abstract. This Essay examines USDA programs supported by the Inflation Reduction Act and its approach towards addressing climate change and historical funding inequities for Indigenous and Black Farmers. It also argues for how the next Farm Bill can expand upon these efforts to further address inequities and promote climate resilience.

Introduction

Farmers, especially minority and Native farmers, are facing unprecedented hurdles with respect to providing food to communities, as well as protecting their own livelihoods. They are tackling the need to change their existing agricultural practices to adapt to either increased fire risk, drought, flooding, seasonal changes, and pests.1 And many have already been burdened by historical practices of discrimination by the U.S. Department of Agriculture (USDA) itself.2

One example is what is happening with Tribal farmers in our state of Wisconsin and the broader Great Lakes region where weather has oscillated from extreme and even exceptional droughts to historic storms with widespread floods.3 These incredible weather variations have devastated growing seasons for many Indigenous producers who generally lack safety nets,4 which are primarily structured to support conventional farming operations.5 While USDA has made concerted efforts recently to reach small and historically underserved agricultural producers, these groups continue to lack access to the services and support received by white farmers, preventing them from developing economically viable operations and inflicting disproportionate harm when disasters strike. A striking example is the nearly ninety-seven percent of Coronavirus Food Assistance Program funding that went to white farmers.6 Natural disasters like the extreme and exceptional droughts striking the Upper Midwest, along with many other areas in 2023, disproportionately impact historically underserved groups who haven’t had support in implementing conservation measures while building financial security to buffer against the worst impacts.7

This Essay will explore how USDA has attempted to use the Inflation Reduction Act (IRA) to address these issues.8 These efforts consist of three key programs: (1) loans for financially distressed borrowers, (2) assistance in USDA conservation programs, and (3) funds for producers facing discrimination. USDA expects to spend $24.8 billion on these programs.9 To put this investment into perspective, under its existing Fiscal Year 2023 budget (apart from the IRA), USDA is spending approximately $105 billion in financial assistance.10 So, the IRA is a significant addition to USDA’s programs, and provides an opportunity for USDA to address two major issues facing farmers today: the need to encourage climate-friendly agriculture, and the need to promote the economic viability of farming in minority and Native communities to address historical injustices. This Essay thus adds to two growing—but still underexplored—bodies of legal scholarship: scholarship regarding federal infrastructural support for climate change responses,11 and scholarship regarding Indigenous food justice.12 Tying these two areas together is especially important, because scholars have suggested that Indigenous knowledge can be critical for climate change adaptation in agriculture.13 Thus, we argue that remedying these historical economic injustices can not only aid Black and Indigenous farmers suffering historical discrimination, but also generate knowledge about ensuring food security in light of climate change that is useful to everyone. This is an especially critical time for addressing these two areas, as Congress is currently at work developing the next Farm Bill.

This Essay proceeds in three Parts. Part I explores how farmers—especially Black and Indigenous farmers—need USDA support to thrive. Part II describes how the IRA channeled essential funding to farmers to respond to (a) the financial distress created during the COVID-19 pandemic, (b) adaptation to and mitigation of climate change, and (c) the historical financial injustices created by USDA’s history of discrimination. Part III then makes recommendations for how the next Farm Bill can further improve economic support for farmers, address climate mitigation and resilience, and respond to historical inequities despite challenges raised by the Supreme Court’s recent affirmative-action decision.

I. background: the need for usda support

The dual assault of the COVID-19 pandemic and climate stressors has led to much financial stress among farmers.14 The pandemic brought with it worker shortages and supply chain and transportation failures, which have harmed the livelihood of farmers as well as our domestic food supplies.15 Climate change has led to abrupt seasonal window shifts and increasing pest problems, in addition to an increased risk of fire, drought, or flooding in some regions.16 This Part will examine in further detail the drivers behind the increasing number of financially distressed farmers in need of programmatic support provided under USDA IRA programs. In particular, it will focus on how climate change has exacerbated the existing financial distress of farmers, and how historical discrimination has contributed to Black and Native farmers being particularly vulnerable to the impacts of climate change.

At the moment, U.S. farmers are already in financial distress due to the lingering effects of the pandemic.17Blackand Indigenous farmers were especially affected, with most of the pandemic agricultural debt relief program funding directed towards white farmers.18Much of the reason behind that was that the relief programs were tied to farm-production history, which in turn was shaped by inequitable lending practices by USDA, as explained later in this Essay.19

But climate change is exacerbating this distress. As the Fifth National Climate Assessment has stated, “Climate change . . . disproportionately harms the livelihoods and health of communities that depend on agriculture, fishing, and subsistence lifestyles, including Indigenous Peoples reliant on traditional food sources.”20 There are two main ways in which climate change threatens farmers’ livelihoods. First, changes in temperature and precipitation patterns can “reduce [the] productivity, yield, and nutritional content of many crops.”21 Next, farmers in regions that face increased heavy rain and storm events risk crop damage and water contamination, while farmers in regions that face drastic decreases in precipitation risk lowered crop production and increased heat stress on livestock.22 Extended periods of heavy rain, storms, or drought can even lead to wholesale crop destruction.23

Climate change disrupts traditional farming practices in additional ways. For example, climate change is altering projected plant hardiness zones,24 which are used to determine the optimal crops grown in each zone. It also increases the risk of plant invasion, which can threaten existing agricultural uses25 and require adaptive strategies. And it can lead to greater soil salinity, reducing crop production,26 thereby requiring either mitigation measures or adoption of alternative crops. The reality that minority and Native farmers are disproportionately relegated to marginal lands with poor soils that typically lack irrigation further exacerbates climate change challenges.27

