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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Land Use, the Land Ethic, and the 50-Year Farm Bill  Posted: April 9, 2013


What will it take to Resettle America?
Tom FitzGerald, Director, Kentucky Resources Council
April 5, 2013

I would like to thank the Berry Center founders, many of whom are here today, and the sponsors of the Conference, who are listed in your programs.

I have struggled with my preparation for this presentation more than I have for any presentation among the scores that I have done in recent years.

In no small part, it is because of the tremendous respect and admiration that I have for the words and the work of Wendell Berry, and for Tanya, and Mary and the Berry Center staff.

But perhaps even more so because the pairing of “the law” and of “land use,” a land ethic, and the idea of a 50-year farm bill, requires that I honestly, even brutally, own up to the tremendous shortcomings of the law as a driver for reconnecting people with an agrarian ethic of respect and harmony, affection and humility. Hank Graddy and I have talked several times in the past weeks about this, and he has struggled as well, even though throughout his legal career, his work has been even more directly (and more successfully) focused on the preservation and health of agricultural communities and land than has mine.

It requires that I speak aloud what we know in the silence – that the law is, all too often, a tool not for safeguarding nature or for husbandry of natural and human capital, but instead a bulwark for protecting a dysfunctional system that thrives on the rapacious consumption of natural and human capital, capitalizing and centralizing profit while socializing the costs.

I spend most of my days in an effort to utilize the very blunt instruments of law in order to craft some crude approximation of justice for those whom the Council represents, advises, and assists. For 41 years, 33 of which have been as a lawyer providing pro bono assistance and advocacy, and 30 of which have been as Director of the Kentucky Resources Council, I have attempted to assist in the full and fair implementation of federal and state programs to protect air, water, land, and people from the adverse effects of our production of goods and energy, utilization of natural resources, and conversion of land and communities. On my best days, I can deliver that crude approximation of justice. On my typical day, I fall far short even of that. Looking back over those 33 years, and at the numerous ways in which the laws and programs like the Surface Mining Control and Reclamation Act and others have failed to achieve their lofty goals and have failed to protect the human and natural communities, I am forced to face my greatest fear -that I have spent the better part of a lifetime investing time and effort into attempting to make them successful, and by doing so have been merely an enabler of those failed laws and programs, lending them a legitimacy that is hardly deserved.

After 41 years, I understand and embrace Wendell’s observation that the agrarian argument does not need friends with illusions, but instead needs dedicated lifetimes of our individual and combined effort.

The Unsettling of America, and indeed many of Wendell’s essays since then, help to “center” my work – to remind to me to focus on causes rather than effects. For in most of my work I am, as author and Children’s Defense Fund founder Marian Wright Edelman would say, “all Martha and no Mary;” hopping from crisis to crisis, from fighting industrial hog operations in Hickman and Fulton Counties to opposing strip mines above the water supply of the historic communities of Lynch and Benham, or from opposing mountaintop mining on Big Black Mountain to a limestone quarry in Bullitt County, rarely pausing to acknowledge that these individual crises are symptomatic of a larger failure – a failure of a system that relies not on “creative destruction,” but on destructive consumption – a failure to incorporate into our lives and our laws an appropriate respect and humility in the face of our dependence on and responsibility for the natural systems upon which human life rests.

The need to achieve “balance” is the usual mantra in the field of energy and the environment, born of the powerful and destructive myth that protection of the environment, of public health, and of biological diversity, must be “balanced” with the need for economic growth and material prosperity because the two cannot be achieved together and are diametric opposites, requiring the sacrifice of one to achieve the other. It is as absurd a suggestion as would be the idea that a healthy marriage is one that has just the right balance of physical abuse and romance. Truth is, we have balanced the books on energy and the environment by cooking them for years, shifting off-budget the human and ecological costs of industrial agriculture, of an industrial economy built on “cheap” coal-fired electricity, and of urban overgrowth. Now, at the end of a fossil-fueled binge, the books are starting to cook us.

