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Welcome to the No-Till Farmer Podcast, brought to you by Yetter Farm Equipment. I'm Michaela Paukner, managing editor at No-Till Farmer. In today's episode, agricultural attorney Todd Janzen explains what no tillers need to know about the data that the USDA's partnership for Climate Smart Commodities Grants will collect, potential legal liabilities for artificial intelligence and agriculture and more.

My name is Todd Janzen. I'm an attorney at Janzen Schroeder Ag Law in Indianapolis, Indiana, and I've been a lawyer for about 20 years now.

All right, and how did you come to specialize in ag law?

I grew up on a farm in South central Kansas. It was a diversified farm with mostly cattle, but also grains, wheat, sorghum, lots of silage. So I always liked farming. And after I went to law school, the first law firm that I worked at was a firm that had a lot of environmental matters and that included a lot of cases involving farmers. And so they asked me if I wanted to work on those cases and I said, "Yes, I'd be great because I can connect with other farmers and also connect with my background." And so I really enjoyed working with farmers on those cases and over time it just evolved to become a whole agricultural law practice.

Yeah, that's exciting and something that I don't often hear about. I think you're probably the only ag lawyer I've ever heard of, so that's really exciting. So what types of cases do you work on, especially lately? What have you been working on?

Yeah, our firm really has a pretty diverse docket of things that we work on. Our cases we are not afraid of taking on the government. And so we have cases against, let's say, Department of Natural Resources or the Indiana Department of Environmental Management, or we've even dealt with EPA. So we have those kind of cases. And then we've had a fair amount of cases over the years that have involved nuisance suits against farmers. And then I'd say the other thing that we do a lot of for farmers would be real estate work. So farmers will sometimes want to expand their operation and need zoning approval and we can help them with that. Or if they are building a livestock farm, that usually involves some regulatory work and we can help them with that out too. So we do a lot of that type of work for farmers. And then I also do a lot of work on the ag tech side, working with technology providers that have new products that they want to sell in agriculture. And so that's another area of work that we do quite a bit of in the firm.

Okay. And that was something I wanted to ask you about because you write a popular blog about ag tech with a lot of predictions and analysis about the future of precision technology and often the legal liabilities that could impact farmers that come with that. And you've actually testified to the US Senate Committee on agriculture and technology and AI in ag, which is really exciting. So what are some of the things on your radar that you think farmers should be paying attention to in this space?

Yeah, absolutely. There's a lot going on in ag tech and ever since the Climate Corporation was acquired by Monsanto about 10 years ago or so, we've seen a lot of money go into ag tech, which is very exciting. Some of the newer things that I think are out there are coming, it seems like AI, artificial intelligence is a big one and we're really talking about it now in 2023, but I feel like a lot of what we consider AI has been going on for a few years already, which is using a lot of data to train computers to make smart decisions.

And so even though the conversation is evolving, a lot of that technology is already out there and being used. What we're seeing now is the generative AI, which is where the computer programs actually have the ability to generate human-like responses to questions. And so I think we'll see a lot of that used in agriculture in the years ahead too. There's that. The other area that I think we're seeing a lot of development in is on the autonomous or driverless farming operation, and that can include everything from robotic milking machines to tractors that can drive themselves. And it seems to me with labor shortages being a constant in agriculture that that's a technology that we're going to see more and more of in the years ahead.

Definitely. And what would be some of the legal considerations that a farmer should have if they're maybe at this point we're so far removed from adopting that I think on the farm, but down the road, as this becomes more available, what are some of the legal liabilities that a farmer would have to be thinking about?

Yeah, I think with any sort of robotic equipment or autonomous equipment, the legal issue, the big one is liability and what happens if things go wrong? And it might mean worst case scenario would be that a human gets hurt by the technology and the farmer should ask, "Am I going to be responsible if that happens? Let's say it's a software glitch that causes someone to get hurt. Is that my responsibility?" That's probably the worst case scenario. Then I'd say also bad, but not as bad would be if you have things go wrong based upon the technology that might impact crops yield or injures livestock or something like that.

Those are big legal issues that we're still trying to sort out in this country. And we see with driverless cars, there's starting to be some cases out there now where courts are trying to decide who is liable, the manufacturer who designed the car or the person behind the wheel who might not have been paying attention because the car was driving itself. So liability is a big one with AI. I'd say what is an issue is where does all the data come from that trains these AI models and our farmers intentionally licensing that over to these companies building AI tools or are companies using the data in a way that maybe the farmer didn't anticipate. And so I think that's a legal issue that we'll see debated in the coming years.

Yeah. And I think that's a great segue into another blog that I wanted to ask you about that caught my attention in the last year. You wrote about how the USDA might use farmers' data that's collected through the Climate Smart Commodities Grants, which the USDA invested 3.1 billion into. So at this stage, what do you think the USDA is going to do with all the data that they're collecting through these funded programs?

Well, I hope that USDA knows what it's going to do with all the data. Part of me wonders if it's set up this mechanism to collect all this information, but then what happens after that is a little bit of a question mark in my mind. But yeah, we did see all these grants go out for all this climate research which needs to happen because we have a lot of questions about does it really work to sequester carbon in soil? Can we really make a difference to the climate by doing X, Y, Z? So I think with the grant money came the requirements that these companies collect information from farmers about the projects they're working on, and then USDA will have all that information and it can license it to universities for research potentially or could do its own research. It's not really clear to me yet how it's going to all be used, but hopefully it contributes to some advancing the ball on the climate discussions.

