The rules that don’t apply to Big Ag
How agribusiness enjoys special treatment from a government designed to protect it
When you think of the word ‘farm’, what comes to mind? Is it happy cows on green pasture and a smiling farm family? Unfortunately, the origins of U.S. agriculture — and the dominant way we grow food today — aren’t quite so rosy.
Our agriculture system was built by enslaved Black people on stolen Indigenous land. It made a few people very rich: wealthy, white landowners. They built and benefited from an economy that extracts as much wealth as possible from people and the planet.
As laws were passed to protect people and our planet, wealthy white landowners required exceptions to those protections in order to continue to generate wealth. Because our government was designed to protect these interests, agricultural exceptionalism was born.
Agricultural exceptionalism is the exclusion of the agriculture industry from labor, environmental, health, and safety legislation. It is the system by which agribusiness gets special treatment and does not have to follow the same rules as everyone else.
Government carve-outs to legislative safeguards like worker safety and environmental protection continue to protect agribusiness interests over the well-being of workers, communities, and our natural resources, and enable corporations to hide from accountability. We’re putting a stop to that.
Agriculture workers are left behind
If you work in the United States, you may enjoy basic worker protections like minimum wage or overtime pay. These basic protections have their roots in the New Deal era. The years following the Great Depression were a time of hope and renewal in the United States — for some.
The Fair Labor Standards Act of 1938 guaranteed minimum and overtime wages, while the National Labor Relations Act of 1935 protected workers’ right to collective bargaining. But two groups of laborers were conspicuously exempt from these new protections: agricultural workers and domestic workers. Why? Most of these workers were Black.
Though slavery had been formally abolished, Southern wealth still relied on stolen Black labor. Through sharecropping, Black people lived and worked on land owned by white farmers. Kept in a constant state of debt, many were unable to leave. Southern legislators intended to preserve this quasi-plantation style agriculture, alongside the Jim Crow policies of the time, and would only vote for the protections guaranteed in the FLSA and NLRA if they did not apply to Black people. Excluding agricultural and domestic laborers helped maintain a racialized economy without using explicitly racial language in legislation.
That racist legacy lives on today: many of the same legal exemptions that enabled the exploitation of Black workers now apply to an agricultural workforce comprised of mostly Latine people. At the height of World War II, the United States compensated for domestic agricultural labor shortages by formalizing an agreement with Mexico to bring in Mexican people to work in American fields for low wages and with few benefits. Although the notoriously abusive Bracero program did include some legal labor protections, they were not felt in practice. The 4.5 million Mexican workers who came to the U.S. between 1942 and 1964 were cheated out of wages, held captive by employers, and forced to live in squalor. As residents with temporary status, they were subject to American laws but not entitled to advocate for themselves as citizens — squashing any possibility of improving working conditions through collective bargaining.
When the Bracero program formally ended, it morphed into the guestworkers visa programs we see today. The H-2A visa brings in foreign agricultural workers on a temporary basis, making it especially hard to advocate for better working conditions when faced with rampant and systemic exploitation, like wage theft and other unlawful practices.
In most states, farmworkers still do not receive overtime pay, although worker organizing combined with strategic litigation is changing this in some states, like Washington and Oregon. Federal labor laws still exclude agricultural workers from collective bargaining protections, leaving them less likely to speak out for fear of retaliation when faced with abuse. And child labor is legal in the United States when children work in agriculture, which accounts for more than half of work-related deaths among minors in this country. As such, the legacy of excluding agricultural workers from basic labor protections lives on.
Big Ag is a climate polluter, but EPA doesn’t treat it like one
Big Ag’s free pass doesn’t end with workers. Although the agriculture industry is a major polluter, it escapes the environmental regulations faced by other polluting industries unscathed. Instead, communities living near factory farms and slaughterhouses — overwhelmingly communities of color and low-income people — pay a steep price for Big Ag’s bad practices.
