Agricultural Law Weekly Review—May 19, 2016

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:

Pipelines: FERC Issues Draft Environmental Impact Statement on Project Affecting Nearly 2,000 Acres of PA Farmland  

On May 5, 2016, staff of the Federal Energy Regulatory Commission (FERC) issued a draft environmental impact statement (EIS) regarding the Atlantic Sunrise pipeline project proposed by Transcontinental Gas Pipe Line Company, LLC (Transco) (CP15-138-000).  According to FERC, “Transco requests authorization to expand its existing pipeline system from the Marcellus Shale production area in northern Pennsylvania to…its existing southeastern market areas.” FERC stated that “[c]onstruction of the Project would affect a total of about 1,907.4 acres of agricultural land in Pennsylvania.” FERC has scheduled the following public meetings to address the proposed pipeline project: June 13, 2016, Lancaster, PA; June 14, 2016, Annville, PA; June 15, 2016, Bloomsburg, PA; and June 16, 2016, Dallas, PA.  All comments regarding the draft EIS must be received by FERC on or before June 27, 2016.

Renewable Fuel: EPA Announces Proposed Requirements for Renewable Fuel Standard Program

On May 18, 2016, the U.S. Environmental Protection Agency (EPA) announced that the agency has “proposed the volume requirements and associated percentage standards that apply under the RFS [Renewable Fuel Standards] program in calendar years 2017 for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel.” Additionally, EPA announced that the agency was “proposing the volume requirement for biomass-based diesel for 2018.”

Labor: New Electronic Process Introduced for H-2A Program

On May 9, 2016, the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) “announced the launch of USCIS/DOS e-Approval for Form I-129, Petition for a Nonimmigrant Worker, for the H-2A (temporary agricultural worker) classification.” Accordingly, with the new electronic process USCIS will have the ability “to send approval information for H-2A petitions to DOS by the end of the next business day.” Additionally, “DOS will accept this electronic information in place of a Form I-797 approval notice and allow its consular posts to proceed with processing an H-2A nonimmigrant visa application, including conducting any required interview.” 

Labeling: Case to Compel GMO Crop Documents Transferred to Vermont

On May 13, 2016, the U.S. District Court for the District of Delaware granted a motion by Vermont officials to transfer the case In re: Grocery Manufacturers et al. to the U.S. District Court of the District of Vermont (1:16-mc-00113). The case in question was an action brought by Vermont officials to compel Syngenta Corporation (Syngenta) to produce the results of any Syngenta performed studies or research that relate to the potential health or environmental effects of Syngenta’s genetically engineered crops and the effects of the herbicides and pesticides used to on those crops.  According the Motion to Compel, the documents in question “are relevant to the claims and defenses raised by the parties in Grocery Manufacturers Ass’n v. Sorrell, No. 5:14-cv-117 (D. Vt.).      

GMOs: Report Finds no Evidence that GE Crops Harmful to Human Health

On May 17, 2016, the National Academies of Sciences, Engineering, and Medicine issued a press release announcing the release of a study regarding the effects of genetically engineered (GE) crops.  According to the press release “the study committee found no substantiated evidence of a difference in risks to human health between current commercially available genetically engineered (GE) crops and conventionally bred crops, nor did it find conclusive cause-and-effect evidence of environmental problems from the GE crops.” The press release did state, however, that “evolved resistance to current GE characteristics in crops is a major agricultural problem.”

Pesticides: UN Panel of Experts Determines Humans Unlikely to be harmed by Glyphosate

On May 16, 2016, a summary report was issued after a joint meeting of the Food and Agriculture Organization of the United Nations (FAO) Panel of Experts on Pesticide Residues in Food and the Environment and the World Health Organization (WHO) Core Assessment Group on Pesticide Residues.  According to the report, the joint meeting resulted in the panel of experts determining that the pesticide “glyphosate is unlikely to pose a carcinogenic risk to humans from exposure through the diet.” Additionally, the panel of experts determined that the pesticides diazinon and malathion were also unlikely to be carcinogenic and were “unlikely to pose a carcinogenic risk to humans from exposure through the diet.”

