June 4, 2024

Agricultural Law Weekly Review—June 4, 2024

NEW Publication: HPAI in Dairy Cattle: Is Pasteurization Dairy’s Only Reliable Protection?, Southern Ag Today—Brook Duer, Center Staff Attorney

Related Webinar: July 17, 2024, “HPAI in Poultry and Cattle: How Can We Miss You if You Won’t Go Away?,” Staff Attorney Brook Duer Presents with the National Agricultural Law Center.

Water Quality: Supreme Court to Hear Challenge to Clean Water Act ‘Generic Prohibitions’ 🌾
On May 28, 2024, the U.S. Supreme Court granted a petition for writ of certiorari to hear an appeal of a July 2023 decision from the U.S. Court of Appeals for the Ninth Circuit, which held that the U.S. Environmental Protection Agency (EPA) had the authority to issue National Pollutant Discharge Elimination System (NPDES) permits “that contain generic prohibitions against violating water quality standards.” San Franscisco v. EPA, No. 21-7082. The Court has been asked to determine whether the Clean Water Act (CWA) authorizes the EPA to “impose generic prohibitions in NPDES permits that subject permitholders to enforcement for exceedances of water quality standards without identifying specific limits to which their discharges must conform.” The City and County of San Francisco argue in their petition, “These generic prohibitions do not set effluent limitations that impose numeric restrictions on pollutants discharged or narratively require the implementation of certain management practices. Instead, they broadly tell permitholders to avoid causing conditions in receiving waters that are inconsistent with applicable [water quality standards].”

Ag-Gag Statutes: North Carolina to Pay $885,000 in Attorney’s Fees for Property Protection Act Litigation
On May 17, 2024, the U.S. District Court for the Middle District of North Carolina issued an order approving $884,987 in attorney’s fees and costs to the prevailing plaintiffs’ attorneys in a case declaring North Carolina’s Property Protection Act unconstitutional. People for the Ethical Treatment of Animals v. Stein, No. 1:16-cv-00025, affirmed, No. 20-1776 (4th Cir. 2023), cert. denied, No. 22-1150 (2023). Under 42 U.S.C. § 1988, “the court . . . may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs,” which the court stated, “recogniz[es] and encourag[es] competent counsel to take on cases that will vindicate civil rights and discourage future violations.” The court found that “Plaintiffs appear to have invested at least 1,909.64 hours in the case after two successful appeals to the Fourth Circuit and Defendants’ . . . unsuccessful petition for certiorari,” noting the “additional 421.45 hours that was expended on the post-judgment appeal and petition for certiorari” from the plaintiff’s original petition before appeal, which “sought fees for a total of 1,488.19 hours,” billed at rates “rang[ing] from $151.25 to $665.50 an hour.” The court observed that “[t]he case spanned some eight years, with two appeals in which Plaintiffs prevailed,” stating, “The issues raised were novel and difficult, and Plaintiffs ultimately obtained success on substantially all claims raised.” For more, see the Center’s Ag Gag Statutes Issue Tracker.

Environmental Credit Trading: Executive Agencies Publish ‘Voluntary Carbon Markets Joint Policy Statement and Principles’
On May 28, 2024, Agriculture Secretary Tom Vilsack, Energy Secretary Jennifer Granholm, Treasury Secretary Janet Yellen, and several senior advisors published a Joint Statement of Policy and Principles for Voluntary Carbon Markets (VCMs), which the Department of Energy (DOE) defines as “markets in which carbon credits—each representing one tonne of carbon reduced or removed from the atmosphere—are bought and sold by companies . . . governments, and others on a voluntary basis.” DOE states that “challenges in these markets, such as projects that don’t deliver the positive climate impact they promised, have undermined confidence in VCMs” and, for VCMs to effectively function, “stakeholders must be certain that one credit truly represents one tonne of carbon dioxide (or its equivalent) reduced or removed from the atmosphere, beyond what would have otherwise occurred.” Additionally, the White House published a Fact Sheet on the joint statement, which outlines seven principles “that codify the U.S. government’s approach to advance high-integrity VCMs”:

  1. “Carbon credits and the activities that generate them should meet credible atmospheric integrity standards and represent real decarbonization.”
  2. “Credit-generating activities should avoid environmental and social harm and should, where applicable, support co-benefits and transparent and inclusive benefits-sharing.”
  3. “Corporate buyers that use credits should prioritize measurable emissions reductions within their own value chains.”
  4. “Credit users should publicly disclose the nature of purchased and retired credits.”
  5. “Public claims by credit users should accurately reflect the climate impact of retired credits and should only rely on credits that meet high integrity standards.”
  6. “Market participants should contribute to efforts that improve market integrity.”
  7. “Policymakers and market participants should facilitate efficient market participation and seek to lower transaction costs.