When major corporations squeeze thousands of animals onto a small piece of land, that land cannot support their waste. Cow, hog, and chicken manure gets stored in “manure lagoons,” open football field-sized cesspools, or holding tanks, where it breaks down and releases massive amounts of methane — a greenhouse gas 25 to 35 times more potent than carbon dioxide over a 100-year period. When some of the manure gets applied to farmland, it releases nitrous oxide, another potent greenhouse gas, into the atmosphere. In fact, industrial agriculture is a major driver of climate change: the industry accounts for almost one-tenth of U.S. greenhouse gas emissions and more than one-third of methane emissions.
If the agriculture industry had to pay for their pollution the same way other industries do, they wouldn’t be able to turn a profit. Although there’s been a push (albeit insufficient) to regulate other climate polluting industries, like energy and transportation, the federal government has been practically silent when it comes to farming.
Last year, the United States joined forces with more than 100 countries to launch the Global Methane Pledge, which aims to reduce methane emissions by 30% by 2030. Accordingly, the Biden administration announced strong pollution standards and regulations for oil, gas, and landfills. On the subject of agriculture, however, the White House failed to impose regulations and instead called for the voluntary adoption of so-called ‘climate smart’ farm practices, like factory farm gas, which in reality creates a new revenue stream for agribusiness and entrenches environmental injustice. When industrial agriculture is the only major polluter whose methane emissions have increased over the past few decades, it should not receive a free pass.
The Clean Air Act gives the Environmental Protection Agency authority to limit greenhouse gas emissions. However, EPA has failed to use its authority to regulate such emissions from factory farms. The small fix of including CAFOs (concentrated animal feeding operations) on the list of facilities to be regulated could make a big change, without requiring Congress’s approval. Yet EPA does not act. In April 2022, we led twenty-five climate, environmental justice, and rural community groups in petitioning the EPA to tackle climate change by listing and regulating industrial dairy and hog operations under section 111 of the Clean Air Act.
EPA’s failure to use its legal authority to reign in Big Ag is not new. It reflects a pattern of law enforcement that intentionally allows this industry to get away with polluting our planet. In 2005, President Bush’s EPA signed a sweetheart deal with the agriculture industry known as the Air Consent Agreement. If corporations paid into a nationwide air monitoring study, they would be shielded from the enforcement of Clean Air Act laws. But more than a decade and a half later, the full results of the study have yet to be released. To challenge EPA’s exemptions for the agriculture industry, we submitted a petition alongside twenty-three public interest groups to rescind the Air Consent Agreement. We have yet to hear back.
Despite industrial agriculture’s major contributions to the climate crisis, EPA has failed to treat it like other polluting industries and place limits on climate emissions.
Our waterways are defenseless against manure, fertilizer, and pesticides
Industrial agriculture enjoys similar impunity for poisoning rivers and streams. Fertilizers and animal manure flow endlessly into American waterways. Toxic blue-green algae feed on the surplus nutrients, producing toxins called microcystins that are dangerous to drink. Long-term exposure to these toxins can be a death sentence and result in liver failure, tumor development, or cancer. The blue-green algae’s decay consumes high levels of oxygen, which other marine life needs to survive, leaving behind aquatic dead zones devoid of marine life.
Despite these overwhelming harms, the Clean Water Act intentionally exempts agriculture from enforcement. The CWA — the primary federal law governing water pollution — does not apply to pollution that comes from a widely distributed area, like a farm (known as “nonpoint source pollution”), but does apply to pollution coming from a specified point, like a factory (known as “point source pollution”). In this way, much agricultural pollution, including fertilizers, pesticides, and manure that gets sprayed onto fields, escapes federal oversight and winds up in our waterways. For a long time, CAFOs were the one form of agricultural pollution that was listed as a point source and therefore fair game for regulation. But Bush’s EPA made an amendment to the rule to essentially exempt CAFOs, too.
