Maroney: Time for a performance audit on statutes to preserve farms and protect water quality?

Editor’s note: This op-ed is by James H. Maroney Jr., who has a master’s degree in Environmental Law & Policy from Vermont Law School and is a former farmer.

The debate over whether a pipeline carrying tar sands oil across Vermont or a farmer who grows rye and distills it into whiskey on his farm should or should not be subject to environmental review begs the question of why any industrial process, much less conventional agriculture, infamous for its proclivity to pollute the water, should be exempt from Act 250.

Vermont’s zoning laws have their genesis in the federal Standard State Zoning Enabling Act (1921), which conferred upon communities a “legitimate and necessary exercise of the police power.” In 1931, the Vermont General Assembly enacted legislation permitting Vermont municipalities to regulate public land use in their communities through zoning.

The justification for land use planning, since Village of Euclid v. Ambler Realty (1926) has always been stated in extravagant declarations of purpose:

“To promote the public health, safety … prosperity, comfort, access to adequate light and air, convenience, efficiency, economy and general welfare; to enable the mitigation of the burden of property taxes on agricultural, forest and other open lands … to protect residential, agricultural and other areas from undue concentrations of population and overcrowding….”

But the unstated rationalization for it was far plainer: post World War II urban society, confirmed in the beneficence of yeoman farming — and trusting official assurances that toxic, untested chemical compounds would dissipate harmlessly — would acquiesce in modern agriculture’s onrushing (and seemingly inevitable) demolition of the working landscape in exchange for three-fold cheaper food.

Vermont enacted land use regulation in 1967. Because the act also invoked as its justification the protection of farmland, the Legislature exempted agriculture, which was to become the province of the Vermont Agency of Agriculture Food & Markets and the Accepted Agricultural Practices rules. Vermont’s enabling statute for land use states this exemption on its very first page:

“A bylaw under this chapter shall not regulate accepted agricultural practices…”

Title 6, Vermont’s Agricultural Water Quality statute, provides the same broad exemption:

“Persons engaged in farming, as defined in [Act 250], who follow these practices shall be presumed to be in compliance with water quality standards.”

Likewise, Vermont’s Right to Farm Law exempts farms from common law nuisance liability, which comprises what is known as “conventional farming”:

“Agricultural activities shall be entitled to a rebuttable presumption that the activity does not constitute a nuisance if the agricultural activity … is conducted in conformity with federal, state, and local laws and regulations (including accepted agricultural practices)

The Legislature provided these exemptions for agriculture without regulating the application of 80,000,000 pounds per year of artificial fertilizer and herbicides, according to the precepts of the conventional farm paradigm, which is responsible for 55-60 percent of the pollution entering Lake Champlain. It granted the exemptions without analyzing the paradigm’s manifestly destructive social, economic and environmental costs and without recognizing that in the decades following WWII, Vermont consumers no longer depended upon Vermont farmers for their food.

The primary purpose for which the Legislature established the Vermont Housing and Conservation Board (1987) was to “assist in creating affordable housing for Vermonters.” The second part of VHCB’s mission was “conserving and protecting Vermont’s agricultural and forest land[s, which are] of primary importance to the economic vitality and quality of life of the state…”  To accomplish its mission, the Legislature created the VHCB Trust Fund, to which the Legislature allocates $23 million to $26 million per year.

For legislators, the conflation of the two purposes was disingenuous: the preservation and conservation of Vermont farmland was a popular objective, so the Legislature added it as justification for the creation of affordable housing, which was not. Moreover, taxing the public to create housing for lower income families was principally a response to the disintegration of the single-family home ethic and the appalling spread of multi-family housing. And, because agricultural land was the logical place for new development, because it was vulnerable (and because some owners were eager to sell their land for development), smart growth regulators wanted to construct a legal and societal armor around farming, to make it resistant to development and nuisance suits.

Had anyone in Vermont thought that there might be a nexus between land use planning, saving agricultural land from development and water quality, the prevailing conceit was that “Smart Growth” land use planning would fix everything. It was a case of collective wishful thinking: policy makers wanted equally to themselves take full advantage of cheap food. For this reason, VHCB’s purchases of conservation easements were not — nor are they today — contingent upon sellers, who remain in possession, or upon prospective purchasers’ agreements to farm their land sustainably, i.e., in compliance with the Clean Water Act (1972), or with Vermont’s water quality statutes. VHCB’s purchase, with taxpayer dollars, of conservation easements from farmers who were not willing sellers under no compulsion to sell, was, by any other name, social engineering.

VHCB’s description of “stewardship” is opaque: “If an activity funded by the board involves acquisition by the state of an interest in real property for the purpose of conserving and protecting agricultural land or forestland, important natural areas, or recreation lands, the board, in its discretion, may make a one-time grant to the appropriate state agency or municipality. The grant shall not exceed ten percent of the current appraised value of that property interest and shall be used to support its proper management or maintenance or both.”

The implication is either: VHCB has never questioned the probity of conventional farming; VHCB does not wish to question the probity of conventional farming; or VHCB is interested principally in the expropriation of private land and does not interpret its enabling legislation as a mandate for making the purchase of conservation easements on that land contingent upon agricultural practices.

By the late 1970s, state officials were well aware that the conventional farm paradigm was polluting the environment. That awareness belies the environmental purposes claimed by the Lake Champlain Special Designation Art of 1990, Clean and Clear (2003) and Vermont’s water quality statutes. The Legislature’s failure to include such a requirement, as a condition of VHCB’s purchase of conservation easements — or even as a condition of accepting them as gifts — has been to egregiously frustrate (or belie) the “preservation and conservation” of Vermont farmland. This legislative, or administrative lacuna has empirically not arrested or  even attenuated the steady attrition of Vermont family farms and persistently rising pollution in Lake Champlain. All of which, since conventional farming is empirically ruinous to its practitioners and to the lake, begs the question of what are VHCB and the taxpayers conserving farmland for?

Here are the empirical results of this Faustian bargain:

• Vermont’s dairy farms have steadily shrunk in number from approximately 4,729 in 1967, the year land use regulation was enacted, to approximately 3,000 in 1987, the year the Legislature created VHCB, to fewer than 900 today.

• As to protecting Vermont’s water, the Lake Champlain Basin Program reports: “Over the last 20 years, phosphorus concentrations across most of the lake segments … remain well above their established, annual targets.”

No one could look objectively at these data and claim that Vermont’s policies and programs to save its farms and protect its water have succeeded. It is time for the state to look critically at the performance of these programs and rewrite them so they can achieve their statutory purposes.

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