by Martin Harris
As recent events have shown, that part of the American mythology which proclaims that anyone can grow up and be President, doesn’t trigger claims of log-cabin birth anymore. Some State fairs still have cow-milking demonstrations, where politicians, actual or wannabe, can show how close to the required Jeffersonian agrarian-yeoman roots they are; but now, as even once-rural-agricultural States like Vermont become more gentrified and bureaucratized, there are indicators that those who reign over us, elected pols or hired bureaucrats, no longer need to demonstrate much knowledge of agriculture beyond the required pledges-of-concern: against non-farm urban sprawl and for agricultural viewsheds. Then-Guv Madeline Kunin raised no listener eye-brows when she advocated the use of State labor and equipment, as necessary, to keep farmer-owned abandoned fields from growing back into primordial forest, and thereby risking the loss of tourism dollars from greenback-bearing visitors arriving to watch the natives happily laboring in their fields, and leading their small dairy herds for milking into the little red barns beloved by decades of Vermont Life photographers.
Case in point: the recent decision by District 9 Environmental Commission Coordinator Jeffrey Green that a proposed whiskey distillery in Addison County should be considered as a commercial enterprise, and not as an agricultural enterprise exempt from Act 250 review. It’s one of those chuckle-producing, confidence-shrinking, exasperation-increasing ruling class decisions which somehow arrived at a possible right answer for the wrong and remarkably illogical “reasoning”. What unspoken favor-to-friends reasons for the ruling might exist, your Humble Scribe dares not speculate, but it’s probable (indeed, desirable if not essential) that a highly-knowledgeable professional regulator should and would know, understand, and apply the facts regarding the differences between on-farm enterprise and beyond-the-farmgate processing, a transition that every commodity grown for sale (think milk or beef) makes on its pre-destined route from producer to consumer. For a still-operator buying grain for drink-fermentation to claim that his distilling enterprise is agricultural would be comparable to Hostess Brands buying grain for Twinky-baking to claim that its baking enterprise is agricultural.
But, inexplicably, the Green decision makes no mention of on-farm agriculture vs. beyond-the-farmgate processing; instead, it’s based on the percentage-of-water in whiskey –“…60% by volume and 73% by weight…” the ruling reads, and on the finding that the water is not an agricultural product, and since the “non-ag” water is the dominant element in the end product, 101 proof whiskey, the adult beverage isn’t an agricultural product “as defined by statute”, even though more than half the rye grain used will be grown on the distiller’s own farmland, and therefore won’t actually go beyond-the-farmgate for processing into an historically American version of aqua vitae. We know that a bushel of grain can yield 2 gallons of 190 proof ethanol or 4 of 95 proof whiskey, but we don’t know the distiller-grower’s proposed acreage. Most States (including Vermont) typically recognize small-scale “beyond-the-farmgate” activities as processing and retail sales (think artisanal cheese, sawmills, and farmstands for retail sales as not “beyond-the-farmgate” for exemption-from-commercial-regulation entitlement when the underlying commodity was, indeed, produced on the same farm (and even when some of it wasn’t, as in the many instances of New England farmstands selling Florida tomatoes in April) but the District 9 Coordinator chose not to demonstrate magnanimous generosity on that basis for a fermented product assuming a liquid final form like Jim Beam, not a fermented product assuming a final solid form like Camembert. The proffered reason: water content.
But Camembert scores at 80% water, and would therefore (within District 9, anyway) be a non-ag product. Conversely (here the regulatory web gets tangled when woven at first practice) Cheddar at 39% water would be an ag product. Such semi-soft cheeses as Limburger (stinky) and Muenster (non-stinky) hover around the 50% water mark, and the Coordinator would perforce be required to test and rule for each production batch.
The less-than-50%-water-for-ag-products Green ruling transfers without such fine-points of concern to milk (88% water) and beef (60 to 70%, cooked or raw) which, under this stare decisis precedent, would henceforth be similarly deemed non-ag products and therefore subject to regulation under Act 250 rules. Apples (at 80%) and asparagus (at 90%) are now non-ag products, while corn and wheat (at 15%) are, indeed, ag products. Cannabis is a non-ag product (80%) when green, but becomes an ag product when dried (10%) and even more legitimately so when burned during (presumably beyond-the-farmgate) consumption.
There can be three potential harvests from the seed sown by this Green decision. One is that it might be reversed on appeal: the distiller-applicant has already publicized the milk-isn’t-an-ag-product inconvenient corollary to the whiskey-isn’t-an-ag-product ruling. Another is that it might be remanded for re-hearing, in which case arguments about the dangers of “whiskey fungus” and “ethanol emissions” to nearby other ag (or non-ag) crops and/or to other ag (or non-ag) humans and their ag (or non-ag) livestock, commercial or companion, would be deployed. And the third would be that, laboring directly under the marble statue of Ceres the pagan goddess of agriculture, the Golden Dome folks will change the rules for Act 250 regulation or exemption of ag-crops by de-watering them, thereby preventing excessive regulatory Greening.
And there might be a fourth: that the ruling will stand, and those who stand to benefit thereby will be pleased, while those who don’t, won’t. In which case the supposed Red Queen declamation to Alice –the law is what I say it is– will have been proven decisive in Vermont, even though your Humble Scribe has never been able to find it in either Alice in Wonderland or Through the Looking Glass. A Red Queen quote (supposedly from Queen Victoria roots) which can be found is “when you’ve once said a thing, that fixes it”, and that might be appropriate (as a wishful assertion, not as a logical fact) for just such a fourth harvest. Meanwhile, the Green Coordinator quote has made a perhaps-permanent dent (a little corn-growing lingo, there) in Vermont agriculture.