Thursday, November 14, 2019

Agricultural Law Weekly Review - November 14, 2019

Written by:  
Brook Duer—Staff Attorney
Audry Thompson—Research Assistant
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Dairy Policy:  Dean Foods Files Chapter 11 Bankruptcy Petition and Discloses Sale Negotiations to Dairy Farmers of America
On November 12, 2019, Southern Foods Group, LLC d/b/a Dean Foods, and forty-two (42) affiliated companies (collectively referred to as “Dean”) filed Chapter 11 reorganization bankruptcy petitions in the U.S. Bankruptcy Court for the Southern District of Texas, Houston Division.  All of the bankruptcy proceedings are being jointly administered under Case No. 19-36313.  The firm of Epiq Corporate Restructuring, LLC, is retained as Dean’s bankruptcy administrative agent and maintains a website disseminating all legally-required public information about the proceedings, including the court dockets and the petitions listing debt and creditors.  Dean maintains its own website for public communication about the bankruptcy called  Included there are FAQ documents addressed to customers, raw milk suppliers and non-dairy suppliers and vendorsAccording to Dean, the bankruptcy process will be used to continue operating while it attempts to sell the company.  Dean stated it is “engaged in advanced discussions” with Dairy Farmers of America regarding such a sale, and that any sale agreement would be “subject to regulatory approval and higher or otherwise better offers.”

Water Quality:  U.S. Supreme Court Hears Major Clean Water Act Case  
On November 6, 2019, The U.S. Supreme Court heard oral argument in a case which is likely to have a significant impact on the scope of the Clean Water Act (CWA).  In County of Maui, Hawaii v. Hawaii Wildlife Fund, et al., No. 18-260, the issue to be decided is whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, e.g. groundwater.  The CWA differentiates between point source (requiring a permit) and nonpoint source pollution (controlled through federal oversight of state government, and other non-CWA, programs). The U.S. Court of Appeals for the Ninth Circuit decision under appeal greatly expanded the common understanding of the CWA’s permitting process by including pollutants that reach navigable waters by nonpoint sources so long as the pollutants can be traced in more than de minimis amounts to a point source.  In the case, the County of Maui does not possess a CWA permit for the injection of treated sewage into underground wells from which it eventually finds its way to the Pacific Ocean a half-mile away.
Animal Welfare: Federal Animal Cruelty Bill Heads to President
On November 5, 2019, the U.S. Senate unanimously passed H.R. 724, titled “Preventing Animal Cruelty and Torture Act” (PACT).  Having previously passed the U.S. House on October 22, 2019, and without amendment in the U.S. Senate, the PACT Act will now be transmitted to the White House for signature.  It had 301 co-sponsors in the House and the identical Senate version had 41 co-sponsors.  The PACT Act amends 18 U.S.C. §48 to render a federal crime, punishable by up to seven years incarceration, the intentional act of crushing, burning, drowning, suffocating, impaling, or otherwise subjecting to serious bodily injury, any non-human mammal, bird, reptile, or amphibian.  The bill contains various enumerated exceptions.  The creation or distribution of so-called “animal crush videos” had previously been made a federal crime in 2010.  However, this bill contains a much broader definition of the prohibited conduct.  

Pesticides:  Shareholder Advocacy Group Issues Report Scoring Corporate Pesticide Risk 
On November 6, 2019, a shareholder advocacy group called As You Sow released a report titled “Pesticides in the Pantry: Transparency & Risk in Food Supply Chains,” analyzing risk to food manufacturers posed by the use of pesticides in agriculture and food supply chains.  The report scores fourteen (14) major U.S. food manufacturers on their performance on 30 indicators which the group says are designed to measure the effectiveness of attempts to mitigate the risk of human exposure to pesticides, or other consequences of pesticide use, that adversely impact a manufacturer’s shareholders.  General Mills and PepsiCo ranked highest (scoring 18 and 14 respectively out of 30), while Post and B&G Foods scored lowest (both scoring 0).  As You Sow, states its mission is to promote environmental and corporate responsibility through shareholder advocacy. 

