In the world of agricultural law, 2019 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 2019, including many that will continue to do so in years to come.
1. Industrial hemp has been the topic of the year. The 2018 farm bill, which removed hemp (with less than 0.3 percent THC) from the Controlled Substances Act, created a new legal framework for its commercial production of hemp. However, it has also generated many questions. With the release of the hemp regulations in October, the United States Department of Agriculture answered some of the questions on licensing and testing of THC. A great deal of questions that could drastically affect the new crop remain unanswered. The largest unanswered question probably involves FDA’s regulatory stance towards cannabidiol (CBD) oil, which is produced from some varieties of industrial hemp. However, but there are also questions dealing with crop insurance, licensing plans for the 2020 growing season, approval of pesticides, production contracts and others. To read more about the legal issues surrounding industrial hemp go to http://bit.ly/NALCIndHemp. To learn more about your state’s laws regarding hemp, go to http://bit.ly/NALCStateHempLaws.
2. Right to Farm: A recent series of cases from 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 — based on odor, noise, dust or insects — brought by neighboring landowners. The amount of legal protection provided by the statutes varies significantly between the states. To learn more about the North Carolina litigation go to http://bit.ly/NALCSmithfield. To see your state’s right to farm statute go to http://bit.ly/2Gklwuu.
3. A “conduit theory” case involving the Clean Water Act (CWA) titled Hawai’i Wildlife Fund v. Cty. of Maui was argued in front of the United States Supreme Court in November. The lawsuit addressed whether the County of Maui had violated the CWA by discharging treated sewage water into groundwater that eventually reached the Pacific Ocean. The case came to the Supreme Court from the Ninth Circuit, which ruled that discharging pollutants into groundwater without a permit violated the CWA. The County of Maui argued that the CWA does not govern discharges into groundwater. Whatever conclusion the Supreme Court reaches, it is likely to overturn precedent in several jurisdictions, which hold contrary opinions as to whether a groundwater discharge should require a permit under the CWA. To read more about the litigation, go to http://bit.ly/NALCCtyMaui. To read how lower courts have been handling the role of groundwater in the CWA since Cty. of Maui was argued, go to http://bit.ly/NALCCourtsCWA.
4. Labeling new proteins: In 2019, 13 states have passed laws governing the words or phrases that can be used to identify new-to-the-market products such as new varieties of proteins (plant-based, insect-based or cell-cultured). Two of those states have also included language limiting the types of products that may bear the word “rice” on the label. This recent state legislation has brought a substantial amount of attention to this issue. In general, the statutes focus almost exclusively on meat labeling with the exceptions of Arkansas and Louisiana who also include rice. Challenges to the laws have been filed in three states so far, while similar legislation is pending in several more states and on the federal level. For more information, go to http://bit.ly/NALCTruthLabeling.
5. Several pesticides have been the focus of ongoing lawsuits over the past year. Juries returned verdicts in favor of the plaintiffs in three different cases filed against Monsanto for failing to warn consumers that glyphosate, used in Roundup, causes cancer. All three cases were decided based on claims of design defect, failure to warn, and negligence. A fourth case accusing Monsanto of failing to warn consumers of the effects of glyphosate was scheduled to be argued in October, but was postponed before the trial date. Many speculated that the postponement was to give the parties a chance to settle out of court while Monsanto appealed the verdicts in the three other cases. While Monsanto battled suits over glyphosate, the Environmental Protection Agency faced challenges to its approval of the pesticide sulfoxaflor. In June, EPA removed restrictions it had previously put in place on uses of sulfoxaflor, prompting environmental groups and beekeepers’ associations to file suit against the agency. The plaintiffs allege that EPA violated the Federal Insecticide, Fungicide, and Rodenticide Act when it removed the restrictions of sulfoxaflor despite evidence that the pesticide is harmful to bees. To read more about the litigation concerning glyphosate, go to http://bit.ly/NALCGlyphosate. To read more about the litigation concerning sulfoxaflor, go to http://bit.ly/NALCSulfoxalor.
