USDA May Now Face Court Challenge in Its Implementation of ERP for 2022 Losses
USDA is responding to criticism from Republican lawmakers regarding their management of the Emergency Relief Program (ERP) for 2022 losses.
In October, USDA said over $3 billion is available through the Emergency Relief Program (ERP) to assist row crop and specialty crop growers in offsetting losses caused by natural disasters in 2022.
A USDA spokesperson explained that the main issue is a lack of funding from Congress. They stated that Congress allocated only $3.2 billion to cover losses totaling over $10 billion. This funding gap forced USDA to make difficult choices to prioritize assistance for those in greatest need. The spokesperson added that if members of Congress are dissatisfied with these choices, they should advocate for more resources to enable the USDA to fully compensate farmers for their losses.
Related Story: Pressure Continues to be Applied to USDA on 2022 ERP
Some Republican House and Senate members have expressed their concerns to USDA Secretary Tom Vilsack, particularly regarding the new payment formula used for ERP in 2022. They believe this formula, different from the one used in 2020 and 2021, may result in significant producers receiving minimal or no assistance. Link to a blog report from the GOP staff at the Senate Ag Committee. Meanwhile, Senator John Hoeven (R-N.D.), Ranking Member of the Senate Agriculture Appropriations Committee, this week led a group of senators in requesting a Government Accountability Office (GAO) review of USDA’s implementation of disaster assistance for producer losses occurring in 2022.
Comments: USDA is not being totally informative on this topic. It initially provided an estimate of the disaster funding needed and that was woefully underestimated. USDA now says agency says it notified lawmakers of the $10 billion in estimated damages, but Congress chose to authorize only $3.2 billion instead. Congress is also at fault here because while lawmaker criticism has accelerated recently, this report and others talking with farmers clearly noted the major problems with USDA’s implementation of the program months ago. Farm-state lawmakers had time to act and like so many other things in Congress, they did not act. Meanwhile, USDA’s suggestion that Congress simply provide more funding is not the whole answer: Congress should no longer assume USDA is going to implement disaster aid programs in a favorable manner relative to production agriculture and instead for a select group of underserved farmers and other nuances. USDA claims the agency’s new methodology will result in around 170,000 farmers receiving more aid.
Bottom line, according to a lawyer contact: “USDA is talking nonsense. USDA has dealt with this in the past and has always calculated total benefits to each producer and then applied one factor to pare payments back, so they fit within budget. But this administration politicized the payments by applying six different factors to fully indemnify some farmers and punitively harm others who suffered the greatest loss. In other words, it applied a back door pay limit. It also arbitrarily limited refund of premiums and fees paid to ‘underserved’ farmers. In doing so, USDA plainly broke the law. If USDA does not comply with the law and Congress does not step in and defend the law it passed. then it will be up to a court. Courts look at deliberate violations of the law with a jaundiced eye in establishing remedies.”
