The LPDD team is thrilled to announce the publication of three new model resources relating to the management of nitrous oxide in agricultural production, based upon recommendations found in Chapter 35 of the LPDD text.
The first of these resources is a model healthy soils bill for establishing state management standards, which is available here. Excerpted from the introductory memorandum to that model legislation:
Implementing nitrous oxide management standards requires two distinct steps: (1) articulating the substance of such standards, and (2) identifying effective regulatory techniques for putting the standards into action. Nitrous oxide emissions are particularly well-suited to sub-national management standards at the state level. This model legislation establishes a framework for state-level implementation vs. local-level implementation, in light of the wide variety of approaches states take to home rule and municipal authority, and is derived primarily from provisions of New Mexico’s Healthy Soil Act.
The second of these resources is a draft federal regulation under the Clean Air Act for encouraging best management practices to improve nitrogen use efficiency, especially by large commercial farms, in order to reduce potent GHG emissions of nitrogen and their impact on the stratospheric ozone layer. The authors note that this regulation could also be adopted by states. This model regulation is available here. Excerpted from the introductory memorandum to that model regulation:
This model regulation is designed to control emissions of nitrous oxide from large commercial crop farms to reduce impacts of N2O pollution to the stratospheric ozone layer. The regulation establishes a program that requires development and implementation of farm-specific nitrogen management plans, prepared based on field and crop specific conditions by a certified nitrogen management planner. Plans must include nitrogen application rate targets calculated at the field and crop level, accounting for application of best management practices and cover crops. The program includes training and continuing education elements for planners, along with recordkeeping and reporting requirements for commercial farms.
The regulation is structured with a number of leverage points that can be modified to expand the scope or binding nature of different regulatory components. For example, as presently drafted, the applicability threshold is set through definition of the term “commercial farm” which is not triggered unless a farm is both greater than 1,000 acres in size and grosses more than $1,000,000 per year. These levels can be easily modified. Likewise, nitrogen application rate targets are currently structured to be non-binding, so long as the farm implements the minimum core strategy of planting off-season cover crops. The nitrogen application rate target, which accounts for application of site-specific best management practices, could be converted to a binding limit in the future through subsequent regulatory amendments as program data is collected and effectiveness of the existing program is assessed. The plan-based regulation proposed here is designed instead for adoption by EPA under section 615 of the CAA. Alternatively, with minor modifications, the regulation can be adopted as a statute or regulation at the state or federal level.
Finally, the LPDD team has authored a memorandum discussing the Climate Action Reserve’s approach to regulation of N2O emissions from agricultural activities and its adoption by the California Air Resources Board. The analysis is available here. Excerpted from the introduction to this memorandum:
The LPDD text recommends that regulators incentivize nitrous oxide emission reductions at agricultural sources by providing offset credit for reductions associated with improved soil management practices. This could be facilitated through the creation of a model offset credit protocol for adoption by states, allowing for issuance of offset credits in the context of current or future GHG emission reduction programs promulgated at the state level.
California’s Climate Action Reserve (CAR) broadly accounts for emission reductions associated with implementation of cropland nitrogen management best practices across a wide range of crops and geographies for which CAR determined adequate quantification data and methodologies existed. States seeking to provide offset credit for reductions in nitrous oxide emissions through improved agricultural management practices would be best served by incorporating the CAR Protocol itself into state law, either directly or by reference, similar to the manner in which California has adopted some of CAR’s other protocols and/or recognized offset credits issued pursuant thereto within the context of its Cap-and-Trade Regulation. This memorandum provides legal background and tools to better facilitate that process for state and regional policymakers.
These important contributions to the LPDD implementation project were drafted principally by Lindsay Brewer and Kevin Poloncarz, with assistance from Steven Palmer and Jasmine Jennings, all of Covington and Burling, LLP. Peer reviewing was provided by Jessica Wentz, Senior Fellow and Associate Research Scholar, Columbia Law School Sabin Center for Climate Change Law, and David Kanter, Ph.D, Assistant Professor of Environmental Studies, New York University, and Vice Chair, International Nitrogen Initiative, who were also the LPDD chapter’s co-authors. These documents serve as valuable complements to LPDD’s model state healthy soils legislation outline and survey under Chapter 30, which we posted last year.