Traditional Indigenous agriculture is also highly dependent on healthy ecological landscapes to support diverse food production including practices such as wild rice harvesting, maple syrup and sugar production, and wild berry and medicinal plant gathering, along with fishing and hunting. This is because these traditional practices are inherently tied to a thriving natural ecosystem, rather than lands with commercial agrochemical inputs.28 And so many of these traditional practices are affected by climate change. For example, climate change has led to the shifting of the production season for maple syrup.29 Similarly, climate change can disrupt the traditional preservation of fish for subsistence purposes.30 The landscapes supporting these wide-ranging Indigenous agricultural activities, both for subsistence and for market sales, include on-reservation and extensive off-reservation treaty lands. But Tribes were often provided more marginalized lands as treaty lands, making them even more vulnerable to climate change.31 Thus, the climatic impact on these activities is increasingly severe, leading many Tribes to explore adaption and mitigation strategies.32

With its sensitivity to water fluctuations, wild rice that is hand-harvested from lakes and free-flowing rivers highlights climate change impacts. For example, the unprecedented drought that struck northern Minnesota in 2021 was so extreme that harvesters’ canoes were unable to float upon the waterways, only to be followed by extensive flooding decimating wild rice beds in 2022.33 Tribes have responded to declining wild rice beds by using extensive management to remove invasive aquatic species, reseeding vast areas, and constructing or enhancing water-control structures, all of which may be supported with USDA Environmental Quality Conservation Program funding.34

Similarly, maple syrup production has dramatic annual fluctuations due to its temperature sensitivity, which requires precise temperatures ranging from mid-twenty degree overnight lows to forty-plus degree daytime highs. The maple syrup season has gradually shifted earlier in many areas, and increasing climatic variability caused widespread production failures in recent years.35 More broadly, climate change is stressing ecosystems, resulting in shifting habitat ranges and more immediate adverse impact from pests and natural disasters.36 Treaty rights restoration with the Boldt decision in the Pacific Northwest, the Voigt decision in the Great Lakes, and numerous other holdings all emphasize the importance of Tribal natural resources for community subsistence and economic development.37 Beyond adversely impacting Indigenous agricultural production through diminished treaty resources, climate change is affecting almost the entire nation through severe temperature and precipitation fluctuations.

These climate disruptions exacerbate the already existing disparities in the U.S. agricultural system. USDA has already acknowledged its own history of racism in reviewing applications through its various loan-application programs, systemically underfunding, delaying, and even denying loan applications by minority farmers.38 In Pigford v. Glickman,39a class action brought by Black farmers, and Keepseagle v. Vilsack,40 a class action brought by Native American farmers, the two classes alleged racism and Tribal discrimination, respectively, in USDA’s lending practices.41 As Judge Paul Friedman noted in Pigford:

For decades, despite its promise that “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity of an applicant or recipient receiving Federal financial assistance from the Department of Agriculture,” . . . the Department of Agriculture and the county commissioners discriminated against African American farmers when they denied, delayed or otherwise frustrated the applications of those farmers for farm loans and other credit and benefit programs. Further compounding the problem, in 1983 the Department of Agriculture disbanded its Office of Civil Rights and stopped responding to claims of discrimination. These events were the culmination of a string of broken promises that had been made to African American farmers for well over a century.42

In response to these challenges, USDA either reached settlement agreements or created administrative forms of relief.43 Despite these settlements, many farmers still face economic instability and economic injustice.44 USDA’s 2017 Census of Agriculture highlights many challenges facing minority and Native farmers. The average Black farm is only one-third the size with one-fifth the sales and receives barely one-half the amount of government payments compared to the national average.45 Even more striking, the per farm net income for Black farms is less than nine percent the national average.46 Government statistics for Native farmers and ranchers reflect a similar reality. While their average farm size is over double the national average, Native agricultural producers only have one-third the average sales and one-fifth the net income.47

For Native communities, this has implications for food sovereignty because it greatly impacts the ability of Indigenous peoples to access culturally appropriate foods.48 Reviewing reservation-specific information reinforces the impact of land loss, particularly of the most productive Native agricultural lands. Only 12.89% of total agricultural sales on reservations come from Tribal members.49 That tremendous disparity in agricultural sales is largely due to loss of the most productive agricultural lands through a variety of means that generally trace back to the Dawes General Allotment Act. Most reservation lands, in an effort to assimilate Tribal members into a Eurocentric way of life, were assigned to individuals who often subsequently lost ownership through land sales, unpaid property taxes, and occasionally outright fraud.50

Aside from the lack of access to individual credit through USDA and other discriminatory lending practices, an assortment of other factors have stymied individual Native agricultural producers and other entrepreneurs, including restrictive commercial prohibitions, lacking Tribal-government tax bases, and disparate federal and state funding.51 Despite recent landmark water-rights settlements, the majority of Native farmers and ranchers lack access to the lands and resources necessary to maintain viable agricultural enterprises that are culturally and economically tailored to their own communities. This is a matter of food justice, which “refers to the conditions under which communities can eat, grow, and sell affordable, culturally appropriate, and nutritious food that is locally cultivated and sensitive to the well-being of animals, land, and workers.”52 Thus, the ability of farmers historically undersupported by USDA to provide food for their communities is critical for food justice.

Furthermore, traditional farming practices are not only threatened by climate change but can also either contribute to or mitigate climate change. The agricultural sector is the source of around twenty-one percent to thirty-seven percent of the world’s greenhouse-gas emissions.53 These emissions can result from deforestation,54 poor livestock management,55 and poor soil management.56 As a result, a Special Report of the Intergovernmental Panel on Climate Change advocated for “increasing soil organic matter, erosion control, improved fertiliser management, improved crop management, . . . and use of varieties and genetic improvements for heat and drought tolerance. For livestock, options include better grazing land management, improved manure management, higher-quality feed, and use of breeds and genetic improvement.”57

At the same time, the agricultural sector can act as a source of carbon sequestration through the conservation of healthy soils and wetlands, thereby providing some limited mitigation potential for climate change.58 That is, financial incentives that promote conservation of wetlands and soil can contribute significantly to mitigating the effects of climate change, while financial incentives that promote development that destroys wetlands59 or healthy soils60 can contribute significantly to increasing the effects of climate change. What this means is that the incentives created by USDA programs have the potential to either contribute to or mitigate climate change.

