The presidential election and COVID-19 take much of the news these days, but we’ve had several legal developments in agriculture in 2020.
We have seen several key developments with pesticides, final rules issued in the Waters of the U.S. rule, Supreme Court decisions that affect agriculture, consequences due to COVID-19 and some past issues that might have a final resolution.
One of the first significant issues this year was legal challenges to the labels for new dicamba-based herbicides and 2,4-D-based herbicides. The 9th Circuit Court of Appeals vacated the 2018 U.S. EPA registrations for three dicamba-based herbicides — XtendiMax, Fexapan and Engenia — in early June. To comply, EPA issued a cancellation order for the three herbicides that prohibited the sales of existing stocks on June 3 and ended applications of existing stock by July 31.
On Oct. 27, the EPA approved a five-year registration for dicamba. The new rules expand downwind buffers and lock in application windows for key crops — June 30 for soybeans and July 30 for cotton. In addition, the new formulation dicamba products can now only be used on dicamba-tolerant crops.
Class action settlements
It’s become a fixture for me to talk about the Syngenta corn settlement from 2018.
Checks for those eligible for settlement money have been going out this year. If you think you might be eligible and have yet to receive a settlement check, go to cornseedsettlement.com and reach out to the claims administrator.
We’ve had other potential settlements this year in other class actions. Bayer announced a possible settlement in its dicamba drift class-action suit. In that lawsuit the plaintiffs argued that Monsanto (now Bayer) and BASF Corp. violated a portion of the Lanham Act in marketing both XtendiMax and Engenia dicamba-based herbicides.
The plaintiffs allege negligence in product design, failure to warn of negligence in the design, failure to warn of the dangers and inadequate training of sales representatives for the two dicamba-based herbicides.
The exact terms of the settlement are unknown. The plaintiffs and defendants have agreed in principal to settle claims of yield losses from dicamba damage from 2015 to 2020. About $300 million will cover specific losses to soybean growers during that period. Another $100 million will go toward non-soybean damage and include the plaintiffs’ attorney fees.
It is unclear who is eligible for settlement money, so we will have to wait until more details are released.
Earlier this year, a federal jury awarded a Missouri peach grower $265 million — $15 million in actual damages and $250 million in punitive damages — for drift damage from the application of dicamba-based herbicides.
Bayer also announced a nearly $11 billion settlement for claims in a glyphosate class action lawsuit. This will settle thousands of lawsuits that Bayer inherited from the purchasing of Monsanto in 2018. Bayer is still working to settle thousands of other glyphosate claims.
This has been a significant development in this ongoing litigation, and we can expect more details on the terms of the settlement next year.
In October, the U.S. Supreme Court refused to hear an appeal brought by neighboring landowners of an Indiana hog farm. The landowners were appealing a decision of the Indiana Supreme Court claiming that the state’s right-to-farm law had caused a taking of their private property.
This stems from a 2019 decision by the Indiana Court of Appeals that upholds the constitutionality of the state’s right-to-farm law and the Indiana Supreme Court’s decision to allow the law to stand.
In other right-to-farm developments, arguments were heard earlier this year by the 4th Circuit Court of Appeals on the decision to not allow the defendants in a North Carolina hog farm lawsuit to use the state’s right-to-farm law as a defense. In this lawsuit, five trials have been held and jury verdicts have returned in favor of the neighboring landowners, awarding close to $550 million in damages, though that has been reduced to close to $98 million due to state law. We expect an opinion on this appeal soon.
Changes to NEPA
Over the summer, the Council on Environmental Quality, a federal group that coordinates federal environmental efforts, released the final rule that marked the first comprehensive update of the National Environmental Policy Act since 1978.
This update will affect agricultural operations by removing federal loan guarantees by Farm Service Agency from one of the governmental actions that trigger an environmental review. The final rule went into effect in September and we will probably see the impacts of this change in 2021.
It’s been a busy 2020. As we look forward to 2021, we will continue to see many laws that affect agricultural operations continue to develop. Stay tuned!
Goeringer is an Extension legal specialist with the University of Maryland’s Department of Agricultural and Resource Economics.