As the population grows, so does the conflict between demand for agricultural productivity and the need to maintain healthy ecosystems. Unfortunately, this concern alone does not motivate the agricultural industry to operate in a more environmentally friendly manner, nor is it an industry that has proven amenable to strict regulation. Indeed, any such effort must face one of the mightiest lobbies of all time. As it functions today, agriculture is unsustainable and at risk of wiping out more than its fair share of our already dwindling biodiversity. As demand increases, there is the potential for it to get worse than it already is. One might think that the Endangered Species Act (ESA) could solve the problem, given that it has strict prohibitions on harming listed species, but the ESA is no match for this industry, which works hard to avoid its reach. While there are some ESA approaches that work better than others, such as regional habitat conservation plans that allow farmers to destroy some habitat in exchange for contributing to the protection of large and interconnected areas of habitat, a review of the ESA’s implementation in the agricultural context makes clear that far more is needed. In recent decades, a variety of approaches to improving conservation efforts on agricultural land have cropped up, such as conservation easements, payment for ecosystem services (PES) programs, the Conservation Reserve Program (CRP) to avoid overuse of agricultural land, green labeling restrictions, and direct subsidy methods such as the Environmental Quality Incentives Program (EQIP) and Conservation Stewardship Program (CSP), which pay farmers to incorporate more environmentally friendly practices. Some of these methods, such as PES and conservation easements, tend to be implemented by a wide range of entities, both public and private. What we wind up with is a mix of efforts that sometimes overlap, also raising federalism questions. The disaggregation of agricultural conservationist efforts, which is necessitated by the industry’s successful avoidance of traditional top-down command-and-control regulation, is not necessarily a problem. However, in light of these disaggregated and sometimes overlapping spheres of influence, some effort at integration could reduce the chaos and lead to more consistency nationwide. Drawing from scholarship focused on transnational regimes, we see that decentralized (and public-private mixed) governance can still be effective and even coordinated. As effective programs expand, social norms develop and begin to tie them together. As this occurs, it creates the opportunity to better coordinate and integrate the diverse influences. Given the importance of scale in maximizing the benefit-to-cost ratio when protecting ecosystems, such coordination of the various sources of authority is especially valuable in this context. It is likewise important to share both information and strategy, in light of the shared goals of the many entities involved in the governance of ecologically sustainable agriculture. This essay and presentation will consider potential methods for improving the integration of the array of approaches, as well as consider the importance of taking an adaptive management approach to this coordination-seeking venture.
Governing the Ungovernable: Integrating the Multimodal Approach to Keeping Agricultural Land Use from Swallowing Ecosystems
, 46 McGeorge Law Review 67
Available at: https://ecollections.law.fiu.edu/faculty_publications/259