Agricultural Law Weekly Review - October 4, 2018

Written by:

Deanna Smith - Research Assistant

Jackie Schweichler - Education Programs Coordinator

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

International Trade: United States-Mexico-Canada Agreement replaces NAFTA

On September 30, 2018, the United States and Canada came to an agreement to replace the North American Free Trade Agreement (NAFTA) with the United States-Mexico-Canada Agreement.  The new agreement, which Mexico agreed to in August of this year, includes greater access to Canada’s milk market, provisions on rules of origin of automotive goods, and provisions on digital trade and intellectual property.  USMCA will utilize the same dispute resolution system as was used under NAFTA.  In a Joint Statement from United States Trade Representative Robert Lighthizer and Canadian Foreign Affairs Minister Chrystia Freeland, both the U.S. and Canada claim the agreement “will strengthen the middle class, and create good, well-paying jobs and new opportunities for the nearly half billion people who call North America home.”  The agreement will come into effect after it is approved by the U.S. Congress as well as legislatures in Canada and Mexico.  For more information, the Office of the U.S. Trade Representative has published several fact sheets on the USMCA agreement.

Right to Farm: Pennsylvania Supreme Court Denies Appeal of Neighbors in Hog Farm Nuisance Lawsuit

On September 18, 2018, the Supreme Court of Pennsylvania denied a Petition for Allowance of Appeal filed by landowners involved in a lawsuit against owners of a concentrated animal feeding operation (Burlingame v. Dagostin, No. 296 MAL 2018).  Will-O-Bett Farm originally operated as a dairy farm, then as a beef farm, and eventually was converted to a swine operation in 2011.  A few years later, the farm began spreading liquid swine manure on its fields, and several neighboring landowners filed suit against the farm alleging that the resulting odor constituted a nuisance.  Will-O-Bett Farm filed for summary judgment, arguing that it was protected from suit under Pennsylvania’s Right to Farm Act (RTFA) (3 P.S. §§ 951-957).  The trial court agreed, finding that the farm’s application of liquid swine manure had been addressed in an approved nutrient management plan.  The Pennsylvania Superior Court affirmed the trial court’s order, and now the Pennsylvania Supreme Court has declined further appeal.

Invasive Species:  APHIS Proposes Removal of Emerald Ash Borer Quarantine Regulations

On September 19, 2018, the Animal and Plant Health Inspection Service (APHIS)  published a proposed rule to remove the domestic quarantine regulations on the Emerald Ash Borer.  The proposed rule is entitled Removal of Emerald Ash Borer Domestic Quarantine Regulations and will effectively end all regulatory activities, including but not limited to, issuing permits, conducting site reviews, and coordinating investigations.  The remaining resources will be directed towards the management and ultimate containment of the pest.  The Emerald Ash Borer is a green wood-boring beetle native to northeast-Asia that causes destruction to ash trees. They were discovered in the U.S. in 2002 and the quarantine regulations were first imposed in 2003.

Pesticides: FDA Releases Report on Pesticide Residue for FY 2016

On October 1, 2018, the Food and Drug Administration (FDA) released the Pesticide Residue Monitoring Program Fiscal Year 2016 Pesticide Report.  FDA is responsible for establishing “tolerances” on the amount of chemical pesticide residue that is safe for human consumption.  In FY 2016, FDA found that over 99% of domestic and 90% of imported human foods were compliant.  In addition, in 52.9% of domestic and 50.7% of imported foods, FDA found no chemical residue.  FDA also inspected corn, soybean, milk, and egg samples for glyphosate, glufosinate, and other herbicides.  FDA found no samples with violative levels, but found trace amounts of glyphosate in 63.1% of corn samples and 67% of soybean samples.

From National Ag Law Experts:

Ag & Food Law Update, The National Agricultural Law Center (October 2, 2018)

Tiffany Dowell Lashmet, Texas Appellate Court Analyzes Fence Law Cases (Part I), Texas A&M AgriLife Extension (September 28, 2018).

Ben Lilliston, Washington State's Proposed Carbon Fee: What It Could Mean for Agriculture, Institute for Agriculture & Trade Policy (October 3, 2018).

Paul Goeringer, Maryland Court Upholds the 2014 CAFO Permit for Complying with EPA’s Requirements, Maryland Risk Management Education Blog (October 2, 2018).

