2023 TOP 10 BLOG
VJEL Staff Editor: Isabella Pardales
Faculty Member: Professor Francine Miller
The 2023 Farm Bill: What’s At Stake?
American agriculture was built on the backs of Black farmers. Farmers of color have endured a long history of government-sponsored discrimination which has led to a declining population of Black farmers. Between 1910 and 1997, the number of Black farmers declined by 98%. Black farmers were purposefully excluded from early relief programs for struggling farmers and later systematically denied access to critical U.S. Department of Agriculture (USDA) programs. The USDA continues to face criticism for not doing enough to remediate past discrimination and advance equity in agriculture. Here we introduce two areas where the 2023 Farm Bill, in conjunction with the Inflation Reduction Act (IRA), can advance environmental justice efforts.
I. Introduction to the Farm Bill
Since the 1930s, the farm bill has grown in size, scope, and importance. The modern day bill’s origins are in the Agricultural Adjustment Act of 1933 and the Food Stamp Program of 1939. The bill’s reach is uniquely wide: agricultural policy, nutrition, food assistance, alternative energy, agricultural research, conservation, and rural development. Among others, the bill will impact large commodity farmers, small diversified producers, food banks, and those who receive nutritional assistance.
The bill has unique political dimensions—as intentional cooperation between rural and urban America is rare. The bill often sets bipartisan goals, so politicians on both sides of the aisle can unify. One of the most important programs funded by the bill is SNAP—the Supplemental Nutritional Assistance Program. As of February 2022, SNAP helped 41 million low-income Americans afford food. Nearly 90% of SNAP participants live in households that contain children, individuals over the age of 60, or individuals with a disability. The Nutrition Title, which includes SNAP, represented over 75% of direct funding in the 2018 Farm Bill. Efforts to undermine SNAP funding can
“threaten to bring a Farm Bill down.” The 2018 Farm Bill was passed with the “strongest bipartisan support ever.” The bill is supposed to be reauthorized every 5 years. The House and Senate begin the reauthorization process through committee hearings with government officials, stakeholders, academics, and farmers. While committee hearings occur, legislators introduce “marker bills” which contain policy proposals. These marker bills shape the discussion and debate surrounding the next bill and represent the primary way in which new ideas are introduced. Marker bills for the 2023 Farm Bill have been introduced and will continue to be through the end of the year.
Listening sessions with government officials, interest groups, academics, and farmers inform initial bill drafting by the House and Senate Agriculture Committees. Each committee bill is debated, voted on, and amended by each respective body. Debates, conferences, and lobbying continues until the House and Senate approve a final bill. It then goes to the President for veto or signature into law.
Over the next year, the bill will take shape in Washington. The bill is widely regarded as one of the most important pieces of legislation to develop in the coming year. The Bill must address a myriad of issues: the pandemic, climate change, environmental justice, economic security, and the resiliency of rural communities. The 2023 Farm Bill must meet the “dramatic circumstances the country currently faces” through strong programs and funding. The narrow Republican majority in the House may help foster the bipartisanship needed to pass the 2023 Farm Bill on time, as many programs from the 2018 bill are set to expire in September 2023 and many House Republicans represent rural constituencies. There is concern House leadership will try to pass a bill with only Republican votes, however any delay in passage is a potential talking point for Democratic challengers in future elections.
II. Environmental Justice Opportunities in the 2023 Farm Bill
The 2023 Farm Bill offers the opportunity to advance environmental justice efforts through programs and policies that center on racial equity, due in large part to the wide reach the bill has on the country. The USDA has repeatedly been criticized for not doing enough to remediate past discrimination and advance equity in agriculture. There are two particular issues in the greater farm bill conversation about how the bill can advance environmental justice: (1) defining “discrimination” under the Inflation Reduction Act and (2) finding more ways to mitigate against additional Black-owned land loss by helping heirs’ property owners. The Inflation Reduction Act (IRA) is important to consider because it provided more than $40 billion for agriculture, forestry, and rural development. The passage of the IRA should not, however, stifle further advances in equity and environmental justice in the 2023 Farm Bill.