Agricultural Law Weekly Review: February 19, 2016

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:

GE Crops: APHIS Publishes Notice of Intent to Deregulate Monsanto GE Maize 

On February 17, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register regarding Monsanto Co.’s request to deregulate genetically engineered (GE) maize designated as event MON 87419.  According to the published notice, “APHIS has determined that maize designated as event MON 87419 is unlikely to pose a plant pest risk” and as a result, APHIS has made “a preliminary determination of nonregulated status of maize designated as event MON 87419.” Comments on the published notice will be received for 30 days from the date of publishing in the Federal Register. 

Raw Milk:  FDA Announces Reevaluation of Testing of Raw Milk Cheese 

On February 8, 2016, the United States Food and Drug Administration (FDA) issued a press release announcing that FDA will reevaluate the testing of raw milk cheese for non-toxigenic E. coli.  The press release stated that FDA was responding to concerns raised by cheese makers “suggesting that the FDA is applying safety criteria that may, in effect, limit the production of raw milk cheese without demonstrably benefiting public health.” According to the press release, FDA “will continue to inspect cheese-making facilities and test for pathogens in domestic and imported cheese but, in the meantime, FDA is in the process of pausing its testing program for non-toxigenic E. coli in cheese.”

Labeling: Court Affirms Federal Authority over Meat and Poultry Labeling 

On February 12, 2016, the United States Court of Appeals for the Ninth Circuit affirmed a lower court ruling that California was barred from “enforcement of California’s statutory prohibition against nonfunctional slack fill (i.e., empty space between a product and its packaging that serves none of a list of specified purposes)…as applied to meat and poultry products” (Case No. 13-16893).  The Court held that “California’s nonfunctional slack fill provisions…are expressly preempted by the Federal Meat Inspection Act (“FMIA”) and the Poultry Products Inspection Act (“PPIA”)” and that “Congress intended to allow meat and poultry packaging to be subject to less specific regulation than other types of product packaging.”

Labor: Class Action Brought Against Meat Processor over Employment of Illegal Workers 

On February 16, 2016, a class action lawsuit was filed in the United States District Court for the Northern District of India on behalf of hourly-paid production workers at the Indiana Packers Company’s (IPC) meat processing facility (Case No. 4:16-cv-00015-JD-JEM).  The class action lawsuit was brought pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO) and alleged that IPC engaged in “a scheme to employ vast numbers of illegal immigrants at the plant [in an effort] to depress wages.” According to the filed complaint, IPC carried out its “scheme” by knowingly hiring illegal workers and making false attestations on I-9 Forms that the illegal workers were authorized for employment in the United States.

SNAP: USDA Proposes Rule to Require Healthier Choices 

On February 17, 2016, the United States Department of Agriculture (USDA) published a proposed rule in the Federal Register “to make changes to the Supplemental Nutrition Assistance Program (SNAP) regulations pertaining to the eligibility of SNAP retail food stores.”  According to the proposed rule, SNAP-authorized retailer food stores will be required to stock a wide variety of healthy foods so that SNAP program recipients will be provided with increased access to healthy food options.  Comments on the proposed rule will be received for 60 days from the date of publishing in the Federal Register.

Case Law Update: Court Approves Settlement of Lawsuit Challenging Oregon County’s GMO Ban

Written by M. Sean High – Staff Attorney

On December 22, 2015, Capital Press announced that U.S. Magistrate Judge Mark Clarke had approved a legal settlement reached between Oregon’s Jackson County and the owners of two alfalfa farms located in within the county.  The lawsuit in question involved the farmers’ challenge to Jackson County’s ban on genetically engineered (GMO) crops. 

