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With 2021 over and 2022 about to begin, I want to take a minute to look back at the top legal developments impacting agriculture in 2021. A few of these legal developments may seem like repeats from my 2020 update; see here. Moving into 2022, we will likely see new issues emerge, however, as lawsuits continue against certain pesticides, right-to-farm issues, further development of carbon markets, and possible appeals in a few cases on last year’s list. You will find the annual podcast episode covering these issues embedded above. If you have not already signed up for updates, click here to sign up to get email updates sent to you as new content is available.
Maryland Circuit Court Reverses State’s Animal Feeding Operation Permit
In March, a circuit court reversed the state’s Animal Feeding Operation (AFO) permit for failing to take into account ammonia discharges from exhaust fans that could be discharged into waters of the state. The court rejected arguments that state water quality laws did not cover these air emissions. This decision is currently under appeal before the Court of Special Appeals. To learn more about this decision, click here.
Maryland Court of Special Appeals Rules on Proposed Solar Facility
This year saw more development related to a county’s role in approving proposed utility-scale solar facilities in a county. In Frederick County v. LeGore Bridge Solar Center, LLC, the Court of Special Appeals of Maryland rejected arguments made by the solar facility that a special exemption granted by the county had created a vested right. See the complicated timeline for this case available here. The court determined that the Public Service Commission had not given due consideration to the county’s new zoning ordinances for solar before granting the Certificate of Necessity and Convenience.
Federal Court Allows New North Carolina Hog Farm Suit to Continue
In 2018, the North Carolina hog farm litigation made the news with verdicts against Murphy-Brown, LLC totaling millions of dollars; these claims were settled late in 2020. Also in 2020, a new set of lawsuits were filed against Smithfield and Murphy-Brown related to contract hog growers, focusing on trespass and negligence by Smithfield and Murphy-Brown. A federal district judge rejected arguments that the state’s right-to-farm law applied as a defense in this case. Because the claims were based around trespass and negligence and not a nuisance, the court rejected arguments that the law should provide a defense. Read more on this decision here.
Checkoff Program Update
The Ninth Circuit Court of Appeals rejected arguments brought by Ranchers Cattlemen Action Legal Fund United Stockgrowers of America (R-CALF) that the Beef Checkoff program violated the First Amendment. R-CALF had argued that the promotional work down by the qualified state beef councils (QSBCs) violated the First Amendment as compelled speech. The Ninth Circuit rejected these arguments because of the amount of control that USDA had over approving the QSBCs work based on MOUs between USDA and the QSBCs. This may not end this issue, however. R-CALF has another lawsuit pending in the federal district court for DC, arguing that USDA did not have the authority to enter into those MOUs with the QSBCs. To read more on this issue, see here.
NEPA and USDA Loans
Back in 2018, I had posted about a challenge to a USDA loan guarantee to a Maryland poultry operation. This year, the U.S. Court of Appeals for D.C. held that the groups challenging USDA granting the loan guarantee did not have standing to bring the challenge. The critical point about this decision is that the three-judge panel did not address an issue raised on appeal. In 2020, the Council of Environmental Quality (CEQ) revised the National Environmental Policy Act (NEPA) regulations for the first time since 1978, and in that revision excluded USDA loan guarantees from NEPA review. The appeal raised the point that CEQ may not have the authority to revise the regulations. The court declined to rule on this issue since the environmental groups did not have standing, but we may see a decision settling this issue in the future. To learn more about this ruling, see here.
As you can see, with many of these issues not settled, we will have additional developments in 2022. I have not covered in this post changes to the jurisdiction of the Clean Water Act, but if you are interested in the current challenges to this law, check out this post by my colleague at Texas A&M University, Tiffany Lashmet. We will also see new legal issues develop that we may not have considered. Agricultural law is a field that is constantly evolving.