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 www.ams.usda.gov.
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:
Appropriations
- 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
Cases:
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)
AgLaw HotLinks:
- Perdue Unveils Farmers.gov, Interactive Website for Agricultural Producers –USDA
- Monsanto to hold free dicamba training sessions – Farm and Dairy
- Bankruptcy invigorates efforts to overhaul RFS – Southwest Farm Press
- Agriculture Secretary Perdue praises land grants, stresses importance of NAFTA – Delta Farm Press
- USDA Addresses Its Digital Divide With Farmers – Ag Web
- GM labelling will be no barrier to Plenish soybean oil uptake, says trade groups – Food Navigator
- Mobile processor promises new fiber opportunities for hemp farmers – Marijuana Business Daily
- Section 199 Loophole Will “Definitely See A Fix – Ag Professional
- Maple syrup producers could face new rules – Farm and Dairy
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