Agricultural Law Weekly Review—April 27, 2017

Written by M. Sean High – Staff Attorney and Jacqueline Schweichler - Education Programs Coordinator

The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

ACRE: PA Attorney General Launches New Online Resource

On April 21, 2017, a new Agriculture, Communities and Rural Environment (ACRE) Act 38 resource page debuted on the Pennsylvania Office of Attorney General’s (OAG) website.  Enacted in 2005, the main purpose of ACRE is to protect Pennsylvania’s “normal agricultural operators from unauthorized local regulation.” Accordingly, under ACRE, OAG is empowered to: (1) review local ordinances to determine conflicts with State law; and (2) to bring legal action against local government units for unauthorized local regulations that prohibit or limit normal agricultural operations.  OAG’s new resource page: (1) provides a link to a brochure describing ACRE; (2) lists resources pertaining to 2017 requests for OAG ordinance review; and (3) provides information detailing how agricultural operators can submit written requests for OAG ordinance reviews.  For more information on ACRE, please visit the Center’s ACRE/Pennsylvania Act 38 library guide.

PA Apple Growers Approve New Apple Program
On April 26, 2017, the Pennsylvania Department of Agriculture released a statement announcing the  approval of the new Pennsylvania Apple Program. The new program replaces the Pennsylvania Apple Marketing Program (PAMP) which will expire next month. Pennsylvania apple growers will be assessed "five cents ($.05) per harvested bushel of apples sold for fresh market use and one cent ($.01) per harvested bushel of apples sold or accepted for processing." The funds will be used for membership obligations, research, consumer education, and administrative activities. 

Senate Confirmation: Sonny Perdue Confirmed as New Secretary of Agriculture

On April 24, 2017, by a vote of 87-11, the U.S. Senate confirmed Sonny Perdue to be the new U.S. Secretary of Agriculture.  Following the confirmation, Senate Committee on Agriculture, Nutrition, and Forestry Chairman Pat Robert (R-Kan.) issued the following statement regarding the former Georgia Governor:

“I’m pleased that the U.S. Senate was able to work in a bipartisan fashion to confirm Governor Perdue,” Roberts said. “I have faith that Governor Perdue will put the needs of farmers and ranchers first, and I know that rural America is thankful to have such a qualified Agriculture Secretary on their side.”

White House Releases Executive Order on Agriculture 
On April 25, 2017, the White House released the Presidential Executive Order on Promoting Agriculture and Rural Prosperity in America. The executive order creates the Interagency Task Force on Agriculture and Rural Prosperity.  The purpose of the task force is to "identify legislative, regulatory, and policy changes to promote in rural America agriculture, economic development, job growth, infrastructure improvements, technological innovation, energy security, and quality of life..." The order requires the members of the Task Force to submit a report to the president within 180 days recommending legislative and policy changes.

Dairy: USDA Requests Comment on Proposed California Federal Milk Marketing Order

On April 21, 2017, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register of a request for public comment regarding the Proposed California Federal Milk Marketing Order; producer ballots (82 FR 18721).  According to USDA AMS, the “document invites comments on the proposed ballots to be used in conducting a referendum to determine whether the issuance of a Federal Milk Marketing Order (FMMO) regulating the handling of milk in California is favored by producers and cooperative associations.” Comments must be received by June 20, 2017.

COOL: Italy Requires Country of Origin Labeling on Dairy Products

On April 23, 2017, the European Supermarket Magazine (ESM) reported that Italy has made mandatory the labeling of products containing milk and milk derivatives.  According to ESM, “[i]f the milk has been produced, packaged and processed in Italy, the label will state: ‘Origin of Milk: Italy.’" ESM stated that “[i]f the packaging and processing phases taking place in several countries, other than Italy, the label will say: ‘Milk from EU Countries’, ‘Milk Conditioned or Processed in EU Countries’ or ‘Milk Conditioned or Processed in Non-EU Countries’”.

Census Data: USDA to Hold Meeting on Publication of Farm Operator Demographics

On April 20, 2017, The U.S. Department of Agriculture’s National Agricultural Statistics Service (NASS) announced the scheduling of an expert panel meeting “to consider questions surrounding publication of farm operator demographic data obtained through the 2017 Census of Agriculture.” Planned for May 16-17, 2017, the panel meeting will discuss “questions about NASS’s publication of 2017 Census of Agriculture farm operator demographic data including:

• What demographic data will NASS publish on persons involved in making decisions for the farm or ranch operation?
• What new tables and data presentations are needed to publish data from the 2017 Census of Agriculture decision-making questions?
• How does NASS address publications in light of the specific change from single principal operator in previous censuses of agriculture to multiple persons responsible for decisions in the 2017 Census of Agriculture?”

