Agriculture interests are scrambling to cover their rears -- or more precisely, those of their cattle -- from potential new regulation, as U.S. EPA closes in on a finding that could lead to new a regime on greenhouse gas emissions under the Clean Air Act.
Some agriculture groups and farm-state lawmakers are concerned the federal government could be forced to impose fees on livestock operations for the methane emissions that result from the flatulence and burps from their cows or pigs.
If EPA took this route, more than 90 percent of dairy, beef and hog operations could face fines, according to farm groups, with potential losses totaling $175 per dairy cow, $87.50 per head of beef cattle and $20 per hog.
In a pre-emptive strike, House and Senate lawmakers have introduced legislation endorsed by the American Farm Bureau Federation that would prevent the government from requiring livestock producers to obtain permits under the Clean Air Act.
The "cow tax" bills come despite the fact that EPA officials have repeatedly said they have no intention of placing the fees on livestock. The proposals illustrate the concern from various interest groups that once EPA starts walking down the road to regulating greenhouse gas emissions, it could lead to any number of new restrictions -- from lawnmowers to doughnuts to hogs.
"If they do regulate greenhouse gases under the Clean Air Act, then they will have to do all sources, all emitters," said Sen. John Thune (R-S.D.), co-sponsor of the Senate cow tax bill. "That will include livestock because of the methane created and the greenhouse gas and carbon dioxide emissions in the atmosphere."
Concern over a "cow tax" flared up among farm groups last year, then died down after agency officials denied there would be any taxes on cows. But the issue has ignited again with the news the Obama administration is preparing to issue an endangerment finding on greenhouse gas emissions.
Methane is a potent greenhouse gas, 20 times more effective at trapping heat than carbon dioxide, and a natural byproduct of the digestive process for cows and other livestock. Agriculture is responsible for just over 8 percent of U.S. greenhouse gas emissions, according to EPA.
"This is what we were afraid would happen, and that is where the idea of a cow tax originated," said Thune. "It's something that livestock operations and farm organizations all across the country are very concerned about, and I think now with this announcement, with good reason."
EPA is expected to propose an endangerment finding next month that would detail the threats that global warming poses to public health and welfare. The finding -- required by a nearly two-year-old Supreme Court opinion -- is expected to trigger a series of Clean Air Act regulations that limit greenhouse gas emissions from motor vehicles, power plants and other major industrial sources (Greenwire, March 23).
The announcement sparked a flurry of concern from Republicans and interest groups of where the regulations would lead. EPA Administrator Lisa Jackson has said she has no plans to tax livestock emissions or pursue any of the other "doomsday scenarios" for the new regulations.
"Part of the reason they are doomsday is because it's an application of regulations that don't make sense -- taxing cows, bovine belches, all those issues that make people worry that EPA's regulatory authority is the only one in the kit," Jackson told the Agriculture Outlook Forum earlier this month.
But some lawmakers with agricultural interests in their home states are not taking any chances. Thune introduced his bipartisan bill earlier this month with Sen. Charles Schumer (D-N.Y.). He said last week that they would like to attach the measure to larger legislation, such as an appropriations or energy bill.
On the House side, Agriculture Committee ranking member Frank Lucas (R-Okla.) and Rep. Jeff Fortenberry (R-Neb.) each have their own similar bills. All three of the proposals would exempt any biological processes from livestock production from Title V permit fees under the Clean Air Act.
"My bill is just to draw a line in the sand to make it quite clear to EPA or anyone who wants to pay attention," Lucas said. "It's just too important. The negative possibilities are tremendous. We are fighting for our producers and want to make sure we say to EPA and the world, 'Keep your hands off livestock agriculture when you do these things.'"
But House Agriculture Chairman Collin Peterson (D-Minn.) is not convinced any action is necessary. After a meeting with Jackson earlier this month, Peterson said she assured him, "there will not be a cow tax, period."
"He's fixing a problem that doesn't exist," Peterson said of Lucas's proposal. "This is all politics."
Court battles ahead?
The American Farm Bureau Federation insists this is not a political game. The Clean Air Act language calls for permits and mandatory fines for operations that emit more than 100 tons of pollutants.
Rick Krause, director of congressional relations for the Farm Bureau, said those requirements could kick in "automatically" for the emissions from operations with more than 25 dairy cows, 50 beef cows or 200 hogs.
His concerned is that even if EPA does not want to require permits for methane emissions from livestock, other groups might force the issue in court. And recent court decisions like those on interstate air pollution and mercury pollution -- which have forced EPA for more stringent regulations -- give him little comfort that agriculture would win a legal battle.
"Those court cases really haven't given EPA much latitude and flexibility to interpret the Clean Air Act beyond what it says," Krause said. "So even though EPA feels that, or doesn't expect to regulate cows and livestock as a result of this, we just don't think it would stand up in court."
Major environmental groups, including the Natural Resources Defense Council, have said they do not plan to litigate the issue. But that does not mean a local group would not pursue the issue.
Supreme Court Justice Antonin Scalia questioned whether the move to regulate greenhouse gases would explode into a bevy of regulations in his dissent in Massachusetts v. EPA, the 2007 case that allowed EPA to start work on the climate regulations. "It follows that everything airborne, from Frisbees to flatulence, qualifies as an air pollutant," Scalia wrote in a footnote in his dissent. "This reading of the statute defies common sense."
But for advocates of stronger federal action on greenhouse gases, the complaints have become little more than background noise.
"It's tempting to say it's an enormous amount of hot air," said Frank O'Donnell, head of the advocacy group Clean Air Watch. "I take all these things as classic overstatement of those who are opposed to any kind of regulation. I think the EPA people are pretty sensible and are not going to be taking any steps like that."