepted agricultural and management practices, by specifying "at the time of the application".
Under Part 201, "release" generally refers to the escape or disposal of a hazardous substance into the environment. The term does not include the application of a fertilizer, soil conditioner, agronomically applied manure, or pesticide, or fruit, vegetable, or field crop residuals or processing by-products, aquatic plants, or a combination of these substances if applied according to label directions and according to generally accepted agricultural and management practices (GAAMPS) developed pursuant to the Michigan Right to Farm Act.
My understanding of this part of the NREPA law is that farmers who follow the GAAMPs are not only protected from nuisance lawsuits, local zoning, and the MDARD/MDEQ Memorandum of Understanding, but their actions also cannot be considered to be the “release” of a hazardous substance into the environment. This would seem to give those farmers who meet the GAAMPs requirements significant legal protections that are not visible in the Right to Farm Act itself.
And now here is what was amended in 2013, again according to the Senate Fiscal Agency report:
In each of these provisions, the bill would refer to generally accepted agricultural and management practices at the time of the application, and would delete references to the Michigan Right to Farm Act.
This last bit seems particularly disturbing to me. By removing the link between the GAAMPs and the Right to Farm Act, this change would seem to permit the GAAMPs to operate outside their intended role as defined in the Right to Farm Act. In addition, because the GAAMPs are largely controlled by MDARD and the five appointed members of the Agriculture Commission, this change enables our state agricultural agency to make very serious decisions about agricultural management practices, including what substances can be considered hazardous, simply by making changes to the Pesticide GAAMPs. This is not a trivial matter, and these changes are very easily accomplished. In the current, 2014 proposed changes to the Pesticide GAAMPs, for example, language that requires farmers to adhere to label instructions for the protection of groundwater, has been struck. If the elimination of that requirement is approved, as seems likely, then farmers who do not meet pesticide label instructions that are designed to protect groundwater will still be compliant with Pesticide GAAMPs, and will still be able to win Right to Farm protection for their practices.
Details aside, this example was intended to demonstrate that a fourth way that Right to Farm and the GAAMPs protect agriculture, is by defining additional protections in other laws like NREPA.
4. Other Laws that Reference RTF and/or the GAAMPs and define additional protections
I would also add to this list Informal Attorney General Opinions, because that category of document has been so detrimental to an open and honest policy discussion between Small Farmers and MDARD with respect to RTF protection. To my knowledge informal Attorney General opinions are not published, and can only be accessed by FOIA - but only if there is enough information to know that a relevant document exists. These informal Attorney General opinions appear to have been used since 2006 to drive MDARD's internal policy that small farms in residential areas are not protected by Right to Farm, in a way that has been enormously detrimental to those small farmers. It is unknown at the moment whether other informal Attorney General opinions exist which influence other aspects of Right to Farm protection or GAAMPs requirements.
5. Informal Attorney General Opinions
Finally, there are more distant and speculative mechanisms by which RTF and/or the GAAMPs may benefit farmers in non-obvious ways. For example, although I have no knowledge of any relevant Executive Orders, I add them here as a possible mechanism by which farmers who meet RTF or GAAMPs requirements may enjoy additional benefits that are not widely known or understood. I also know that during the 1990s at least some farmers received tax breaks if they were compliant with RTF and/or the GAAMPs, so include that here as another possible hidden benefit.
6. Executive Orders?
7. Tax benefits?
And finally, perhaps the most important question of all is whether Right to Farm or the Generally Accepted Agricultural and Management practices permit farmers to evade federal environmental regulations. It is clear from the MAEAP guidelines, for example, which are based on the GAAMPs, that it is possible to become MAEAP verified without meeting all federal environmental requirements. It is unknown to me whether those farmers are still required to meet those federal requirements, or if MAEAP verification allows them to bypass those stricter federal requirements.
8. Avoidance of Federal Environmental Regulations?
Altogether, although this assessment is preliminary, it should be clear that the protections that farmers earn under the Right to Farm Act extend far beyond protection from nuisance lawsuits and local regulations. It may be that one of these less visible protections, or one not yet identified, will be key to understanding why MDARD is fighting so hard to keep RTF out of the legislature for amendment.
Alternatively, perhaps it isn't the broad RTF protections that MDARD is concerned about, but instead the ease with which the RTF criteria can be met, for farmers who wish to earn that protection. For example, if the legislature amended RTF to add a requirement for transparency in drug and pesticide use as a new condition of Right to Farm protection in Michigan, then many corporate farms would suddenly find themselves with having to decide between adhering to the new requirements, or giving up the significant protections that come with meeting Right to Farm criteria.
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