Agricultural Law Weekly Review—March 29, 2017

Agricultural Law Weekly Review—March 29, 2017

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:

Ag Policy: President Trump Signs Executive Order on Energy

On March 28, 2017, President Donald Trump signed an Executive Order entitled: Promoting Energy Independence and Economic Growth.  According to a White House press release, the Executive Order:

• “directs the Environmental Protection Agency to suspend, revise, or rescind four actions related to the Clean Power Plan”
• “rescinds Executive and Agency actions centered on the previous administration’s climate change agenda”
• “directs all agencies to conduct a review of existing actions that harm domestic energy production and suspend, revise, or rescind actions that are not mandated by law”
• “directs agencies to use the best available science and economics in regulatory analysis” 

Avian Influenza: Commercial Georgia Flock Confirmed Positive

On March 27, 2017, the Georgia Department of Agriculture (GDA) confirmed that a Georgia commercial poultry flock “has tested positive for H7, presumptive low pathogenic avian influenza (LPAI).” According to GDA, “[t]he virus was identified during routine pre-sale screening for the commercial facility.” GDA stated that the flock has been depopulated.

Ag-Gag: Arkansas Bill Signed into Law

On March 23, 2017, Arkansas Governor Asa Hutchinson signed into law HB1665 entitled: To Create a Cause of Action for Unauthorized Access to Another Person's Property.  The legislation creates a civil cause of action for unauthorized access to agricultural property and covers an employee that “[r]ecords images or sound occurring within an employer's commercial property and uses the recording in a manner that damages the employer.”

Ag Data: Farm Groups and EPA Reach Privacy Settlement

On March 28, 2017, the American Farm Bureau Federation (AFBF) issued a press release announcing that a federal judge has approved a settlement regarding litigation brought by AFBF and the National Pork Producers Council against the Environmental Protection Agency (EPA).  According to AFBF, the litigation was initiated “after EPA released a vast compilation of spreadsheets containing personal information about farmers and ranchers in 29 states who raise livestock and poultry, in some cases including the names of farmers, ranchers and sometimes other family members, home addresses, email addresses, GPS coordinates and telephone numbers.”  AFBF stated that as part of the settlement, EPA has agreed that “only the city, county, zip code and permit status of an operation will be released.”

Invasive Species: PDA and PSU Extension to Train Volunteers

On March 24, 2017, the Pennsylvania Department of Agriculture (PDA) issued a press release announcing that PDA “in conjunction with Penn State Extension and Berks County Conservation District, will host a series of April public meetings to train volunteers to assist in eradicating the invasive Spotted Lanternfly.” According to PDA, the meetings will be held “in Berks, Bucks, Lehigh and Montgomery counties.”

Pennsylvania Legislation 

• Senate Agriculture & Rural Affairs: S545 Dog Law amendment - spaying/neutering as a condition of shelter release (referred March 24, 207)
• House Agriculture & Rural Affairs: HB 972 Additional requirements for Boarding Kennels (referred March 27, 2017)
• House Tourism and Recreational Development: HB 977 Lease land by recreational authorities for OHV riding (RULWA) (referred March 27, 2017) 

Pennsylvania Administrative Actions and Notices

• Department of Environmental Protection: Applications for National Pollutant Discharge Elimination System (NPDES) Permits and Water Quality Management (WQM) Permits
• 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 

AgLaw HotLinks:

• “Pennsylvania Produce Featured Along the PA Turnpike” - PA Pressroom
• Rusty Patch bumblebee is now on the endangered species list - Reuters
• "Dairy groups asks for farm bill fixes" - FeedStuffs
• "GMO- Ethanol Corn Contaminates Non-GMO White Corn Used in Tortillas" - EcoWatch
• "Raw milk still looking for wins as legislative season nears end" - FoodSafetyNews
• Fed Aviation Administration predicts dramatic increase in drone usage - Pork Network
• "Meat industry proposes animal disease protection in farm bill" - TriState Livestock News
• EPA is rewriting the Waters of the U.S. rule according to executive order guidelines - WNAX
• National Farmers Union shows support for country of origin labeling  - Brownfield
• "Financial Relief Bill to Diary Farmers Survives Challenge" - AgWeb 

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Stay informed with our monthly Agricultural Law Brief located here. 

Chesapeake Bay Update: Court Upholds Chesapeake Bay TMDL

On July 6, 2015, the U.S. Third Circuit Court ofAppeals ruled against the American Farm Bureau Federation (AFBF) and in favor of the U.S. Environmental Protection Agency (EPA) regarding the legality of the Chesapeake Bay total maximum daily load (TMDL) regulations.  According to the court, AFBF was incorrect in its assertion that EPA’s Chesapeake Bay TMDL regulations exceeded EPA’s statutory authority to regulate.