Thus, the next Part addresses three challenges: the challenges to financially distressed farmers, the challenges of mitigating and adapting to climate change, and the challenges of addressing historical discrimination. In many ways, these challenges are intertwined. As explained earlier, the farmers most impacted by financial distress after the pandemic were Indigenous farmers, Black farmers, and small-scale traditional farmers, either due to historical Tribal or racial discrimination, or due to USDA’s focus on supporting large-scale agriculture. Yet these are the farmers that may provide the most resilient practices for addressing climate change. We approach the next Part with these considerations in mind.

II. usda ira programs

This Part will provide context about the programs that have received investment under the IRA in its attempt to address climate change and food justice. The IRA channels funds to USDA to address the three separate issues discussed in this Essay: the financial distress created by the COVID-19 pandemic and climate change, responding to and mitigating climate change, and the remediation of harms caused by USDA’s discriminatory lending history. Some of these funds exist outside of the prior Farm Bill but use administrative mechanisms (such as subagencies under USDA) created by the Farm Bill, while others of these funds are directly tied to programs created by the prior Farm Bill. Each Section will first describe how Congress structured these funds with respect to existing USDA programs and then explore the current state of how USDA has been implementing the use of these funds. The focus of this Part is not only to describe the actions undertaken by USDA, but also to lay the groundwork for future actions that can address climate change and food justice.

A. Loans for Financially Distressed Borrowers

First, Congress, through the IRA, appropriated $3.1 billion to provide payments to distressed borrowers of direct and guaranteed loans administered by the Farm Service Agency (FSA) under USDA.61 The funds are to remain available until September 30, 2031.62 So far, USDA has used this funding to initiate two major programs: Cash Flow-Based Assistance, and Extraordinary Measures Assistance.63 Under the Cash Flow-Based Assistance program, USDA began identifying “whether an operation has sufficient cash flow to make their next scheduled loan payment” and permitting qualified borrowing farmers to “request FSA cover their next installment or a recently missed installment.”64 Similarly, under the Extraordinary Measures Assistance program, USDA targets farmers who—in the wake of the pandemic—took “extraordinary measures . . . , such as taking on more debt, selling property, or cashing out retirement accounts,” in order to avoid delinquency on their loans.65 A subset of those farmers also have the opportunity to access additional funding to avoid delinquency.66 The rationale behind both of these programs is to keep farming operations afloat despite their financial stress.

In addition, USDA is working on additional guidance and regulations to streamline the process of accessing these funds, in order to address some of the barriers to programmatic access described earlier.67 These access barriers have existed not just with respect to any single USDA program, but rather, all USDA programs in general.68 As stated earlier, both Black and Native farmers have already suffered disproportionately from lack of funding access, due to the acknowledged racism of USDA lenders and other structural inequities. All of these measures are extremely important for U.S. farmers, most of whom are reliant on federal loans.69

B. Assistance in USDA Conservation Programs

USDA’s efforts to address climate change and economic distress are structured by the Farm Bill, which is passed every four to five years.70 Under the last Farm Bill passed in 2018, USDA has been implementing a number of voluntary conservation programs for farmers. These include the Environmental Quality Incentives Program (EQIP),71 the Conservation Stewardship Program (CSP),72 the Agricultural Conservation Easement Program,73 and the Regional Conservation Partnership Program.74

All of these programs give farmers financial incentives to voluntarily engage in conservation practices, such as soil conservation, habitat conservation, and use of more energy- and resource-efficient agricultural practices. Thus, these programs have the potential to both address some of the climate change related effects described earlier, as well as mitigate some of agriculture’s contributions to climate change. They also give underserved farmers additional financial and technical support.

Under EQIP, for example, USDA’s Natural Resources Conservation Service (NRCS) provides farmers with the financial assistance and technical support to adopt new conservation practices.75 The CSP is similar to EQIP, but it is directed towards “enhanc[ing]” or “maintaining existing conservation efforts.”76 The Agricultural Conservation Easement Program provides financial and technical assistance for restoring and conserving grazing land and wetlands,77 which can increase carbon sequestration.78 Finally, the Regional Conservation Partnership Program leverages public-private partnerships to extend the reach of USDA’s conservation efforts.79 The financial incentives created by these programs can encourage farmers to engage in farming practices that reduce, rather than contribute to, carbon emissions or destruction of carbon sinks and therefore mitigate climate change.

The IRA also attempts to increase access to the various USDA conservation programs by providing them with an additional $19.5 billion over the next five years, beginning in 2023.80 In particular, over the next five years, it provides $8.45 billion for EQIP, $4.95 billion for the Regional Conservation Partnership Program, $3.25 billion for the CSP, $1.4 billion for the Agricultural Conservation Easement Program, and $1 billion for additional conservation technical assistance.81

The IRA’s level of investment into agricultural conservation has been historic. To put this into context, the 2018 Farm Bill allocated $1.8 billion to the EQIP program,82 $300 million for the Regional Conservation Partnership Program,83 and $450 million for the Agricultural Conservation Easement Program.84 The IRA, therefore, dramatically increases the amount of funding available to support and encourage farmers in their conservation efforts. All of these measures—if implemented to streamline access—can help the farming community better contribute to mitigating, rather than exacerbating, the effects of climate change.

These programs, however, are voluntary, and so their success depends on providing sufficient incentives for farmers to actually participate in these programs. As such, the effectiveness of these programs is heavily dependent on how the conservation programs are managed by USDA, in addition to the funds available for these programs.85 For example, critics have argued that the effectiveness of these programs could be enhanced by a stronger focus on cost-effectiveness analysis.86 Critics have also expressed concerns about backlog for provision of funds in these programs.87 Finally, a study of farmer participation in these programs suggested that financial and technical barriers, such as limited access to engineering designs, sometimes limited farmers’ participation in these programs.88 Limited staffing for USDA outreach, which is largely outsourced through cooperative agreements, is also an obstacle to achieving maximum participation in conservation programs. While not currently documented by empirical studies, it is plausible that these participation barriers for Indigenous and Black farmers could be heightened by their historical lack of access to funding and support.