Pennsylvania Legislation

Senate Resolution 421: Reported as committed (October 2, 2018) resolution urges U.S. Congress to remove industrial hemp from Schedule 1 Controlled Substance List

Senate Resolution 418: Reported as committed (October 2, 2018) urges Congress to include milk in its Senior Farmers’ Market Nutrition Program

SB 1171: laid on the table (October 1, 2018) will create Farm Animal Advisory Board to give animal farmers greater input into environmental regulations

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

"US and Canada dairy opinions differ on new trade deal" - Dairy Reporter

"Trump Just Ripped Up Nafta. Here’s What’s in the New Deal" - NY Times

"NYS hosts meeting on dairy industry issues" - Morning Ag Clips

"FDA ups ante in plant ‘milk’ debate: ‘We’re on a fast track to take a fresh look at labeling'" - Dairy Reporter

"Time To Get Rid Of 'Non-GMO' Argues 'Biotech-Backed' Group" - Forbes

"'Cell-based meat’ not the most consumer-friendly term, reveals GFI consumer research" - Food Navigator

"Supporting family farmers is key to rural prosperity"  - Morning Ag Clips

"Food Loss and Waste--New CAST Issue Paper" - CAST

"Efforts to reduce 'dead zone' should focus on Lower Mississippi, ERS says" - AgriPulse

"USDA to revisit GIPSA rules in 2019" - Politico

"UK pledges to halve food waste by 2030" - Food Navigator

Stay Informed:

Listen to our weekly Agricultural Law Podcast

Read our monthly Agricultural Law Brief newsletter     

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

Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities

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

Agricultural Law Weekly Review - July 5, 2018

Written by:

Jackie Schweichler - Education Programs Coordinator

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

Farm Bill: U.S. Senate Agrees to Latest Amendments in 2018 Farm Bill

On June 28, 2018, the U.S. Senate voted to pass its latest version of the 2018 Farm Bill with a vote of 86 to 11. Earlier, on June 21, 2018, the House of Representatives passed H.R.2, and the latest Senate action substantially amended H.R.2, including changing the name of the bill from the Agriculture and Nutrition Act of 2018 to the Agriculture Improvement Act of 2018.  Before the bill can go to a final vote, Congress must go conference to resolve legislative differences between the House and Senate versions of the bill. The 2018 Farm Bill provides updates and changes to Department of Agriculture programs including those in conservation, nutrition assistance, farm credit, rural development, crop insurance, and more.

Biofuels: EPA Releases Proposed Volume Requirements for Renewable Fuels

On June 26, 2018, the U.S. Environmental Protection Agency (EPA) released proposed volume requirements for the Renewable Fuel Standard Program. The EPA sets renewable fuel percentage standards each year for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel as applied to gasoline and diesel transportation fuel. Part of the proposed volume requirements would increase the 2019 renewable fuel blending mandate to 19.88 billion gallons, an increase of 3 percent from 2018. EPA also plans to increase advanced biofuel requirements to 4.88 billion gallons and cellulosic biofuel to 381 million gallons. EPA will hold a public hearing for the proposed rule on July 18th and will accept public comment until August 17, 2018.

Right to Farm Laws: North Carolina Legislature Overrides Governor Veto to Approve Changes to Right to Farm Law

On June 27, 2018, the North Carolina House voted to override the governor’s veto of SB 711 which, now passed, will provide protections to farmers against nuisance lawsuits. The governor vetoed the bill on June 25th and the Senate voted to override the veto on June 26th. SB 711 adds language to the North Carolina Farm Act of 2018 to shield farmers who are operating in good faith from nuisance lawsuits that are filed after the operation has been established. The changes to the law include a requirement that counties must have land records that provide notice where a tract of land is located within half a mile from a poultry, swine, or dairy operation. The law prohibits any nuisance action from being filed against an agricultural operation unless the plaintiff’s property is directly affected, the affected property is within a one-half mile of the operation, AND the action is filed within one year of the establishment of the operation or within one year of the operation undergoing a fundamental change.

