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 deanfoodsrestructuring.com.  Included there are FAQ documents addressed to customers, raw milk suppliers and non-dairy suppliers and vendors.  According 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). 

Dr. Steve Suppan, IATP Comment on Certain Swap Data Repository and Data Reporting Requirements (October 28, 2019).

Penn State Research:

Jeff Mulhollem, Urban Development Reduces Flash Flooding Chances in Arid West (November 12, 2019).

Matthew Carroll, Ancient Rain Gauge: New Evidence Links Groundwater, Climate Changes in Deep Time (November 12, 2019).

Pennsylvania Department of Agriculture:

“Wolf Administration Honors Pennsylvania’s Veterans Through PA Farm Bill” (November 8, 2019). 

“PA Preferred® Members, Partner Organizations Invited to Bring a Taste of PA to Pennsylvania Farm Show Kickoff Reception” (November 7, 2019). 

Pennsylvania Executive Agencies—Actions and Notices: 

Department of Environmental Protection

“Notice—The Clean Streams Law And The Federal Clean Water Act:

Applications For National Pollutant Discharge Elimination System (Npdes) Permits And Water Quality Management (WQM) Permits” (November 9, 2019).

“Bid Opportunity—OSM 24(0512)203.1, Abandoned Mine Reclamation Project, Cherry Run, Jay Township, Elk County” (November 9, 2019).

“Food Recovery Infrastructure Grant; Opening of Grant Application Period”  (November 9, 2019).

“Proposed State Implementation Plan Revision; Second Maintenance Plan for the Erie County 1997 8-Hour Ozone Nonattainment Area; Public Hearing” (November 9, 2019).

“Proposed State Implementation Plan Revision; Second Maintenance Plan for the Franklin County 1997 8-Hour Ozone Nonattainment Area; Public Hearing” (November 9, 2019).

“Proposed State Implementation Plan Revision; Second Maintenance Plan for the Greene County 1997 8-Hour Ozone Nonattainment Area; Public Hearing” (November 9, 2019).

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).  

“Supplemental Standards of Ethical Conduct for Employees of the Department of Agriculture” Proposed Rule (November 8, 2019). 

Agricultural Marketing Service—USDA

“Olives Grown in California; Proposed Amendments to the Marketing Order No. 932,” Proposed Rule (November 6, 2019).

“Cotton Classing, Testing and Standards: Notice of Request for an Extension and Revision to a Currently Approved Information Collection” Notice (November 7, 2019). 

“Cotton Classification and Market News Service: Notice of Request for an Extension and Revision of a Currently Approved Information Collection,” Notice (November 7, 2019). 

“Tobacco Report: Notice of Request for an Extension and Revision of a Currently Approved Information Collection,” Notice (November 7, 2019). 

Animal and Plant Health Inspection Service

“Concurrence With OIE Risk Designations for Bovine Spongiform Encephalopathy,” Notice (November 12, 2019). 

Employment and Training Administration 

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

Environmental Protection Agency

“Prevention of Significant Deterioration, Nonattainment New Source Review, and Title V: Treatment of Corn Milling Facilities Under the “Major Emitting Facility” Definition; Reconsideration,” Proposed Rule (November 6, 2019).

“Dinotefuran; Pesticide Tolerance for Emergency Exemption,” Rule (November 7, 2019). 

“Propyzamide; Pesticide Tolerance for Emergency Exemptions,” Rule (November 12, 2019). 

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

“Pesticide Registration Review; Proposed Interim Decisions for Several Pyrethroids; Notice of Availability,” Notice (November 12, 2019). 

“National Priorities List [among the known releases or threatened releases of hazardous substances, pollutants or contaminants throughout the United States as required by CERCLA]” Rule (November 8, 2019). 

“Farm, Ranch, and Rural Communities Committee (FRRCC) Notice of Membership Solicitation,” Notice (November 8, 2019). 

Farm Credit Administration

“Sunshine Act Meeting; Farm Credit Administration Board,” Notice (November 6, 2019).

“Margin and Capital Requirements for Covered Swap Entities,” Proposed Rule (November 7, 2019). 

Federal Emergency Management Agency

“Agency Information Collection Activities: Submission for OMB Review; Comment Request; Property Acquisition and Relocation for Open Space,” Notice (November 7, 2019). 

Fish and Wildlife Service

“Agency Information Collection Activities; Eagle Take Permits and Fees,” Notice (November 7, 2019). 

“General Provisions; Revised List of Migratory Birds,” Proposed Rule (November 12, 2019). 

“Endangered and Threatened Species; Receipt of Recovery Permit Application,” Notice (November 8, 2019). 

Food and Nutrition Service

“Comment Request-Supplemental Nutrition Assistance Program-Trafficking Controls and Fraud Investigations,” Notice (November 6, 2019). 

Food and Safety Inspection Service 

“Eligibility of the People's Republic of China (PRC) To Export to the United States Poultry Products From Birds Slaughtered in the PRC,” Rule (November 8, 2019). 

Forest Service

“Information Collection: Cooperative Wildland Fire Management and Stafford Act Response Agreements,” Notice (November 6, 2019). 

Land Management Bureau

“Minerals Management: Adjustment of Cost Recovery Fees,” Rule (November 6, 2019). 

Natural Resources Conservation Service

“Adoption of Final Environmental Impact Statement (DOI-BLM-ID-B000-2014-0002-EIS) Prepared for the Bruneau-Owyhee Sage-Grouse Habitat Project,” Notice (November 12, 2019). 

Rural Utilities Service 

“Repeal of Regulations Concerning the Rural Telephone Bank, the Public Television Station Digital Transition Grant Program, and the Local Television Loan Guarantee Program,” Rule (November 7, 2019). 

Susquehanna River Basin Commission

“Commission Meeting [December 5, 2019],” Notice (November 6 2019). 

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)

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

“Roberts Urges Trump to Fill Rural Energy Post” (November 8, 2019)

“Ag Leaders Support Science-Based Standards” (November 10, 2019)

“Next Round of Trade Aid Expected in Weeks” (November 8, 2019)

“Miyoko’s Creamery Wants to Turn Dairy Farms to Plant-Based: ‘The Economy is Changing’” (November 11, 2019)

“Raising the Bar for Animal Welfare” (November 11, 2019)

“Struggling Farmers Who Bet Everything on Hemp this Year Experiencing Bitter Harvest” (November 1, 2019)

“Update on Spotted Lanternflies in New York” (November 7, 2019)

“Supreme Court Searches for Limits to EPA Authority in Groundwater Case” (November 6, 2019)

“USDA Announces Block Grants for Three States as Part of Broader Disaster Relief Package” (November 8, 2019)

“Farmers Expect More Trump Tariff Payments in 2020” (November 6, 2019)

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