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:
Air Quality: EPA Issues Final Rule Exempting Animal Waste Air Emissions from EPCRA Reporting
On June 4, 2019, the U.S. Environmental Protection Agency (EPA) announced that the reporting of air emissions from animal waste at farms is not required under the Emergency Planning and Community Right-to-Know Act (EPCRA). According to the agency, EPA Administrator Andrew Wheeler has signed a final rule amending the emergency release notification regulations under EPCRA. EPA stated that this amendment specifically provides a reporting exemption for air emissions from animal waste at farms. The final rule will be promulgated when it is published in the Federal Register. For a pre-publication notice of the final rule click here.
WOTUS: Texas Court Returns 2015 WOTUS Rule to EPA
On May 28, 2019, the U.S. District Court for the Southern District of Texas remanded the 2015 “Waters of the United States” (WOTUS) rule back to the Environmental Protection Agency (EPA) for further proceedings (Texas v. United States Envtl. Prot. Agency, Case No. 3:15-CV-00162). In remanding the case, the court noted that the final rule promulgated by EPA “defined ‘adjacent waters’ . . . using distance-based criteria, rather than the ecologic and hydrologic criteria used in the proposed rule” in violation of the notice-and-comment requirements of the Administrative Procedure Act. Additionally, the court sustained a preliminary injunction previously issued on September 12, 2018 which enjoined the 2015 WOTUS rule in Texas, Louisiana, and Mississippi. 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”.
Industrial Hemp / Cannabis: USDA Provides Legal Opinion on Hemp
On May 28, 2019, the U.S. Department of Agriculture’s (USDA) Office of the General Counsel (OGC) issued a memorandum providing a legal opinion regarding the status of hemp following passage of the Agriculture Improvement Act of 2018 (2018 Farm Bill). Accordingly, the 2018 Farm Bill, authorized the production of hemp and removed hemp and hemp seeds from the Drug Enforcement Administration’s (DEA) schedule of Controlled Substances. To help clarify any legal confusion regarding hemp and the 2018 Farm Bill, OGC issued the following legal opinion:
- "As of the enactment of the 2018 Farm Bill on December 20, 2018, hemp has been removed from schedule I of the Controlled Substances Act and is no longer a controlled substance.
- After USDA publishes regulations implementing the new hemp production provisions of the 2018 Farm Bill, States and Indian tribes may not prohibit the interstate transportation or shipment of hemp lawfully produced under a State or Tribal plan or under a license issued under the USDA plan.
- States and Indian tribes also may not prohibit the interstate transportation or shipment of hemp lawfully produced under the 2014 Farm Bill.
- A person with a State or Federal felony conviction relating to a controlled substance is subject to a 10-year ineligibility restriction on producing hemp under the Agricultural Marketing Act of 1946. An exception applies to a person who was lawfully growing hemp under the 2014 Farm Bill before December 20, 2018, and whose conviction also occurred before that date."
Municipal Regulation: Missouri Governor Signs CAFO Bill
On May 31, 2019, Missouri Governor Mike Parson signed legislation addressing concentrated animal feeding operations (CAFOs). First, the legislation prohibits county commissions and county health center boards from promulgating restrictions on CAFOs that are stricter than state regulations. Next, the legislation expanded the buffer distance whereby a property owner must receive notice of a farm’s intent to file an application for a CAFO operating permit. Finally, the legislation established setbacks for all liquified manure from a CAFO that is purchased or received by a third party and is surface-applied.
Antitrust: Walmart Sues Chicken Producers Over Alleged Price Fixing
On May 24, 2019, Walmart Inc. filed a complaint in the U.S. Dist. Court Western Dist. of Arkansas alleging manipulation of chicken prices by multiple chicken producers, including Pilgrim’s Pride, Perdue Foods, and Sanderson Farms, among several others (Wal-Mart Stores East, Lp Et Al V. Koch Foods, Inc. Et Al, Case No. 5:19cv5100). Walmart asserted that the companies conspired to increased prices by diminishing breeder flocks and decreasing the amount of broiler chickens in the market. According to the complaint, one of the named defendants, Fieldale Farms, has already agreed to pay $2.25 million to settle Walmart’s claims.
Biofuels: EPA To Allow Year-Round Sale of E15 Gasoline
On May 31, 2019, the Environmental Protection Agency (EPA) announced that gasoline blended with up to 15 percent ethanol (E15) will be permitted during the summer months. Accordingly, EPA will now apply the 1-psi Reid Vapor Pressure waiver—currently applied to 10 percent ethanol—to E15 during the summer months. As a result, E15 will be allowed to be sold year-round instead of only eight months of the year.
From National Ag Law Experts:
“Here comes the sun: understanding important solar lease terms”, Evin Bachelor, Ohio Agricultural Law Blog, Ohio State University Extension (May 29, 2019)
“What Counts as ‘Hours Worked’ Under the Fair Labor Standards Act?”, Cari Rincker, Rincker Law Blog – Rincker Law PLLC (May 31, 2019)
Federal Actions and Notices:
Animal and Plant Health Inspection Service
Food and Drug Administration
“Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Sanitary Transportation of Human and Animal Food”
“Evaluating Alternate Curricula for the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption; Draft Guidance for Industry; Availability”
“Agency Information Collection Activities; Submission for OMB Review; Comment Request; Application for Prevailing Wage Determination”
“Agency Information Collection Activities; Submission for OMB Review; Comment Request; H-2A Temporary Agricultural Labor Certification Program”
HB 370: Legislation further providing for purchase of agricultural conservation easements (Referred to Senate for consideration, June 4, 2019)
HB 404: Legislation designating “Tree of Heaven” a noxious weed (Referred to Senate for consideration, June 4, 2019)
SB 634: Legislation establishing the Conservation Excellence Grant Program (Referred to Senate for consideration, June 4, 2019)
SB 696: Legislation to modify Pennsylvania’s existing fireworks law (Referred to Senate Agriculture and Rural Affairs Committee, May 31, 2019)
HB 1514: Legislation to revise and re-establish the existing Healthy Farms Healthy Schools program into the PA Farm-to-School Program (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)
HB 1516: Legislation to create the Pennsylvania Rapid Response Disaster Readiness Account (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)
HB 1517: Legislation to create the Conservation Excellence Program (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)
HB 1518: Legislation to revise and re-establish the former (expired) Agriculture and Rural Youth Development Program (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)
HB 1519: Legislation to establish a state-level Specialty Crop Block Grant Program (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)
HB 1520: Legislation to create a grant program to incentivize access to meat processing inspections (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)
HB 1521: Legislation to amend PA Preferred Program to encourage military veteran participation in the Homegrown by Heroes Program (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)
HB 1523: Legislation to establish the Pennsylvania Agricultural Business Development Center (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)
HB 1526: Legislation to revise and re-establish the Agriculture-Linked Investment Program (Referred to House Agriculture and Rural Affairs Committee, May 29, 2019)
Pennsylvania Actions and Notices:
Department of Agriculture
“Action of Controlled Plant and Noxious Weed Committee; addition of noxious weeds to controlled plants and noxious weed list”
Pennsylvania Department of Agriculture:
Penn State Research:
“Bill to revive local meat processing” – Feedstuffs
“Tax on Sugary Drinks in Philadelphia Halves Purchases in the City in the First Year, JAMA Study Finds” – Food Navigator
“Recent court cases could affect on-farm decisions” – Farm Progress
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