Coping with the Criminalization
of Livestock Production

Mark W. Jenner, Ph.D.
Economist and Commodity Policy Specialist
American Farm Bureau Federation

Commercial livestock facilities have grown in size and concentration, and so has the size of their waste streams. This has created both legitimate and perceived fears about livestock facilities. Environmental concerns revolve around nutrients, pathogens and odors. The common denominator of these environmental concerns is manure. Weaknesses of the current environmental strategies are assessed and a new policy strategy is developed which will move animal agriculture out from under an environmental attack into a revenue-driven, socially-acceptable commercial animal production paradigm.

Even though the Environmental Protection Agency (EPA) recognizes continued improvements in water quality by agriculture, EPA continues to layer program upon program on agriculture. Current EPA initiatives tighten industrial storm water regulations, generate arbitrary Total Maximum Daily Loads (TMDL's), implicate livestock in contributing to the hypoxic zone in the Gulf of Mexico (without knowing what causes it), implicate livestock in contributing to pfiesteria, (without knowing if nutrients contribute to pfiesteria outbreaks), expand the national non-point source strategy (as they acknowledge improvements are already being made), reinforce Section 401 certification (Clean Water Act), intensify enforcement of confined animal feeding operations, and increase enforcement of the Safe Drinking Water Act.

To compound the cost of livestock and manure production even further, Senator Harkin, (IA) has introduced a manure enforcement bill which is every bit as onerous as EPA's water quality efforts. It would empower USDA with enforcement authority similar, but in addition to, EPA's existing authority. A farmer could be in compliance with EPA and out of compliance with USDA or vice versa.

EPA currently assumes that all manure will enter the waters of the United States, a crime under the Clean Water Act. Therefore, livestock production, by association, is also suspect. Livestock producers do not raise livestock to pollute the environment. Public policy should make it easy for livestock producers to do the right thing -- not turn a beneficial industry into a new class of criminals.

The implementation of the Clean Water Act through the regulatory establishment of Concentrated Animal Feeding Operations (CAFO) has been ineffective. The reliance on statute law for environmental oversight creates misguided incentives. It replaced the individual responsibility for a clean environment with government responsibility, focused on inputs — not outcomes, and misjudged the implications of a "zero discharge" policy.

Statute law dilutes the responsibility of socially correct behavior of individuals by filtering it through a new authority imposed by the federal and state governments. With the establishment of the Clean Water Act in 1972, the federal government took authority for maintaining the quality of the waters of the United States (Yandle, 1996). This is contrasted to common law, which is established on decisions made by judges on a case-by-case basis.

Copeland (1995) establishes the merit of prosecuting the bad actors, those which degrade the environment with criminal intent. These cases were also captured under common law. The down side of criminal prosecution of environmental laws has resulted in the prosecution of more than just the bad actors. Some of the highly publicized cases resulted in the prosecution of documented environmentally concerned individuals, while other cases punished publicly outspoken individuals. There is also evidence that the threat of prosecution has been used to force the accused into embarking on agency approved projects, a form of extortion.

The implementation of the CAFO effluent discharge strategy is focused on inputs (livestock), not environmental outcomes (nutrients and pathogens). Regulations that have developed, penalize all livestock producers, not only bad actors. Manure disposal regulations are naively based on animal units. To compound the matter further, the 1,000 pound animal unit evolved from steers (Brodie, 1993). In a convoluted way, all other classes of livestock are based on some proportion of a steer's production of manure. The CAFO regulations originally excluded dry manure products, but new EPA initiatives bring dry manure products back under EPA control.

Other pitfalls of current CAFO effluent oversight are that it is implemented on approved practices, based on a zero-discharge effluent goal. By assigning approved practices, there is no incentive for innovation. Approved practices, imply that they are tested and proven. In addition, approved practices focus on a single objective, such as nutrient mitigation and can preclude the ability to address other goals, such as odor control. The zero discharge policy was short-sightedly interpreted as 'containment' rather than 'utilization'.

The structure of agriculture is changing. Livestock facilities continue to increase in size and decrease in number (Drury and Tweeten, 1995). The cost of regulation and compliance with environmental laws are part of the cost that the agriculture industry is seeking to reduce. The Clean Water Act permitting criteria, based on animal units, provide livestock producers with two choices: 1) to stop producing livestock (zero animal units) or 2) to get large enough to distribute the cost of regulatory compliance across more production units. The more units produced, the lower the cost-per-unit. The result is an environmental policy which endorses the construction of lagoons which hold 25 million gallons of effluent (i.e. the infamous 1995, Oceanview Farms lagoon spill).

