In the world of agricultural law, 2021 was a year for significant developments and changes. Below, attorneys at the National Agricultural Law Center have identified and summarized the top legal and policy developments that affected agriculture in 2021, including many that will continue to do so in years to come.
This year, judges considered whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts state law failure-to-warn claims in lawsuits involving glyphosate, a component of Roundup.
These state law claims have been raised by plaintiffs in lawsuits involving glyphosate and other pesticides, arguing that pesticide manufacturers failed to warn the public about the allegedly dangerous effects of using the pesticides. Some judges have found that FIFRA preempts state law failure-to-warn claims, concluding that the claims should not have been brought at all, while other judges have found that FIFRA does not preempt those claims and that plaintiffs were able to bring them.
The issue has been appealed to the United States Supreme Court, though it is currently unknown whether the Court will decide to hear it. Meanwhile, the Ninth Circuit Court of Appeals ruled that the current residue tolerances set for chlorpyrifos were unsafe, ordering the Environmental Protection Agency (EPA) to either rescind or alter them. Without an approved residue tolerance, a pesticide may not be used on food crops. In August, EPA published a final rule to rescind the residue tolerances for chlorpyrifos.
Foreign Ownership of Farmland
Over the past year, the issue of restricting foreign investments and ownership of agricultural land emerged in a few states, including Arkansas and Missouri. On the federal level, Congress has recently introduced several bills, such as the Foreign Adversary Risk Management (“FARM”) Act, to increase oversight of foreign investments in U.S. farmland by adding USDA as a member of the Committee on Foreign Investment in the United States.
The availability of options for slaughter, processing and sale of meat products has been in front of several state legislatures this year. Some have considered or implemented state inspection programs, while others have further defined the level of ownership that is necessary to custom slaughter livestock and poultry. Both state level ag departments and USDA have given grants to open or update slaughter and processing facilities.
The meat industry has been another topic of interest this year. President Biden signed an Executive Order addressing competition in the economy, and the White House also released a briefing paper on the more specific topic of competition within the meat-processing industry. The Department of Justice has active antitrust investigations into multiple companies and industries as well as a criminal trial of four poultry executives. Additionally, USDA is drafting another version of the “GIPSA Rules,” outlining fair competitive practices within the integrated livestock industries.
This year, the Food Safety Inspection Service (FSIS) received petitions asking the agency to consider Salmonella as an adulterant, which would allow the agency to prevent contaminated products from being sold or recall it if necessary. In October, FSIS announced new efforts to reduce Salmonella caused illness, as well as responding to a requested status update on a petition.
The COVID-19 pandemic has affected the entire agricultural industry. Congress has responded by enacting several stimulus packages, including the Consolidated Appropriations Act (CAA) and the American Rescue Plan Act (ARPA). The CAA provided $13 billion to the agricultural sector, $11.2 of which USDA used to launch a new four-part initiative known as the Pandemic Assistance for Producers. Much of the initiative’s funding was used to provide additional assistance under the Coronavirus Food Assistance Program (CFAP).
The ARPA allocated $10.4 billion to USDA for programs intended to support the agricultural and food supply chain, improve access to food supplies and provide $4 billion in debt relief for certain socially disadvantaged farmers and ranchers. The debt relief program is on hold, however, because several courts have issued preliminary injunctions in favor of farmers who filed suit against the program. Additionally, the CAA created a federal livestock dealers trust to benefit unpaid sellers of livestock.
After President Biden took office in January, his administration issued an Executive Order requiring federal agencies to review agency actions taken during the previous administration. Many of the regulations identified for review were the subject of on-going lawsuits. Judges were largely willing to dismiss on-going lawsuits and sent the rules back to the agencies for further review while also allowing the rules to remain in legal effect.
However, some judges concluded that the challenged regulations had been unlawfully adopted, and suspended or “vacated” them before sending them back to the agencies. In August, a federal judge in Arizona vacated the 2020 final rule redefining “waters of the United States” (“WOTUS”) under the Clean Water Act. In early December, EPA published a proposed rule to return WOTUS to its 1986 definition with some key changes. Other federal agencies have taken steps over the course of the year to address the other regulations highlighted by the Biden administration for review.
Right to Farm
All fifty states have a right to farm statute; however significant questions often arise on when they apply, what they do, and how they work. These statutes are meant to provide a defense against nuisance lawsuits brought by neighbors. The amount of legal protection provided by the statutes varies significantly between the states.
Florida strengthened their Right to Farm statute to include other torts (including negligence, trespass, personal injury, and strict liability) when the claims made in the lawsuit would otherwise meet the definition of nuisance. The new statute also limited the ability of neighbors to sue if they are more than one half mile away from the farming operation, increased the burden of proof for the plaintiff to meet in order to win a lawsuit, and limited the amount of damages. States typically model changes to right to farm statutes on other states so this amendment could have broader implications in coming years.
Over the past year, the opportunities for producers to participate in a voluntary carbon market increased as more market operators offered programs specific to producers who implement climate-smart farming practices. While these are private sector markets, the federal government has become increasingly involved in the climate policy debate.
Currently, Congress is considering the Growing Climate Solutions Act. If enacted, this bill would require USDA to provide technical assistance to producers and foresters to overcome market entry barriers, and develop protocols ensuring consistency within the voluntary carbon markets. Additionally, the proposed Build Back Better Act would allocate billions to the agricultural and forestry sectors to advance the current administration’s climate mitigation goals. This bill would fund conservation programs, carbon sequestration research, and a program that would pay producers $25 per acre for 5 years to plant cover crops.
“Equitable apportionment” of Groundwater
In late November, the Supreme Court issued a ruling in the years-long water dispute between Mississippi and Tennessee. The case originated in 2014 when Mississippi filed suit against Tennessee in regards to groundwater from the Middle Claiborne Aquifer that lies beneath both states. According to Mississippi, Tennessee’s pumping of water from the aquifer altered the existing flow of the groundwater and siphoned away gallons of water that otherwise would have remained under Mississippi for thousands of years.
Before being heard by the Supreme Court, the case went before a Special Master appointed to manage water law disputes that arise between states. After review, the Special Master issued a report recommending that the Court dismiss the lawsuit, finding that because the aquifer is an interstate water resource, equitable apportionment is the appropriate remedy. The Supreme Court agreed, dismissing the case. Equitable apportionment is the water law doctrine that requires the Supreme Court to allocate the use of interstate waters between states. Until now, this doctrine has only been applied to surface waters like rivers and lakes.
It was very difficult to narrow down a year’s happenings into ten topics! Some honorable mention topics include 1) food labeling challenges to the use of artificial vanilla 2) the final rules governing hemp production 3) challenges to the beef checkoff program. A link to more information about each of these stories is available at https://bit.ly/32hwAYh.
The National Agricultural Law Center serves as the nation’s leading source of agricultural and food law research and information. The Center works with producers, state and federal policymakers, Congressional staffers, attorneys, land grant universities, and many others to provide objective, nonpartisan agricultural and food law research and information to the nation’s agricultural community. For more information on the National Agricultural Law Center, visit https://nationalaglawcenter.org/ or follow @Nataglaw on Twitter.