Friday, September 13, 2019

Agricultural Law Weekly Review - September 13, 2019

Written by: 
Jackie Schweichler—Staff Attorney
Audry Thompson—Research Assistant
           
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Water Quality: EPA Seeks Comment on Water Quality Trading Policy
On September 5, 2019, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced that the agency is seeking comment on guidance issued in the memorandum, Updating the EPA’s Water Quality Trading Policy to Promote Market-Based Mechanisms for Improving Water Quality.  Specifically, EPA requests comment on one of the principles outlined in the memo which states that EPA “encourages simplicity and flexibility in implementing baseline concepts.”  The memo asks stakeholders to consider the best way to apply the load allocation baseline in order to improve water quality.  Under the Clean Water Act, facilities experiencing increased costs due to pollution control or seeking to comply with a pollutant discharge permit may buy “environmentally equivalent (or superior) pollution reductions” from other entities to satisfy regulations. EPA stated that it will hold a public meeting regarding water quality trading and other market-based programs to improve water quality and that it will be accepting comments at https://www.regulations.gov (Docket ID no. EPA-HQ-OW-2019-0415).   

Agricultural Labor: OSHA Signs Alliance with Poultry Industry Participants
On September 4, 2019, U.S. Department of Labor Occupational Safety and Health Administration (OSHA), in conjunction with the U.S. Poultry & Egg Association, National Chicken Council, and the National Turkey Federation, signed a two-year agreement creating a Poultry Industry Alliance.  Announced on the same day by the National Chicken Council and National Turkey Federation, the agreement consists of two main parts, “Raising Awareness” and “Training and Education.”  To raise awareness of workplace hazards, the agreement focuses on developing new methods of communication, participating in meetings, speaking at conferences or events, and information sharing through materials or workshops.  Under the agreement, the participants will work to create training and education programs to avoid workplace hazards and to promote safety and health. 
Industrial Hemp/Cannabis: Court of Appeals Reverses Lower Court Decision in Hemp Transportation Case On September 4, 2019, the U.S. Court of Appeals for the Ninth Circuit reversed the lower court’s decision where it denied a Motion for a Preliminary Injunction in a case involving hemp transportation (Big Sky Scientific LLC, v. Jan M. Bennetts, Idaho State Police, et al., D.C. No. 1:19-cv-00040-REB).  The Ninth Circuit stated that there is an “ongoing state judicial proceeding,” and therefore, the district court should have abstained from its decision.  The plaintiffs, Big Sky Scientific LLC (Big Sky) were stopped by authorities in Idaho when transporting industrial hemp through the state from Oregon to Colorado in January 2019.  The industrial hemp was seized, and the driver was arrested for marijuana trafficking. Big Sky argued that under the 2018 Farm Bill “No State or Indian Tribe shall prohibit the transportation or shipment of hemp…” (§10114(b)).  Idaho, however, does not distinguish industrial hemp from marijuana and argued that the 2018 Farm Bill does not apply in this case.  Idaho argued that the language in the 2018 Farm Bill relies on government regulations which have not yet been promulgated. 
Biofuels: Court of Appeals Holds that EPA Violated Endangered Species Act for Renewable Fuel Program 2018 Standards On September 6, 2019, the U.S. Court of Appeals for the District of Columbia Circuit remanded the 2018 Rule (82 FR 58486) promulgated by the Environmental Protection Agency (EPA) to establish renewable fuel targets under the Renewable Fuel Program (Am. Fuel & Petrochemical Mfrs. v. EPA, 2019 No. 17-1258).  This case was brought by various petitioners, some of whom argued that the fuel targets were too high and others who argued that the targets were too low.  According to the court, only one challenge to the rule had merit. The court determined that EPA did not meet its obligations under the Endangered Species Act by failing to determine whether the 2018 Rule would affect endangered or threatened species and critical habitat.  In light of this, the court remanded the case and directed EPA to make an effects determination in compliance with the Endangered Species Act. 
Antitrust: Chicken Processing Plant Workers Bring Class Action Lawsuit Against Chicken Processors On August 30, 2019, a class action lawsuit was brought in the U.S. District Court for the District of Maryland against chicken processors (Jien et al. v. Perdue Farms, Inc. et al, Case No. 1:19-cv-2521).  The defendant processors include Perdue Farms, Inc; Tyson Foods, Inc; The Hillshire Brands Co.; Pilgrim’s Pride Corporation; and others.  The plaintiffs allege that senior executives of the defendant processors met secretly to share data and fix wages and benefits for chicken processing plant workers.  According to the plaintiffs, these actions constitute a conspiracy in violation of the Sherman Antitrust Act (15 U.S.C. §1).  
From National Ag Law Experts:
Tiffany Dowell, 2019 USDA Land Values Summary (September 9, 2019)

Federal Actions and Notices:
Agricultural Marketing Service

Agricultural Research Service

Environmental Protection Agency
Abamectin; Pesticide Tolerances - Final Rule (September 9, 2019)

Fish and Wildlife Service 

Food Safety and Inspection Service 

Rural Housing Service 

Pennsylvania Actions and Notices:
Department of Environmental Protection

Environmental Quality Board

Penn State Research:

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks:

Connect with us on Facebook! Every week we will post the CASL Ledger which details all our publications and activities from the week.