If the industry were to internalize the costs of water pollution, their business model would be unsustainable. The federal government protects industry profits and instead tasks local water utilities with cleaning up the mess, while polluters get off scot-free.
Since the federal government won’t protect clean water, it’s up to the states. But where there are powerful agriculture lobbies, this rarely happens. For example, Iowa’s Nutrient Management Reduction Strategy takes the soft approach of recommending that major polluters adopt voluntary strategies to limit their pollution. We sued the State of Iowa for failing to fulfill its obligation to protect the public’s use of shared resources — like water — ensured by the Public Trust Doctrine. Although the court ultimately sided with the state, our clients Iowa Citizens for Community Improvement and Food and Water Watch used our lawsuit to mobilize local community members in their ongoing fight for clean water.
The agriculture industry will continue to enjoy the loopholes gifted to it by federal and state governments, until we hold our government accountable to protecting our waterways over corporate profits.
Big Ag squashes free speech to preserve a toxic narrative
Government loopholes can only go so far to allow an inherently racist and unsustainable industry to continue unchecked. A false narrative justifies Big Ag’s toxic and racist abuse. In schools, our kids sing about Old MacDonald who had a farm. The song paints a picture of happy animals outside on green pasture, with a quaint red barn in the background. The industry reinforces this same, bucolic image of American agriculture in the public imagination. As the story goes, these farms feed the world and form the backbone of this country.
Family farmers raising their animals on beautiful green pastures do exist. But they do not make up most of today’s food production, and they are not who the industry represents. In fact, independent farmers are increasingly being pushed out of the market by agribusiness giants that control the market and undercut prices.
This tall tale protects Big Ag because any threat to this country’s farms becomes perceived as a threat to the quintessential American way of life. Disrupting their false narrative — and revealing the truth about industrial agriculture — takes away from the industry’s power.
Big Ag knows the power of a strong myth, so they fight hard to prevent evidence that pokes holes in their story from coming to light, even if that means squashing free speech. Whistleblowers and journalists who publish images of overcrowded, manure-filled, industrial-sized factory farms blow the industry’s cover — and then become targets.
Since the 1990s, Big Ag has campaigned to pass “Ag-Gag” laws in states across the country. These laws penalize whistleblowers for exposing the worker, environmental, and animal abuse that happens behind the closed doors of factory farms and slaughterhouses.
For years, public interest organizations have been engaged in lawsuits to strike them down and disrupt the industry’s narrative. But each time we strike down a law, Big Ag campaigns for another one — attempting to craft each new one stronger than the last, posing greater potential threats to free speech. In Iowa alone, there have been four iterations of Ag-Gag laws after the courts found the first two laws unconstitutional, and in an attempt to obscure its intentions of protecting the agriculture industry, the North Carolina legislature broadened its Ag-Gag law to prevent whistleblowing in virtually any industry.
Today, the way these laws are drafted varies from state to state. Some create penalties for lying on an employment form to gain access to an agricultural facility; others, for publishing recordings from inside such a facility. But all the laws are united in that they seek to squelch speech that exposes the agriculture industry.
Alongside a strong coalition of worker justice and animal rights groups, we’re fighting back and working to strike down these pernicious laws. In Utah, Idaho, Wyoming, Iowa, and Kansas we struck down all or part of the Ag-Gag laws that were standing in the way of a just food system, and we continue to represent clients in five ongoing lawsuits spanning three states to strike them down.
And through our communications, we break down Big Ag’s mythology by exposing the racism, worker abuse, and environmental harm inherent in the industry’s business model. By changing the story, we change what is possible.
Instead of living with a food system controlled by an industry that relies on extraction and exploitation, we can imagine and work towards one that is healthy and regenerative. We can have safe and livable communities where no one is getting hurt growing our food or living near the farms that produce it. We can have a food system that enriches people of color who have long been exploited and excluded from resources. We can and should have a government that is accountable to us. We just have to work towards it, together.