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With 2017 coming to an end, I want to take a minute to look back at many of the top legal developments impacting Maryland agriculture in the year. Many of these legal developments may seem like repeats from my 2016 update; click here to see (http://bit.ly/2ixC9s2). With those repeated issues, in many cases we have seen resolutions, and we will probably continue to see litigation further develop with a few issues in 2018. Moving into 2018, we will probably see new issues develop as a new Farm Bill debate and cycle potentially begins. If you have not already signed up for updates, see the bottom of this post or any post on this site to get email updates sent to you as new content is available.
Emissions Reporting Under CERCLA
In April, the Court of Appeals for the District of Columbia ended an exemption created by the Environmental Protection Agency (EPA) in 2009. This exemption freed animal operations from reporting emissions of ammonia and hydrogen sulfide under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA). Environmental groups challenged this exemption in federal court, and EPA in 2010 asked the court for time to reconsider the exemption.
This year, the federal court of appeals held that EPA did not have the authority to exempt animal operations from reporting emissions. EPA is now working to implement the ruling from the court of appeals earlier this year. The federal court had issued an order earlier that livestock producers had till November 22 to notify the National Response Center (NCR) of reportable emissions of ammonia or hydrogen sulfide. The court delayed this order at the eleventh hour till January 22, 2018. After notifying NCR, growers will have 30 days to file the appropriate paperwork with EPA. To determine if your animal operation qualifies, check out this page developed by EPA (http://bit.ly/2hvsPDw). To learn more about this ruling, check this post out: http://bit.ly/2gWdVJZ.
Drift Issues Caused by Dicamba
This year was the first growing season that new, less drift-resistant versions of dicamba were allowed on soybeans and cotton varieties resistant to dicamba. Many expected fewer drift damage issues compared to 2016, but in 2017 final dicamba-related damage is estimated at 3.6 million acres across the United States. Due to this damage, we have seen some class action lawsuits filed across the country. These lawsuits often rely on a common set of claims; see an overview of one class action suit at http://bit.ly/2vgkuNH.
Continued issues with dicamba drift damage have caused many states to reconsider their approvals of the new types of dicamba and to limit dicamba’s usage during the growing season. EPA has also issued new restrictions on the new dicambas. This issue will continue to be a top issue in many places across the country in 2018.
Trump Administration Delays or Pulls Obama Era Regulations
Over the course of the year, we have seen the new Trump administration delay, pull, or begin to develop new regulations related to those issued during the Obama administration. The controversial, “Waters of the United States,” or WOTUS rule, developed by the Obama administration would have expanded the reach of the Clean Water Act in the number of water bodies covered. After becoming final, a federal district court and a federal court of appeals stayed the final rule, and the Supreme Court recently heard a challenge to this stay in enforcement issued by the Sixth Circuit Court of Appeals. The Trump administration has begun the process to revise this rule to something closer to previous Supreme Court rulings. Stay tuned in 2018 for what this proposed revised rule would say.
In December 2016, the Obama administration announced two proposed rules and an interim rule covering poultry and livestock production contracts; see http://bit.ly/2iLqKEk. In October 2017, the Trump administration announced plans to withdraw the interim rule but has not announced any movement on the two proposed rules.
In November, the Trump administration also delayed the effective date of final rules related to organic livestock and poultry standards developed for the National Organic Program by the Obama administration. This delay will push the rules potentially going into effect till 2018. Organic Trade Association has sued USDA over this delay. The Organic Trade Association claim the delay violates federal law; to read more about the delay, click here, http://bit.ly/2yTqPhY.
Proposed Settlement Reached in Syngenta Class Action Lawsuit
In June, the first trial in the Syngenta MIR162 class action litigation began in Kansas; for the details of this class action; see http://bit.ly/2iL5kY2. The first trial involved the class of Kansas corn growers which did not grow the MIR162 variety. In that first trial, the jury returned a verdict in favor of the corn growers for $218 million. A second trial began in September involving Minnesota plaintiffs. While the second trial was going on, the parties announced a settlement to all claims. Details of the settlement are currently unknown, and probably will not be known till 2018. News reports estimate the settlement is for $1.4 billion and includes all plaintiffs who did not grow the MIR162 variety, covering the growing years between 2013 and 2017. To read about how the settlement could impact growers, see http://bit.ly/2kgme0Z.
Cases to Watch in 2018
You might be thinking at this point: Paul, what should I be on the lookout for in Maryland in 2018? There are already a couple of cases on the radar for 2018, besides just the dicamba class actions discussed earlier. Food & Water Watch v. USDA is a challenge to Farm Service Agency (FSA) providing a loan guarantee to a poultry grower starting a farm in Maryland. The group claims that FSA should not have issued a Finding of No Significant Impact required under the National Environmental Protection Act. This case will potentially require FSA to revise how the agency handles environmental reviews before approving loan guarantees for U.S. poultry farms. To learn more, see this review of Food & Water Watch’s complaint: http://bit.ly/2gk39tu.
Another case with legal implications on Maryland agriculture is the appeal of the circuit court’s decision which ruled state law preempted Montgomery County’s pesticide ordinance. The county has approved appealing this ruling to the Court of Special Appeals. If the county prevails, it may open the door for other counties in Maryland to regulate pesticides, creating differing standards among the counties. For an overview of the circuit court’s ruling, see http://bit.ly/2wxlsAS.
As 2017 draws to a close, we will see new issues develop in 2018. We will also see many issues hopefully conclude. As we move forward, keep checking this site for how these new developments will impact your operations. I wish you all a Happy Holiday Season and a Happy New Year.