Thursday, October 4, 2018

Agricultural Law Weekly Review - October 4, 2018

Written by:
Deanna Smith - Research Assistant
Jackie Schweichler - Education Programs Coordinator

The following information is an update of recent local, state, national, and international legal developments relevant to agriculture.

International Trade: United States-Mexico-Canada Agreement replaces NAFTA
On September 30, 2018, the United States and Canada came to an agreement to replace the North American Free Trade Agreement (NAFTA) with the United States-Mexico-Canada Agreement.  The new agreement, which Mexico agreed to in August of this year, includes greater access to Canada’s milk market, provisions on rules of origin of automotive goods, and provisions on digital trade and intellectual property.  USMCA will utilize the same dispute resolution system as was used under NAFTA.  In a Joint Statement from United States Trade Representative Robert Lighthizer and Canadian Foreign Affairs Minister Chrystia Freeland, both the U.S. and Canada claim the agreement “will strengthen the middle class, and create good, well-paying jobs and new opportunities for the nearly half billion people who call North America home.”  The agreement will come into effect after it is approved by the U.S. Congress as well as legislatures in Canada and Mexico.  For more information, the Office of the U.S. Trade Representative has published several fact sheets on the USMCA agreement.

Right to Farm: Pennsylvania Supreme Court Denies Appeal of Neighbors in Hog Farm Nuisance Lawsuit
On September 18, 2018, the Supreme Court of Pennsylvania denied a Petition for Allowance of Appeal filed by landowners involved in a lawsuit against owners of a concentrated animal feeding operation (Burlingame v. Dagostin, No. 296 MAL 2018).  Will-O-Bett Farm originally operated as a dairy farm, then as a beef farm, and eventually was converted to a swine operation in 2011.  A few years later, the farm began spreading liquid swine manure on its fields, and several neighboring landowners filed suit against the farm alleging that the resulting odor constituted a nuisance.  Will-O-Bett Farm filed for summary judgment, arguing that it was protected from suit under Pennsylvania’s Right to Farm Act (RTFA) (3 P.S. §§ 951-957).  The trial court agreed, finding that the farm’s application of liquid swine manure had been addressed in an approved nutrient management plan.  The Pennsylvania Superior Court affirmed the trial court’s order, and now the Pennsylvania Supreme Court has declined further appeal.

Invasive Species:  APHIS Proposes Removal of Emerald Ash Borer Quarantine Regulations
On September 19, 2018, the Animal and Plant Health Inspection Service (APHIS)  published a proposed rule to remove the domestic quarantine regulations on the Emerald Ash Borer.  The proposed rule is entitled Removal of Emerald Ash Borer Domestic Quarantine Regulations and will effectively end all regulatory activities, including but not limited to, issuing permits, conducting site reviews, and coordinating investigations.  The remaining resources will be directed towards the management and ultimate containment of the pest.  The Emerald Ash Borer is a green wood-boring beetle native to northeast-Asia that causes destruction to ash trees. They were discovered in the U.S. in 2002 and the quarantine regulations were first imposed in 2003.

Pesticides: FDA Releases Report on Pesticide Residue for FY 2016
On October 1, 2018, the Food and Drug Administration (FDA) released the Pesticide Residue Monitoring Program Fiscal Year 2016 Pesticide Report.  FDA is responsible for establishing “tolerances” on the amount of chemical pesticide residue that is safe for human consumption.  In FY 2016, FDA found that over 99% of domestic and 90% of imported human foods were compliant.  In addition, in 52.9% of domestic and 50.7% of imported foods, FDA found no chemical residue.  FDA also inspected corn, soybean, milk, and egg samples for glyphosate, glufosinate, and other herbicides.  FDA found no samples with violative levels, but found trace amounts of glyphosate in 63.1% of corn samples and 67% of soybean samples.

From National Ag Law Experts:
Ag & Food Law Update, The National Agricultural Law Center (October 2, 2018)

Tiffany Dowell Lashmet, Texas Appellate Court Analyzes Fence Law Cases (Part I), Texas A&M AgriLife Extension (September 28, 2018).

Ben Lilliston, Washington State's Proposed Carbon Fee: What It Could Mean for Agriculture, Institute for Agriculture & Trade Policy (October 3, 2018).

Paul Goeringer, Maryland Court Upholds the 2014 CAFO Permit for Complying with EPA’s Requirements, Maryland Risk Management Education Blog (October 2, 2018).

Pennsylvania Legislation
Senate Resolution 421: Reported as committed (October 2, 2018) resolution urges U.S. Congress to remove industrial hemp from Schedule 1 Controlled Substance List

Senate Resolution 418: Reported as committed (October 2, 2018) urges Congress to include milk in its Senior Farmers’ Market Nutrition Program

SB 1171: laid on the table (October 1, 2018) will create Farm Animal Advisory Board to give animal farmers greater input into environmental regulations

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