Volume 80, Number 5

November 2005

Reflexive Law Solutions for Factory Farm Pollution

Warren A. Braunig

Large industrial livestock and poultry farms, known as “factory farms” or “confined animal feeding operations” (CAFOs), pose serious threats to regional air and water quality. Because the widespread existence of factory farms post-dates our nation’s environmental laws, they remain largely exempt from emissions regulation. In recent years, the Environmental Protection Agency, the states, and environmental groups—via citizen suits—have begun to bring CAFOs into the regulatory fold. However, scientific challenges, political gamesmanship, and the time and cost required to craft traditional regulation make the success of these programs uncertain at best.

This Note argues that proponents of factory farm regulation should adopt a new approach, focusing on information-based regulatory tools (so-called “reflexive law”). Reflexive law policies mandate the public disclosure of information, whether in the form of raw data, hazard warnings, or environmental labels. In practice, well-crafted reflexive law programs have had a powerful shaming effect on polluters, while also enabling consumers, business partners, and even shareholders to exercise their displeasure with polluting industries and their support for more environmentally responsible companies. Reflexive law is also faster and cheaper to implement than command-and-control regulation, and it represents a more politically palatable approach to the problem of CAFO pollution.

The Note explains why reflexive law is well-suited to factory farm pollution, identifies the key elements of a successful reflexive law program, and then proposes a series of reflexive law approaches for factory farms that could be enacted independently or in conjunction with more traditional regulation. It ecommends immediately supplementing ongoing efforts with reflexive law programs.