July 10, 2023

Agricultural Law Weekly Review—July 10, 2023

Agricultural Antitrust: Federal Court Denies Poultry Producers’ Motion to Dismiss, Antitrust Price-Fixing Litigation Will Continue to Trial 🌾
On June 30, 2023, the U.S. District Court for the Northern District of Illinois issued a memorandum opinion and order denying 23 of the 38 separately filed motions for summary judgment in the consolidated class-action case In re Broiler Chicken Antitrust Litigation, No. 1:16-cv-08637. The court stated, “The evidence against the following Defendants is sufficient for a reasonable jury to find by a preponderance of the evidence that these defendants reached an agreement to restrict supply in order to increase price: Tyson, Pilgrim’s, Sanderson, Harrison, Koch, Mountaire, Keystone, OK Foods, Peco, Raeford, and Simmons.” Following this opinion, the litigation against the poultry producers will continue and, according to a minute entry, a letter with the trial timeline will be sent to potential jurors on July 10, 2023. For background, see the Center’s Agricultural Antitrust Litigation Issue Tracker, In re Broiler Chicken Antitrust Litigation.

WOTUS: EPA Seeks to Stay Pending WOTUS Litigation in North Dakota District Court, Plans to Release New WOTUS Rule by September 2023
On June 26, 2023, the Environmental Protection Agency (EPA) filed a motion for a stay in the U.S. District Court for the District of North Dakota to allow the agency to amend its Waters of the United States (WOTUS) rule. West Virginia v. Environmental Protection Agency, No. 3:23-cv-00032. EPA’s request follows the Supreme Court’s recent decision in Sackett v. EPA, which clarified the WOTUS definition. According to a website publication from the agency, EPA plans to release a new WOTUS rule, in conjunction with the U.S. Army Corps of Engineers, by September 1, 2023.

WOTUS: Industry Groups and States Request Vacatur of WOTUS Rule in Texas District Court, EPA Seeks Stay to Issue New Rule September 2023
On June 28, 2023, several industry groups—including American Farm Bureau Federation (AFBF), National Cattlemen’s Beef Association, National Corn Growers Association, National Pork Producers Council, and U.S. Poultry and Egg Association—and the states of Texas and Idaho filed motions for summary judgment the U.S. District Court for the Southern District of Texas seeking vacatur of the U.S. Environmental Protection Agency’s (EPA) January 2023 Waters of the United States (WOTUS) rule. State of Texas v. United States Environmental Protection Agency, No. 3:23-cv-00017. The entities claim that the rule does not comport with the U.S. Supreme Court’s recent ruling in Sackett v. EPA and exceeds the Clean Water Act. On July 7, 2023, EPA filed a motion to stay the case, stating that the agency intends to issue a new final rule in accordance with Sackett “on or before September 1, 2023.” For background, see ALWR—March 27, 2023, “U.S. District Court Orders Injunctions Against WOTUS Final Rule in Texas and Idaho”

Pesticides: EPA Publishes Proposed Vulnerable Species Pesticide Guidelines for Public Comment
On June 22, 2023, the U.S. Environmental Protection Agency (EPA) announced the publication for public comment of a draft mitigation and implementation plan and technical support document for pesticides to protect 27 endangered and listed species, namely several pollinators. (Docket No. EPA-HQ-OPP-2023-0327, “Vulnerable Species Pilot Project for Endangered Species”). The plan, part of EPA’s Vulnerable Species Pilot Project, details how EPA selected the 27 species and developed the proposed location-specific mitigations and implementation plan. The docket is open for public comment from June 22, 2023, until August 6, 2023.

Dairy Policy: Ten Dairy Groups Submit Modified Proposals for Tentative FMMO Hearing
On June 20, 2023, ten dairy groups submitted revised proposals for review during the U.S. Department of Agriculture’s (USDA) formal Federal Milk Marketing Order (FMMO) hearing:

According to USDA’s FMMO Action Plan, posted on its Federal Milk Marketing Orders Petitions page, if USDA proceeds with a formal hearing, the agency will publish a notice of the hearing in the Federal Register by the end of July and will hold the hearing on August 23, 2023. For background, see ALWR—June 12, 2023, “USDA Commences FMMO Reform Hearing Process.”

