In the world of agricultural law, 2018 was a year for significant developments and changes. In summary below, attorneys at the National Agricultural Law Center have identified and compiled the top legal and policy developments that affected agriculture in 2018, including many that will continue to do so in years to come.
(1) For pesticides and herbicides, several important legal developments occurred, specifically affecting dicamba, glyphosate, and chlorpyrifos.
In late October, EPA extended the registration of dicamba through Dec. 20, 2020. The extension came with several new restrictions on “over-the-top” use on cotton and soybeans, which leaves it to affected states to determine whether they will establish state-specific rules more strict than the new federal rules.
In August, a jury awarded nearly $300 million (later reduced to $78 million) to a plaintiff who alleged that his exposure to glyphosate was the cause of his cancer. There are at least 8,000 similar cases filed nationwide.
Finally, in August the Ninth Circuit Court of Appeals ordered EPA to ban chlorpyrifos specifically to cancel all registrations and revoke all tolerances within 60 days of the ruling. The 60 day timeline is currently halted while the litigation plays out.
(2) In terms of international trade, 2018 has been perhaps the rockiest year in many decades.
The “new NAFTA” the United States - Mexico - Canada Agreement (USMCA) — was agreed to by the U.S., Mexico, and Canada. USMCA must still be ratified by Congress, consideration of which will occur in 2019 under the new Congress.
The back-and-forth trade dispute between the U.S. and China continued as we exited 2018, with much uncertainty as to whether the dispute will escalate in 2019. Both countries slapped tariffs and threats of more tariffs on each other, resulting in economic hardship for many in the U.S., especially U.S. soybean producers, affected by the loss of ag commodity trade with China.
(3) Minimum space requirements for calves raised for veal, breeding pigs, and egg-laying hens were on the ballot in California in November. With its passage, it further banned the sale within the state of products made from animals that were confined to areas with less square footage than the California-mandated requirements. This required that out-of-state production meet in-state standards built on a 2010 California law governing living condition standards for hens laying eggs sold within the state. That 2010 law, along with a similar Massachusetts law governing living condition standards for egg-laying hens, pork and veal sold within the state, have been challenged by several other states. The challengers requested that the United States Supreme Court hear the suit, and most recently the Trump administration recommended that the USSC not agree to hear it. Ultimately, the USSC will decide in the coming months whether to hear the case.
(4) Legal and policy challenges to “checkoff” programs continued throughout 2018.
In 2018, an amendment to the farm bill that would have triggered significant changes to the operation of federal checkoff programs was defeated 38-57. Even though it was defeated, the fact that the amendment received 38 “yes” votes is noteworthy and signals the issue may re-emerge in the future.
Additionally, litigation — R-CALF v. USDA — challenging the core funding mechanism for the federal beef checkoff continued through 2018. At stake is whether the portion of the federally required $1 per head assessment that is retained by many states’ qualified state beef councils is constitutional under the First Amendment of the Constitution.
(5) The 2018 farm bill, officially titled the Agricultural Improvement Act of 2018, was overwhelmingly enacted in late 2018. The 2018 farm bill continues many of the 2014 farm bill’s policies and provisions, but with important changes in expanding the eligibility for price and income support, conservation programs, and the nutrition programs. Importantly, the 2018 farm bill legalizes commercial hemp production, a landmark change in U.S. law that will undoubtedly spur considerable interest and economic activity in the world of hemp and hemp products.
(6) Right to Farm: A recent series of cases out of North Carolina on nuisance litigation against swine farms has generated a great deal of interest in right-to-farm statutes. All 50 states have a right-to-farm statute, however, significant questions often arise on when they apply, what they do, and how they work. The purpose behind state right-to-farm statutes is to provide a defense against nuisance lawsuits brought by neighbors. The amount of legal protection provided by the statutes varies significantly between the states.
(7) The phrase “Waters of the United States,” under the Clean Water Act, was defined by EPA in a December proposed rule. This action was the latest in the ongoing and complex legal saga that ignited in 2015, when the Obama administration finalized its rule to define “waters of the United States.” The 2015 rulemaking touched off legal and policy battles throughout the country that continue through present. Legal wrangling over the precise meaning of the “waters of the United States” is expected to continue, including when a new rule is finalized.
(8) Legalizing Hemp: In December, passage of the 2018 farm bill has removed hemp (with less than 0.3 percent THC) from the Controlled Substances Act. Currently, the demand for cannabidiol (CBD) oil, which is produced from some varieties of industrial hemp, is showing significant economic potential. Removal of hemp as a schedule 1 controlled substance makes legal commercial production of hemp and hemp-derived products a reality, however, producers will also need to be mindful of any state statutes that remain in place that restrict its growth.
(9) With the proliferation of unmanned aerial vehicles on the market the agricultural sector has found numerous applications for this new technology. From finding lost livestock to spotting potential nutrient or pest problems in fields, the uses for drones in agriculture has created a lot of demand, but it also has some potential legal problems. The most important issue is the necessity to become licensed by the FAA for commercial uses of drone aircraft (the FAA essentially defines the word “commercial,” to mean any usage that would allow you to deduct the drone as a business expense).
The National Ag Law Center, in partnership with other experts across the country, hosted numerous workshops in the past year on legal issues, FAA licensing, and many aspects of drone selection, instrumentation and data processing. This series has been broken down into a series of webinars and supporting documents on each of the topics listed above and can be found at Risk management for unmanned aircraft systems.
(10) The Endangered Species Act (ESA) has been a hot topic in 2018’s legal discussion. In October, the United States Supreme Court heard a case regarding the ability of the Fish and Wildlife Service (FWS) to designate property — including private property — as a species’ “critical habitat” if the species was not currently living on that land. A unanimous court sent the case back to the Fifth Circuit, which will now consider the definition of “habitat.”
Another important ESA event includes the FWS conducting a “species status assessment” on whether the Monarch butterfly should receive endangered species protections.
A listing decision, which could have significant impacts on the use of pesticides in agriculture, is due in June 2019. More information is available at Assessing the status of the monarch butterfly.
It was very difficult to narrow down a year’s happenings into 10 topics. Some honorable mention topics include (1) Cell cultured meat- state laws and litigation, as well as agency decision on oversight; (2) Finalized guidance documents under the Food Safety Modernization Act and (3) USDA withdrawal of the GIPSA rules and subsequent court cases. For more information on these and many other agricultural law topics, please visit nationalaglawcenter.org.