Pennsylvania Legislation:

• Senate Agriculture and Rural Affairs: SB 632 (Grain Dealer Bonding Act)
• Senate Environmental Resources and Energy: SB 645 (Increased Penalties - Solid Waste Violations)
• House Environmental Resources and Energy: HB 1256 (Moving DEP Farm Permitting to SCC)

Pennsylvania Actions and Notices:

• Department of Environmental Protection: Applications, actions and special notices
• 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:

• "Pear Industry Votes to Continue Marketing Order" - USDA
• "Last Stand: Nebraska Farmers Could Derail Keystone XL Pipeline" - DairyHerd
• "Raw milk advocates push to expand legalized sales" -SFGate
• "Nebraska Lawmaker Gathers Input on Next Farm Bill" - Brownfield
• Shanghai, China plans to construct vertical farm designed to feed millions - AgFunder
• Genetically modified mushroom and other biotechnologies remain unregulated  - Slate
• "Alaska's Industrial Hemp Bill Passes Senate" - Stock News Union
• "As bird flu strengthens in China, Midwest farmers prepare for the next outbreak" - KCUR
• "USDA to work on GMO labeling bill schedule" - TheFencePost

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For a comprehensive summary of daily judicial, legislative, and regulatory developments in agriculture and food, visit The Ag & Food Law Blog.

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 

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks

Connect with us on Facebook! Every week we will post the CASL Ledger which details all our publications and activities from the week.

Stay informed with our monthly Agricultural Law Brief located here. 

Agricultural Law in the Spotlight: Executive Order on the “Waters of the United States” Rule

Written by M. Sean High—Staff Attorney and Errin McCaulley – Research Assistant

On February 28, 2017, President Donald J. Trump signed an Executive Order directing the Administrator of the Environmental Protection Agency (Administrator) and the Assistant Secretary of the Army for Civil Works (Assistant Secretary) to review the current federal “Waters of the United States” rule (WOTUS).  The outcome of this review could have significant implications for both the agricultural and energy sectors. 

Under the Executive Order, the Administrator and Assistant Secretary are required to review WOTUS to determine if the current rule is consistent with the order’s stated policy:

[T]o ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.

Upon completion of this review, the Administrator and Assistant Secretary are to propose a rule either rescinding or revising the current rule.  Regarding ongoing WOTUS litigation, the Attorney General is permitted to inform “any court of such review and take such measures as he deems appropriate concerning any such litigation pending the completion of further administrative proceedings related to the rule.” Significantly, for future WOTUS rulemaking, “the Administrator and Assistant Secretary shall consider interpreting the term ‘navigable waters,’ as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).”

Background

Clean Water Act

Congress, in amending the Federal Water Pollution Control Act, passed the Clean Water Act (CWA) “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a).  Generally, CWA empowers the Environmental Protection Agency (EPA) and Army Corps of Engineers (ACE) to regulate pollutant discharges into “navigable waters.” 33 U.S.C. § 1311(a).  The phrase “navigable waters,” is further defined as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7).  

Rapanos

Persistent disputes over the meaning of “waters of the United States” led to a series of cases and resulted in the U.S. Supreme Court’s attempt to define “waters of the United States” in the case Rapanos v. United States, 547 U.S. 715 (2006).  In Rapanos, the Supreme Court concluded that ACE’s interpretation of the phrase “waters of the United States” was an impermissible construction of the CWA.  Id. at 739.  Nevertheless, the Court also appeared to invite rulemaking to further clarify the meaning of “the waters of the United States.” Id. at 718. 

Justice Antonin Scalia, who authored the plurality opinion, stated that regarding the phrase “navigable waters”:

“[T]he waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams[,] ... oceans, rivers, [and] lakes.” . . . The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.

Rapanos, 547 U.S. at 739.

In a concurring opinion, however, Justice Anthony Kennedy developed a “significant nexus” test for determining federal jurisdiction over the Nation’s waters.  Justice Kennedy derived the “significant nexus” test from two earlier cases, Solid Waste Agency of Northern Cook Cty. v. Army Corps of Eng’rs, 531 U.S. 159 (2001) (SWANCC) and United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) (Bayview Homes).  According to Justice Kennedy, prior to EPA or ACE asserting CWA jurisdiction over a wetland:

[T]he wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.” When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.”

Rapanos, 547 U.S. at 780.  