Water Issues: Supreme Court Finds U.S. Not Required to Safeguard Water from Colorado River for Navajo Nation
On June 22, 2023, the U.S. Supreme Court issued an opinion denying the Navajo Nation’s request for relief from the United States to settle a water rights dispute in Arizona v. Navajo Nation, No. 21-1484. In 2003, the Navajo Nation filed a petition against multiple U.S. agencies claiming a breach of trust and violation of the National Environmental Policy Act regarding Navajo Nation’s Colorado River water rights. Although the district court dismissed the petition, the U.S. Court of Appeals for the Ninth Circuit issued an opinion in October 2019 finding the lower court in error because the Navajo Nation could amend the complaint. The Supreme Court reversed the Ninth Circuit, stating “the 1868 treaty reserved necessary water to accomplish the purpose of the Navajo Reservation. But the treaty did not require the United States to take affirmative steps to secure water for the Tribe.”

Conservation Programs: USDA Announces $500 Million for Conservation Programs
On June 27, 2023, the U.S. Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) announced that the agency will allocate $500 million over five years to provide conservation assistance for landowners. According to the announcement, the funding includes $250 million from the Environmental Quality Incentives Program (EQIP) and $250 million from the Agricultural Conservation Easement Program (ACEP) and will support hiring additional staff and developing Frameworks for Conservation Action.

Biosecurity: USDA Announces $502 Million for Highly Pathogenic Avian Influenza Response
On June 22, 2023, the U.S. Department of Agriculture (USDA) Animal Plant Health Inspection Service (APHIS) announced the availability of $502 million for highly pathogenic avian influenza (HPAI) response efforts. According to the announcement, although no HPAI cases have been detected in U.S. commercial or backyard poultry since May 2023, “HPAI is still prevalent in many parts of the world . . . and the threat remains high.” APHIS states that the available funds “will ensure that USDA can continue to stay on top of this outbreak.”

National Agricultural Policy: USDA Announces $120 Million for Independent Meat and Poultry Processing
On June 29, 2023, the U.S. Department of Agriculture (USDA) announced that the agency had awarded nearly $120 million in grant funding for independent meat and poultry processing expansion and support. Under the Meat and Poultry Processing Expansion Program, USDA awarded $38 million to processors in Georgia, Iowa, Michigan, Tennessee, and Texas. Under the Meat and Poultry Intermediary Lending Program, USDA awarded $77 million to processors in Colorado, Connecticut, Indiana, Maryland, Massachusetts, Minnesota, Montana, New York, North Dakota, Ohio, South Dakota, and Wisconsin. Additionally, USDA’s National Institute of Food and Agriculture (NIFA) awarded $4.5 million for meat and poultry processing workforce training through its Agriculture and Food Research Initiative (AFRI) Education and Workforce Development Program.

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CENTER PROGRAMS & RESOURCES

Events:

Dairy Quarterly Legal Webinar. A free quarterly Zoom webinar series covering dairy industry legal and regulatory developments with an in-depth focus topic presentation. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials from the series, more information, and registration available here. Upcoming:

Understanding Agricultural Law. A free monthly Zoom webinar series for all agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials from the series, more information, and registration available here. Upcoming:

Resources of Interest: 

Pennsylvania Farm/Food Employers’ Listserv (PFEL) is a human resources networking group exclusively for farm and food employers. Subscribe by email with “subscribe” in the subject line to pfel-subscribe-request@lists.psu.edu.