Environmental Credit Trading: USDA Seeks Public Comment on Growing Climate Solutions Implementation
On May 29, 2024, the U.S. Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published in the Federal Register a notice (89 FR 46335) seeking information to “support the preparation of proposed regulations intended to implement the Growing Climate Solutions Act,” and new Greenhouse Gas Technical Assistance Provider and Third-Party Verifier Program. Also announced by USDA, the agency requests feedback on the program, including:

  1. “Options for interpreting and applying criteria used to evaluate protocols . . . designed to ensure consistency, reliability, effectiveness, efficiency, and transparency.”
  2. “Information pertaining to specific protocols to be evaluated for inclusion in the program.”
  3. “Qualifications needed by covered entities who provide technical assistance to farmers, ranchers, or private forest landowners.”
  4. “Qualifications needed by covered entities who serve as third party verifiers of processes described in protocols for voluntary environmental credit markets.”

The comment period is open until June 28, 2024. For background, see ALWR—Mar. 11, 2024,“USDA Announces ‘Intent to Establish Greenhouse Gas Technical Assistance Provider and Third-Party Verifier Program.’”

Biotechnology: FDA Completes Review of Dairy Cattle Methane-Reducing Feed Supplement, ‘Does Not Intent to Initiate Enforcement’
On May 24, 2024, the U.S. Food and Drug Administration (FDA) Center for Veterinary Medicine (CVM) issued a letter to Elanco US, Inc. stating that the agency had “reviewed the information . . . submitted [by Elanco] . . . that addressed the safety, intended effect and the quantity” of Bovaer® 10, a “methane-reducing feed ingredient . . . for use in lactating dairy cattle.” In the letter, FDA states that Bovaer® 10 “demonstrated a reduction of methane gas emissions per pound of dry matter intake when incorporated . . . in the total mixed ration of lactating dairy cows” and that, currently, FDA “has no questions . . . regarding whether Bovaer® 10 will achieve its intended effect.” Additionally, FDA stated that the product “is expected to pose low risk to humans or animals under the conditions of its intended use.” FDA then confirmed that “[a]lthough Bovaer® 10 is an unapproved drug, at this time [FDA] do[es] not intend to initiate enforcement action with respect to the drug requirements listed above for Elanco’s marketing Bovaer® 10 or use” as long as the agency “continues to have no questions or public health concerns about Bovaer® 10.” On May 28, 2024, Elanco announced the FDA’s completion of its Bovaer® 10 review. According to the announcement, “feeding one tablespoon of Bovaer per lactating dairy cow per day can reduce methane emissions about 30% or about 1.2 metric tons of carbon dioxide equivalent (CO2e) emissions annually.”

Avian Influenza: USDA Restricts Avian Imports from Victoria, Australia
On May 24, 2024, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) issued an import alert declaring that the agency is restricting imports of avian commodities from Victoria, Australia “based on APHIS’ determination that highly pathogenic avian influenza (HPAI) exists in domestic birds.” The restriction includes “poultry, commercial birds, ratites, avian hatching eggs, unprocessed avian products and byproducts, and certain fresh poultry products,” either originating from or transported through the State of Victoria, Australia. According to the announcement, “unprocessed avian products and byproducts originating from or transiting the State of Victoria, Australia, will not be permitted to enter the United States.” APHIS provides live updates to import restrictions on its Animal Product Imports webpage.

