Setting the Table for Urban Agriculture

This article provides context for the various roles that law plays in the cultivation of urban agriculture. This article first reflects on how popular support for the development of a legal framework that promotes urban agriculture is rooted deeply in American agrarian traditions. The article then notes the palatable tension between the rhetoric in support of urban agriculture and the modes of urban law and planning that dominated the twentieth century. It considers how various approaches to urban planning have facilitated or thwarted urban agriculture and surveys recent legal developments designed to accommodate and encourage urban agriculture projects as alternatives to conventional industrial agriculture. Next, the article argues that, notwithstanding the growing enthusiasm for urban agriculture, serious equity and ecological concerns lie within the forms of modern urban agriculture and that careful strategic planning should align the implementation of the legal tools available not only with the traditional values of agrarianism, but also with addressing these and other concerns. This article concludes by recommending key considerations for use of legal tools in moving forward to develop urban agriculture that, if implemented, will improve food systems in general

Farming and Eating

This essay argues that the “us versus them” rhetoric that dominates food and agriculture policy today drives a wedge between farmers and food consumers. Together, farmers and food consumers could form a powerful coalition to challenge the true obstacle to sustainable and equitable food production: concentration of market and political power elsewhere along the food chain

Regulating Farming: Balancing Food Safety and Environmental Protection in A Cooperative Governance Regime

After providing a brief overview of regulation in each area, Part I of this Article identifies three types of discordance between produce safety and environmental protection on farms. First, because of limited resources, farmers will have to choose between implementing food safety practices and implementing environmental practices. Second, indirect trade-offs between the two regulatory goals result in damaging collateral consequences for the environment. Food safety regulation may exacerbate a range of existing environmental harms. Third, there is at least one direct clash that may make compliance with food safety law incompatible with participation in certain environmental programs. Part I also addresses the possibility that some environmental protection practices may also improve food safety. Part II considers when and by whom these trade-offs are evaluated during the regulatory process. It argues that existing trade-off management tools fall short for agricultural regulation because they fail to take into consideration the structure of cooperative governance, which delays many of the regulatory decisions until after rulemaking is over. Part III offers a typology of trade-off management tools. It categorizes these solutions based on when in the regulatory process each of these tools is used. Part III then proposes a solution aimed at reducing the Food Safety Act\u27s collateral environmental consequences. It calls on the FDA to require farmers to conduct written evaluations of trade-offs between food safety and environmental protection

Drinking Water Protection and Agricultural Exceptionalism

Providing safe drinking water is a basic responsibility of government. In the United States, local water utilities shoulder much of this burden, but federal drinking water law sets these utilities up to fail. The primary problem arises in the context of nonpoint source pollution, where federal drinking water law favors end-of-line clean up by water utilities over pollution prevention by farmers and other nonpoint source polluters. This system is both inefficient and unfair. Although the Safe Drinking Water Act requires local utilities to provide safe water, it gives them few tools to engage in water pollution prevention and instead emphasizes water filtration and treatment. At the same time, the Clean Water Act, which regulates water pollution, broadly exempts much agricultural water contamination and other nonpoint source pollution from its strict permitting requirements. As a result of the interaction of these two statutes, water utilities are often the first line of defense against agricultural water contamination\u27s many human health harms. Allocating cleanup responsibility to water utilities rather than to polluters is inefficient because it prioritizes end-of-line clean up even where pollution prevention would be less expensive. It also fails to account for the ancillary benefits of pollution prevention, including, among other things, protection of aquatic habitats. This allocation of responsibility is inequitable not only because it has a disparate impact on low-income and minority communities, but also because it disadvantages communities whose drinking water sources are adjacent to farms relative to those whose drinking water sources are adjacent to polluters that are subject to the Clean Water Act\u27s permitting requirements. For the former set of communities, legal mechanisms to shift either costs or cleanup responsibility to farmers are extremely limited. To address these concerns, this Article calls for a suite of legal reforms that would shift the default from end of line cleanup to pollution prevention by empowering water utilities to adequately protect their source waters and by revoking the special status of farms in environmental law

Bundling Public and Private Goods: The Market for Sustainable Organics

Modern agriculture has vast environmental externalities. The pesticides, fertilizers, and sediments in irrigation runoff pollute surface and groundwater; single-crop farms destroy biodiversity; and massive amounts of fossil fuels are burned in agricultural production, post-harvest processing, and shipping. Nevertheless, farming operations have largely escaped the post-1970 expansion of federal environmental regulation. Compounding the problem, federal farm policy has encouraged the very farming practices that most cause this degradation. In 1990, Congress passed the Organic Foods Production Act (OFPA), which created an organic food certification and labeling system. While OFPA\u27s primary purposes are to facilitate the growth of the organic sector and to protect consumers, this Note suggests that the Act\u27s secondary purpose, underimplemented by the United States Department of Agriculture (USDA), is to foster sustainable farming practices. This Note explores whether the OFPA\u27s organic labeling system does or could fill the regulatory gap described above. This Note finds that under current standards the labeling program does not foster sustainable farming, not only because of shortfalls with the standards themselves but also because the market suffers from a freerider problem: Organic foods cost more, but consumers do not want to pay more for dispersed public benefits. Strengthening the standards would drive up production costs and exacerbate the freerider problem, but this Note argues that the USDA could mitigate the resulting decline in demand by taking advantage of the fact that organic products bundle sustainability, a public good for which people are not willing to pay much, with health, a private good for which many people are willing to pay more

