State Question 777: A Constitutional Amendment Department of Agricultural Economics DASNR Oklahoma State University.

Transcription

1 State Question 777: A Constitutional Amendment Shannon Ferrell Larry D. Sanders 2016 Department of Agricultural Economics DASNR Oklahoma State University.

2 caveat OSU is not taking a stand on this issue. As appropriate research based on sound science becomes available, it will be shared with the public. 2

3 Key points 1. SQ 777 is on the Nov 8, 2016 ballot to change the OK Constitution to guarantee agriculture can engage in farming and ranching practices without abridgement from the Legislature. 2. There is a caveat that allows public intervention if there is a compelling state interest. 3. A state law currently exists that says agricultural activities conducted on farm or ranch land, if consistent with good agricultural practices and established prior to nearby nonagricultural activities, are presumed to be reasonable and do not constitute a nuisance unless the activity has a substantial adverse affect on the public health and safety. 3

4 Framing the Issue There has been a growing concern on the part of some in Oklahoma agriculture/agribusiness that some interest groups have an agenda to destroy modern industrial agriculture. The question is part of a longer list of concerns about government and a non-sympathetic public attacking farmers/ranchers and reducing profitability. About this, there is much debate. 4

5 Right to Farm State Question 777 Ballot measure November 2016 Constitutional provision to protect farmers from private/public intervention would establish a constitutional guarantee for farmers and ranchers to engage in farming and ranching practices. It would prohibit the Oklahoma Legislature from passing laws abridging the right of farmers and ranchers to employ agricultural technology and livestock production and ranching practices without a compelling state interest. 5

6 Right to farm laws All 50 states have at least some form of right to farm statute Generally provide protection against nuisance claims Grandfathering Adherence to generally accepted farming practices and applicable laws A few states have passed constitutional amendments (MO, ND) 7

7 The ballot measure This measure adds Section 38 to Article II of the Oklahoma Constitution. The new section creates state constitutional rights. It creates the following guaranteed rights to engage in farming and ranching: The right to make use of agricultural technology, The right to make use of livestock procedures, and The right to make use of ranching practices. 7

8 The ballot measure (continued) These constitutional rights receive extra protection under this measure that not all constitutional rights receive. This extra protection is a limit on lawmakers ability to interfere with the exercise of these rights. Under this extra protection, no law can interfere with these rights, unless the law is justified by a compelling state interest a clearly identified state interest of the highest order. Additionally, the law must be necessary to serve that compelling state interest. The measure and the protections identified above do not apply to and do not impact state laws related to: Trespass, Eminent domain, Easements, Right of way or other property rights, and Any state statutes and political subdivision ordinances enacted before December 31, SHALL THE PROPOSAL BE APPROVED? FOR THE PROPOSAL Yes: AGAINST THE PROPOSAL No : 8

9 Compelling state interest would provide the right of citizens and lawful residents of Oklahoma to employ agricultural technology and livestock production and ranching practices with protection of fundamental rights (i.e., First Amendment rights) the state has the burden of proving not only (1) a compelling state interest was served by the restriction, but also (2) the restriction enacted by the Legislature was the least restrictive way to protect the compelling state interest 9

10 Legal questions on SQ 777 Potential for unintended consequences? Potential for little to no impact (do exemptions swallow the rule)? Potential for significant increase in litigation Compelling state interest Litigation pushed to exemption areas Problems with federally delegated programs? Federal primacy issues? 10

11 Policy/Economic Questions Grievances? Risk management? Innovation/technology adoption? Long-term benefits & costs? Private sector? Public sector? Interest Groups Legislature State Agencies Courts

12 SOURCES Ferrell, S. & L. Sanders, State Question 777: A Proposed Constitutional Amendment, Oklahoma Cooperative Education Service Fact Sheet, under review July Gratto, Charles P. Policy Education: A Model With Emphasis on How. Increasing Understanding of Public Problems and Policies Farm Foundation, Oak Brook, Ill House, Verne W. Shaping Public Policy: The Educator s Role. Westridge Publishing., Oklahoma Statutes. Sanders, Larry D. & S. Williams, various publications 12

13 Key Players Proponents (focus on protecting OK agriculture) Oklahoma Farmers Care SQ 777 Opponents (focus on protecting small farms & public, & concerns about difficulty to stop harm) Oklahoma Stewardship Council Oklahomans for Food, Farm & Family 6

14 Appendix as needed

15 Trend toward larger farms? Research on technology adoption suggests trend toward larger farms. Because the amendment will likely reduce the risk of innovation and technology adoption, early innovators often accrue benefits that include opportunities to increase in size/scale. Early innovators tend to be firms/farms that are already larger and/or have the capital to invest in such. Better capitalized farms tend to be in a position to respond to regulations. This by no means suggests that 777 will be the cause of such a trend. Farms have been on this trend for decades (centuries?) because of a multitude of reasons that encourage economies of scale and size. The argument that it could slow the trend has little theoretical or research support for it.

16 Proportion of Labor Force Agriculture (First Wave) 70% Industry (Mfg) (Second Wave) Services (Information; Third Wave)_ 70% 75% 64% 27% 23% 3% <2%

17 Farms (thousands) LACK OF CONCENTRATION IN AGRICULTURAL PRODUCTION (NUMBER FARMS BY VALUE OF SALES)* % 68% 71% 68% But, Consolidation occurring at low rate (esp. in crop production) Mid-size farms decline # Small farms maintain # Large farms increasing # <$25,000 $ $100,000 $100, , $500, % 5% 3% 4% Census of Agriculture, USDA

18 SIZE DISTRIBUTION OF US CROP FARMS, 2011 Drivers of Consolidation Technology Farm organization changes Government policy 18

19 OK 2014: 9 th NFI 2d G OK 2015: 11 th NFI 5 th G Down 21% 19