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—April 14, 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:

Animal Welfare: USDA Proposes Rule Amending Organic Livestock and Poultry Production Requirements

On April 13, 2016, the United States Department of Agriculture’s Agricultural Marketing Service published a proposed rule in the Federal Register that would amend the organic livestock and poultry production requirements (81 FR 21955).  According to the proposed rule, the proposal would “add new provisions for livestock handling and transport for slaughter and avian living conditions; and expand and clarify existing requirements covering livestock health care practices and mammalian living conditions.” The comment period for the proposed rule closes June 13, 2016.

Pipelines: Proposed Rule on Safety of Transmission and Gathering Lines Published

On April 8, 2016, the United States Department of Transportation Pipeline and Hazardous Materials Safety Administration published notice of a proposed rule in the Federal Register “to revise the Pipeline Safety Regulations applicable to the safety of onshore gas transmission and gathering pipelines” (81 FR 20721).  According to the proposed rule, the proposal is intended to provide “additional safety measures to increase the level of safety for those pipelines that are not in HCAs [High Consequence Areas] as well as clarifications and selected enhancements to integrity management requirements to improve safety in HCAs.” The comment period for the proposed rule closes June 7, 2016.

Animal Classification: USDA Amends Definition of “Roaster” Chickens

On April 13, 2016, the United States Department of Agriculture Food Safety and Inspection Service published notice in the Federal Register of a final rule “amending the definition and standard of identity for the ‘roaster’ or ‘roasting chicken’ poultry class to better reflect the characteristics of ‘roaster’ chickens in the market today” (81 FR 21706). According to the final rule, because “[g]enetic changes and management techniques have continued to reduce the grow-out period and increased the RTC [ready-to-cook] weight for this poultry class,” the new definition of roaster “remove[s] the 8-week minimum age criterion and increase[s] the RTC carcass weight from 5 pounds to 5.5 pounds.” The effective date for the final rule is January 1, 2018. 

Industrial Hemp: Legislation Moves to Senate Committee

On April 12, 2016, Pennsylvania House Bill 967 (HB 967), legislation that would legalize the growth and cultivation of industrial hemp for research purposes, was referred to the Pennsylvania Senate’s Agricultural and Rural Affairs Committee. The action comes as a result of the recent unanimous vote by the Pennsylvania House of Representatives to pass HB 967 (see previous Penn State Agricultural Law Blog article).

Food Safety: USDA Proposes Permitting Honduran Poultry into the U.S.

On April 13, 2016, the United States Department of Agriculture Food Safety and Inspection Service (FSIS) published notice in the Federal Register of a proposed rule for the inclusion of Honduras on the list of countries eligible to export poultry products into the United States (81 FR21758).  According to the proposed rule, “FSIS review of Honduras' laws, regulations, and inspection system demonstrated that its poultry slaughter inspection system is equivalent to the system FSIS has established under the Poultry Products Inspection Act (PPIA) and its implementing regulations.” The comment period for the proposed rule closes June 13, 2016.

Animal Slaughter: Vermont Senate Committee Discusses On-Farm Slaughter Bill

On April 12, 2016, the Vermont Senate Committee on Agriculture held discussion regarding Vermont House Bill 860 (H.860); legislation that would extend an exemption authorizing on-farm animal slaughter activities through July 1, 2019.  The action came as a result of a March 17, 2016 vote by the Vermont House of Representatives to pass H.860.  Currently, Vermont’s law providing exemption for on-farm animal slaughter is scheduled to expire on July 1, 2016.

SNAP: Information Collection Request Approved

On April 8, 2016, the United States Department of Agriculture Food and Nutrition Service published notice in the Federal Register of approval of a Supplemental Nutrition Assistance Program (SNAP) Final Rule Information Collection Request (ICR) (81 FR 20524). The ICR approval was published in connection to a final rule, published on January 19, 2016, amending SNAP operations, reporting, reviews, definitions, and coupons (81 FR2725).    

Agricultural Law Weekly Review – February 26, 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: Judge Orders Arrest of Anyone Interfering with Cutting of Trees for Pipeline

On February 22, 2016, United States District Court Middle District of Pennsylvania Judge Malachy E. Mannion issued an order in favor of Constitution Pipeline Company’s (Constitution) clearing of trees for a natural gas pipeline (Case No.3:14-cv-02458-MEM).  According to the court, previous protestors had interfered and prevented Constitution from safely cutting trees for the construction of a pipeline.  In response, Judge Mannion ordered the arrest of any unauthorized individual on the property in question “that interferes with Constitution’s tree felling operation by being within 150 feet of a tree being cut down.” For more information on this topic, please see previous Penn State Agricultural Law Blog article.   