Want to get updates, but prefer to listen? Check out the Agricultural Law Podcast! We can always be found on our Libsyn page, iTunes, Spotify, or Stitcher.

Review last month’s biggest legal developments in agriculture in the August 2019 Agricultural Law Brief. If you’d like to receive this update via email, check out our website and subscribe!

Thursday, September 5, 2019

Agricultural Law Weekly Review - September 5, 2019

Written by: 
Jackie Schweichler—Staff Attorney
Audry Thompson—Research Assistant
           
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Antitrust: USDA Announces Investigation into Tyson Foods Following Plant Fire
On August 28, 2019, U.S. Department of Agriculture, Secretary Sonny Perdue announced an investigation into beef pricing margins following a recent fire at the Tyson Foods beef plant in Holcomb, Kansas.  Tyson Foods stated in a press release that the company maintains several Kansas plants, which created a $2.4 billion impact on the state in 2018.  The investigation will be conducted by the Packers and Stockyards Division (PSD) to determine whether standards  for unfair practices were violated.  PSD will look for “evidence of price manipulation, collusion, [and] restrictions of competition.”  The National Cattlemen’s Beef Association also released a statement in support, stating that the investigation will show transparency and build market confidence. 

Industrial Hemp / Cannabis: DEA Posts Notice of Research-Related Marijuana Registrants
On August 27, 2019, the Drug Enforcement Administration (DEA) posted notice in the Federal Register of applications it has received from organizations applying for registration to produce marijuana, marijuana extract, and tetrahydrocannabinols for medical and scientific research (84 FR 44920).  Under the Controlled Substances Act (CSA), both the development and distribution of marijuana is prohibited, except by entities registered under the CSA.  If the registrants are approved, they would be authorized only to cultivate marijuana under their CSA registration.  Any conduct outside the realm of their DEA-approved production activities would be prohibited.  Before determining approval of the registrants, DEA plans to propose new regulations that will guide the program for scientific and medical marijuana research.  According to DEA Acting Administrator Uttam Dhillon, DEA “believe[s] registering more growers will result in researchers having access to a wider variety for study.”  DEA predicts that more strains of marijuana available to researchers “should facilitate research, advance scientific understanding about the effects of marijuana, and potentially aid in the development of safe and effective drug products that may be approved for marketing by the Food and Drug Administration.”  DEA has currently received thirty-three applications and is accepting written comments by mail until October 28, 2019.

Municipal Regulation: Missouri Court Restrains Law that Would Limit Local Regulation of Agricultural Operations
On August 19, 2019, the Circuit Court of Cole County, Missouri issued a temporary restraining order against SB 391 which would invalidate certain county laws or regulations governing agricultural operations, according to a press release from the plaintiff’s attorney.  SB 391 was signed into law on May 31, 2019, and it was scheduled to become effective on August 28, 2019.  SB 391 specifically prohibits counties from governing agricultural operations with laws or regulations “more stringent than any provisions of law, rules, or regulations relating to the Department of Health and Senior Services, environmental control, the Department of Natural Resources, air conservation, and water pollution.”   Several parties brought this lawsuit on August 19, 2019, including The Cedar County Commission, Cooper County Public Health Center, Friends Of Responsible Agriculture, and three Missouri landowners.  According to the plaintiffs, SB 391 prevents local governments from establishing health regulations relating to air emissions from concentrated animal feeding operations.  Conversely, the Missouri Cattlemen’s Association has issued a statement that SB 391 provides for regulations based on scientific and expert oversight.  The court will hold a preliminary injunction hearing on September 16, 2019. 

From National Ag Law Experts:
Paul Goeringer and Nerice Millet-Williams, A Look at 2019 Land Values Nationally, Maryland, and Delaware (August 20, 2019)

The National Agricultural Law Center, The Ag & Food Law Blog, To Cure or Not to Cure: Groups Petition USDA Labeling Requirements (September 3, 2019)

Federal Actions and Notices:
Environmental Protection Agency

Farm Service Agency/Commodity Credit Corporation

Agricultural Marketing Service

Rural Business-Cooperative Service

National Institute of Food and Agriculture

Pennsylvania Actions and Notices:
Department of Environmental Protection

Fish and Boat Commission

Milk Marketing Board 

Office of Attorney General 

Pennsylvania Department of Agriculture:

Penn State Research:

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks:

Connect with us on Facebook! Every week we will post the CASL Ledger which details all our publications and activities from the week.