C. Funds for Farmers Facing Historical Discrimination

The USDA IRA program for farmers facing discrimination attempts to address its history of loan discrimination.89 Under its Discrimination Financial Assistance Program (DFAP), USDA is providing “financial assistance for farmers, ranchers, and forest landowners who experienced discrimination in USDA’s farm lending prior to 2021.”90 It covers a wide range of loans programs through which farmers may have faced historical discrimination, including Farm Ownership Loans, Farm Operating Loans, Farm Storage Facility Loans, and Soil and Water Loans.91 The close date for the applications was January 17, 2024.92

Under this program, USDA is also working with nongovernmental program administrators, including a national administrator and four regional hubs93 to set up and process applications.94 Such nongovernmental groups include the Farmer Veteran Coalition, the Farmers’ Legal Action Group, the Intertribal Agriculture Council, the Land Loss Prevention Project, the National Young Farmers Coalition, and various regional groups of Black and Latino farmers.95 Working with such community organizations is especially important due to the understandable lack of trust that many farmers facing historical discrimination have in USDA itself.

The financial assistance applications are still being processed. Thus, the actual implementation of this program is still very much in development and may face legal challenges given developments in Supreme Court jurisprudence described in the following Part. That said, news accounts suggest that applications have been overwhelming.96 This suggests that a large number of farmers are indeed seeking such financial assistance, but that attention must be paid in terms of how quickly and how responsive USDA is in terms of processing these applications.

III. the future of usda responses to climate threats and inequities

The IRA’s historic investment in supporting financially distressed and historically vulnerable farmers has already had an immediate impact, just by creating sustainable avenues for farmers to avoid insolvency. But recent Supreme Court opinions will make it more difficult for USDA to address its past practices of racial discrimination, despite USDA’s own acknowledgment that lending practices have been discriminatory. This Part will describe these barriers and suggest avenues for USDA to move forward in terms of redressing acknowledged historical discrimination, as well as suggest additional policy measures to ensure equitable funding distribution.

A. Promoting Economic Viability

The IRA provided an immediate $800 million in assistance to 11,000 distressed borrowers who were delinquent on their FSA farm loan in October 2022.97 This assistance waived both past-due payments and the following year’s installment under the Extraordinary Measures Assistance program. These delinquent borrowers were then eligible to request further assistance through the Cash-Flow Based Assistance Program.98 However, these IRA provisions neither address deeper issues in the USDA FSA’s structure, which continues to emphasize local discretion through county committees and offices, nor do they fully recognize and rectify the deep distrust among minority and Native farmers and ranchers that was heightened by cancellation of the American Rescue Plan Act’s (ARPA) $4 billion investment in USDA farm-loan debt repayment.99

Understanding ARPA’s initial implementation prior to its court-mandated halt and subsequent congressional recession is essential to recognizing the direct harm inflicted upon many FSA borrowers due solely to their racial classifications. The FSA notified eligible loan holders of loan repayment at 120% of their total loan balances as of January 1, 2021, with the additional twenty percent reflecting payment for IRS tax liability, through direct communication and with a Federal Register announcement on May 25, 2021, for program implementation beginning the following day.100 Despite near immediate court injunctions, FSA participant notification for program implementation delay was not sent until early 2022, leaving eligible historically underserved loan holders with the understanding their loans would be forgiven for an extended period of time.101 FSA subsequently sent detailed balance confirmation forms to each eligible participant to be signed and submitted with a voided check. Based on their reasonable perception of a binding agreement, many eligible loan holders made significant operational investments, including to minimize tax liability.102 The precise extent of FSA’s reputational damage among those historically underserved individuals expecting debt repayment is difficult to quantify. Subsequent IRA actions likely assisted in lessening this damage, but the full extent of relational status may not be clear for several years.103

The USDA conservation programs, addressed more fully in the next section, can also provide much needed funding to farmers. Indeed, the USDA is increasing its minimum annual payment for participants in these programs to “address challenges faced by small scale, underserved, and urban producers and improve[] equity in the program by making participation more financially beneficial for smaller operations.”104 However, access to conservation programs is limited by several factors, including adequate USDA NRCS staffing whose impact is disproportionately severe on Tribal lands. Combinations of poor past experiences, general governmental distrust, lack of NRCS conservation planning and engineering-design capacity in remote and high-poverty communities, and simple lack of program awareness all hamper implementation of conservation programs to minority and Native agricultural producers, especially on reservations and Tribal lands.

The Biden Administration has begun a number of USDA projects intended to support Indigenous farmers and enhance their economic viability. On December 6, 2023, the White House announced various initiatives it has taken to support Indigenous farmers.105 These include funds for the harvesting and processing of Indigenous animals made available to the Alutiiq Tribe of Old Harbor in Alaska to buy and modernize an unused processing facility that will help the community address food shortages—including bison meat—due to climate change; funds for the Tribal Government of St. Paul Island in Alaska to re-establish a local reindeer meat processing operation; funds for the Tolowa Dee-ni’ Nation in southern Oregon and northern California to expand a Food Sovereignty Program that provides the community a space and resources to learn traditional processing methods for local game and fish, including black-tailed deer, Roosevelt Elk and chinook salmon; and funds for the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation in Montana to process bison, elk, deer, antelope and pheasant.106 It also named eleven new members to the inaugural USDA Tribal Advisory Committee, a committee created by the 2018 Farm Bill to ensure that USDA is informed by Tribal perspectives.107

Effective USDA programmatic assistance to historically underserved agricultural producers must rebuild trust while meeting critical needs. Working with groups such as the Intertribal Agriculture Council and various regional groups of Black and Latino farmers, as described earlier, must only be the beginning. Partnership with cooperative service organizations may improve outreach, but USDA must also take responsibility for internal staff training and accountability. Even if farm-loan issues are resolved, loan holders need economic viability that USDA appears to have recognized with a host of ARPA programs such as the Regional Food Business Centers, Local Food Purchase Assistance Program, and Increasing Land, Capital, and Market Access Program. The common theme among these programs is a focus on economic viability that seeks to ensure adequate cash flow.