A. Defining the IRA provision for producers and landowners who have “experienced discrimination”
The passage of the IRA is important to consider in any discussion of the 2023 Farm Bill as two particular provisions of the IRA implicate the USDA. Section 22006 of the IRA provided $3.1 billion to the USDA to provide relief to “distressed” borrowers with Farm Service Agency (FSA) loans. This is expected to provide relief to about 35,000 farmers.
Section 22007 of the IRA directs the USDA to provide $2.2 billion in relief to producers and landowners that have “experienced discrimination.” The USDA has a storied history of discrimination, as evident in the Pigford, In re Black Farmers Discrimination Litigation, Garcia, Love, and Keepseagle cases.
A provision specifically to remedy USDA discrimination against farmers of color was originally part of the American Rescue Plan Act of 2021 (ARPA). After ARPA’s passage, litigation quickly ensued involving the provisions’ use of race, with white farmers arguing the race-based classification discriminated against them. Congress repealed Section 1005 of ARPA and added Sections 22006 and 22007 of the IRA, which no longer mention race, instead providing relief for “distressed borrowers” and those who have “experienced discrimination.”
On Oct 14th, the USDA issued a Notice of Public Comment seeking input on how the USDA should define and identify those who have “experienced discrimination” under past USDA farm loan programs. The decision to open the issue to public comment could be an attempt by USDA to avoid litigation and accusations of discrimination against non-minorities. Funding to directly address the damage caused by racial discrimination by USDA in the farm loan arena has been held up since the passage of ARPA in March of 2021. Currently, farmers promised ARPA relief continue to be in “legal limbo” until the USDA defines how it will determine whether someone “experienced discrimination.”
There is concern the “vague language in the legislation will increase competition for the funding” and lead to increased loss of Black-owned farmland. Advocates for Black farmers note that Congress’ unwillingness to use race in the IRA to provide relief “negates the promise made to Black farmers” of support in light of the “well-documented history of race-based discrimination from the USDA.” Advocates must scrutinize the way in which the USDA chooses to define “discrimination” as the implications could be far-reaching. There is additional concern the passage of the IRA will stifle the inclusion of certain provisions in the 2023 Farm Bill related to advancing equity; resistance is expected to provisions that create additional funding opportunities for Black farmers in the bill because of the provisions made in the IRA.
B. Heirs’ Property
A second legal issue to watch in the farm bill debate concerns provisions related to heirs’ property. Heirs’ property refers to property passed to family members by inheritance, usually without a will. Roughly 40-70% of Americans die without a will each year; race and income play a factor, with one study suggesting only 24% of African Americans make wills. When someone dies without a will, state intestate succession laws govern who inherits an interest in the decedent’s property. And those heirs inherit an interest in the land as tenants in common, which means they each own an interest in the undivided land. If the descendants do not change the deed to reflect the new owners, the property remains in the name of the deceased original owner. If those descendants die without a will as well, then additional heirs inherit an interest in the land. This results in the heirs’ having “cloudy title” to the land because the deed continues to list the name of the original property owner many generations back. In addition, as more generations of owners inherit interests, there can be dozens or even hundreds of heirs who need to reach 100% agreement regarding the property. This makes it extremely difficult to generate wealth.
Owning the land as tenants in common with cloudy title can be problematic for many landowners. Any co-owner can bring an action to partition the property—this has resulted in significant loss of Black-owned land. Families are often unable to participate in USDA programs or use the land as collateral because they can’t prove ownership. Determining how much land is held as heirs’ property is difficult, but estimates gather 40-60% of Black-owned land is owned as heirs’ property in the U.S.
The 2018 Farm Bill authorized an Heirs’ Property Relending Program which provides loans to heirs to assist with title issues. This program is still being implemented and loans are not yet available. In any event, the program’s reliance on loans is a barrier for many citing: historic and current discrimination, financial barriers to obtaining credit, and the significance of assuming new debt. The 2023 Farm Bill must resolve remaining inconsistencies and gaps. Advocates are pressing for grants to be available for financial and technical assistance. Establishing conservation programs that allow heirs’ property owners to sell conservation easements to land trusts can help ensure “the agricultural future of the land.” Finally, more legal support should be provided in the bill for heirs’ property owners to resolve their issues.