Want to get updates, but prefer to listen? Check out the Agricultural Law Podcast! We can always be found on our Libsyn page, iTunes, Spotify, or Stitcher.



Review last month’s biggest legal developments in agriculture in the July Agricultural Law Brief . If you’d like to receive this update via email, check out our website and subscribe!

Thursday, August 29, 2019

Agricultural Law Weekly Review—August 29, 2019


Written by:
M. Sean High—Staff Attorney
Audry Thompson—Research Assistant
           
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Checkoff Programs: Court Dismisses Challenge Regarding Use of Pork Checkoff Funds
On August 23, 2019, the U.S. Court of Appeals, District of Columbia Circuit dismissed a lawsuit alleging that the government improperly used funds collected under the pork checkoff program (Humane Society of the United States v. Perdue, No. 18-5188).  Under the Pork Promotion, Research, and Consumer Information Act, the government may collect “assessments” from producers for the purpose of "strengthen[ing] the position of the pork industry in the marketplace."  Known as “checkoffs,” these assessments are paid by producers to the National Pork Board (Board) who in turn uses the funds for pork “promotion, research, and consumer information plans and projects."  In 2006, the Board used checkoff funds to purchase four trademarks—relating to the advertising phrase: “Pork: The Other White Meat”—from the private lobbying organization the National Pork Producers Council (NPPC).  Under the terms of the agreement, the Board agreed to pay NPPC $3 million per year for twenty years with an option to cancel.  In 2011, the Board discontinued use of three of the four trademarks but continued to pay NPPC the full $3 million per year fee.  Subsequently, in 2012, pork producer Harvey Dillenburg, the Humane Society of the United States, and Iowa Citizens for Community Improvement, filed suit alleging that the Board’s contract with NPPC impermissibly diverted checkoff funds for NPPC’s lobbying activity.  The court determined that the plaintiffs provided “no evidence that the Board's alleged misuse of checkoff funds caused them to suffer an injury in fact,” and as a result, dismissed the case “for lack of standing.”

WOTUS: Georgia Court Returns 2015 WOTUS Rule to Federal Agencies
On August 21, 2019, the U.S. District Court for the Southern District of Georgia remanded the 2015 “Waters of the United States” (WOTUS) rule back to the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (the Agencies) for further proceedings (Georgia v. Wheeler, No. 2:15-cv-00079).  Additionally, the court left in place a preliminary injunction against the 2015 WOTUS rule in Alabama, Florida, Georgia, Kansas, Kentucky, South Carolina, Utah, and West Virginia pending those proceedings.  Currently, the 2015 WOTUS rule is in effect in 22 states (plus the District of Columbia and the U.S. territories), not in effect in 27 states, and under federal court consideration in New Mexico.  According to the court, the 2015 WOTUS rule impermissibly extended the authority granted to the Agencies “beyond the limits of the [Clean Water Act], and thus is not a permissible construction of the phrase ‘waters of the United States’ within the statute.”  Additionally, the court held “that the Agencies’ promulgation of the WOTUS Rule violates the [Administrative Procedure Act’s] procedural requirements.”  The court stated that it chose not to vacate the WOTUS rule because “administrative efforts are already underway to repeal and replace the WOTUS Rule with a new rule that abides by both statutes” and that such an order could “cause disruptive consequences to the ongoing administrative process.”  For more information on the 2015 WOTUS rule and EPA’s proposed rule to revise the rule’s definition of WOTUS, see the January 9, 2019 Agricultural Law in the Spotlight article entitled: U.S. EPA and Army Corps of Engineers Issue Proposed Revised Definition of “Waters of the United States.   

Agricultural Finance: President Signs Legislation to Permit More Chapter 12 Bankruptcies
On August 23, 2019, President Donald Trump signed legislation increasing the Chapter 12 Bankruptcy operation debt cap limit from $3,237,000 to $10,000,000 (H.R. 2336 (116)).  Under Chapter 12, qualifying “family farmers” experiencing financial difficulties are provided with the ability to establish plans to repay parts or all of their debts.  Through increasing the debt cap limit, the legislation, known as the Family Farmer Relief Act of 2019, allows more farmers to qualify for Chapter 12 Bankruptcy.  According to American Farm Bureau Federation President Zippy Duvall, the change to the bankruptcy code “will help family farmers reorganize after falling on hard times.”  Duvall further stated that “[w]hile this is a sobering reflection of the current state of the agricultural economy, we are grateful to Congress, the President and his administration for their prioritization of reforming our current bankruptcy laws.”