In reference to Justice Kennedy’s opinion, Justice Scalia read the “significant nexus” test narrowly.  In addressing Justice Kennedy’s analysis, Justice Scalia noted that SWANCC and Bayview Homes rejected the notion that either EPA or ACE could rely upon ecological connectivity alone as a basis for CWA jurisdiction. Rapanos, 547 U.S. at 741.  Additionally, after a thorough analysis of the development of the “significant nexus” test in those cases, Justice Scalia reasoned that the “significant nexus” test is intended only to resolve a narrow ambiguity in the CWA, namely to determine where a navigable water ends and a wetland, marsh, or other feature begins. Justice Scalia wrote:

[O]nly those wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right, so that there is no clear demarcation between “waters” and wetlands, are “adjacent to” such waters and covered by the Act. Wetlands with only an intermittent, physically remote hydrologic connection to “waters of the United States” do not implicate the boundary-drawing problem of Riverside Bayview, and thus lack the necessary connection to covered waters that we described as a “significant nexus” in SWANCC.

Rapanos, 547 U.S. at 741. Ultimately, Justice Scalia concluded, in order for a feature to be within the scope of the CWA, the feature must either satisfy the definition of “waters of the United States,” provided above, or maintain a “continuous surface connection” with a water that meets the definition of “waters of the United States.” Id. 

WOTUS

In promulgating WOTUS, EPA and ACE explicitly based the final rule on Justice Kennedy’s “significant nexus” analysis. See 80 Fed. Reg. 37,056 (June 29, 2015).  Additionally, EPA and ACE relied upon Justice Kennedy’s reading of the purpose of the CWA.  The agencies concluded “the critical factor in determining the CWA’s coverage is whether a water has a ‘significant nexus’ to downstream traditional navigable waters such that the water is important to protecting the chemical, physical, or biological integrity of the navigable water.” 80 Fed. Reg. 37,056 (June 29, 2015).  As a result, the “significant nexus” analysis per WOTUS focuses generally on ecological connectivity, physical indicators such as a high-water mark, geographic proximity to navigable waters, and a contested feature’s location within a 100-year floodplain.

Currently, WOTUS is not in force due to a nationwide stay of the final rule issued by the Court of Appeals for the Sixth Circuit. See In re EPA, 803 F.3d 804 (6th Cir. 2015).   

Conclusion

If EPA and ACE substantially adopt Justice Scalia’s opinion in Rapanos, many provisions in WOTUS will require revision. Several of the eight categories of features EPA and ACE announced in WOTUS to be jurisdictional waters under CWA likely fail Justice Scalia’s analysis.  For example, WOTUS includes in its coverage prairie potholes and pocosins. 80 Fed. Reg. 37,105 (June 29, 2015).  These features, however, generally lack a continuous surface connection with “waters of the United States.”

Although a specific timeline for agency review of WOTUS was not provided in the Executive Order, EPA and ACE cannot simply repeal WOTUS; the agencies must issue a proposed rule to revise or replace the rule.  In response to the Executive Order, EPA and ACE stated: “[a] revised rulemaking based ‘on a reevaluation of which policy would be better in light of the facts’ is ‘well within an agency’s discretion.’” 82 Fed. Reg. 12,532 (Mar. 6, 2017).  This rulemaking process could last well over a year as the notice-and-comment period for the previous WOTUS rulemaking process resulted in over one million comments after the proposed rule’s publication in April 2014. 

Colorado Governor Issues Executive Order Regarding Marijuana Contaminated by Pesticide

Written by M. Sean High

On November 12, 2015, Colorado Governor John Hickenlooper issued an executive order directing Colorado state agencies to take measures to protect the public from health dangers that could potential result from marijuana contaminated by pesticide.

According to the executive order, the Environmental Protection Agency (EPA) “regulates pesticides that are sold in the United States” and “also evaluates and approves the language that appears on each pesticide label to ensure safe use of the product.” The executive order stated that "[i]t is a violation of state and federal law to use a pesticide in a manner inconsistent with the EPA's labeling directions" and that any pesticide use inconsistent with the labeling directions causes a crop to become contaminated.  Furthermore, the executive order noted that when a crop is contaminated with a pesticide “it constitutes a threat to the public safety.”

Significantly, the executive order stated that “because marijuana [which Colorado legalized the commercial sale of in January 2014] remains a schedule 1 narcotic under the Controlled Substance Act, the EPA has neither assessed the potential health hazards posed by treating marijuana with pesticides, nor has it authorized the application of any pesticide specifically for use on marijuana.” As a result, through the executive order, Governor Hickenlooper authorized those Colorado state agencies statutorily charged with regulating the cultivation and sale of marijuana to destroy or place on administrative hold marijuana determined to be contaminated by pesticide. 

White House Rural Council Established to Promote Investment in Rural America

On June 9, 2011, President Obama signed an Executive Order establishing the White House Rural Council to help promote economic prosperity and quality of life in rural communities nationwide.  For the complete article please view the July 2011 Agricultural Law Brief (see page 2).

Article Authored by Brice McCoy, Research Assistant