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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

USDA Forest Service Invests $188M to Keep Forests Working, Conserve Private Forestland through President Biden’s Investing in America Agenda (June 29, 2023)

Biden-Harris Administration Partners with Agricultural Producers to Promote Competition, Strengthen Food Supply Chain and Rural Economies (June 28, 2023)

USDA Launches Feds Feed Families 2023 to Combat Hunger and Improve Access to Healthy Food (June 28, 2023)

USDA Solicits Nominations to the Tribal Advisory Committee (June 28, 2023)

Biden-Harris Administration Announces Funding for Homegrown Biofuels as Part of Investing in America Agenda (June 26, 2023)

ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES

EPA Announces New Framework to Prevent Unsafe New PFAS from Entering the Market (June 29, 2023)

Biden-Harris Administration Launches $7 Billion Solar for All Grant Competition to Fund Residential Solar Programs that Lower Energy Costs for Families and Advance Environmental Justice Through Investing in America Agenda (June 28, 2023)

EPA Settles with Shipping Companies over Claims of Clean Water Act Violations (June 28, 2023)

EPA Announces Over $50 Million to Assist Small, Underserved, and Disadvantaged Communities in Accessing Clean and Safe Drinking Water (June 26, 2023)

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Service (AMS)

USDA Restricts PACA Violators in Connecticut, Illinois, New York and Nevada from Operating in the Produce Industry (June 27, 2023)

Agricultural Research Service (ARS)

Honey Bees More Faithful to Their Flower Patches Than Bumble Bees (June 28, 2023)

Old Bulls Bring New Genetic Benefits To Light (June 26, 2023)

Animal and Plant Health Inspection Service (APHIS)

APHIS Issues Regulatory Status Review Responses: Inner Plant Soybeans and Tomato, and Ohalo Genetics Potato (June 27, 2023)

Farm Service Agency (FSA)

USDA Announces Historic Investment in Wildlife Conservation, Expands Partnership to Include Additional Programs (June 27, 2023)

Food and Nutrition Service (FNS)

USDA Partners with States to Expand Reach, Bolster Resiliency of Emergency Food System (June 26, 2023)

Foreign Agricultural Service (FAS)

Export Sales to China (June 30, 2023)

USDA Efforts Lift Ban on U.S. Poultry Exports to Colombia (June 28, 2023)

Export Sales to Mexico (June 28, 2023)

Forest Service

USDA Forest Service invests $188M to keep forests working, conserve private forestland through President Biden’s Investing in America Agenda (June 29, 2023)

National Agricultural Statistics Service (NASS)

Corn planted acreage up 6% from 2022 (June 30, 2023)

United States hog inventory up slightly (June 29, 2023)

National Institute of Food and Agriculture (NIFA)

Agrivoltaics Could Bring Agriculture and Renewable Energy Together (June 30, 2023)

Biden-Harris Administration Partners with Agricultural Producers to Promote Competition, Strengthen Food Supply Chain and Rural Economies (June 28, 2023)

NIFA Invests $9 Million to Improve Soil Health (A1401) (June 28, 2023)

Science and Engineering for a Biobased Industry and Economy (June 26, 2023)

Natural Resources Conservation Service (NRCS)

Green Pastures Give Back (June 30, 2023)

Rogue River Valley Irrigation District to Modernize Irrigation Infrastructure Public Scoping Meeting July 18, 2023 (June 29, 2023)

NRCS Invites Public to Attend Pennsylvania State Technical Committee Meeting July 18, 2023 (June 27, 2023)

USDA Announces Historic Investment in Wildlife Conservation, Expands Partnership to Include Additional Programs (June 27, 2023)

FEDERAL EXECUTIVE AGENCIES (Federal Register June 26–30, 2023):     

Agricultural Marketing Service

88 FR 41471 Rule: “Washington Apricots; Termination of Marketing Order” (June 27, 2023)

Department of Agriculture

88 FR 42041 Notice: “Submission for OMB Review; Comments Requested” (June 29, 2023)

88 FR 41874 Notice: “Intent to Establish the Tribal Advisory Committee and Solicitation of Nominations for Membership to the Committee” (June 28, 2023)

Animal and Plant Health Inspection

88 FR 42042 Notice: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Importation of Live Swine, Pork and Pork Products, and Swine Semen from the European Union” (June 29, 2023)

88 FR 41875 Notice: “Notice of Decision to Authorize the Importation of Fresh Leaves and Stems of Garland Chrysanthemum from Mexico into the Continental United States, Hawaii, Puerto Rico, and the U.S. Virgin Islands”