International Trade: President Trump Announces Trade Agreement with Japan
On August 25, 2019, U.S. President Donald Trump and Prime Minister of Japan Shinz┼Ź Abe announced that a trade agreement has been reached in principle between the two nations.  Known as the Japan-U.S. agreement, the trade deal involves agriculture, industrial trade, and digital trade and reduces both tariff and non-tariff barriers to the Japanese market.  Currently, Japan is the third largest market for U.S. agricultural products importing $14 billion of such goods annually.  Under the new agreement, it is anticipated that Japan will import an additional $7 billion of U.S. agricultural products.  The two leaders stated that a finalized agreement will be signed in September 2019 around the time of the upcoming United Nations General Assembly meeting in New York City.

International Trade: USDA Details Trade Damage Estimate Calculations
On August 23, 2019, U.S. Secretary of Agriculture Sonny Perdue announced a publication by the U.S. Department of Agriculture (USDA) Office of the Chief Economist detailing the methods used by USDA to calculate economic losses from trade disruptions, which were then applied to compensate farmers in the Market Facilitation Program and Food Purchase and Distribution Program.  USDA determined the “economic loss” of a particular county by the “gross trade damages” suffered, which were defined as “the total amount of expected export sales lost to the retaliatory partner due to the additional tariffs.” These losses were estimated by subtracting the “bilateral trade with the tariff” from the “baseline,” or trade without the tariff.  These “estimated gross trade damages” were then “divided by the average volume of production” during 2015-2017, as reported by the National Agricultural Statistics Service, to form the specific commodity rates which were then used to determine the county rates used for payments. USDA asserts that this same approach has been used in the adjudication of trade dispute cases in the World Trade Organization. 

Food Policy: USDA Announces Clarifications to SNAP Requirements
On August 21, 2019, USDA’s Food and Nutrition Service (FNS) announced two new rule clarifications intended to “enable states to leverage modern technologies in their efforts to deliver Supplemental Nutrition Assistance Program (SNAP) benefits.”  Based on the success of several pilot projects, FNS will no longer require states to obtain Federal approval to provide third-party identity authentication services as an option for SNAP applicants to verify their identity.  Additionally, FNS specified that “third-party payroll sources, such as The Work Number, can be used” to certify income and employment information supplied by households.  The clarifications specify that, when adopting these procedures, states are still accountable for “complying with federal laws and protecting applicant rights.” 

Pesticides: EPA Opens Public Comment Period for Pesticide Use on Hemp
On August 21, 2019, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced the opening of a 30-day public comment period on ten applications from Agro Logistic Systems, Inc., Marrone Bio Innovations, and Hawthorne Hydroponics LLC to include hemp as a site on the labeling of currently registered pesticide products.  EPA has already “established tolerance exemptions” for “residues in or on all raw agricultural . . . commodities” from the active ingredients in these pesticides and deemed them safe “under any reasonably foreseeable circumstances.”  Because the agency does not perceive the “patterns of use” of the pesticides to change with use on hemp, EPA is not formally required to provide a notice-and-comment period for the applications.  Although the agency does not plan to continue such notification for future similar applications, EPA acknowledges the potential public interest in these early applications and is providing the notice-and-comment period to “enhance transparency.”  EPA predicts it will arrive at a decision regarding the pesticide use “on hemp before the end of 2019 to help growers make informed purchasing choices for the upcoming growing season.” 

Crop Insurance: USDA Offers Hemp Crop Insurance Coverage for 2020
On August 27, 2019, the U.S. Department of Agriculture’s Risk Management Agency announced that qualifying industrial hemp growers will be eligible for crop insurance coverage for the 2020 crop year.  Issued under the Whole-Farm Revenue Protection program, the insurance will cover “hemp grown for fiber, flower or seeds” and will be offered “to producers who are in areas covered by USDA-approved hemp plans or who are part of approved state or university research pilot programs.”  Interested individuals can find more information regarding crop insurance coverage for industrial hemp at the Hemp and Farm Bill Programs webpage on farmers.gov.

From National Ag Law Experts:
“Family Law Issues with Agriculture: Estate and Succession Planning”, Cari Rincker, Rincker Law Blog – Rincker Law PLLC (August 23, 2019)
“Court Determines Meaning of ‘Oil and Gas’ in Century-Old Pipeline Easement”, Tiffany Dowell Lashmet, Texas Agriculture Law Blog – Texas A&M AgriLife Extension (August 12, 2019)
 
Federal Actions and Notices:
Environmental Protection Agency

Executive Office for Immigration Review

Food Safety and Inspection Service

Pennsylvania Actions and Notices:
Department of Environmental Protection

State Conservation Commission

Pennsylvania Department of Agriculture:

Penn State Research:

AgLaw HotLinks:

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