Agricultural Finance:  USDA Report on Agritourism Revenue Reports Three-fold Increase
On November 4, 2019, USDA’s Economic Research Service issued a report quantifying increased agritourism revenue and identifying trends behind the increase.  According to USDA Agricultural Economist Christine Whitt’s analysis of ag census data, farm agritourism revenue more than tripled between 2002 and 2017.  Most recently, for the five-year period between 2012 and 2017 adjusted for inflation, agritourism revenue increased from $704 million to $950 million.  While the 2017 data excluded wineries, the 2012 data included wineries, resulting in an even greater potential increase than can be accurately computed.  Agritourism revenue remains small relative to total farm revenue, accounting for 5.6 percent of 2017 farm-related income.  The report notes that farms close to urban areas tend to have higher agritourism revenues, although farms located in less populated counties were more likely to adopt agritourism.   

From National Ag Law Experts: 
National Agricultural Law Center, Truth in Labeling Laws(uits) (November 7, 2019). 

Penn State Research:

Pennsylvania Department of Agriculture:

Pennsylvania Executive Agencies—Actions and Notices: 
Department of Environmental Protection

Pennsylvania Legislature
H.B.1085 “An Act repealing the act of June 22, 1935 (P.L.414, No.182), known as the State Personal Property Tax Act,” Signed by Governor—Act No. 84 (November 7, 2019).
H.B. 374 “An Act amending Titles 27 (Environmental Resources) and 75 (Vehicles) of the Pennsylvania Consolidated Statutes, providing for Keystone Tree Restricted Account; and, in registration of vehicles, providing for contributions to the Keystone Tree Restricted Account,” Signed by Governor—Act No. 78 (November 7, 2019). 

Federal Executive Agencies—Actions and Notices:
Agriculture Department—USDA 
“USDA Invites Input on Conservation Stewardship Program Rule” Interim Final Rule (November 12, 2019).  

Agricultural Marketing Service—USDA

Animal and Plant Health Inspection Service

Employment and Training Administration 
“Trade Adjustment Assistance for Workers,” Proposed Rule (November 7, 2019). 

Environmental Protection Agency
“Tebuconazole; Pesticide Tolerances,” Rule (November 12, 2019). 

Farm Credit Administration

Federal Emergency Management Agency

Fish and Wildlife Service

Food and Nutrition Service

Food and Safety Inspection Service 

Forest Service

Land Management Bureau

Natural Resources Conservation Service

Rural Utilities Service 

Susquehanna River Basin Commission

U.S. House Agriculture Committee Actions: 
H.R.5040 “To direct the Director of the Bureau of Land Management to study the effects of drone incursions on wildfire suppression, and for other purposes,” Introduced (November 12, 2019). 
H.R.4767 “Financial Services Innovation Act of 2019,” Referred to Subcommittee on Commodity Exchanges, Energy, and Credit (November 8, 2019). 
H.R.4726 “Certainty for End-Users Act,” Referred to Subcommittee on Commodity Exchanges, Energy, and Credit (November 8, 2019).
H.R.4723 “Fish Act of 2019,” Referred to Subcommittee on Conservation and Forestry (November 8, 2019). 
H.R.4717 “Swap Trading Improvement Act,” Referred to Subcommittee on Commodity Exchanges, Energy, and Credit (November 8, 2019).
H.R.4714 “America Grows Act of 2019,” Referred to the Subcommittee on Biotechnology, Horticulture, and Research (November 8, 2019).  
H.R.4696 “International Regulatory Cooperation Improvement Act,” Referred to Subcommittee on Commodity Exchanges, Energy, and Credit (November 8, 2019).
H.R.4684 “Universal School Meals Program Act of 2019,” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (November 8, 2019). 
H.Res.681 “Recognizing the National Peanut Festival held annually in Dothan, Alabama, and the importance of the peanut industry in the State of Alabama and the United States,” Referred to the House Committee on Agriculture (November 8, 2019). 
H.Res.663 “Expressing support for the designation of the week of October 24, 2019, to October 31, 2019, as ‘BatWeek,’” [Rep. Glenn Thompson R-PA-15] Referred to the Subcommittee on Livestock and Foreign Agriculture (November 8, 2019).  

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions: 
No new actions Nov. 6-12
S.2732 “ARPA-Terra Act of 2019,” Read twice and referred to Committee (October 29, 2019). 
S.2744 “U.S. Beef Integrity Act,” Read twice and referred to Committee (October 30, 2019). 
S.2752 “School Hunger Elimination Act of 2019,” Read twice and referred to committee (October 30, 2019). 
S.2760 “Caregivers, Access, and Responsible Expansion for Kids Act of 2019,” Read twice and referred to Committee (October 31, 2019). 
S.2704 “Rebuild Rural America Act of 2019,” Read twice and referred to Committee (October 24, 2019)

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