Striking the Proper Balance Between the Carrot and the Stick Approaches to Animal Feeding Operation Regulation

Agriculture is one of the cornerstones of the success of the United States, yet it has also dramatically and negatively affected the quality of our nation’s waters. Animal Feeding Operations (AFOs) and Concentrated Animal Feeding Operations (CAFOs) are responsible for significantly degrading water quality in watersheds across the country due to their creation of massive amounts of animal waste and the methods used to dispose of and utilize the waste for fertilizer. Although the Environmental Protection Agency (EPA) ostensibly regulates these operations through the permitting requirements of the Clean Water Act (CWA), it has failed to implement policies that effectively and efficiently address the pollution caused by AFOs and CAFOs. This Note discusses the different regulatory mechanisms that attempt to reign in the degradation, categorized into groups of carrot and stick approaches that are endorsed by U.S. agricultural groups and environmentalists, respectively. The Note provides an overview of potential solutions, including current EPA regulatory methods, the EPA’s draft Clean Water Strategy, a restoration plan in place in the Chesapeake Bay watershed, and solutions proposed by various commentators and interested individuals. Ultimately, this Note concludes that the adoption of either a carrot or a stick approach in totality is not the best solution; rather, a combination of incentive-based approaches and ex post liability would be most successful, leading to more compliance and less pollution overall. A chronological framework for creating this type of hybrid solution is proposed, drawing from ideas already suggested but not implemented by the EPA. The Note argues that agriculture’s impact on water quality could result in calamity if it continues in the current fashion. To prevent such calamity, this Note calls for nationwide collaboration, extensive information gathering, revision and tightening of current regulatory and permitting schemes, and the implementation of creative new methods, such as a water-quality trading system.

The full text of this Note is available to download as a PDF.