B. Promoting Climate Resilience

Overall, we encourage the use of Farm Bill subsidies and crop insurance premiums through the Farm Bill to promote diverse crop rotation to respond to climate risks, mitigate the effects of climate change, and even address economic risks faced by farmers due to higher yields under pressures of climate change. This Section will explain why.

First, we commend the increased funding for USDA conservation programs under the IRA. Moreover, USDA—outside of the IRA—is already developing a program for the promotion of climate-friendly agriculture, through its Partnerships for Climate-Smart Commodities Program.108 This program is investing more than $3.1 billion in 141 projects that would “[p]rovide technical and financial assistance to producers to implement climate-smart production practices on a voluntary basis on working lands; [p]ilot innovative and cost-effective methods for quantification, monitoring, reporting and verification of greenhouse gas benefits; and [d]evelop markets and promote the resulting climate-smart commodities.”109

In addition, we support the USDA Action Plan for Climate Adaptation and Resilience, issued in August of 2021, in which the USDA promised to undertake four actions: (1) “Improve climate information management, including capturing, organizing, and integrating climate information and relevant research at appropriate scales”; (2) “Better understand and address novel ecosystems and emerging issues, including by integrating new technology, evaluating and targeting plant materials, and developing regional priorities for new conservation systems, with a concerted effort on at-risk ecosystems”; (3) “Establish multi-disciplinary climate change technical expertise team and strategies to evaluate and determine climate change requirements and guidance for conservation planning, implementation, assessment, research/demonstration, and investments”; (4) “Maintain, strengthen, and enhance climate-related SWAPA+HE-associated databases, information platforms, and datasets (including soil and vegetative information), as well as ongoing data collection, measurement, and modeling efforts[.]”110

These efforts are laudable in terms of providing better information for farmers to respond to climate change, but they fail to change the economic incentives that prevent uptake of adaptive strategies. This is not the fault of USDA; the agency only has the funding authority given to it by the previous Farm Bill. Changing the economic incentives to respond to the effects of and mitigate climate change rests on the next Farm Bill.

But this is not enough. Running counter to these goals of promoting climate-friendly agriculture are the USDA crop insurance programs, which were “born in Title V of the Agricultural Adjustment Act of 1938.”111 These programs are restructured in each Farm Bill and attempt to promote farmers’ economic stability through insurance. They create insurance packages for farms so that they do not become insolvent when faced with unexpected agricultural loss due to weather. Despite efforts such as premium waivers for socially disadvantaged producers on FSA’s Non-Insured Agricultural Products Program, crop insurance coverage and federal support for historically underserved producers is significantly less than the national average.112

Because climate change has created increased agricultural risks, the next Farm Bill must restructure crop insurance to effectively respond to these risks and provide incentives to engage in farming activities that actively plan for these risks.113 Under the previous Farm Bills, a third of the subsidies support insurance companies rather than farmers themselves, thus failing to fully respond to the economic risks created by climate change.114 Moreover, the current structure of crop insurance fails to encourage farmers to engage in either climate-adaptive or climate-mitigative planning.115 As explained below, because such considerations are not contained in the current crop insurance structure, farmers have little incentive to shift their crops or crop varieties to adapt to increased soil salinity, increased drought or flooding, or even increased plant pests and diseases that arise from climate change depending on the agricultural region. Nor does the current crop insurance structure create the incentives for planting crops that require lower carbon inputs, either due to the nature of the crop itself, or due to the mechanized planting and harvest associated with particular crops.

To promote climate-resilient agriculture, crop insurance must actively promote planting choices that plan for climate risk. For example, crop insurance can and should be restructured to address climate risk. Premiums for particular crops and crop varieties could be based upon the degree of risk posed by climate change in the particular agricultural region.116 The Food and Agricultural Organization is already engaging in such assessments and recommendations for climate-friendly farming practices and should provide a model for USDA.117

Another way that the Farm Bill not only encourages farmers to plan for climate risk, but also mitigate the contributions of agriculture to climate change is by using the crop insurance program to leverage insurance premiums—or even provide subsidies—to promote perennial crops and diverse crop rotations.118 Perennial crops are more likely to thrive despite drought and flood, a necessity when facing climate change risks.119 Moreover, such crops also mitigate the effects of climate change by increasing carbon sequestration. Unlike those of annual crops, the greater root masses of perennial crops improve carbon storage and—through their longevity—prevent soil carbon from being released back into the atmosphere at the end of a growing cycle.

As with perennial crops, the use of diverse crop rotations can both respond to climate risks and sequester carbon.120 One thing that diverse crop rotation does is increase nutrient cycling121 and thus decreases the need for synthetic fertilizers, which themselves contribute to climate change when soil microbes process the fertilizers and release N2O—a greenhouse gas with a global warming potential 265 times that of carbon dioxide—as a byproduct.122 Additionally, the practice can respond to predicted climate change effects by reducing agricultural susceptibility to plant diseases, insect pests, and managing weeds.123 This practice can reduce soil erosion (and thus loss of soil for carbon sequestration).

Finally, the use of crop insurance to encourage the use of diverse crop rotations can mitigate economic risks faced by farmers due to climate change. Studies have shown that the use of diverse crop rotations can actually lead to increased crop returns over time.124 Thus, encouraging farmers to use diverse crop rotations can lead to longer-term economic stability.

