Agricultural Law Weekly Review - October 3, 2019

Written by: 

Chloe Marie – Research Specialist
Audry Thompson—Research Assistant

Jackie Schweichler—Staff Attorney

           

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

State Regulation: Pennsylvania Supreme Court Concludes that the Nutrient Management Act Preempts Local Regulation of Non-Concentrated Agricultural Operations
On September 26, 2019, the Supreme Court of Pennsylvania reversed the Commonwealth Court’s order, holding that local governments cannot impose stricter nutrient management requirements on small farms than those already imposed upon large agricultural operations under the state Nutrient Management Act (NMA) (Russell Berner, et al., v. Montour Township, et al., No. 39 MAP 2018).  The question of whether and to what extent the NMA preempts local regulation of agricultural operations that are not “concentrated agricultural operations” (CAOs) became the central issue of this case.  Under the NMA, there is a requirement that CAOs must develop and implement a Nutrient Management Plan (NMP) while smaller agricultural operations are not subject to this obligation.  The main objection here was that appellant Scott Sponenberg did not include an NMP when applying for a special exception with the Montour Township to construct a swine barn and manure storage facility.  According to the appellant, the proposed project was not required to have an NMP because it did not qualify as a larger agricultural operation under the NMA.  In the majority opinion, the Supreme Court explained that the NMA preemption provision applies to agricultural operations, regardless of whether they are CAOs or non-CAOs. The court specifically emphasized that not to allow preemption of local regulations for small agricultural operations would be “ironic” knowing that the state legislature never intended to allow local municipalities to burden and increase pressure on small-scale farmers with more stringent regulations compared to the regulations imposed upon larger farms.

International Trade: United States and Japan Sign Trade Agreement

On September 25, 2019, U.S. President Donald Trump and Japanese Prime Minister Abe Shinzo issued a joint statement after signing the United States-Japan Trade Agreement.  According to a fact sheet issued by the Office of the U.S. Trade Representative, Japan will stage the complete removal of tariffs on $3 billion of agricultural products, including wine, cheese and whey, ethanol, frozen poultry, and processed pork.  Other products with staged tariff elimination include fresh and frozen beef and pork.  Additionally, the agreement immediately lifts tariffs on more than $1.3 billion of other U.S. agricultural products such as almonds, blueberries, cranberries, walnuts, sweet corn, and grain sorghum.  Some products such as wheat, glucose, fructose, corn starch, and potato starch, will receive a preferential tariff rate through Country Specific Quotas (CSQs).  In return, the United States will adjust its World Trade Organization (WTO) tariff rate quota for Japanese beef imports, and it will eliminate or reduce tariffs on more than $40 million of Japanese products including persimmons, green tea, chewing gum, confectionaries, and soy sauce.  

Crop Insurance: Producers Affected by Flooding and Moisture Receive Extra Insurance Payments

On September 26, 2019, U.S. Department of Agriculture (USDA) Risk Management Agency (RMA) announced the disbursement of “top-up” prevented plant payments to producers with indemnity payouts connected with flooding or moisture but unrelated to drought.  According to RMA, all producers who had Yield and Revenue Protection Policies with Harvest Price Exclusion will receive a bonus payment of 10% of their prevented plant indemnity payment.  Producers who had elected the Revenue Protection Harvest Price Option will receive an extra 5% of their indemnity payment.  Payments will automatically issue through producers’ Approved Insurance Providers (AIPs) midway through October, and RMA assures that producers need not take any action to receive the payments.

National Agricultural Policy: USDA Invests $50 Million to Improve Public Access on Private Lands for Recreational Purposes

On September 27, 2019, the U.S. Department of Agriculture (USDA) announced that it will contribute $50 million in funding to the Voluntary Public Access and Habitat Incentive Program (VPA-HIP), pursuant to the 2018 Farm Bill.  USDA explained that this money will directly benefit state and tribal government programs, whose main objective is to further enhance public access to private lands for hunting, fishing, and other wildlife-dependent recreational purposes. Among the advantages offered by this new VPA-HIP funding opportunity, up to 25% of the funding may be used to improve habitat on enrolled public access and up to 10% may be used to provide technical assistance.  State and tribal governments have until November 27, 2019, to submit their grants proposals.

International Trade: Taiwan Commits to Purchase Illinois Corn and Soybean Over a Period of Two Years

On September 24, 2019, Illinois Governor Jay Robert Pritzker issued a statement that two Taiwanese associations – the Taiwan Feed Industry Association and the Taiwan Vegetable Oil Manufacturers Association – committed to purchase Illinois corn and soybeans in the amount of $2.2 billion between 2020 and 2021.  More precisely, the statement says that the Taiwan Feed Industry Association intends to purchase 5 million metric tons (MT) of corn and 0.5 million MT of corn co-products.  As for the Taiwan Vegetable Oil Manufacturers Association, it will buy between 2.6 million and 2.9 million MT of soybeans.  According to the announcement, Illinois exports over 360 million bushels of soybeans and 877 million bushels of corn each year.

