Little Clarity for Renewable Energy Developers in the Senate's Proposed Amendment to the AFIDA
On June 5, 2025, United States Senator Pete Ricketts introduced the Agricultural Foreign Investment Disclosure Improvements Act, attempting to modernize the Agricultural Foreign Investments Disclosure Act of 1978 (AFIDA) and add more teeth to its enforcement. Unfortunately, the proposed amendment does not appear to provide any additional guidance on the types of uses of agricultural property that are specific to energy development.
Nearly five decades ago, Congress enacted the AFIDA to monitor foreign ownership of U.S. agricultural lands. The AFIDA requires foreign entities and individuals to declare to the USDA specific activities related to ownership of agricultural property by filing an FSA-153 form and imposes penalties for late or absent reports. The AFIDA requires that foreign persons or entities report their holdings, purchases, sales, or changes in the use of such land.
Foreign ownership of agricultural land has become a more polarizing issue, particularly in the context of acquisitions by foreign investors. In response to this, U.S. Senator Pete Ricketts’ proposal seeks to bolster the federal government’s ability to monitor compliance with the AFIDA and dole out punishments for those who fail to comply in a timely manner. While keeping almost all the substance of the original statute, the proposal would add several new requirements. Among other things, it would add a category of persons and entities required to report. It would further increase the digitization of foreign ownership records by creating a streamlined process for electronic submission and retention of disclosures. The amendment would then bring in the Farm Production and Conservation Business Center (FPAC-BC) to assist the Secretary of Agriculture with its investigative actions and data collection. Additionally, the proposal looks to amend the previous AFIDA Handbook with new updates by the Secretary of Agriculture and additional recommendations made by the Government Accountability Office.
For renewable energy companies owned by foreign entities, the proposed amendment does not readily offer support on the issues highlighted in the USDA’s recent call for comments from the industry. To many, the USDA’s December 18, 2023, call for foreign-owned wind and solar energy companies to weigh in on the FSA-153 form was a signal that the USDA was looking to modernize the AFIDA’s disclosure process in a manner that would benefit the specific uses of renewable energy developers and operators. There are no such signs in the current proposal, leaving many energy companies wondering whether they are required to report their lease and easement interests and how to accurately fill out the FSA-153 form. Questions remain regarding who needs to report, when during development a company needs to report, how much land needs to be reported, and what payment should be listed on each form. Without seeing any clarity on the horizon, risk minimization may be the best course forward.
For more information, please contact Evan F. Anderson (716.848.1584), Elizabeth Holden, or any member of our Renewable Energy Practice.
Hodgson Russ Law Clerk Brendan McDonnell contributed to this client alert.
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