C. Overcoming Equity Hurdles

As described earlier, the USDA IRA program for providing financial assistance to farmers who have historically faced discrimination is still very much in development. But the agency will encounter implementation hurdles due to recent Supreme Court cases. During the 2022-2023 Term, the Supreme Court tackled two cases: Haaland v. Brackeen125 and Students for Fair Admissions v. Harvard.126 In Brackeen, the Supreme Court upheld congressional authority under the Indian Child Welfare Act to provide preferential treatment to Native Americans in the adoption of Native American children.127 In Students for Fair Admissions (SFFA), the Supreme Court found unconstitutional two preferential college-admission programs for underrepresented minorities.128

Both cases had the potential to affect USDA efforts to provide support for historically disadvantaged farmers in the future. Indeed, current USDA programs providing support for farmers facing discrimination have already been challenged in cases such as Miller v. Vilsack, where a farmer “who describe[d] his ancestry as ‘overwhelmingly white’” challenged the constitutionality of the ARPA provision providing loan relief to disadvantaged farmers. 129 This Section will both (1) address how Brackeen and SFFA affect USDA’s ability to continue to pursue such relief, and (2) propose ways to address the effects of documented historical discrimination after SFFA. Given these cases, USDA will have an easier time providing loan relief to Native farmers than farmers from disadvantaged ethnic groups. But USDA can draw upon its own earlier innovations as well as those of some higher education programs to direct their support programs.

1. The Effects of Brackeen and SFFA

Many advocates for Tribal farming-support programs were concerned about what the result in Brackeen would be. But these concerns did not get realized in the Supreme Court’s opinion. That is, while the challengers to the Tribal preferences created by the Indian Child Welfare Act argued that such preferences unconstitutionally discriminated on the basis of race, the Supreme Court ultimately rejected that argument. 130 Instead, the Court avoided reaching that question, and found that the challengers lacked standing to raise equal-protection challenges. 131 So, for the time being, the Supreme Court has not ruled unconstitutional Tribal preferences in governmental programs.

Unlike with Tribal farmers, USDA will face hurdles in providing targeted relief to farmers of color. As the Supreme Court held in SFFA, programs that address race-based discrimination must satisfy strict scrutiny, which includes refraining from using race as a disqualifier or stereotype and having an end point, as well as other components.132 The Supreme Court’s interpretation of these requirements might limit USDA’s use of IRA funds to support farmers facing historical discrimination on the basis of race by limiting what USDA may consider in programs that seek to compensate or support Black, Latino, and other farmers of color for historical inequities.

Any new USDA program that considers an individual’s race as part of their application must have a measurable benefit.133 Benefits such as “training future leaders,” “producing new knowledge stemming from diverse outlooks,” “promoting the robust exchange of ideas,” and “preparing engaged and productive citizens and leaders” were not considered in SFFA to be sufficiently measurable.134 Instead, such benefits were too intangible to survive strict scrutiny.135

Secondly, the Court held that programmatic considerations must be narrowly tailored.136 It held that use of broad racial classifications such as “Asian” and “Hispanic” meant that the program was not narrowly tailored.137 Instead, these racial categories were overbroad and created arbitrary classifications that treated alike dissimilar students.138 The Court also found that “by grouping together all Asian students” the colleges demonstrated that they were “apparently uninterested in whether South Asian or East Asian students [were] adequately represented.”139 The Court also indicated that it is important that programs using racial classifications have an end point.

With respect to providing an end point to the program,140 the DFAP under the IRA does have an end point—the length of the funding period itself—and the application period has already closed. Therefore, the major hurdles for USDA benefit programs are whether they can survive the Court’s application of strict scrutiny and whether race itself is used as a disqualifier.

In terms of prior USDA analogs, farmer-support initiatives such as § 1005 of the American Rescue Plan Act of 2021 offered targeted benefits to categories of historically discriminated farmers.141 ARPA had a program that would relieve “120 percent of the indebtedness” of “socially disadvantaged farmer[s] or rancher[s].”142 In turn, socially disadvantaged farmers or ranchers are those who “have been subjected to racial or ethnic prejudice because of their identity as members of a group without regard to their individual qualities.”143 This includes “American Indians or Alaskan Natives; Asians; Blacks or African Americans; Native Hawaiians or other Pacific Islanders; and Hispanics or Latinos.”144 ARPA, with respect to farmers, was repealed and replaced by the IRA,145 but also faced legal challenges causing it to be temporarily enjoined due to lawsuits like Miller v. Vilsack.146 Nevertheless, any similar programs to provide support to historically discriminated farmers, after SFFA, might be even more successfully challenged, given the holding of SFFA. The Miller v. Vilsack case, mentioned earlier, is only the start.

Whether and how the “socially disadvantaged farmer or rancher” classification survives is essential to numerous USDA programs across multiple agencies that demonstrate some of the best current efforts to increase program participation in directing resources and support to communities and individuals who have been historically excluded from federal support.147 The 1990 Farm Bill provides support for those farmers and ranchers that “have been subjected to racial or ethnic prejudices because of their identity as a member of a group without regard to their individual qualities.”148 Current use of socially disadvantaged classifications include funding set-asides, program eligibility, limited priority scoring, and special programs.

Thus, after SFFA, challengers might raise that case to attempt to strike down the USDA DFAP, at least as applied to farmers of color. But the DFAP has a stronger defense than the universities in SFFA or even the ARPA’s support for historically discriminated farmers.

As the Court held in SFFA, even though racial identity must be treated neutrally, an applicant’s race does not cease to exist when they apply to a state program.149 Programs are still permitted to consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”150 Thus, any racial considerations must be tied to something else besides race. For example, an individual’s experience with discrimination may speak to their perseverance.151 Broadly, USDA’s continued use of socially disadvantaged classifications will be strongest if individuals provide evidence of specific discrimination and the use is of limited duration.