Environmental Protection Agency

88 FR 41369 Proposed Rule: “New Source Performance Standards for the Synthetic Organic Chemical Manufacturing Industry and National Emission Standards for Hazardous Air Pollutants for the Synthetic Organic Chemical Manufacturing Industry and Group I & II Polymers and Resins Industry; Extension of Comment Period” (June 26, 2023)

88 FR 41395 Notice: “Pesticide Product Registration; Receipt of Applications for New Active Ingredients May 2023” (June 26, 2023)

88 FR 41397 Notice: “Pesticide Product Registration; Receipt of Applications for New Uses May 2023” (June 26, 2023)

Federal Crop Insurance Corporation

88 FR 42015 Rule: “Actual Production History (APH) and Other Crop Insurance Transparency” (June 29, 2023)

Food and Drug Administration

88 FR 42080 Notice: “Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; New Animal Drugs for Minor Use and Minor Species” (June 29, 2023)

88 FR 41541 Proposed Rule: “Kemin Industries, Inc.; Filing of Food Additive Petition (Animal Use)” (June 27, 2023)

Natural Resources Conservation Service

88 FR 42287 Notice: “Proposed Revisions to the National Handbook of Conservation Practices for the Natural Resources Conservation Service” (June 30, 2023)

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.4456 “To allow certain students, including those who have an expected family contribution of zero, to qualify for supplemental nutrition assistance program benefits under the Food and Nutrition Act of 2008.” (June 30, 2023)

H.R.4455 “To amend the Consolidated Farm and Rural Development Act to support the buildout of clean school bus charging infrastructure through community facilities direct loans and grants.” (June 30, 2023)

H.R.4425 “To amend the Department of Agriculture Reorganization Act of 1994 to establish the position of Women Farmers and Ranchers Liaison, and for other purposes.” (June 30, 2023)

H.R.4417 “To prevent States and local jurisdictions from interfering with the production and distribution of agricultural products in interstate commerce, and for other purposes.” (June 30, 2023)

H.R.4416 “To prohibit the use of Federal funds to hire armed Federal regulatory enforcement officers in certain agencies.” (June 30, 2023)

H.R.4387 “To amend the National Agricultural Research, Extension, and Teaching Policy Act of 1977 to direct the Secretary of Agriculture to establish a program providing for the establishment of Agriculture Cybersecurity Centers, and for other purposes.” (June 27, 2023)

H.R.4382 “To require the Secretary of Agriculture to conduct a study on the accessibility of addiction and mental health care providers and services for farmers and ranchers who have been impacted by severe and persistent drought, extreme weather events, instability in the commodities market, misinformation targeting consumers, and for other purposes.” (June 27, 2023)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE 

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:

Shapiro Administration Releases Results Of Crop Samples Showing No Contamination On PA Farms Near Norfolk Southern Train Derailment (June 27, 2023)

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 53, No. 26—July 1, 2023): 

Department of Agriculture

53 Pa.B. 3416 Order: “Bureau of Ride and Measurement Standards”

Department of Environmental Protection

53 Pa.B. 3417 Notice: “Application for National Pollutant Discharge Elimination System (NPDES) Permits and Water Quality Management (WQM) Permits Under the Clean Streams Law and Federal Clean Water Act”

53 Pa.B. 3473 Notice: “Availability of Technical Guidance”

53 Pa.B. 3475 Notice: “Cooking in Healthy Electrified Commercial Kitchens Rebate Program”

53 Pa.B. 3476 Notice: “Expired Voucher Renewal Application Solicitation for Driving PA Forward’s Onroad Rebate Program”

53 Pa.B. 3476 Notice: “Proposed General Plan Approval and/or General Operating Permit for Coal-Mine Methane Enclosed Flares (BAQ-GPA/GP-21); Public Comment Opportunity; (2700-PM-BAQ0xxx)”

53 Pa.B. 3477 Notice: “Recycling Grant Awards under the Municipal Waste Planning, Recycling and Waste Reduction Act of 1988, Act 101”

 

Written by:
Victoria Dutterer—Research Assistant
Mary Johnson—Research Assistant 
Josh Narey—Research Assistant
Lonzie Helms—Research Assistant
Audry Thompson—Staff Attorney