Avian Influenza: USDA Confirms Avian Influenza Detections in Alpacas
On May 28, 2024, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) announced that the “National Veterinary Services Laboratories (NVSL) confirmed the detection of Highly Pathogenic Avian Influenza (HPAI) H5N1 in alpacas from a premises where HPAI-affected poultry were depopulated in May 2024.” According to the announcement, “NVSL has confirmed that the viral genome sequence for these samples is the same sequence currently circulating in dairy cattle (B3.13), which is consistent with sequences from the depopulated poultry on this premises.” Additionally, USDA states, “While this HPAI confirmation is not unexpected due to the previous HPAI detection on the premises, the high amount of virus in the environment, and co-mingling of multiple livestock species on-farm, it is the first HPAI detection in alpacas.” According to a news article from University of Nebraska Medical Center, “[t]he animals that tested positive were on a farm in Idaho where poultry had tested positive for the virus and were culled in May.” USDA maintains webpages documenting HPAI detections in livestock, mammals, commercial and backyard poultry, and wild birds.

 

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CENTER PROGRAMS & RESOURCES

Understanding Agricultural Law Series. A free monthly Zoom webinar series for agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. All events on Fridays, noon–1 pm (ET). Upcoming:

Dairy Quarterly Legal Webinar Series. A free quarterly Zoom webinar series covering dairy industry legal and regulatory developments with an in-depth focus topic. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. All events on Tuesdays, noon–1 pm (ET). Upcoming:

“HPAI in Poultry and Cattle: How Can We Miss You if You Won’t Go Away?”

  • July 17, 2024, noon–1 pm (ET), online. Staff Attorney Brook Duer Presents with the National Agricultural Law Center.

Podcasts:

Agricultural Law Podcast

USDA Takes First Regulatory Steps on Carbon Credit Production (May 14, 2024)

USDA Takes New Approach in HPAI Outbreak in Dairy Cattle (Apr. 26, 2024)

Farmland Legal Energy Podcast

Agrivoltaics & Large-Scale Solar Energy in Pennsylvania Update (May 15, 2024)

Artificial Intelligence in Agriculture (Apr. 29, 2024)

Resources of Interest:

Southern Ag Today, Battlelines Are Being Drawn: Comparing Current Farm Policy Proposals, Bart Fischer, Tex. A&M (May 24, 2024)

Tex. A&M Agric. Law Blog, May 24, 2024 Weekly Round Up, Tiffany Dowell Lashmet (May 24, 2024)

Southern Ag Today, If You are Following the Conversation about Reference Prices… Here are a Few Facts, Joe Outlaw, Tex. A&M, Bart Fischer, Tex. A&M, Nathan Smith, Clemson Coop. Ext. (May 23, 2024)

Nat’l Agric. Law Ctr., FDA Publishes Final Agricultural Water Rule, Emily Stone (May 23, 2024)

Nat’l Agric. Law Ctr., The Feed: Volume 2, Issue 10, Ramie Parsons (May 23, 2024)

Southern Ag Today, Management and Marketing Implications of Deforestation-Free Soybeans in the Southern Region, Jordan Shockley & Grant Gardner, Univ. of Ken., Coll. Of Ag., Food, and Envir. (May 22, 2024)

Agric. Law & Tax’n Blog, An Electronic Identification Mandate for the Cattle Industry, Roger A. McEowen (May 21, 2024)

Ohio St. Univ. Ext. Farm Off. Blog, Another Lake Erie Lawsuit: How Does it Affect Ohio Agriculture?, Peggy Kirk Hall (May 22, 2024)

Southern Ag Today, Steer Dressed Weight: Recent Counter-Seasonal Behavior and its Long-Term Growth Trend, Yuri Clemets Daglia Calil, Tex. A&M AgriLife Ext. (May 21, 2024)

Southern Ag Today, Analyzing World and U.S. Sugar Price Dynamics, Michael Deliberto, LSU Ag. Center. Bart Fischer, Tex. A&M Univ. Agric. and Food Policy Center, Karen L. DeLong, Univ. of Tenn. Inst. of Agric. (May 20, 2024)

Tex. A&M Agric. Law Blog, Overview of New State Laws: The 2023 Texas Legislative Session for Agriculture, Tiffany Dowell Lashmet (May 20, 2024)

FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE

U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES

Updates on H5N1 Beef Safety Studies (May 24, 2024)

Biden-Harris Administration Invests in Domestic Fertilizer Projects to Strengthen American Farms and Businesses (May 23, 2024)

USDA Expands Support for Producers to Stop the Spread of H5N1 in Dairy Cattle (May 23, 2024)