Antimicrobial Use: FDA Releases Guidance on Antimicrobial Animal Drug Sale Rule

On June 28, 2018, the U.S. Food & Drug Administration (FDA) released a new guidance document regarding antimicrobial animal drug sales for small business entities. The guidance document, Antimicrobial Animal Drug Sales and Distribution Reporting Small Entity Compliance Guide, is intended to help small businesses understand and comply with “reporting regulations for antimicrobial animal drug sales and distribution information.” The guidance document was prepared following the 2016 publication of the final rule, Antimicrobial Animal Drug Sales and Distribution. The rule requires that sponsors of approved antimicrobial animal drug products must submit an annual report on the amount that is sold or distributed for use.

Right to Farm Laws: Court Awards $25 Million in Second Nuisance Lawsuit Against Hog Operation

On June 29, 2018, the U.S. District Court for the Eastern District of North Carolina awarded $25 million to plaintiffs in a nuisance lawsuit filed against Smithfield Foods, according to NewsObserver (McGowan v. Murphy-Brown, LLC, No. 7:14-CV-182-BR). The plaintiffs are neighboring landowners who complained of flies, stench, rumbling trucks and other problems associated with living next to a hog farm. This is the second in a series of recent lawsuits filed against Smithfield Foods, the world’s largest pork processor and hog producer. In April, a jury awarded $50 million in damages to ten neighbors of another Smithfield hog operation (McKiver et al v. Murphy-Brown, LLC, 7:2014cv00180). The damages award in the first case has since been reduced to $3.25 million due to North Carolina’s statutory cap on punitive damages.

From National Ag Law Experts:

Institute for Agriculture & Trade Policy, Uprooted Episode 38: Chatting with the IATP Board (June 27, 2018)

Tiffany Dowell Lashmet, James v. Young: Are Landowners Liable for Horse Riding Injury to Child?, Texas Agriculture Law (July 2, 2018)

Pennsylvania Notices

Applications for Pollutant Discharge Elimination System Permits and Water Quality Management Permits, Department of Environmental Protection (June 30, 2018)

Environmental Quality Board Meeting Cancellation, the Board meeting for July 17th is cancelled; the next regular meeting will be August 21, 2018 (June 30, 2018)

Pennsylvania Legislation

HB 2121 Commonwealth Budget 2018-2019 (signed by Governor, June 22, 2018)

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

"Brexit could hurt dairy in UK and Europe, EDA and Dairy UK say"  - Dairy Reporter

“Ag Labor VISA Provisions Stripped from Latest House Immigration Bill” - Brownfield

"Study shows most consumers fail at food safety"  - Morning Ag Clips

"Suspected Mid-South dicamba drift cases picking up" - Farm Press

"Does GMO Labeling Actually Increase Support for GMOs?" - The Atlantic

"Constraints, opportunities for Pa.’s dairy industry"  - Morning Ag Clips

"Britain’s FSA talks about Brexit challenges in annual report and accounts for 2017-18" - Food Safety News

"Industry responds to recent verdict against Smithfield"  - Meat + Poultry

"Quebec Says Canada Should Rethink Milk Pricing to Appease U.S." - Bloomberg Business

Stay Informed:

Listen to our weekly Agricultural Law Podcast

Read our monthly Agricultural Law Brief newsletter     

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

Connect with us on Facebook to view our weekly CASL Ledger detailing Center publications and activities

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

Case Law Update: PA Supreme Court Rules in Favor of Biosolid Land Application

Written by M. Sean High – Staff Attorney

On December 21, 2015, the Supreme Court of Pennsylvania held that: 1) the Pennsylvania Right to Farm Act (RTFA) contains a one-year statute of repose barring nuisance suits, and application of the one-year statute of repose is a question of law for courts to decide; and 2) the land application of biosolids as fertilizer meets RTFA’s definition of a “normal agricultural operation.” (Gilbert v. Synagro Central, LLC, No. 121 MAP 2014).

According to the Court, RTFA’s one-year bar regarding nuisance suits operates as a statute of repose (which is a time limit on when an action may be brought that is not related to when an injury actually happened, as opposed to a statute of limitation which is a time limit on when an action may be brought based on when an injury actually happened or was discovered), and “that, generally, statutes of repose are jurisdictional and their scope is a question of law for courts to determine.” As a result, the Court proclaimed that “[h]aving courts [as opposed to juries] apply RTFA’s definitions achieves the meaningful degree of legal certainty, uniformity, and consistency that the RTFA was intended to provide to farms.”