In 2013, the Oregon legislature approved S.B. 863 which prohibited counties from banning GMO crops.  Included in S.B. 863 was a provision that exempted counties where proposed initiative petitions banning GMO crops had already qualified for placement on the 2014 ballot.  Jackson County’s measure 15-119 met this exemption, and in May 2014, county residents passed into law a ban on GMO crops.

Accordingly, Jackson County alfalfa farmers Bruce Schulz, and James and Marilyn Frink filed suit, alleging that the GMO ban was: 1) a violation of Oregon’s right to farm law; 2) would cause their operations financial hardship; and 3) the removal of existing GMO plants would in result in $4.2 million in damages.  While Judge Clarke dismissed the first two arguments involving Oregon right to farm law and financial hardship, at the time of settlement, the claim involving the $4.2 million in damages was still up for consideration.

As per the approved settlement, the alfalfa farmers agreed not to appeal a previous court ruling upholding the ban; to stop seeking the $4.2 million in damages; to not plant any more GMO alfalfa; to harvest all GMO alfalfa before it reaches 10% bloom (so as to reduce the chance of cross- pollination); and to remove all GMO alfalfa within eight years.  Additionally, the alfalfa farmers agreed to submit “field data to attorneys representing biotech critics” under an “attorneys eyes only” protective order.

In exchange, Jackson County agreed to allow the alfalfa farmers up to eight years (the normal lifespan of the perennial alfalfa) to harvest those GMO crops that have already been planted.  Significantly, other Jackson County GMO alfalfa growers “can ‘opt in’ to the settlement by submitting sworn documents identifying where their crops are grown, either with satellite data or geographic information, within 30 days of the deal’s approval.”

USDA Requires Permitting of Genetically Engineered Wheat

Written by M. Sean High – Staff Attorney

On December 11, 2015, the United States Department of Agriculture Animal and Plant Health Inspection Service (USDA-APHIS) announced that beginning January 1, 2016, all field trials of regulated genetically engineered (GE) wheat must be conducted under USDA’s permitting process.  Prior to the announcement, field trials of GE wheat had been conducted under USDA’s less stringent notification process.  USDA-APHIS stated that “recent unauthorized releases of GE wheat and findings have led USDA-APHIS to the conclusion that U.S. agriculture would benefit from the increased oversight provided by the Permit process.”

Accordingto USDA-APHIS, during 2013-2014, two separate incidents of unauthorized GE wheat were discovered in Oregon and Montana.  The Oregon GE wheat field trial had never been authorized at the discovered site and authorization for the discovered Montana GE wheat field trial site had expired 10 years prior.  USDA-APHIS voiced concern that these detections “had great potential to disrupt wheat markets globally” and that some U.S. trading partners have imposed “risk mitigation measures to imports of U.S. wheat in response to [the Oregon] incident.”

USDA-APHIS stated that “[u]sing permits for field trials of GE wheat provides an additional level of safeguarding based on, and consistent with the technology of wheat.” Furthermore, the agency exclaimed that “[b]ringing GE wheat under permit enables APHIS to create and enforce permit conditions that minimize the likelihood that the regulated GE wheat will spread or persist in the environment.” Importantly, USDA-APHIS noted that through the more stringent permitting process, international trading partners will be reassured “that the U.S. is committed to being the world’s reliable supplier of grain.”   

European Commission to Rule on GM Status of New Breeding Techniques

Written by Tyler R. Etter

On October 22, 2015, the European Commission held a discussion on new techniques of crop breeding
that do not utilize the genes of different species unlike current genetic modification (GM). The delegates
agreed that clarification is needed on the legal framework of these techniques. Proponents aim for the
techniques to fall outside of GM classification, to further encourage and facilitate agricultural research
and innovation in Europe.

The discussed techniques included cisgenesis, intragenesis, and grafting. Cisgenesis has been deemed to
be closer to conventional breeding by the European Food Safety Authority. However, the European
Union (EU) currently holds the technique under the scope of existing legislation on GM.

