Penn State Agricultural Law Blog: Agricultural Law Weekly Review

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:

WOTUS: EPA Declines to Extend WOTUS Comment Period

On March 19, 2019, Greenwire reported that the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (Army) have declined to extend the 60-day comment period regarding a proposed rule redefining the scope of waters federally regulated under the Clean Water Act. Previously, on February 14, 2019, the EPA and the Army published notice in the Federal Register of the proposed rule revising the agencies definition of “waters of the United States” issued on June 29, 2015 (84 FR 4154). With the published notice, members of the public were given until April 15, 2019 to submit comments on the proposed definition. According to Greenwire, certain stakeholders and members of Congress had attempted to argue that the 60-day comment period was not enough time to review the proposal. For more information regarding the proposed rule, see the January 9, 2019 Agricultural Law in the Spotlight article entitled: U.S. EPA and Army Corps of Engineers Issue Proposed Revised Definition of “Waters of the United States”.

WOTUS: EPA Withdraws WOTUS Applicability Date

On March 8, 2019, the U.S. Federal Government announced it was withdrawing its appeals of two lower court decisions enjoining and vacating the U.S. Environmental Protection Agency and U.S. Department of the Army (the agencies) 2018 Applicability Date Rule delaying the 2015 “waters of the United States” (WOTUS) rule. Previously, on January 31, 2018, the agencies issued a final rule that added an applicability date to the 2015 Rule. As a result, the 2015 Rule was not scheduled to become applicable until February 6, 2020. Subsequently, the U.S. District Courts for the District of South Carolina and the Southern District of Washington enjoined and vacated the 2018 Applicability Date Rule. The agencies stated that instead of litigating the 2018 Applicability Date Rule they have decided to focus their efforts on revising the 2015 Rule’s definition of WOTUS.

Food Labeling: Arkansas Governor Signs Truth in Labeling Bill

On March 18, 2019, Arkansas Governor Asa Hutchinson signed into law “Truth in Labeling” legislation seeking to prevent public deception regarding a food product’s origin (HB 1407). Food products defined by the legislation include beef, livestock, pork, poultry, and rice. Under the legislation, meat is defined as being derived from “a livestock, poultry, or cervid carcass that is edible by humans.” (A cervid is a mammal of the deer family.) The definition of meat, however, specifically excludes synthetic products derived from plants, insects, or from products grown in a lab. Failure to follow the state’s new food labeling law could result in a civil penalty.

Agricultural Labor: Pennsylvania Approves Farming Apprenticeship Program

On March 21, 2019, the Pennsylvania Association for Sustainable Agriculture (PASA) announced that the Pennsylvania Department of Labor and Industry had approved a formal apprenticeship program for vegetable growers. Called the Diversified Vegetable Apprenticeship, the new program was developed by PASA and provides a way for beginning farmers to train under master growers. According to PASA, the program will help beginning farmers acquire the skills necessary to start their own vegetable farms and will also assist master growers in meeting their employment needs.

Soda Tax: Leading Health Organizations Support Taxes on Sugary Drinks

On March 25, 2019, the American Academy of Pediatrics (AAP) and the American Heart Association (AHA) issued a joint statement endorsing a series of public health measures intended to lower sugary drink consumption among children. According to the statement, children in the U.S. consume an average of 30 gallons of sugary drinks per year. The statement asserted that this consumption has been linked to adolescent obesity and increased risk for tooth decay, hypertension, and type 2 diabetes. Among the measures endorsed by AAP and AHA are excise taxes imposed on manufacturers or distributors, restrictions on marketing to children, and better nutritional information on labels.

Water Quality: Federal Judge Issues Temporary Injunction Against Lake Erie Bill of Rights

On March 18, 2019, the U.S. District Court for the Northern District of Ohio issued a temporary injunction preventing the City of Toledo from granting Lake Erie its own legal rights (Drews Farm Partnership v. City of Toledo Case No. 3:19 CV 434). Approved by Toledo voters on March 13, 2019, the measure—known as the Lake Erie Bill of Rights—provided Lake Erie and its waters the right to “exist, flourish and naturally evolve.” According to Farm and Dairy, supporters intended the measure to protect the lake from farm nutrient runoff and resulting harmful algal blooms. Opponents, however, asserted that the measure’s “definitions are too loose” and that providing “a lake its own legal standing…is likely unconstitutional.”

From National Ag Law Experts:

“Issue Brief: The Regulation of Cell-Cultured Meat”, Brigit Rollins, Rusty Rumley, National Agricultural Law Center (March 8, 2019)

“Court of Appeals Agrees USDA did not have the Discretion to Implement New Program Benefiting Farmers”, Paul Goeringer, Maryland Risk Management Education Blog (March 19, 2019)

“Ohio Agricultural Law Blog -- What We’ve Been Up To: Factsheets on Reducing Risk in Agritourism”, Evin Bachelor, Ohio Agricultural Law Blog, Ohio State University Extension (March 20, 2019)

Federal Actions and Notices:

Agricultural Marketing Service

“Proposed Amendments to Regulations Governing Voluntary Grading of Meats, Prepared Meats, Meat Products, Shell Eggs, Poultry Products, and Rabbit Products”

Animal and Plant Health Inspection Service

“Scrapie in Sheep and Goats”

Pennsylvania Department of Agriculture:

“Pennsylvania Seeks Creameries for Second Annual Ice Cream Trail”

Pennsylvania Legislation:

HB 918: Legislation regarding appropriations to Farmers’ High School (Referred to House Agriculture and Rural Affairs Committee, March 25, 2019)

HB 960: Legislation requiring Department of Environmental Protection to transfer its permitting authority for projects on farms to the State Conservation Commission (Referred to House Agriculture and Rural Affairs Committee, March 25, 2019)

HB 915: Legislation clarifying that milk haulers can travel on highways during a declaration of disaster emergency (Referred to House Agriculture and Rural Affairs Committee, March 20, 2019)

Pennsylvania Actions and Notices:

Governor’s Office

Regulatory agenda

State Conservation Commission

Action on odor management plans for concentrated animal operations and concentrated animal feeding operations and volunteers complying with the Commonwealth's Facility Odor Management Program

Penn State Research:

“Penn State brook trout researchers featured in new 'Expedition Chesapeake' film” – Penn State News

AgLaw HotLinks:

“Ag labor shortage fix offered for dairy industry” – Feedstuffs

“Smithfield, United Wind announce WindLease agreement” – Feedstuffs

“Gene-edited foods are safe, Japanese panel concludes” – Science

“American Farmers Confront a Mental Health Crisis” – Bloomberg