Yeah, definitely. I'd like to take a moment to thank our sponsor Yetter Farm Equipment. Yetter is your answer for success in the face of ever-changing production agriculture challenges. Yetter offers a full lineup of planter attachments designed to perform in varying planting conditions. Yetter products maximize your inputs, save you time, and deliver return on your investment. Visit them at yetterco.com. That's yetterco.com. Now let's get back to the conversation.

What do you see as best and worst case scenario with how amassing all this data could help or harm no-till and other conservation practices?

Yeah, it's hard to imagine that collecting the data isn't going to be beneficial to no-tillers because it seems like everything we've learned so far is that no-tilling does a good job of not disturbing carbon in soils and allowing more carbon to be sequestered all the time. And so I think it will probably confirm a lot of that, what we already know. Potentially a downside is that we may find out that if you've been a no-tiller for 20 years, you're really not adding that much more carbon to the soil on a regular basis. And so the climate benefit to continuing to no-till is small. We don't know that yet. I don't think the data is out there to prove that one way or the other, but that's a potential downside I suppose. But the flip side of that would be farmers are no-tilling, not just for the carbon sequestration aspect of it, but also because it works for their operation. Anybody who's done it so far, it makes financial sense, it makes environmental sense. So they'll continue doing it, I would imagine.

Yeah, I would think so too. I saw it yesterday, it was either yesterday or the day before I was at the BIG Soil Health Event and Russell Hedrick shared this really good visual, I think, of how data can be used. It was like a bunch of Lego blocks and the first one was all the different colors of Legos in a pile and it was like this is your data and eventually it shows sorting it into different colors using it to build something and what actually... you get this pile of numbers and it's like what does this mean? You have to actually translate it into something. So I'm looking forward to seeing how the USDA is going to be able to do that to actually tell a story about what conservation ag does.

Yes. Yeah, I am too. And that's a great analogy with the Legos because you hear farmers say all the time, "We collect so much data already, but what are we really learning from it," so still a question mark.

Yeah, definitely. Are there any concerns about the government getting so much of this farm and field specific data?

I think whenever farmers are polled about their concerns, worrying about whether the government will get the data is absolutely one of the top concerns. So I think it definitely is a concern. Is it a legitimate concern? It is. If we're talking about certain agencies that have historically not necessarily been the farmer's friend, like EPA might be one of those. With USDA, I think it's a little bit more of a mixed bag because obviously farmers get a lot of benefit from USDA. And so like you think about crop insurance as an area where farmers very willingly share a lot of data with RMA at USDA for crop insurance purposes, but they're getting a great benefit because of that. They're getting crop insurance and sometimes indemnity payments, so it's a worthy trade-off. So I hate to lump all the government together because I think I'm not seeing any numbers to suggest this is true, but my gut feeling tells me farmers have different attitudes about sharing data with different types of government agencies for sure.

Yeah, that makes sense. And then in terms of, you mentioned that maybe the USDA, there's potential they could license out this data to universities for research and whatnot, and do they need to get any kind of permission from the farmer to do that, or how would that potentially work?

That's a good question. I think in general, if it is a Climate Smart Commodity Grant related project, then probably the farmer is consenting to share that data with USDA when they're participating and getting money as part of that grant. And hopefully all these companies that got the grants have good contracts in place that explain that to farmers. I've worked with a few and helped them with that, and so I know that that's needed. But there are so many companies out there that got grant money and I don't know if they're following those protocols or not, but they should be for sure. It's worth mentioning too that USDA can't necessarily lawfully share data that is farmer specific with a farmer's name, address, et cetera. They have to anonymize it usually by law before it can be shared with anyone. So I would expect that's probably the case for most of the Climate Smart Commodities data too.

Yeah, that's a good protection too, it seems like. So anybody who's listening who has their own specific questions about how the USDA could use your ag data, make sure you attend Todd's classroom at the National No-Tillage Conference on Wednesday, January 10th, and you can go to no-tillconference.com to register if you haven't already. So Todd, I guess I'll leave you with the question of looking where it's mid-December right now, we're almost in 2024. What are some of your predictions in terms of ag tech or ag law for 2024?

I think for sure we're going to be talking more and more about artificial intelligence. That just seems to be the hot topic rising to the surface all the time. I think climate change is going to continue to drive a lot of the discussion and a lot of the work on the ag tech front too, where we see a lot of companies trying to reduce their carbon footprint. In order to do that, they have to reduce the footprint in their supply chain, and that's going to include farmers in many instances. And so I think we'll see that drive a lot of potential changes on the farm too. Those are the two big ones that pop in my mind right away. And of course the farm bills coming up, so we'll be talking about that in 2024 too.

Yeah, definitely. And just quickly on the reducing the carbon footprint, again at the BIG Soil Health Event, a lot of the talk was about the potential for a tax credit from the ethanol companies for farmers reducing their footprint and having a lower carbon intensity score. So wondering what you've heard about that and what that might look like, I guess just in general, what that might look like.

So I think where you could see this is if there are any farmers out there who are producing true food products like milk or maybe a corn that goes into a human food product instead of animal feed, I can definitely see companies wanting to put some requirements on those farmers to do things a certain way so that then they can reduce their carbon footprint and market their products as more low carbon or net-zero or whatever the term may be. That's how I see it playing out.

Thanks to Todd Janzen for today's conversation. A video and transcript for this episode are available at no-tillfarmer.com/podcasts. And if you haven't already registered for the 2024 National No-Tillage Conference in January, go to no-tillconference.com and use code PODCAST when checking out to save $50. Many thanks to Yetter Farm Equipment for helping to make this No-Till Podcast series possible. From all of us here at No-Till Farmer, I'm Michaela Paukner. Thanks for listening.