Ag Law in Review: 2016 Edition

solar_panels_at_topaz_solar_2_8159035028

Photo by Sarah Swenty, USFWS

This post is not legal advice.

Although we have started 2017 off, I want to take a look back at some of the big legal developments in the area of agricultural law. We saw a few important developments in 2016 in the field and will probably see more in 2017 with a change in presidential administrations. Keep reading here, and this site will work to keep you updated on those recent developments in 2017.

Rise of Solar Energy Leasing

Not a court ruling, but we have seen some landowners receive offers to lease property for solar energy development in Maryland. Solar energy leases are often long documents that will require the landowner to work with an attorney to determine the implications of the lease and assistance in negotiating better terms, in some cases. To get some background information on solar energy, see this post by Ashley Ellixson and myself here. re are also videos available from workshops that Dr. Sebastien Houde and myself have done around Maryland. Dr. Houde discusses the econ issues here, and I discuss the legal matters here.

Besides some counties placing moratoriums on solar energy development, many landowners with conservation easements may not be able to sign without an approval of the conservation easement holder. The Maryland Ag Land Preservation Foundation (MALPF) announced new regulations in 2016 to allow for some development of preserved farmland for solar energy. To review the new regulations, check out my blog post here. These new regulations will only impact preserved farmland with MALPF, preserved farmland with other easement holders will not be impacted by these regulations.

Chesapeake Bay Litigation

In late February, the U.S. Supreme Court denied a petition to hear a challenge to the Chesapeake Bay TMDL litigation leaving in place a Third Circuit Court of Appeals that EPA developed the Bay TMDL properly under authority granted by the Clean Water Act. To review the Third Circuit’s ruling, click here. Although this effectively ends the challenge to the Bay TMDL, we will see this fight continue with the establishment of larger TMDLs.

Unanimous Supreme Court Decision Involving Wetlands Determination

June saw the U.S. Supreme Court issued a unanimous decision (8 – 0) in U.S. Army Corps of Engineers v. Hawkes. Hawkes resolved an issue of when landowners can appeal a determination by EPA or the Army Corps of Engineers that the landowner’s property includes a “waters of the United States” and falls under the Clean Water Act. The U.S. Supreme Court ruled that landowners could appeal this determination in the Federal court system. To read more about this decision, click here to read Ashley Ellixson’s post.

prairie_pothole_wetlands

Prairie Pothole, Photo by USFWS

Federal GMO Labeling Law

In July, Congress passed, and the President signed into, the law the National Bioengineered Food Disclosure Standard. This law creates a federal standard for the disclosure of bioengineered ingredients in food. The law also preempts states from passing their labeling requirements for the presence of bioengineered ingredients. This federal law effectively preempts Vermont from enforcing their GMO labeling law that was scheduled to go into effect on July 1, 2016. Mayhah Suri and Ashley Ellixson have developed a two-post covering the law, check it out Part 1 and Part 2.

Class Certification Granted in Syngenta Litigation

In September, the federal judge overseeing the Syngenta litigation certified 9 classes (1 nationwide class and 8 statewide classes) of producer plaintiffs in the multi-state litigation. The claims in this litigation center around Syngenta releasing certain corn varieties to be grown in the U.S. but not yet approved for certain export markets (mainly the Chinese market). The varieties were discovered in shipments of U.S. corn to China and were rejected in 2014. After the Chinese rejected U.S. shipments of corn, the price of corn dropped significantly. The producer plaintiffs argue that this drop in price is due to the Chinese rejection and Syngenta had a duty of care not to release the corn varieties on the market till approved by the Chinese. To learn more about the class certification, check out Tiffany Lashmet’s post here.

Federal Court of Appeals Rules for CAFO Owners’ Privacy

In September, the Eighth Circuit Court of Appeals reversed a lower court decision holding that agricultural groups (American Farm Bureau and National Pork Producers Council) had standing to challenge EPA’s decision release certain CAFO operator information to environmental groups under the Freedom of Information Act (FOIA). The information released contained personal information (addresses, GPS coordinates, emails, etc. of farms) that although, publically available was not readily available. The Eighth Circuit also reversed the lower court’s decision. To read more about this decision, see Sarah Everhart’s post here.

WOTUS Rule Still in Limbo

The revised Clean Water Act definition of “Waters of the U.S.” continued to cause issues in 2016. In January, Congress passed a joint resolution declaring the revised definition to be void, which was vetoed by President Obama. In February, the Sixth Circuit Court of Appeals ruled it had jurisdiction to hear a challenge to the Clean Water Act. The hearing is slated for some time in 2017 to determine if the revised definition was developed properly according to the Administrative Procedures Act, exceeds agencies’ authority, and violates the U.S. Constitution.

The 2016 election marks the end of this revised definition. The incoming Trump administration will look at scrapping this rule and issuing a new rule in its place. This revision will take time to go through the notice and comment period required by the Administrative Procedures Act, but all signs point to a Trump administration substantially changing this revised definition.

Final Drone Regs Issued

It is official, the Federal Aviation Administration issued the final rules in September 2016 for the use of unmanned aircraft systems (UAS or drones). These regulations impact both commercial and recreational use of drones. The final regulations require all drones registered with FAA and those looking to use for commercial uses to conform to additional requirements, to get an overview of those requirements, click here for Tiffany Lashmet’s summary on her blog.

These final regulations pushed for by agriculture and other industries. The rules will allow agriculture to begin to utilize drones more in farming operations to assist with certain processes.

 

florida_chicken_house

Photo by Larry Rana, USDA

 

Farmer Fair Practice Rules

In December, the Grain Inspectors, Packers, and Stockyards Administration released two proposed rules and an interim rule to cover livestock and poultry growers’ production contracts. The interim rule changes the existing rules for contract growers to use packers or contractors for alleged violations without showing that the alleged violation caused an impact on industry-wide competition. The interim rule will lessen the burden of proof many contract growers had faced when bringing challenges against contractors.

The two proposed rules focus on poultry grower ranking systems and to prevent unfair practices and undue preferences by contractors and packers. With the poultry grower ranking systems or tournament systems, are used to compensate growers at the end of the contract. The proposed rule provides criteria when a compensation system will be considered unfair, unjustly discriminatory, or deceptive. The second proposed rule sets standards for conduct considered unfair, unjustly discriminatory, or deceptive unless the packer or contractor can show a legitimate business justification for the practice. To read more about the proposed rules, see this article by the Center for Ag Law and Taxation at Iowa State University.

The incoming Trump administration could potentially change These proposed rules and interim rule. At this point, it is unclear how the incoming administration will treat them.

Wrap-up

I did not make it through a top ten but highlighted some of the top ag law issues over 2016. I could have included more, but if you have followed this site over the past year, you have probably seen many of the agricultural law changes in 2016 covered. 2017 is already shaping up to be a big year for agricultural law with the incoming Trump administration hinting at regulatory changes on top of the court decisions.

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