I do not subscribe to the belief that we are, as a species, “hard-wired for destruction,” as one commentator has stated, because down that path lies cynicism. I do fear, though, that we are at risk of running up a deficit in our natural capital from which we cannot recover, from our toxic combination of ignorance and arrogance regarding the need to incorporate into our lives and laws those principles of wise use and stewardship that allow us to live and prosper within our natural means rather than to attempt to “balance” short-term material comfort with the managed destruction and biological impoverishment of those systems.

In order to create a legal environment in which long-term cultural, ecological, and economic health becomes the goal and replaces short-term material wealth reliant on consumption of the natural capital and ultimately the impoverishment and exhaustion of those natural systems, it is instructive to look at whether, and to what extent, current environmental and energy policies consider the impact of decisions today on ecosystem health and productivity.

We have seen a significant expansion, since 1970, of federal laws and programs, and corresponding state and local programs, directed at pollution control – air, water, coal mining, drinking water, and other statutes and programs. Typically, the laws envision some level of control over the release of pollutants into the environment, tempered by technology and cost. The corollary effect of pollution “control” is to approve under color of law to some level of consumption by the polluter of the quality of the media into which the release occurs – whether air, land, water - that is deemed “acceptable” based on known impacts on current populations, and on a “cost-benefit” assessment.

While the evolution of pollution control law and technology has indeed reduced some of the most obvious effects of pollution, the underlying premise that there is an inherent right or privilege to degrade the environment in the first instance gives sanction to the private appropriation of the “commons” in a fashion that degrades the natural systems without consequence to the polluter. In the balancing of “costs” and “benefits,” the numerous economic and other values of ecosystem services and the intrinsic value of soil and other ecosystems, irrespective of what they “do” for us, are not accounted for or evaluated. Missing also from the equation is any consideration of the effect of decisions today on the health and productive capacity of soils and natural systems over the long-term.

In biological, social, cultural, and economic terms, the two areas where I see the failures to be most apparent and egregious are in the regulation of the environmental impacts of surface coal mining operations, and in the field of remediation of the release of contaminants into the environment. Since the advent of surface coal mining in the Appalachian region of Kentucky during the 1960’s, we have seen over half a century of destruction of native soils and vegetation, and the ecological and biological impoverishment of mined areas and headwater streams. The typical strip mine “spoils” the fragile but productive topsoil into dumped “fills,” and deems the reclamation of areas a success based on a quantitative assessment of ground cover that has been reestablished on the rubblized shale and other rock that remains as the growing medium. The diverse, mixed mesophytic forested ecosystem is often reduced to a monoculture of grasses, and drainage ditches around valley fills masquerade as restored “streams.” The somewhat naive Congressional belief that mining could and should be a “temporary use of land” giving way to restoration of the previous land use or to a “higher or better use,” is further mocked by mining methods and mine plans that all too often flout the Congressional goals of reclamation following mining as contemporaneously as possible, and of the choice of mining technology being dictated by what the least environmentally damaging approach to coal extraction rather than by the methods that maximized profit.

In the area of remediation of contaminated lands and groundwater, the initial goal of requiring that the polluter and those who had benefitted from past undermanagement of chemical and other hazardous wastes should pay for complete remediation of the contamination, has been eroded under the rubric of “risk-based” remediation. By paving over, fencing off, and deed-restricting properties, approval is given to leaving contamination in soil and groundwater that are deemed to present an “acceptable” risk to a nonconsenting and often unaware public. Quantitative risk assessments produce results that appear scientifically derived and sound, but which rest ultimately on our grossly inadequate and primitive understanding of the physiological effects of low-dose chronic exposure to these toxins on human populations and other species.

Risk-based remediation has all but eclipsed removal of the contamination as the remedy of choice. Ironically, while the law would require me to remove all of the litter that I dump on your property, under pain of penalty, if I release poly-chlorinated biphenyls (PCBs) from my factory into a waterway and those PCBs end up contaminating your soil, I am allowed to dicker over how much of the contamination is “reasonable” to leave behind. The erosion of polluter responsibility for remedying contamination occurred largely as a reaction to the sticker-shock of cleaning up the bitter fruits of the industrial petrochemical “revolution,” and reflects the arrogance, selfishness, and lack of foresight of the current generation of decisionmakers towards future generations and to the capacity and health of natural systems and the land.