6. Redefining WOTUS: Earlier this year, the EPA altered a central component of the CWA by redefining the term “waters of the United States” (WOTUS). Under the CWA, any person who discharges a pollutant into a WOTUS without a valid permit is in violation of the act. Accordingly, CWA compliance hinges on knowing what does and does not qualify as a WOTUS. EPA published a final rule in October of last year that repealed the current WOTUS definition as established in a 2015 rule. The most recent rule is meant to reinstate the pre-2015 definition of WOTUS, but is ultimately the first step in EPA’s two-part plan to redefine the term altogether. Sometime in 2020, the agency is expected to implement a new rule to replace both the 2015 and pre-2015 definitions of WOTUS. Currently, there is patchwork of regulation that resulted out of litigation over the 2015 rule. As late as August 2019, courts were issuing opinions in ongoing litigations over the validity of the 2015 rule. Before the repeal of the 2015 rule was announced, 22 states and the District of Columbia applied the 2015 rule, while the remaining 28 states applied the pre-2015 rule. To read more about the recent changes to WOTUS, go to http://bit.ly/NALC-WOTUS.
7. One of the single-most watched, if not the most watched, issue in 2019 was agricultural trade. There were several major developments towards the end of 2019 that have the potential of bringing certainty and a measure of progress to the overall agricultural trade picture. The two most significant developments involved the United States-Mexico-Canada Agreement (USMCA) and an announced “Phase I” agreement between the U.S. and China. In December the U.S. House overwhelmingly passed (385-41) USMCA. The new trade pact is expected to pass overwhelmingly in the Senate in early 2020. Also in late 2019, the U.S. and China announced agreement on a “Phase I” trade deal. The details of the Phase I deal remain unknown, but the expectation is that it will be signed in early 2020. President Trump and his administration have indicated that China has agreed to purchase as much as $40 billion to $50 billion in U.S. agricultural products.
8. What are typically called ag-gag or “farm security” laws, depending on who you’re talking with, have become frequent topics of conversation, legislation and lawsuits in the past decade. These laws, which commonly limit photography or recordings on agricultural operations without the consent of the owner, became popular in response to numerous releases of undercover videos taken, and later published, by animal activists. Since passage, many of the laws have been successfully challenged and found to be unconstitutional limitations on free speech. In 2019, lawsuits challenged these laws in Iowa, North Carolina and Arkansas while shaping conversations across the country. For more information about these types of laws, as well as their current status, go to http://bit.ly/NALC-AgGag.
9. In August 2019, the Department of Interior announced new rules that made a series of changes to the Endangered Species Act (ESA). The new rules affect what species receive ESA protections, the designation of critical habitats, and the amount of protection afforded to threatened species. Changes included repealing the “blanket 4(d)” rule, restricting the area that can be designated as critical habitat only to areas that are currently occupied by a species, and restructuring what factors will be considered when listing a species as threatened. The changes quickly prompted backlash, and a lawsuit was filed against the secretary of interior soon after the rules were announced. To read more about the changes to the ESA, go to http://bit.ly/NALC-EndangeredSpecies.
10. Swampbuster: The United States Court of Appeals for the Seventh Circuit resolved a dispute that had been ongoing for nearly two decades between the Bouchers, a farming family in Indiana, and the United States Department of Agriculture. The case centered around whether the Bouchers converted several acres of wetlands into cropland when nine trees were removed from the property in the 1990s. Nearly 10 years after the Bouchers had removed the trees, USDA made a determination that the Bouchers had violated the “swampbuster” provisions, a section of the Food Security Act of 1985 which mandated that farmers who convert any wetlands for agricultural purposes will be denied certain USDA benefits. Despite the Bouchers presenting evidence that no wetlands had been converted, USDA maintained its initial determination. The Seventh Circuit found in favor of the Bouchers, and specifically faulted USDA for failing to use evidence to support its determinations. Importantly, the court also concluded that the removal of trees from waterlogged soil was not enough for USDA to designate an area as a converted wetland. To learn more about the litigation, go to. http://bit.ly/NALC-Wetlands.
It was very difficult to narrow down a year’s happenings into 10 topics. Some honorable mention topics include (1) implementation of the 2018 farm bill, (2) continued Market Facilitation Payments, and (3) challenges to the beef checkoff program. For more information on these and many other agricultural law topics, please visit nationalaglawcenter.org.