In deciding that the land application of biosolids meets RTFA’s definition of “normal agricultural operation,” the Court stated that the legislative policy of RTFA is to protect Pennsylvania agriculture and that this purpose is best achieved by broadly interpreting a “normal agricultural operation” so as to take “into account new developments in the farming industry,” which includes the land application of biosolids as fertilizer.  The Court further reasoned that “[t]he statistics and facts relating to the history of biosolids land-use also support the conclusion the use of biosolids as fertilizer is a 'normal agricultural operation.’”

Finally, the Court asserted that when deciding what qualifies as a RTFA “normal agricultural operation,” the focus should be placed on the “practice in general, not on whether the defendant in [a] particular instance conducted the practice with accepted industry standards and regulations.” Chief Justice Saylor disagreed with this assertion, and as a result, filed a concurring opinion stating that while he agreed with the majority in the present case, “if the manner in which a farming practice is carried out deviates substantially from the norm and has unusual adverse effects upon neighboring properties, at some point that particular method of implementing the practice should be viewed as a distinct practice whose agricultural normalcy should be independently evaluated.” 

Court Rules on Preliminary Objections in Luzerne County CAFO Case

Written by M. Sean High

On October 29, 2015, in the Court of Common Pleas of Luzerne County Pennsylvania, a ruling was rendered regarding Country View Family Farms, LLC’s preliminary objections in a Concentrated Animal Feeding Operation (CAFO) case involving a Salem Township pig farm.

The legal action in question originated from an April 27, 2015 complaint filed by multiple Salem Township residents seeking relief from the operation of a neighboring CAFO.  In their complaint, 90 individual plaintiffs collectively stated that “foul-smelling odors particulate matter, harmful chemical compounds, pathogens, other hazardous substances, and in some cases flies, generated at Defendants’ CAFO and the spreading of swine manure and urine, have intermittently and frequently escaped and continue to escape form Defendants’ CAFO  and the spreading fields and invade Plaintiffs’ properties, and thus have and continue to substantially impaired Plaintiffs’ use and quiet enjoyment of their properties, and caused substantial annoyance, inconvenience and discomfort and property devaluation.”

Defendant Country View Family Farms, LLC countered Plaintiffs’ allegations by filing seven preliminary objections to the complaint.  According to Defendant’s brief in support of the preliminary objections: 1) Plaintiffs’ nuisance claim (both public and private) was legally and factually insufficient; 2) allegations concerning harm to nearby schools, a hospital, a retirement village and Thompson’s Run Creek should be stricken; 3) allegations concerning potential violation of a Salem Township zoning ordinance should be stricken; 4) Plaintiffs’ trespass claim was legally and factually insufficient; 5) Plaintiffs’ potential claim for negligence was improperly pleaded and legally insufficient; 6) demand for punitive damages should be stricken; and 7) the demand for diminution in value damages should be stricken.

With only one partial exception, the Court of Common Pleas of Luzerne County agreed with Country View Family Farms, LLC and ruled in favor of all seven of Defendant’s preliminary objections.  The lone exception concerned Country View Family Farms, LLC’s preliminary objection to Plaintiffs’ nuisance claim. Specifically, though the Court agreed with Country View Family Farms, LLC that Plaintiffs “public nuisance” claim should be stricken, the Court also ruled that Plaintiffs’ claim of “private nuisance” could proceed with the added requirement that within 45 days of the Order, Plaintiffs must submit an amended complaint “delineat[ing] with the requisite specificity the alleged injury” suffered by each one of the 90 individual plaintiffs. 

Illinois Appellate Court Finds Livestock Odors Are Not Traditional Environmental Pollution for Purposes of Insurance Coverage

On November 13, 2013, the Appellate Court of Illinois for the Fourth District held that odor allegedly generated by Hilltop View LLC’s swine facility did not constitute “traditional environmental pollution” as defined by Country Mutual Life Insurance in its policies at issue in the lawsuit.  Traditional environmental pollution is excluded from Country Mutual’s coverage because Country Mutual has an “absolute pollution exclusion” policy. Since livestock odors are not traditional environmental pollution, Country Mutual will not be able to deny coverage to its policy holders for lawsuits involving this type of odor nuisance. The court also held, however, that Country Mutual does not have to defend Hilltop in an odor nuisance claim because Country Mutual still has other potential coverage defenses that are pending in a declaratory judgment.

For the court’s opinion please see the Illinois Court’s website.

Written by Sarah L. Doyle - Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

November 21, 2013