Eaters, Powerless by Design

Food law, including traditional food safety regulation, antihunger programs, and food system worker protections, has received increased attention in recent years as a distinct field of study. Bringing together these disparate areas of law under a single lens provides an opportunity to understand the role of law in shaping what we eat (what food is produced and where it is distributed), how much we eat, and how we think about food. The food system is rife with problems--endemic hunger, worker exploitation, massive environmental externalities, and diet-related disease. Looked at in a piecemeal fashion, elements of food law appear responsive to these problems. Looked at as a whole, however, food law appears instead to entrench the existing structures of power that generate these problems. This Article offers a novel conceptual critique of the food system. It argues that food law is built on two contradictory myths: the myth of the helpless consumer who needs government protections from food producers and the myth of the responsible consumer who needs no government protection and can take on the food system\u27s many problems herself. The first myth is self-actualizing, as the laws that it justifies disempower food consumers and producers. The second myth is self-defeating, as the legal structures that assume consumer responsibility impede meaningful consumer choice. Food law, as it is shaped by these myths, constructs powerlessness by homogenizing--or erasing diversity within--the food system, paralyzing consumers through information control, and polarizing various food system constituents who might otherwise collaborate on reform. Ultimately, food law is designed to thwart food sovereignty. By revealing how the structures of food law itself obstruct reform, this Article also identifies a path forward toward true food sovereignty

The Safe Drinking Water / Food Law Nexus

At 2 AM on August 2, 2014, the Ohio Environmental Protection Agency issued the following warning to the citizens of Toledo: “Do Not Drink.” The Ohio City\u27s tap water was contaminated with microcystin, a toxin that can cause diarrhea, vomiting, and abnormal liver function. The source was an algal bloom in Lake Erie resulting from high levels of agricultural fertilizers and animal waste. For three days, Toledo residents drank only bottled water. This is just one of many similar examples of agricultural contamination of urban drinking water supplies. Creating a physical connection between urban and rural communities, this pollution highlights the need for an environmentally-minded and systems-based food and agriculture law

Eaters, Powerless by Design

Food law, including traditional food safety regulation, antihunger programs, and food system worker protections, has received increased attention in recent years as a distinct field of study. Bringing together these disparate areas of law under a single lens provides an opportunity to understand the role of law in shaping what we eat (what food is produced and where it is distributed), how much we eat, and how we think about food. The food system is rife with problems— endemic hunger, worker exploitation, massive environmental externalities, and diet-related disease. Looked at in a piecemeal fashion, elements of food law appear responsive to these problems. Looked at as a whole, however, food law appears instead to entrench the existing structures of power that generate these problems. This Article offers a novel conceptual critique of the food system. It argues that food law is built on two contradictory myths: the myth of the helpless consumer who needs government protections from food producers and the myth of the responsible consumer who needs no government protection and can take on the food system’s many problems herself. The first myth is self-actualizing, as the laws that it justifies disempower food consumers and producers. The second myth is self-defeating, as the legal structures that assume consumer responsibility impede meaningful consumer choice. Food law, as it is shaped by these myths, constructs powerlessness by homogenizing— or erasing diversity within—the food system, paralyzing consumers through information control, and polarizing various food system constituents who might otherwise collaborate on reform. Ultimately, food law is designed to thwart food sovereignty. By revealing how the structures of food law itself obstruct reform, this Article also identifies a path forward toward true food sovereignty

The New Food Safety

A safe food supply is essential for a healthy society. Our food system is replete with different types of risk, yet food safety is often narrowly understood as encompassing only foodborne illness and other risks related directly to food ingestion. This Article argues for a more comprehensive definition of food safety, one that includes not just acute, ingestion-related risks, but also whole-diet cumulative ingestion risks, and cradle-to-grave risks of food production and disposal. This broader definition, which we call “Food System Safety,” draws under the header of food safety a variety of historically siloed, and under-regulated, food system issues including nutrition, environmental protection, and workplace safety. The current narrow approach to food safety is inadequate. First, it contributes to irrational resource allocation among food system risks. Second, it has collateral consequences for other food system risks, and, third, its limited focus can undermine efforts to achieve narrow food safety. A comprehensive understanding of food safety illuminates the complex interactions between narrow food safety and other areas of food system health risks. We argue that such an understanding could facilitate improved allocation of resources and assessment of tradeoffs, and ultimately support better health and safety outcomes for more people. We offer a variety of structural and institutional mechanisms for embedding this approach into federal agency action

The Right Family

The family plays a starring role in American law. Families, the law tells us, are special. They merit many state and federal benefits, including tax deductions, testimonial privileges, untaxed inheritance, and parental presumptions. Over the course of the twentieth century, the Supreme Court expanded individual rights stemming from familial relationships. In this Article, we argue that the concept of family in American law matters just as much when it is ignored as when it is featured. We contrast policies in which the family is the key unit of analysis with others in which it is not. Looking at four seemingly disparate areas of recent policymaking—the travel ban, family separation at the southern border, agricultural subsidies, and the religious rights of closely held corporations—we explore the interplay between the family, the individual, and the corporation in modern law. We observe that both liberals and conservatives make use of the family to humanize or empower certain people, and both reject the family when seeking to dehumanize or disempower. Where liberals and conservatives differ is which families they choose to champion. Ultimately, we conclude that the use of family as a mechanism through which to confer rights and benefits is a cover to hide policies that entrench and exacerbate existing racial and religious hierarchies. Further, in the context of family businesses, it risks becoming a steppingstone for radical expansion of rights to businesses themselves. To tell this story, we analyze the use and rhetoric of family in politics, media, and recent Supreme Court decisions such as Trump v. Hawaii (2018), Burwell v. Hobby Lobby (2014), Kerry v. Din (2015), and Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)