Enforcement Failures in Soil Protection
By J. William Futrell, President, Sustainable Development Law Associates, Sdla2003 at aol.com

Public awareness of the quiet crisis in soil protection lags behind the high interest in the need to curb air and water pollution through enforcement of strong regulatory programs. In The IUCN Sustainable Soil Project and Enforcement Failures, 24 Pace Envtl. L. Rev. 99 (2007), J. William Futrell analyzes enforcement failures on both the state and federal levels in the United States that prevent effective soil protection.

In the 1970s, the Clean Water Act, the Clean Air Act, and hazardous waste laws promulgated national standards and set up a framework for state administration of these laws overseen by the EPA. No such arrangement exists to protect soil quality. The federal programs most closely associated with protecting soils are lodged in the U.S. Department of Agriculture (USDA) and center around economic incentives that avoid dependence on the Commerce Clause and rely on the spending power clause of the U.S. Constitution. State and federal soil programs predate the Earth Day renaissance and look back to the Dust Bowl years of the 1930s and to a restrictive view of Congressional power by the Supreme Court.

In the states, the law governing soils is fragmented; a different law governs each activity – farming, forestry, construction. Administration and enforcement of these piecemeal laws reflect that soil is perceived as land – property – and not as an ecological resource.

By the early 1980s, Congress began to consider ways to strengthen the federal presence. Congress was still unwilling to use the stick of regulation to protect soil quality, so it turned to the carrot of economic incentives by channeling some of the funds previously used for agricultural price supports to conservation purposes.

Federal subsidies, rather than mandatory regulations, are relied on to fill the gap left by the failure of the states to enforce their erosion and sedimentation statutes. The effectiveness of this system depends on grantee farmers carrying out their end of the bargain and implementing the agreed upon conservation practices. All too many do not.

Successive farm bills contained a swampbuster provision that blocked funding for farmers who drained wetlands and a sodbuster provision that did the same for farmers bringing highly erodible land into production. The nonperforming farmer is liable to lose all USDA benefits. The law is clear: the government can bar the farmer from further payments and sue to recover past payments. Appellate courts have repeatedly reaffirmed the government’s right to enforce agreements by barring subsidies and reclaiming payments from non-compliant farmers. In United States v. Dierckman, 201 F.3 rd 915 (7 th Cir. 2000) for example, the court ordered a landowner to reimburse the government $92,703 for payments made between 1991 and 1993 to a farm on which wetlands had been converted.

The hostility to enforcement in the farm belt is intense and enforcing compliance with conservation agreements has been problematic. Within the USDA components, the Natural Resources Conservation Service is responsible for compliance reviews to verify that a particular farmer is carrying out agreed upon management practices. This finding of fact is transmitted to the Farm Services Agency, which is responsible for withholding payments for noncompliance. A survey by the General Accounting Office, an oversight agency of Congress, found that the FSA waived NRCS’s noncompliance findings in 4,948 out of 8,118 appeals. The FSA structure follows that of the NRCS, with an FSA office in almost every county in the United States disbursing government payments. The decision-making body is a county FSA committee, elected by the eligible farmers of the district, which decides whether the cited farmer can claim a good faith exemption for his land abuse. The GAO concluded that these locally elected boards are reluctant to take funds away from their neighbors.

The failure to enforce agreed upon soil protection projects is a major defect in the U.S. system to promote sustainable soils, but this failure is consistent both with the larger failure to see soil as an ecological resource and with the fragmented approach that treats soil protection efforts as an afterthought to development goals.

The lines are being drawn for the debate on the 2007 farm bill. The Bush administration proposal would make more money available for conservation funding and strengthen the conservation programs. In upcoming debates about the 2007 farm bill, Congress should address the problem of recalcitrant landowners who take money without performing bargained for conservation work and should strengthen monitoring and enforcement of agricultural subsidy conservation agreements.