Regulating Farming : Balancing Food Safety and Environmental Protection in a Cooperative Governance Regime

This Article explores the relationship between two key areas of farming regulation: food safety and environmental protection. Focusing on the 2010 Food Safety Modernization Act, which directs the Federal Food and Drug Administration to promulgate rules governing produce safety on farms, this Article identifies a number of tradeoffs between these two areas. Many of these tradeoffs are not immediately apparent on the face of the Food Safety Modernization Act or its implementing rules and arise only as a result of farmers’ particular implementation choices. Like other agriculture regulation, the Food Safety Modernization Act relies on cooperative governance, allowing regulated entities to play a major role in the regulatory process. Thus, many details of the regulatory scheme are determined only after rulemaking is over. Unfortunately, most of the existing administrative law tools that manage tradeoffs between various regulatory goals — for example, cost-benefit analysis and interagency consultation — focus on the rulemaking process itself, and, as such, are poorly suited to address the tradeoffs that inevitably are made in the post-rulemaking implementation phase. There is therefore a mismatch between most risk tradeoff analysis tools — which are aimed at improving the decision-making of agencies during rulemaking — and agricultural cooperative governance schemes, which ultimately delegate tradeoff analysis to farmers to conduct during rule implementation. As a result, regulated entities engage in tradeoff analysis without adequate oversight or accountability. Because farmers are likely to be biased in favor of food safety and against environmental protection, the former is likely to win out regardless of whether the outcome is in the public interest. This Article calls for development of a systematic analytical tool to manage regulatory tradeoffs during rule implementation