2. Potential USDA Responses to the Supreme Court Decisions

As discussed earlier, DFAP does attempt to support historically vulnerable farmers, including farmers historically discriminated against on the basis of race.152 And some of the initiatives that provide financial benefits to these farmers consider a farmer’s race, though less directly than the previously mentioned ARPA provisions.153 But DFAP also requires actual documentation of historic discrimination.154 This can include

Any documentation you possess of a complaint or assertion of discrimination that was close in time to the events (e.g. complaint itself or a response to it), [c]ommunications with the USDA (including FSA), or lending institution that include any Statement under penalty of perjury from a non-family member and how they have knowledge of the discrimination discriminatory statements, including any available name, title, or position details of the representatives that made such statements.155

Thus, DFAP is far more consistent with the Supreme Court’s acceptance of programs that consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,”156 through its targeting of prior racial discrimination using documentation.

One potential weakness to legal challenge is USDA’s use of partnerships with race-centered community farming groups to provide targeted assistance for applying to DFAP. The constitutionality of partnerships like these was not addressed in SFFA. The U.S. Department of Education, however, has taken the position that targeted outreach and pathways programs remain legal.157 Moreover, the application period for DFAP is now over, and USDA also partnered with community farming groups that are not race-centered, including young farmers, veteran farmers, and various other farmer categories. For the time being, targeted outreach and pathways programs for farmers appear to remain a viable approach to addressing historical inequities in agricultural funding.

From a purely Tribal perspective, Brackeen’s reaffirmation that Tribal membership is a political rather than racial classification may offer additional latitude in the operation of USDA programs. USDA has yet to distinguish treatment of individual federally enrolled Tribal members from racial classifications within “socially disadvantaged” and “historically underserved” groups, although the Supreme Courtin Morton v. Mancari, has stated that race and Native American status can be distinct.158 The practicality of separating one historically marginalized group from others poses potential complications, particularly in application of government assistance to individuals in a new yet not entirely unprecedented manner. The federal government does presently extend federal support to individual Native Americans through special programs like the Indian Health Service.159 However, such support is generally predicated on the government-to-government relationship between the United States and federally recognized Tribes. Targeted USDA support to Tribal producers has the greatest constitutional defense when conducted under this government-to-government relationship.

Similarly, USDA has the opportunity to draw from some of the innovations in higher education that are occurring after SFFA. One tool that universities have been experimenting with is targeting the hiring of faculty—regardless of race—who demonstrate aptitude for mentoring “at-risk” students, including students of color.160 USDA could adapt this program to provide additional loan support to farmers who could mentor at-risk farmers and farmers of color. This could especially dovetail with the 2018 Farm Bill’s Beginning Farmers and Ranchers Program.161 Under this program, USDA prioritizes grant funding for beginning farmers and ranchers. While such farmers are still overwhelmingly white, they consist of somewhat more farmers of color than the general farmer demographic.162 Providing additional support for existing farmers who can act as mentors for beginning farmers—especially farmers of color—ultimately prioritizes support for farmers who have historically faced discrimination. Indeed, California is already creating an agricultural mentoring program using USDA funding that targets veterans and disadvantaged farming coalitions in this manner.163

Hiring USDA staff from historically underserved communities is another strategy with close parallels to SFFA. Such targeted hires may be more likely to build trust and understand nuances in communicating with underserved individuals and groups. Existing USDA pathways programs have targeted minority students, providing internships allowing fast-track hiring for successful participants.164 Established Scholars Programs operated with 1890 Historically Black Universities and 1994 Tribal Colleges to facilitate outreach and employment opportunities by connecting to institutions centered on serving historically underserved communities without using race as a factor.

Another tool used by universities that USDA could adopt is the targeting of those with socioeconomic disadvantages, both in terms of access to programs and access to funding. This is a tool that universities have long pursued, but its importance has increased after SFFA.165As described earlier, Indigenous farmers and farmers of color already face greater risk of loan default, a demonstrable sign of socioeconomic disadvantage. Thus, adopting lending programs (including access to the incentives created by the voluntary conservation programs) with a higher degree of weight based on socioeconomic disadvantage could still allow USDA to support historically discriminated farmers.166

Easing barriers to USDA lending may be assisted by addressing obstacles to individuals from communities with limited access to capital, which are largely programmatic in nature.167Sincemost predominantly Black, Latino, or Indigenous communities have historically lacked basic services such as financial institutions, they often lack the credit and accumulated capital that are critical for loan qualification.168 Addressing impacts from that level of historic discrimination requires societal level intervention at a time when policies are increasingly limited from SFFA, but basic strategies like expanding financial education efforts and partnering with existing community development financial institutions (CDFIs) can help build the basic capacity necessary for qualifying for FSA and most other loans.

USDA’s FSA has taken affirmative steps to ease application burdens by significantly simplifying application forms while creating new support tools, yet the application process is still challenging for many applicants.169 FSA’s simplified application released in 2023 addressed redundancies while streamlining information collection. However, as a lender of last resort, FSA’s application process is subject to a heightened level of documentation to minimize the risk of default.170 FSA could provide greater support to loan applicants through direct assistance or expanded support resources that assist loan seekers in both building financial literacy and navigating the nuances of detailed loan-application forms. Alternatively, or concurrently, FSA could expand partnerships with entities like CDFIs to provide financial-planning training tailored to farm business-plan development. CDFIs have established a presence in many historically underserved communities where they have worked to build trust and relationships to address capital access.171 The simple reality is that the information required for FSA farm loans provides a foundation level of farm business records necessary not only for access to other USDA assistance, particularly crop insurance and disaster payments, but it helps make improved business management decisions.172 That foundational financial capacity is essential to realizing and maintaining economic viability. It also helps lay a stronger foundation for effectively accessing conservation programs.

