A major development in the American system of government has been the rise in power of the executive branch and the corresponding weakening of the “separation of powers” doctrine. In this article, Wendy Banka, President of the Michigan Small Farms Council, reports on the history of the Michigan Right to Farm Act (RTFA) and how the Michigan Department of Agricultural and Rural Development (MDARD) engaged in illegal lawmaking to change the meaning of the RTFA.
Protection by Right to Farm Law
By the early 1980’s, every state in the Union had passed some kind of Right to Farm law, originally designed to protect farmers from the kind of nuisance lawsuits that sometimes arise when people unaccustomed to farming move to rural areas. The purpose of the law shifted, however, at least in Michigan, as subsequent amendments increasingly brought industrial agriculture under the protection of Right to Farm. Indeed, one could argue that after amendments in 1987, 1995, and 1999, the re-designed Michigan Right to Farm Act (RTFA) became the cornerstone of a legal and policy infrastructure to protect and enable corporate agriculture in Michigan.
Michigan’s 1999 amendment to the Right to Farm Act was especially noteworthy, since that amendment removed local authority (such as zoning) over farm operations that meet the requirements of the Act, which turn out to be easily met: a farm needs only to be commercial and to meet the requirements of the so-called GAAMPs—Generally Accepted Agriculture and Management Practices—to earn Right to Farm protection. This was widely considered to be a boon for industrialized agriculture, since after 1999 they were no longer required to seek or win approval for their operations from local governments if they were commercial and compliant with the GAAMPs. Interestingly, however, the 1999 Right to Farm amendment did not specify that this extraordinary protection is limited only to farmers in rural areas and, in fact, the courts in Michigan have repeatedly ruled that the same protection applies to farmers in urban and residential areas, regardless of how they are zoned.
It is important to note that the requirements for Right to Farm protection in Michigan are very easily met. The definition of “commercial” was not defined in the Act itself, and so has been interpreted by the court to mean any level of sales (such as the sale of a single egg), or even intent to sell. Furthermore, although the GAAMPs requirements do give the Commission of Agriculture broad authority to define best practices in agriculture, to ensure that only the most responsible farms earn Right to Farm protection, this has not been their goal. Instead, the GAAMPs in Michigan are designed for farmers by farmers, with a goal of legally protecting all but the most egregious operations. The results of these agricultural policies can easily be seen in the extensive pollution of Michigan’s waters, as reported this summer for Lake Erie and the Pine River.
The silver lining of Michigan’s Right to Farm Act is that in addition to protecting large industrialized food operations, it also protects all farms, everywhere, that are commercial and that follow the GAAMPs. As Michigan citizens turned away from the industrialized food system and back to small-scale farming and food production, they understood that the Right to Farm Act protected their ability to do so, and that only an act of the legislature could take away that right.
Shift happens – MDA becomes MDARD
In 2011, however, the Michigan Department of Agriculture (MDA) was renamed the Michigan Department of Agriculture and Rural Development (MDARD), creating a real shift in department policy to focus only on agriculture in areas that are both rural and zoned for agriculture, despite the fact that Right to Farm protects all farm operations, everywhere. This created a problem for MDARD. The legal mechanism to sever Right to Farm protection from farm operations in residentially zoned areas would be to open the Right to Farm Act, and to amend it by an act of the legislature. This option, however, could draw attention to the truly extraordinary protections that corporate farm operations in Michigan currently enjoy under RTF, and might even result in some of those protections being weakened. As a result, this legal option was not considered to be worth the risk, and MDARD instead came up with a plan to use the GAAMPs to deny small farmers their legal rights, by creating new kinds of GAAMPs requirement that are impossible to meet—because instead of being based on sound agricultural management practices, they are based only on where you live.
This tactic was first employed in late 2011, when the Michigan Commission of Agriculture approved changes to the 2012 GAAMPs preface to deny all citizens living in cities of over 100,000 residents their legal Right to Farm protection, simply by stating that each of the GAAMPs “does not apply” in those places. In 2012, 1.5 million Michigan citizens lived in the seven cities with over 100,000 residents. By mid-2012 small farmers in Michigan began to understand what had happened, and were paying attention when MDARD next proposed changes to the 2013 Site Selection GAAMP that would have denied Right to Farm protection to all citizens living in residentially zoned areas, which was estimated to include about 8 million Michigan citizens, of 10 million total. Small farmers advocated against that change, and were successful. And, during all of 2013, MDARD proposed no further changes to Commission of Agriculture.
All of this changed in January of 2014, when MDARD announced a two-week public comment period on proposed changes to the 2014 Site Selection GAAMP, which again added language to deny Right to Farm protection for Michigan citizens living in residentially zoned areas. During those two weeks, MDARD received responses from 721 people, with 684 of those opposed to the proposed changes. In the following weeks they received hundreds of more comments, virtually all of which were also opposed to the changes. This response of a thousand or more Michigan citizens was enough to delay a vote of the Commission of Agriculture on these changes by a month, but on April 28, 2014, the MDARD again approved changes to the GAAMPs that were specifically designed to deny Right to Farm protection to the majority of Michigan citizens in areas that are “primarily residential” and are on land that is zoned residential, without a vote of the legislature.
Need to Preserve Representative Government
I am a small farmer in Michigan affected by the changes to both the 2012 and the 2014 GAAMPs, and am one of many who have advocated against these changes. I understand, however, that the keeping of even small livestock animals can be controversial, and that not everyone will agree with me that these practices are beneficial for individuals, their families, our communities and our state.
But I think everyone—from small farmer to township supervisor to concerned neighbor—should agree that only our legislature has the authority to change the law. Michigan’s Right to Farm Act is clear and unambiguous, and the courts have interpreted it to mean that all kinds of farms—from CAFOs to small residential farms—are protected by its provisions.
The changes that MDARD has made to the GAAMPs in 2012 and 2014 are just as clear and unambiguous in their attempt to ensure that the majority of the state that lives in residentially zoned areas cannot be protected by Right to Farm, despite the fact that the Act itself specifically precludes zoning from impinging on Right to Farm protection. The Michigan Department of Agriculture may have changed its name and its focus, but the law stands, and MDARD should not be able to use its authority to thwart the law and deny Michigan citizens the legal protections defined in the law.
Each of us has the right to be protected by existing laws enacted by previous legislatures, and to be represented by our current legislators when changes to our legal rights are proposed. With the changes to the GAAMPs that were made in 2012 and 2014, MDARD not only denied the majority of Michigan citizens the right to their legal Right to Farm protection, they also denied all of us a representative democratic government, in which only our elected legislators have the authority to change the meanings of our laws.