Agricultural Law Weekly Review—May 19, 2016

Written by M. Sean High – Staff Attorney

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

Pipelines: FERC Issues Draft Environmental Impact Statement on Project Affecting Nearly 2,000 Acres of PA Farmland  

On May 5, 2016, staff of the Federal Energy Regulatory Commission (FERC) issued a draft environmental impact statement (EIS) regarding the Atlantic Sunrise pipeline project proposed by Transcontinental Gas Pipe Line Company, LLC (Transco) (CP15-138-000).  According to FERC, “Transco requests authorization to expand its existing pipeline system from the Marcellus Shale production area in northern Pennsylvania to…its existing southeastern market areas.” FERC stated that “[c]onstruction of the Project would affect a total of about 1,907.4 acres of agricultural land in Pennsylvania.” FERC has scheduled the following public meetings to address the proposed pipeline project: June 13, 2016, Lancaster, PA; June 14, 2016, Annville, PA; June 15, 2016, Bloomsburg, PA; and June 16, 2016, Dallas, PA.  All comments regarding the draft EIS must be received by FERC on or before June 27, 2016.

Renewable Fuel: EPA Announces Proposed Requirements for Renewable Fuel Standard Program

On May 18, 2016, the U.S. Environmental Protection Agency (EPA) announced that the agency has “proposed the volume requirements and associated percentage standards that apply under the RFS [Renewable Fuel Standards] program in calendar years 2017 for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel.” Additionally, EPA announced that the agency was “proposing the volume requirement for biomass-based diesel for 2018.”

Labor: New Electronic Process Introduced for H-2A Program

On May 9, 2016, the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) “announced the launch of USCIS/DOS e-Approval for Form I-129, Petition for a Nonimmigrant Worker, for the H-2A (temporary agricultural worker) classification.” Accordingly, with the new electronic process USCIS will have the ability “to send approval information for H-2A petitions to DOS by the end of the next business day.” Additionally, “DOS will accept this electronic information in place of a Form I-797 approval notice and allow its consular posts to proceed with processing an H-2A nonimmigrant visa application, including conducting any required interview.” 

Labeling: Case to Compel GMO Crop Documents Transferred to Vermont

On May 13, 2016, the U.S. District Court for the District of Delaware granted a motion by Vermont officials to transfer the case In re: Grocery Manufacturers et al. to the U.S. District Court of the District of Vermont (1:16-mc-00113). The case in question was an action brought by Vermont officials to compel Syngenta Corporation (Syngenta) to produce the results of any Syngenta performed studies or research that relate to the potential health or environmental effects of Syngenta’s genetically engineered crops and the effects of the herbicides and pesticides used to on those crops.  According the Motion to Compel, the documents in question “are relevant to the claims and defenses raised by the parties in Grocery Manufacturers Ass’n v. Sorrell, No. 5:14-cv-117 (D. Vt.).      

GMOs: Report Finds no Evidence that GE Crops Harmful to Human Health

On May 17, 2016, the National Academies of Sciences, Engineering, and Medicine issued a press release announcing the release of a study regarding the effects of genetically engineered (GE) crops.  According to the press release “the study committee found no substantiated evidence of a difference in risks to human health between current commercially available genetically engineered (GE) crops and conventionally bred crops, nor did it find conclusive cause-and-effect evidence of environmental problems from the GE crops.” The press release did state, however, that “evolved resistance to current GE characteristics in crops is a major agricultural problem.”

Pesticides: UN Panel of Experts Determines Humans Unlikely to be harmed by Glyphosate

On May 16, 2016, a summary report was issued after a joint meeting of the Food and Agriculture Organization of the United Nations (FAO) Panel of Experts on Pesticide Residues in Food and the Environment and the World Health Organization (WHO) Core Assessment Group on Pesticide Residues.  According to the report, the joint meeting resulted in the panel of experts determining that the pesticide “glyphosate is unlikely to pose a carcinogenic risk to humans from exposure through the diet.” Additionally, the panel of experts determined that the pesticides diazinon and malathion were also unlikely to be carcinogenic and were “unlikely to pose a carcinogenic risk to humans from exposure through the diet.”

Final EPA Renewable Fuel Standards Concern Agricultural Community

Written by M. Sean High - Staff Attorney

On November 30, 2015, the Environmental Protection Agency (EPA) announced the final renewable fuel standards for the years 2014, 2015, and 2016.  According to EPA, the new standards are “an important part of the Obama Administration’s strategy to take action on climate change by propelling the U.S. toward a clean energy future.”

The Renewable Fuel Standard (RFS) program was created under the Energy Policy Act of 2005, and according to EPA, “is a national policy that requires a certain volume of renewable fuel to replace or reduce the quantity of petroleum-based transportation fuel, heating oil or jet fuel.”  Importantly, through the passage of the Energy Independence and Security (EIS) Act of 2007, Congress expanded RFS and established annual volume targets for renewable fuel production. 

Under EIS, in 2007, Congress established a renewable fuel volume target of 22.25 billion gallons for 2016.  In June 2015, however, EPA concluded that Congress’ projections were too ambitious and instead proposed a renewable fuel volume level of 17.4 billion gallons for 2016.  According to a reported interview with Janet McCabe, the acting assistant administrator for the EPA's Office of Air and Radiation, the “slower-than-expected growth in the nascent cellulosic [grass, corn stalk, wood chip, etc.] ethanol industry meant that the mandate would not be able to realistically meet the levels Congress approved in 2007.” On November 30, 2015, EPA revised its June projections and set the 2016 renewable fuel volume level at 18.11 billion gallons.

For differing reasons, EPA’s final renewable fuel standards have been met with a largely negative response from within the agricultural community.  Many corn producers have been disappointed that EPA’s final renewable fuel standards are lower than the targeted volume levels established by Congress in 2007.  Expressing the opinion of many in his corn producing state, Iowa Governor Terry Branstad asserted, “[u]nfortunately, today’s decision shows the lack of interest in providing consumers choice at the pump, creating jobs and increasing incomes in rural America, and reducing our dependence on foreign oil.” Conversely, NationalChicken Council President Mike Brown opined that EPA’s final renewable fuel standards, which are higher than EPA’s June projections, will lead to higher feed corn prices and ultimately “will cost consumers at the pump and on the plate by effectively raising fuel and food prices.” 

Manure-to-Energy Project On Track for 2016

Written by Tyler R. Etter

The Smithfield Foods’ manure-to-energy project, the largest of its kind, is expected to be operational by mid-2016. The project first began construction in spring of 2014 in Smithfield’s Missouri division. The project is estimated to cost $120 million.

The first phase of the project consists of the installation of impermeable covers and flare systems over the 88 designated manure lagoons in Albany. These covers prevent the escape of methane into the atmosphere, as well as reduce odor and blocking rainfall from entering the lagoons. The second phase of the project will purify the gases and see the installation of a natural gas pipeline.

The project is anticipated to handle the waste from 2 million pigs, generating 2.2 million cubic feet of natural gas, the rough equivalent of 17 million gallons of diesel, annually. Further, the project is expected to prevent 850,000 tons of methane from entering the atmosphere. The project is believed to have applications across farms in the US, as well as developing countries, for sustainable natural resource management and energy production.