From National Ag Law Experts:
Kristine A. Tidgren, Final 199A Safe Harbor for Rental Real Estate Changes Little (September 28, 2019)

Paul Goeringer, Frequently Updated Questions: Hey, Paul Does Growing Hemp Qualify for the Right-To-Farm Defense? (October 1, 2019)

Federal Executive Agencies—Actions and Notices:

Agricultural Marketing Service 

“U.S. Standards for Grades of Apples” Rule (October 1, 2019)

“National Organic Program; Origin of Livestock” Proposed Rule, Comment Period (October 1, 2019)

Agriculture Department

“Rules of Practice and Procedure Governing Formal Rulemaking Proceedings Instituted by the Secretary” Rule (October 1, 2019)

Animal and Plant Health Inspection Service

“Monsanto Company; Availability of Petition for Determination of Nonregulated Status of Cotton Genetically Engineered for Insect Resistance” Notice, Comment Period (September 26, 2019)

Environmental Protection Agency

“Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act” Proposed Rule, Comment Period (October 2, 2019)

“Pesticides; Revised Fee Schedule for Covered Applications Under the Pesticide Registration Improvement Extension Act of 2018” Notice (October 1, 2019)

“Call for Information: Information Related to the Development of Emission Estimating Methodologies for Animal Feeding Operations” Proposed Rule, Comment Accepted (October 1, 2019)

“Registration Review; Draft Human Health and/or Ecological Risk Assessments for Several Pesticides” Notice, Comment Period (September 30, 2019)

“Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Attainment Plan for the Beaver, Pennsylvania Nonattainment Area for the 2010 Sulfur Dioxide Primary National Ambient Air Quality Standard” Rule (October 1, 2019)

Food and Nutrition Service 

“Agency Information Collection Activities: Proposed Collection; Comments Request-Survey of SNAP and Work” Notice, Comment Period (September 30, 2019)

Food Safety and Inspection Service

“Modernization of Swine Slaughter Inspection” Rule (October 1, 2019)

“Notice of Request To Renew an Approved Information Collection: Interstate Shipment of Meat and Poultry Products” Notice, Comment Period (October 1, 2019)

Forest Service

“Information Collection; Application for Permit for Use of Roads, Trails, or Areas Restricted by Regulation or Order” Notice, Comment Period (September 27, 2019)

Susquehanna River Basin Commission 

“Public Hearing” Notice, Comment Period (October 2, 2019)

House Agriculture Committee Actions: 

H.R.4333 “To amend the Commodity Exchange Act to provide certainty for futures customers and market participants, and for other purposes.” Introduced (September 25, 2019)

H.R.4496 “Wildfires and Hurricanes Indemnity Program Extension Act of 2019” Introduced (September 25, 2019)

H.R.4521 “To reform the Federal sugar program, and for other purposes.” Introduced (September 26, 2019)

H.R.4535 “To modernize the authority of the Commodity Futures Trading Commission to conduct research, development, demonstration, and information programs.” Introduced (September 26, 2019)

H.R.4520 “To amend the Internal Revenue Code of 1986 to eliminate certain fuel excise taxes and impose a tax on greenhouse gas emissions to provide revenue for maintaining and building American infrastructure, and for other purposes.” Introduced (September 27, 2019)

H.R.4541 “To establish a grant program to provide certain eligible entities engaged in food recovery with grants to support certain costs.” Introduced (September 27, 2019)

Senate Agriculture, Nutrition, And Forestry Committee Actions: 

S.2568 “A bill to reform the Federal sugar program, and for other purposes.” Introduced (September 26, 2019)

Pennsylvania Executive Agencies—Actions and Notices:

Department of Agriculture

“Agricultural Product Promotion, Education and Export Promotion Matching Grant Program; 2019-2020 Application Period” (September 28, 2019)

Department of Environmental Protection

“Proposed State Implementation Plan Revision for Regional Haze; Best Available Retrofit Technology; Extension of Public Comment Period” (September 28, 2019)

“Public Notice of Draft NPDES General Permit for Stormwater Discharges Associated with Small Construction Activities” (September 28, 2019)

Susquehanna River Basin Commission

“Grandfathering Registration Notice” (September 28, 2019)

“Projects Approved for Consumptive Uses of Water” (September 28, 2019)

Pennsylvania Legislative Actions:

HB 1102  “An Act establishing the Keystone Energy Authority; and providing for the designation of Keystone Energy Enhancement Zones,” re-committed to Appropriations (September 25, 2019)

Pennsylvania Department Of Agriculture:

“PA Department of Agriculture Launches Restaurant Inspection Report Mobile App” (October 2, 2019)

“PA Department of Agriculture and Partners Offer Guidance to Philadelphians Amidst Spotted Lanternfly Intrusion” (September 27, 2019)

“Agriculture Secretary Russell Redding Joins Celebration of 20,000 Acres of Preserved Cumberland County Farmland” (September 26, 2019)

“PA Department of Agriculture Reveals 2020 PA Farm Show Theme: Imagine the Opportunities” (September 26, 2019)

Penn State Research:

Bill Tyson, Brandywine professor explores behavior of parasites in their insect hosts (September 27, 2019)

Matt Swayne, Virus may jump species through 'rock-and-roll' motion with receptors (September 23, 2019)

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks:

“Cutting Meat Consumption May Cause ‘Serious Harm’, Academics Warn” (October 1, 2019)

“Community Facilities in Rural Areas to See Improvements” (September 30, 2019)

“Are all Non GMO Claims the Same? Judge Allows Lawsuit vs. Nestle USA to proceed” (September 27, 2019)

“Pennsylvania Farm Show’s 2020 Theme Has Been Announced” (September 26, 2019)

“Hemp Banking Protections Pass US House as Part of Landmark Cannabis Bill” (September 25, 2019)

““Ethanol Production Falls as Industry Awaits Relief” (September 25, 2019)

“Legislators Tell EPA to Stop ‘Rubber-Stamping’ RFS Exemptions” (September 25, 2019)

“A New Portrait of Rural America” (September 25, 2019)

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Review last month’s biggest legal developments in agriculture in the September Agricultural Law Brief. If you’d like to receive this update via email, check out our website and subscribe!