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 (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 Lashmet, 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:

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