The concept of “risk-based” pollution controls, which allow air toxics to be released into the air based on these same assessments of health risks, suffers a similar lack of moral and intellectual integrity. For while the person seeking medical intervention is entitled to full disclosure of risks and uncertainties, and must give informed consent prior to even a therapeutic intrusion into the body (for, say, chemotherapy, radiation, and other intrusive practices using chemicals, metals, and elements for diagnostic or treatment purposes), a chemical manufacturer can routinely release, under sanction of law, air toxics into the public’s air, waterborne toxics into streams, and can leave chemicals in land and groundwater where the public may be exposed, without the knowledge, approval, or consent of those whose health may be affected by those actions. The homeowner whose property is adjacent to the abandoned Black Leaf Pesticide site in western Louisville, and the landowner along Wilson Creek in Eastern Kentucky alike, face the truth that the land they wish to garden has been contaminated by metals from runoff from former industrial activity or mining operations.

Since the PCB incinerator battle in North Carolina in 1982, “environmental justice” has emerged as a conceptual framework within which to assess and address the disproportionate pollution burden (both in past and current pollution) suffered by disenfranchised economic and racial minority populations. Yet, these 64 years removed from A Sand County Almanac, our land ethic has not expanded the concept of “justice” to include intergenerational obligations and the responsibility of this generation to safeguard the land and water so that the ability of future generations to fully utilize those resources is not permanently compromised. The current generation’s embrace of risk-based remediation “kicks the can down the road” by limiting future land uses unless the next generation picks up the tab by completing the remediation of the chemical and other contamination that the last 70+ years have inflicted on the planet.

43 years after the first Earth Day, we need to move the conversation beyond the licensed, metered degradation of our land, air, and water resources, to ending pollution, restoring nature, and rewarding stewardship in all of its facets.

There are aspects of the law that can help or hinder a transition from a destructive economy to land management that is responsible and healthy. Land use planning can be a very valuable tool provided that at all stages of the development and implementation of plans, the public is engaged openly, honestly, and continuously. For no sooner than a plan is developed and adopted, forces are at work seeking to push the edges of the envelope in order to achieve greater short-term personal gain. Absent a strong effort to incorporate a land ethic into the planning process, you end up with land use plans such as those for Jefferson County, in which there is no “agricultural” land use designation and all agricultural land is classified as “undeveloped;” where asphalt is the last crop that is planted on the remaining farm lands; and where we punctuate our arrogance by naming the new subdivision after the most prominent natural feature or species that the development has obliterated.

Many farmers have historically been leery of land use planning, and it is a failure of land use planning to recognize and protect the intrinsic value and the many values and services provided by farm lands and wild lands, that is in part responsible for the resistance that some farmers have towards adoption of planning and zoning. In my experience, unfortunately, landowners often resist planning and zoning restrictions on their ability to utilize their land, right up until the point where the junkyard, shopping mall, or quarry is proposed on a nearby neighbor’s land, at which time they belatedly become advocates for land use planning and zoning.

As the conversation moves from understanding the forces that have unsettled America to moving towards “resettling” of America, where is the hope to be found that we will find and wield those tools needed to help resettle the human culture?

Hope is found in people of good will working to effect change. The 50-year struggle to overturn the 1956 court decision in the case of Buchanan v. Watson, that corrupted the core principles of land transfer in order to accommodate the destruction of the surface of mountain lands so as to allow strip coal mining of those severed surface lands without consent and without compensation, is illustrative of what people of good will can accomplish. From the courageous and principled lawyering of Harry Caudill and others to the direct action of Ollie “Widow” Combs, “Uncle” Dan Gibson, from the grassroots resistance of citizens in Knott and Letcher Counties to the 120 county-campaign of the small band of landowners and activists known then as the “Kentucky Fair Tax Coalition,” from the repeated efforts of the General Assembly to remedy the situation to the legal work of my mentor John Rosenberg, of Joe Childers, and of my small contribution to the fight, from the brilliant reporting of the Mountain Eagle and Courier-Journal to the pages of the Washington Post and L.A. Times, from the constitutional amendment enacted by 86% of voters in Kentucky to, at long last, the chambers of the Supreme Court of Kentucky for a second time in as many years, the scourge of the broad form deed was ended, and people of good will fighting against entrenched power prevailed.