The German delegation raised concerns about the potential effects of the interpretation of the EU GM
laws, spanning across concerns for research, development and production of medicines and vaccines,
competitive ability, the adoption of new techniques, and trade. Germany highlighted the potential need
for new systems to detect such modifications, and the need for health assessments on the safety of the
created products.

In response, Health and Consumers Commissioner Vytenis Andriukatis stated that an assessment is
underway, and is anticipated to conclude by the end of 2015.

EU Member States Continue to Opt-Out of GMO Cultivation

Written by Tyler R. Etter

Luxembourg, Malta, and Slovenia are the most recent EU members to state their intentions to ban the cultivation of GMO crops within their territory. This brings the total to 19 member states that plan to exercise the option.

The so-called “option 1” allows for a member state to tell the European Commission to have a company exclude that member nation or region from the scope of authorization for the specified crops. The company has the right to refuse, but then a member state may then decide to exercise “option 2”, which would be a wider ban on GMO cultivation. So far, only one maize product, MON810, has approval in the EU, but there are 9 new varieties in the pipeline.

EuropaBio has called the recent bans a “stop sign for agricultural innovation.” The biotech group believes that it limits the freedoms of European farmers to choose the technology and products they will employ on their farms. The group says that “this run[s] counter to the idea of a common European market.”

Although there are NGOs welcoming the news of the ban, Bart Staes, a spokesperson for the European Parliament’s Greens group, warned of concerns of the authorizations. He stated that the legal framework is not water-tight, and that member states that opt-out of cultivation may face challenges by biotech companies. 

Local Oregon GMO Ban Faces Legal Challenge

Written by Tyler R. Etter

On September 4, 2015, two local farmers in Oregon’s Josephine County filed a lawsuit to overturn a local ban on the cultivation of genetically modified (GM) crops. The ban was to be enforced beginning on September 5, but officials decided to delay enforcement while the lawsuit is pending.

The ban was originally approved in May of 2014. Farmers would be required to self-report if they were growing GM crops, and then submit a phase-out plan. Robert and Shelley Ann White, the farmers challenging the law, had devoted part of their farm to growing GM crops before the ordinance was passed. They claim that the law poses an immediate threat and irreparable injury due to the ban. They reportedly leased the land specifically to grow GM crops, such as sugar beets, for seed.

The basis of the legal challenges rests on the assertion that the ban is in direct violation of state law. Legislation was approved in October of 2013 that forbade local governments from imposing additional laws or regulations that would regulate farm practices, include GM bans. Only one county was given exemption, Jackson County. The Jackson County ban is also facing an ongoing legal challenge. The presiding judge found the ban wasn't preempted by state law, but has yet to decide if the farmer is entitled to damages for the ban's enactment.

Two More EU Member States Opt Out of GMO Cultivation

Written by Tyler R. Etter

On August 28, 2015, both Latvia and Greece made clear their intentions to utilize the European Union (EU) member state option to opt-out of the approval of the cultivation GMO crops. The two member states are the first to officially petition for the exercise of the option, but both Germany and Scotland have signaled their intentions to exercise the option.

Currently, there is only one GMO product approved for cultivation in the EU, the Monsanto corn product M810. The EU member state opt-out allows for individual member states to decide if the state will continue to allow the cultivation of an approved GMO product, or any future products that are pending approval.

In a statement about the opt-outs of these nations, Monsanto said that the opt-outs will not harm business, as genetic modification in Europe is only a small part of the operation. Further commenting, the company stated “Nevertheless, we regret that some countries are deviating from a science-based approach...” commenting on the continued concerns about the safety of M810, in what Monsanto claims “contradicts and undermines the scientific consensus...”

Following the announcement, environmental campaigners have taken to calling on additional nations to follow in the way of Latvia and Greece. Despite the wide use of GM products in the Americas and Asia, the European market shows continued fierce opposition to the use of these products.