The health of the environment is important for everyone. It is the implementation of inflexible, one-size-fits-all environmental policy that is contentious. Public policy decisions, both good and bad, influence a livestock producer's ability to operate his/her business. The easy policy solution, to eliminate livestock production, was not a viable alternative to the 450 livestock farmers in the New York City Watershed (Coombe, 1996). In an effort to improve water quality, livestock and dairy producers would have essentially lost the ability to produce under the initial draft regulations. The aggressive action of a handful of the watershed's producers resulted in a science-based, cooperative agreement with New York City which allows them to remain in production.

The fundamental flaw with the current, command-and-control thrust on manure oversight is that the industry has failed to effectively deal with manure management. Voluntary programs and initiatives focusing on best management practices have had wide-spread acceptance, but have not been enough to eliminate manure water quality problems. It is not producer ethics that have interfered with the adoption of best management practices, but the lack of effective incentives and funding.

Consequently, emerging manure rules, fueled more by emotion than science, are in the process of moving the $93 billion U.S. livestock industry to other, more cost-competitive countries. As manure laws and regulations increase the cost of U. S. livestock production, it will be more cost effective to produce the meat and grain that we currently produce, in other countries.

U.S. meat and poultry companies are already multinational companies. It is a naive assumption that new mandates, driven by public perception, will clean up our environment. Rapid expansion in foreign lands with less environmental interest, could result in even greater environmental problems globally. Finally, the safety and wholesomeness of the food system, depending on imported food, will diminish. These long-term costs to U.S. consumers will be substantial.

Shifting environmental responsibilities to the government through the use of environment statutes has not been effective. It is the current environmental policy that is failing -- not the integrity of livestock producers.

Markets for wastes can develop through a reliance on common law (McEowen, 1996), reduced land values and tolerance payments near livestock facilities (Harl, 1995) or through nutrient permit trading (Riggs, 1994). These are all feasible alternatives, but they only manage manure and manure products as liabilities.

Manure managed as a resource, reusing the nutrient and energy components, requires a completely different kind of environmental policy. Through the effective utilization of manure components, the environmental risks disappear. EPA, in the areas of biosolids and farm-produced methane, already recognizes the value in performance standards and incentives to reduce environmental risks.

The EPA, Office of Wastewater Management has worked since 1984 to develop the 503 Biosolids rule (EPA, 1994). This risk reduction methodology, characterizes various domestic sewage sludges to different standards of quality and use. The process of characterization itself provides information to users of the processed biosolids and thereby adds value. EPA initiated discussions to expand the 503 standards to manure with industry and scientific interests, but emerging strategies appear to favor the expansion of existing prescribed practices, rather than development of outcome-based performance standards.

The benefits of reuse versus containment can be illustrated by comparing the environmental risks associated with two caged-layer systems. Caged layer manure today can leave the chicken house in a dry form. Earlier management relied on liquid systems and anaerobic lagoons to treat the manure. Markets currently exist for composted layer manure. This value added product can be profitably transported from the feeding facility and distributed regionally through department stores. EPA has long recognized the reduced environmental risk of dry versus wet manure products. Dry manure systems have been excluded from the CAFO guidance document (EPA, 1995).

Although less reliant on performance standards, EPA, Office of Air, has launched the AgSTAR program for capturing and marketing biogas-energy produced from on-farm anaerobic digesters (Roos, 1994). This program reduces risks of methane entering the atmosphere by bolstering the production and marketing of farm-produced energy.

Environmental policies that encourage the development of manure product markets in the areas of land application, feed ingredients and energy, remove manure risks from the environment. Outcome-based performance standards for carbon, nitrogen, phosphorus and pathogens establish product definitions for reuse, just as the 503 biosolids rule has done for domestic sewage sludge. Similar standards and product definitions facilitate the movement of many organic residuals through the byproduct feed ingredient markets.

The principal responsibility for manure management lies with the industry. Good public policy, however will enhance manure market potential, reduce environmental risks and minimize industry and bureaucratic overhead necessary for implementation.

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