Frederick Douglass noted, in his 1857 essay on West India Emancipation, that “this struggle may be a moral one, or it may be a physical one, and it may be both moral and physical, but it must be a struggle. Power concedes nothing without demand. It never did and it never will.” The reclamation of America is a goal worthy of the struggle.

Margaret Mead was right, when she said “never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it's the only thing that ever does!” Our recent history is replete with examples of how people of good will can become so much more, as co-conspirators for positive change.

Hope will be found in reform of governance. With the Supreme Court opening the floodgates of special-interest money in political campaigns, and candidates increasingly beholden to the contributors for the millions of dollars spent in major campaigns, decisions reflective of the broader public interest over the insular interests of those investing in the candidates become rare. When all we aspire to is mediocrity in governance, when democracy isn't working, the poor, children, the environment, rural communities, agrarian values suffer. The Monsanto rider is but the most recent example of the need for campaign finance reform.

Hope will be found by inclusion of the many values and service provided by nature in any consideration of costs and benefits, in decisions on enactment of laws, passage of budgets, adoption of farm bills, and development of regulations. Hope can be planted in local communities working to incorporate into community land use plans, protections of agricultural lands and conservation of natural resources, elements that are discretionary but are not currently required in land use planning.

Hope will be found in life-long, place-based natural and systems education that begins before kindergarten and continues through a lifetime. When 34% of Kentuckians randomly polled in 2009 incorrectly chose as the definition of “biodiversity,” “the many differing opinions on environmental issues;” when the average child has such a deficit in interaction with and understanding of nature that he can name 1,000 corporate logos but cannot name 10 native things in the backyard, we cannot expect a culture to understand or to value the protection of diversity in nature and the protection of food quality, soils and farms. Current educational goals minimize the importance of education concerning ecosystem values and services, the interconnection of agriculture and food with public health and community health, and the natural sciences, and there must be a fundamental reform of curricula and teaching methods to encourage place-based education in these areas.

Wendell is right – it does turn on affection, and that affection arises (perhaps with the exception of extended visits in some families) from familiarity born of experience with nature and rural landscapes, farms and wild places.

Hope will be found in small communities of faith and of faith-based action raising the issues of land stewardship, of hunger, and of environmental health, to that moral plane from which real and durable change is animated and nourished. It will come from these communities working to end violence against God and the earth, and answering the rhetorical question “Am I my brother’s keeper?” with an emphatic and exuberant “Amen!” It will come from embracing the privilege and obligation we have to one another as children of a common divinity.

Hope will be found in our responsible and intentional spending of our food dollars. With state and local government purchasing constituting some 20% of the GNP, purchasing policies supporting fair and healthy food that place a premium on food grown locally and produced in a responsible manner can help anchor the resettling.

Hope will be found in mentoring, sitting at the feet of those who came before and have learned much, and passing along that body of knowledge and strategies to adapt to change. Margaret Mead was right when she observed that “[o]ur humanity rests upon a series of learned behaviors, woven together into patterns that are infinitely fragile and never directly inherited.” Hope will come as we become weavers of those patterns and patterners of those behaviors.

Hope will be found in creative intolerance of ignorant arrogance towards the earth and towards humanity and of policies and politicians that place profit over people, for just as accommodating injustice never made an unjust person more just, tolerating mediocrity and ignorance in in environmental, farm, and agricultural policies never made a polluter or an indifferent politician more responsible or more wise.

Ultimately, as Marian Wright Edelman observed “God did not call us to loot the earth and each other, God called us to love the earth and each other.” Hope will begin, as Wendell has often written in many ways, in the resettling of our souls and spirits, and in our striving to be less acquisitive and less aggressive in our relations with each other and with the land.

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