This post should not be construed as legal advice.
We are slowly edging towards the end of 2015 (insert joke about the year flying by). So it is time to reflect on the top ten legal developments impacting Maryland agriculture and U.S. agriculture this year.
1. Chesapeake Bay TMDL Upheld. (http://go.umd.edu/BayTMDL). On July 6, the Third Circuit Court of Appeals upheld the Environmental Protection Agency’s (EPA) authority to set a total daily maximum load (TMDL) for the Chesapeake Bay. Implementing the Bay TMDL will have huge impacts on Maryland and other Bay region states in coming years. It’s important to note the Bay TMDL is not one TMDL but a series of TMDLs encompassing all the water bodies flowing into the Bay. The court affirmed EPA’s use of authority in setting the TMDL, and disagreed that EPA had infringed on state’s rights with the TMDL. American Farm Bureau Federation recently filed a petition for writ of certiorari with the U.S. Supreme Court. The Supreme Court will potentially rule on that petition later this year or in early 2016.
2. Waters of the U.S. Rule Finalized and On Hold. Number 2 on the list is also a Clean Water Act development, this time involving the hotly contested “waters of the U.S.” rule first proposed by EPA and the Army Corps of Engineers in 2014. The final rule was announced in May and became effective on August 28, 2015. Numerous lawsuits were filed and currently motions to consolidate those lawsuits have been denied (http://bit.ly/1M1WSrQ). In October, the Sixth Circuit Court of Appeals issued a nationwide stay from EPA enforcing the rule till the lawsuits have been resolved (http://bit.ly/1k3k8zu). Congress has also considered bills which would overturn the new rule, but those have failed to pass. Stay tuned in 2016 for new information related to this rule.
3. PMT Regulations Go Into Effect. This year also saw state regulations go into effect potentially limiting phosphorus applications by Maryland farmers. The Phosphorus Management Tool (PMT) was finalized and implemented this year. While the PMT will not be fully implemented until 2022, farmers will begin to see it annual steps toward that complete implementation from now until then. To learn more about the implementation of the regulations, see http://mda.maryland.gov/Pages/PMT.aspx.
4. Proposed UAV Regulations. Producers and consultants have been waiting on the Federal Aviation Administration (FAA) to release the regulations allowing for the use of drones in agriculture operations. The proposed regulations were released in early 2015 and the comment period closed in April 2015. FAA is planning to release the final regulations in mid-2016.
5. Manure Found to be a “Solid Waste.” As you can tell, environmental developments are ranking high in my top 10 developments. In early 2015, a federal district court in Washington state found that manure from a dairy could (under the right conditions) be considered a solid waste under the Resource Conservation and Recovery Act (RCRA). The cases involved improper storage and handling of manure on dairy farms. The dairies ultimately settled with the environmental groups bringing the suit. It is unclear how other federal courts would handle similar situations at this time, but Maryland producers should be aware of this issue. To learn more, see this webinar by Dr. Shannon Ferrell, Oklahoma State University.
6. Viptera © Class Action Lawsuit. In 2014, Syngenta released on the market a corn variety containing a MR162 genetic trait to control army worms. The seeds were U.S. approved in 2010, but did not gain approval in China till late 2014. In 2013, China found traces of the genetic material in U.S. corn shipments and rejected the shipments. This year, a class action lawsuit was brought on behalf of farmers who did not plant the corn variety with MR162 against Syngenta for disruption of the U.S. corn market. Syngenta countered that at the time China was not a major buyer of U.S. corn and there is no evidence the release of MR162 impacted the corn market. These suits are just in the early stages and we will be writing more on them in the future.
7. Idaho’s “Ag Gag” Law Found Unconstitutional. More states this year have passed laws limiting the ability of agricultural workers to record activity and conditions on farms. The first court ruling on one of these laws was deemed unconstitutional in late August. A federal district court judge in Idaho found that Idaho’s “ag gag” law violated the 1st Amendment and the 14th Amendment of the U.S. Constitution. An appeal is expected in the case to the Ninth Circuit Court of Appeals. Utah’s law is also being challenged in federal court with a trial expected in 2016, while the recent challenge in federal court to Wyoming’s law currently has no timeline as to when to expect an outcome in the case. We also hosted a webinar in November covering this topic.
8. EPA Not Required to Regulate CAFO Air Emissions. Regulating air emissions from concentrated animal feeding operations (CAFOs) has been a hot topic the past year in Maryland and other states. In 2013, a group of Iowan plaintiffs filed a citizen suit under the Clean Air Act to force EPA to regulate air emissions from CAFOs. The federal district court held that EPA was not required to regulate air emissions from sources till EPA determines the sources meet the requirements under the Clean Air Act. In this case, EPA had not made that determination so the court could not force EPA to act. This year, the D.C. Court of Appeals upheld the lower court’s decision. In November, the U.S. Supreme Court denied a petition for a writ of certiorari ending this case for now .
9. GMO Food Labeling Lawsuits. Vermont’s GMO labeling bill has also been in the news this year and could potentially provide a roadmap for other states looking to pass similar laws. In April, a federal district court upheld Vermont’s law against claims it violated the First Amendment, the Commerce Clause, and is pre-empted by federal law. That decision is currently being appealed and a decision could be issued in 2016. Congress is also considering legislation which would preempt states from passing similar labeling laws. Stay tuned in 2016 for additional information on this topic.
10. Food Safety Regs Released. The Food and Drug Administration (FDA) has been working this year to finalize the foundational rules mandated by the Food Safety Modernization Act. The Act was signed into law in early 2011 and FDA has worked ever since to finalize the rules implementing the Act. To date, the produce safety rule, foreign supplier verification programs, third party certification regulations, and preventative rules for humans and animals have been finalized. For a complete list, see:
http://www.fda.gov/Food/GuidanceRegulation/FSMA/ucm247546.htm)). These rules will all become final later in 2015 and implementation will begin in 2016.
I probably missed developments that some of you would have included. I could have also included Montgomery County finalizing their cosmetic pesticide ban (which is potentially unconstitutional). I also could have included changes to poultry house building requirements in Somerset County. And I could have thrown in the federal raisin marketing order found to be uncompensated takings by the U.S. Supreme Court and various legal challenges to endangered species.
As we move into 2016, many of these issues will continue to make the news (like the WOTUS rule, GMO labeling, and drone regulations). Other issues will pop up that currently are not on the radar for 2016. If 2016 is like 2015, it will be an interesting year in legal issues impacting agriculture.