The long-term implications of SFFA on the operation of conservation programs supporting historically underserved producers is more pronounced since overall need far exceeds available funding. Although IRA’s historic conservation program investments have created massive funding pools, this enhanced funding is temporary and may still be insufficient to meet full conservation needs in many states and areas. Dedicated NRCS funding pools for socially disadvantaged producers have helped extend support to many historically underserved producers. If the socially disadvantaged funding pool were deemed unconstitutional, an essential resource supporting equitable program delivery would be eliminated given insufficient overall conservation funding.173

NRCS’s recent emphasis on “Urban and Innovative Production” through EQIP and a new dedicated grant program demonstrates how development of new conservation practices and funding may be targeted at smaller, often specialty growers, many of whom have not been historically served.174 In so doing, the approach makes no reference to racial classification but reaches a large number of individuals from historically underserved groups.175 This type of program emphasis could be expanded to other priority areas, but it would not be a complete replacement for the existing socially disadvantaged funding pool.

Shifting to the unique government-to-government aspects of USDA-Tribal relationships, recent Farm Bills have gradually explicitly included Tribes in stand-alone provisions and sections referencing states with the 2018 Farm Bill featuring sixty-three tribally oriented provisions, including both alternative funding arrangements (AFAs) for conservation programs and Tribal self-governance authority in nutrition and forestry programs.176 Specifically focused on NRCS conservation programs, AFAs authorized by the 2018 Farm Bill offer an excellent yet unimplemented opportunity to extend EQIP and CSP conservation funding to individual Indigenous agricultural producers through their Tribal governments.177 Requiring advancement of EQIP and CSP program goals, this AFA approach is predicated on the ability to achieve an improved outcome over a traditional program contract while also furthering Tribal resource-management plan development and implementation.178 By working on a government-to-government basis, these AFAs may utilize expanded flexibility in allowing enhanced Tribal government conservation funding implementation, including to individual Tribal members.179

Many Tribal governments, particularly on larger reservations, may be well-suited for managing conservation programs for their individual members under AFAs since they will have better knowledge of their producers and lands under their jurisdictions. Greater Tribal government control would allow improved coordination in targeting resources for maximum impact, especially in accordance with Tribal resource-management plans.180

Smaller Tribes or those with comparatively fewer resources may be better positioned to administer such efforts through Tribal Conservation Advisory Councils (TCACs), which provide opportunities for improved delivery of conservation technical and financial assistance on Indian lands.181 Whereas conservation districts cover localized geographic areas or watersheds, TCACs are intertribal organizations composed of Tribal governments within state boundaries.

The Wisconsin Conservation Advisory Council (WTCAC), the first TCAC, serves as a model. Each Tribe in Wisconsin appointed delegates to WTCAC, which has been able to significantly expand financial assistance while creating numerous new conservation practices incorporating traditional ecological knowledge and better meeting unique Tribal needs.182 Importantly, WTCAC’s structure leverages Tribal governments’ political sovereignty by creating a direct connection through the appointment of delegates by governing bodies. WTCAC has simultaneously improved interagency and inter-Tribal cooperation. This model has expanded to several other states and nationally with three Regional Tribal Conservation Advisory Councils. However, TCACs generally focus on Tribal governments rather than individual producers who face unique challenges with greater proportional needs. Nonetheless, TCACs’ structure offers an ideal mechanism for directing conservation funding to individual members better.

Whereas TCACs are a mechanism uniquely designed to leverage Tribal governmental capacity, similar approaches may help improve delivery of conservation and broader technical assistance to other historically underserved populations. Just as WTCAC was initially created as a subcommittee of Wisconsin’s NRCS State Technical Committee, NRCS’s administrative policy allows the creation of subcommittees and local workgroups that could help engage targeted producer groups with improved outreach, technical assistance, and development of new conservation practices where appropriate.183 Potential subcommittee examples could be geographically centered to better serve urban or other concentrated underserved areas, or they could be based on production such as small vegetable growers. Further, NRCS has implemented new, more flexible authorities to fund such efforts that extend well beyond basic racial and ethnic classifications, highlighting how resources may be directed to serving a broader array of groups and needs than the historic emphasis on larger producers with relatively conventional conservation needs.184

Conclusion

This is a critical time for Congress to support climate change adaptation and mitigation in the farming sector, as well as to support historically underserved farmers, whose traditional knowledge may lead to greater climate resilience for the sector as a whole. Not only is climate change posing an increasing threat to agriculture in general, but the most recent Farm Bill expired on October 1, 2023.185 On November 21, 2023, Congress passed and President Biden signed into law a bill to extend the 2018 Farm Bill until September 30, 2024.186 As of this point, it is unclear whether a new Farm Bill will get passed in September 2024, or whether the 2018 Farm Bill will be further extended on a temporary basis.

Regardless, the next Farm Bill provides Congress with an opportunity to build upon the programs supported by the IRA. In particular, Congress must focus on three primary areas. First, they must strengthen the ability of USDA to deliver financial aid and to facilitate the delivery of financial and technical assistance needed to support a thriving national food economy across all production levels. Second, they must also tailor crop insurance funding and focus on maintaining adequate conservation funding while expanding and streamlining funding access to these programs. Finally, they must extend their approaches to addressing the injustices created by historical injustices of USDA funding programs through creative developments, including stronger partnerships with Indigenous and Black farming associations. These efforts are necessary to save our foodways in this climate emergency.

Daniel Cornelius is a member of the Oneida Nation and an attorney at the University of Wisconsin Great Lakes Indigenous Law Center. He has worked with Tribes on food, agriculture, and seed issues for over a decade. Steph Tai is a professor at the University of Wisconsin Law School. Their current research addresses legal responses to the impacts of climate change on food systems, especially heritage food systems. We express deep thanks to our research assistant, Ellen Stojak, whose thoughtful memos were invaluable for this Essay.

Support for this research was provided by the University of Wisconsin-Madison Office of the Vice Chancellor for Research with funding from the Wisconsin Alumni Research Foundation.