Crop Insurance: Safety-Net Extended to Farmers Transitioning to Certified Organic

On February 18, 2016, the United States Department of Agriculture (USDA) issued a press release announcing that the department was expanding crop insurance to allow farmers transitioning to certified organic production the ability to insure certain transitional organic crops at the contract price.  USDA’s intent is to allow farmers transitioning to certified organic production the ability “to purchase insurance coverage that better reflects their products actual value.”  For more information on this topic, please see previous Penn State Agricultural Law Blog article.

GMO Labeling: Senate Ag Committee Takes-Up Draft Bill for Voluntary GMO Labeling

On February 19, 2016, U.S. Senator Pat Roberts, R-Kan., Chairman of the Senate Committee on Agriculture, Nutrition and Forestry (the Committee), issued a press release stating that “the Committee will hold a business meeting on Feb. 25 to consider the Chairman’s Mark on Biotechnology Labeling Solutions.  Officially titled, “To amend the Agricultural Marketing Act of 1946 to require the Secretary of Agriculture to establish a national voluntary labeling standard for bioengineered foods, and for other purposes,” the draft bill would pre-empt state laws regarding the labeling of Genetically Modified Organisms (GMOs).  On February 24, 2016, the Committee issued a press release stating that the business meeting to consider the draft bill had been postponed until the following week (beginning February 29, 2016).

HPAI: Indiana Lifts Poultry Control Area Restrictions

On February 22, 2016, the Indiana State Board of Health issued a press release announcing that “[t]he 6.2-mile (10 km) control area associated with the highly pathogenic avian influenza (HPAI) incident in Dubois County, Ind. was lifted today by the Indiana State Veterinarian.” According to the press release, because all farms in the control area had “consistently tested negative [for HPAI] throughout the 38-day period” established by United States Department of Agriculture guidelines, “[p]oultry owners, commercial and residential, in the area may now resume normal operations and movements of birds and poultry products.”

WOTUS: Sixth Circuit Declares Jurisdiction to Hear WOTUS Challenge  

On February 22, 2016, the United States Court of Appeals for the Sixth Circuit held that it had jurisdiction to hear the multi-circuit case, In re: U.S. Dep’t of Defense & U.S. Envtl. Protection Agency Final Rule:Clean Water Rule, which consists of twenty two “consolidated petitions challenging the validity of the ‘Clean Water Rule’ recently published by the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency.” As a result of the decision, the case in question will proceed in the United States Court of Appeals for the Sixth Circuit.  For more information on this topic, please see previous Penn State Agricultural Law Blog WOTUS articles.

Pipeline Update: Maple Syrup versus Eminent Domain

Written by Stephen Kenney - Research Assistant

On March 17, 2015, the District Court of the Middle District of Pennsylvania granted Constitution Pipeline Company, LLC, (Constitution) a “right of immediate entry and access to easements” for its pipeline project on a property in New Milford Township, Susquehanna County, Pennsylvania in an eminent domain hearing.  The Holleran-Zeffer maple grove is located on the disputed property.

After the Order, protests to the pipeline occurred on the property.  The goal of the protests was to save the maple grove.  Constitution made a motion to reopen the case on February 12, 2016, by filing an Emergency Motion to Enforce Order.  The motion requested that the court enjoin the defendant protestors from denying Constitution “immediate entry and access to the property or otherwise interfering with the tree felling.”  Constitution also requested that the court authorize the Pennsylvania State Police to enforce the easement granted to Constitution.  On February 16, 2016, the court issued a Show Cause Order for the defendants to show cause as to why they should not be held in contempt of the March 17^th order. 

The court conducted a hearing ,Constitution Pipeline, LLC v. Zeffer et al, 3:14-cv-02458-MEM, on February 19, 2016, to give the defendants an opportunity to show cause.  Constitution was required to prove by clear and convincing evidence that there was: (1) existence of a valid court order; (2) knowledge of the order; and (3) disobedience of the order.  There was no dispute over the first two elements.  The court found insufficient evidence that any defendant had disobeyed the court order.  Hence, Constitution’s motion for contempt was denied.

However, the court did find that there was interference with the Order.  The court found evidence that a group of people had prevented safe tree felling on the property in February 2016.  The court found that the interference required enforcement of the Order.  Subsequently, the court authorized the U.S. Marshals Service or “a law enforcement agency it (U.S. Marshals Service) designates” to enforce the Order.

Trees in the area may only be cut between November 1^st and March 31^st because of Federal Wildlife rules.  The rules exist to protect migratory birds and the endangered long eared bat.