Thursday, February 8, 2018

Agricultural Law Weekly Review—February 8, 2018

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

Air Quality: Court Extends Date for Certain Farm Emission Reporting
On February 1, 2018, the U.S. Environmental Protection Agency (EPA) announced that the DC Circuit Court of Appeals has extended the initial reporting date for certain farms formerly exempted from emission reporting requirements.  Previously, on April 11, 2017, the court vacated a rule that provided a complete agricultural exemption for reporting air emissions under the Comprehensive Environmental Response, Compensation, and Liability Act as well as a partial agricultural exemption for reporting air emissions under the Emergency Planning and Community Right-to-Know Act.  As a result of the court’s latest action, farms affected by the April 11, 2017, decision will not be required to submit their initial reports until the court orders its mandate enforcing the decision.  EPA anticipates that the court will order the mandate on May 1, 2018.

Packers and Stockyards Act: Pennsylvania Department of Agriculture Assists Livestock Producers Following Nonpayment
On January 31, 2018, the Pennsylvania Department of Agriculture (PDA) provided guidance for Pennsylvania livestock producers who allegedly have not received payments for animals sold.  PDA stated that the department has recently received complaints of nonpayment regarding livestock sold through the Westminster Livestock Auction in Westminster, Maryland.  According to Agriculture Secretary Russell Redding, the U.S. Department of Agriculture’s Packers and Stockyards Division has jurisdiction over the matter.  As a result, affect livestock sellers have 60 days from the date of the transaction to file a valid claim with the Packers and Stockyards Division.  To assist the filing of claims, PDA provided the following information:
  • Instructions on how to file a bond claim are available through USDA’s Agricultural Marketing Service website.
  • To file a claim, contact the Eastern Regional Office of the Packers and Stockyards Division, part of the USDA’s Agricultural Marketing Service Fair Trade Practices Program, at 404-562-5840 or toll-free at 1-800-998-3447, or visit

WOTUS: EPA and Army Add Applicability Date to WOTUS Rule
On February 6, 2018, the U.S. Environmental Protection Agency and the U.S. Department of the Army published notice in the Federal Register adding a February 6, 2020, applicability date to the “waters of the United States” (WOTUS) rule (83 FR 5200).  In 2015, the two agencies published WOTUS with an effective date of August 28, 2015.  On August 27, 2015, the U.S. District Court for the District of North Dakota enjoined the applicability of WOTUS in the 13 States challenging the rule in that court.  On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed WOTUS nationwide pending further action of the court.  Subsequently, on January 22, 2018, the U.S. Supreme Court (SCOTUS) held that the courts of appeals do not have original jurisdiction to review WOTUS challenges.  The agencies stated that because of the SCOTUS decision, the February 6, 2020, applicability date will enable the continued regulatory status quo as revisions to WOTUS are being considered.

Marketing Orders: USDA Announces Delay of California Federal Milk Marketing Order
On February 6, 2018, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register announcing a delay of the California Federal Milk Marketing Order (FMMO) rulemaking proceeding (83 FR 5215).  On September 22, 2015, USDA-AMS commenced a California FMMO hearing presided over by an Administrative Law Judge (ALJ).  Subsequently, on November 29, 2017, the Solicitor General of the United States petitioned the U.S. Supreme Court asserting that ALJs are “inferior officers” of the U.S., subject to the Appointments Clause of Article II of the Constitution. (Lucia v. Securities and Exchange Commission, No. 17-130 (U.S. January 12, 2018).  According to USDA-AMS, if the Court finds that ALJs are inferior officers of the U.S. rather than employees, the original appointment of the ALJ presiding over the California FMMO hearing would be brought into question.  As a result, USDA-AMS stated that it will “delay further proceedings in this FMMO rulemaking until the Court renders its decision in Lucia.”

Invasive Species: USDA Provides Pennsylvania Emergency Funding to Fight Spotted Lanternfly
On February 7, 2018, the U.S. Department of Agriculture (USDA) announced that the agency will be providing Pennsylvania with $17.5 million in emergency funding to help stop the spread of the spotted lanternfly.  The action is the result of an upsurge of the invasive species in Pennsylvania which saw the number of affected square miles increase from 174 in 2016, to approximately 3,000 in 2017.  As a result, USDA stated that it has been working with the Pennsylvania Department of Agriculture to develop an area-wide approach to fight the spotted lanternfly before the invasive species re-emerges this spring.  According to U.S. Rep. Glenn ‘GT’ Thompson (R-PA), the USDA funds will be used to help “the Commonwealth treat, gather data and perform the coordination needed to contain the spread of this devastating threat.”

Pennsylvania Legislation:
  • HB 1917 Legislation to strengthen training and oversight of humane society police officers (Re-referred to Appropriations February 5, 2018) 

Environmental Resources and Energy (S)
  • SB 15 Legislation addressing climate change (Referred to committee, January 26, 2018) 

Environmental Resources and Energy (H)
  • HB 2034 Legislation to include the chemical element molybdenum in the labeling requirements for agricultural liming materials (Reported out of committee, February 5, 2018)
  • SB 799 Legislation creating program for Pennsylvania municipalities and municipal separate storm sewer systems to meet Chesapeake Bay nutrient reduction mandates (Referred to committee, February 1, 2018) 

Tourism and Recreational Development (H)
  • HB 2051 Legislation regarding tourism marketing and funding (Referred to committee, February 2, 2018) 

Pennsylvania Actions and Notices:
Delaware River Basin Commission

IN RE: DICAMBA HERBICIDES LITIGATION, United States Judicial Panel on Multidistrict Litigation (MDL No. 2820, Feb. 1, 2018)

IN RE: PROCESSED EGG PRODUCTS ANTITRUST LITIGATION Kraft Foods Global, Inc., Kellogg Company, General Mills, Inc., and Nestlé USA, Inc., Appellants, U.S. Court of Appeals Third Circuit (No. 16-3795, Jan. 22, 2018)

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