The court opinion stated that under the federal Clean Water Act (CWA) Congress has required the establishment of TMDLs for certain waters.  According to the court, though undefined in CWA, EPA has interpreted the term TMDL “to require publication of a comprehensive framework for pollution reduction in a given body of water.” Accordingly, EPA’s Chesapeake Bay TMDL provided for “allocations of permissible levels of nitrogen, phosphorous, and sediment among different kinds of sources of these pollutants.”

According to the court, one of AFBF’s primary assertions was that the correct reading of the “total load” in TMDL represented a single number, “like the ‘total’ at the bottom of restaurant receipt,” and did not permit specific allocations of permissible levels of nitrogen, phosphorous, and sediment.  The court disagreed that CWA only permitted one number, stating that “a plausible understanding of ‘total’ is that it means the sum of the constituent parts of the load.”

In addition to finding that “total” allowed for allocations of permissible levels of nitrogen, phosphorous, and sediment, the court found that EPA had not overstepped its statutory authority in requiring both TMDL target dates and state assurances that TMDL objectives would be fulfilled. 

Significantly, the court opinion stated that any solution to the Chesapeake Bay problem “will result in winners and losers.” According to the court, the winners include “environmental groups,” “fishermen,’ and “urban centers,” while the losers are “rural counties with farming operations,” and “the agricultural industry.”

Written by M. Sean High - Staff Attorney

July 7, 2015

Chesapeake Bay Update: Farm Groups Appeal Chesapeake Bay Ruling

On October 8, the American Farm Bureau Federation and the National Corn Growers Association are among the groups who said they have each filed a notice to appeal the September 13^th federal district court decision which upheld the Environmental Protection Agency’s rights to work with the six states in the 64,000 square foot Chesapeake Bay watershed to regulate runoff.

AFBF, the Pennsylvania Farm Bureau, the Fertilizer Institute, the National Chicken Council, the U.S. Poultry & Egg Association, National Pork Producers Council, National Corn Growers Association, National Turkey Federation, and the National Association of Home Builders originally filed suit in January 2011 in federal district court in Harrisburg, Pennsylvania.  The ruling of Judge Sylvia Rambo gave EPA wide discretion to work on a “pollution diet” saying in her decision that “[t]he EPA is within its rights under the Clean Water Act to partner with the six states in the bay watershed to cut the pollution that pours in from sewers and construction developments, and particularly chemical and biological waste from farms.”

The AFBF press release states that AFBF seeks an appeal “to preserve the primary role of states in setting land use policy and determining how to achieve water quality goals.”  According to AFBF, “the Clean Water Act puts states in the drivers’ seat to determine how farmers, builders, homeowners and towns will share the responsibility of achieving clean water.  EPA’s framework puts EPA in control of these decisions.”

For more information on the appeal, see the AFBF press release.  For more information on the district court ruling, see the District Court Opinion and our September 16 blog post.  Visit the Penn State Agricultural Law Center’s Chesapeake Bay Resource Area for further resources.

Written by Alyssa Looney – Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

October 9, 2013

Chesapeake Bay Update: EPA Prevails in Chesapeake Bay Watershed Suit

On September 13, 2013, the court for the Middle District of Pennsylvania filed a decision in favor of the Environmental Protection Agency (EPA) in the lawsuit brought by American Farm Bureau Federation (AFBF). Judge Rambo, writing for the court, stated that deference must be given to agency (EPA) findings due to their scientific and technical expertise. She explained that the plaintiff (AFBF) failed to meet its burden of showing that the EPA’s issuance of the Bay Total Maximum Daily Load was arbitrary and capricious. Additionally, the court found that the procedures established to ensure public participation in the TMDL drafting process were sufficient to withstand scrutiny under the Administrative Procedures Act. In Judge Rambo’s conclusion, she states that the EPA did not infringe on Bay state’s rights under the Clean Water Act because the CWA is an all-encompassing and comprehensive statute in which Congress envisioned a strong federal role in enforcing.

For more information on the lawsuit, please see the Penn State Agricultural Law Center’s Chesapeake Bay Resource Area.

Written by Sarah L. Doyle - Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

September 16, 2013

“Death Tax Repeal Act of 2013” Introduced in House and Senate

On June 19, 2013, legislation known as the Death Tax Repeal Act of 2013 was introduced in the U.S. House and the U.S. Senate that would permanently repeal the estate tax. The legislation would also maintain stepped-up basis, and make permanent a 35 percent gift tax rate and $5 million lifetime gift tax exemption indexed for inflation. The American Farm Bureau Federation supports the legislation, noting the crippling effects the estate tax can have on family agribusinesses and surrounding communities when the tax exceeds cash and liquid assets possessed by surviving family partners.

The full text of the bills (S 1183 and HR 2429) is not yet available on the Library of Congress website.

Written By Sarah Doyle – Research Assistant

The Agricultural Law Resource and Reference Center
June 21, 2013