USDA Announces Approval of D-SNAP for Oklahoma Disaster Areas (May 21, 2024)

USDA Awards $300 Million to Diversify Export Markets for U.S. Agriculture (May 21, 2024)

USDA AGENCY PRESS RELEASES:

Agricultural Marketing Services

USDA Issues a Default Decision against Thomas D. Unger for Violating the Packers and Stockyards Act (May 23, 2024)

USDA Files Action Against CFG Produce Inc. in Texas for Alleged PACA Violations (May 23, 2024)

USDA Files Action Against Red Wagon Groves Inc. in Texas for Alleged PACA Violations (May 23, 2024)

Animal and Plant Health Inspection Service

APHIS in Action: APHIS Preserves Cherry Tree Tradition (May 24, 2024)

National Institute of Food and Agriculture

USDA Announces WIC National Strategy, $29M in Supporting Funding Opportunities to Strengthen WIC Workforce (May 23, 2024)

Farmers Will Benefit from New Fertilizer Recommendation Support Tool (May 21, 2024)

Natural Resources Conservation Service (NRCS)

NRCS Maryland Invites Applications for Partnership Proposals Focusing on Conservation of Maryland Agriculture (May 24, 2024)

USDA Forms New Partnerships to Support Organic Transition, Conservation Assistance (May 21, 2024)

USDA Forms New Partnerships to Support Organic Transition, Conservation Assistance (May 20, 2024)

FEDERAL EXECUTIVE AGENCIES (Federal Register May 13–17, 2024):   

Agriculture Department

89 FR 44625 Notice: “Submission for OMB Review; Comment Request” (May 21, 2024)

89 FR 43800 Notice: “Submission for OMB Review; Comment Request” (May 20, 2024)

Agricultural Marketing Service

89 FR 45557 Rule: “Marketing Order Regulating the Handling of Spearmint Oil Produced in the Far West; Salable Quantities and Allotment Percentages for the 2024-2025 Marketing Year” (May 23, 2024)

89 FR 45751 Rule: “Onions Grown in Certain Designated Counties in Idaho and Malheur County, Oregon; Increased Assessment Rate” (May 24, 2024)

Animal and Plant Health Inspection Service

89 FR 45626 Notice: “Addition of Aruba, Eritrea, Ethiopia, Hong Kong, Iran, Timor-Leste, and Yemen to the List of Regions Affected by Screwworm” (May 23, 2024)

Environmental Protection Agency

89 FR 45659 Notice—Comment Period: “Pesticide Product Registration; Receipt of Applications for New Uses-April 2024” (May 23, 2024)

89 FR 44954 Proposed Rule: “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities-April 2024” (May 22, 2024)

89 FR 43850 Notice—Comment Period: “Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Several Pesticides; Notice of Availability” (May 20, 2024)

Food Nutrition Service

89 FR 45819 Notice: “Agency Information Collection Activities: Proposed Collection; Comment Request-User Access Request Form FNS-674″ (May 24, 2024)

Food Safety and Inspection Service

89 FR 45626 Notice: “Availability of FSIS Guideline to Assist with the Donation of Eligible Meat, Poultry and Egg Products to Non-Profit Organizations” (May 23, 2024)

89 FR 44928 Proposed Rule: “Supplemental Nutrition Assistance Program: Program Purpose and Work Requirement Provisions of the Fiscal Responsibility Act of 2023” (May 22, 2024)

89 FR 44957 Notice: “National Advisory Committee on Microbiological Criteria for Foods: Public Meeting” (May 22, 2024)

Forest Service

89 FR 44627 Notice: “Central Idaho Resource Advisory Committee” (May 21, 2024)

89 FR 44626 Notice: “Siuslaw Resource Advisory Committee” (May 21, 2024)

Rural Utilities Service

89 FR 45629 Notice: “Notice of Publication of RUS List of Eligible Countries” (May 23, 2024)

89 FR 45563 Rule: “Revision to Electric Program Operating Policies and Procedures” (May 23, 2024)

U.S. HOUSE AGRICULTURE COMMITTEE:

H.R.8539 “To establish the Office of Biotechnology Policy in the Department of Agriculture, and for other purposes.” Referred to the House Committee on Agriculture. (May 23, 2024)

H.R.8538 “To establish an interagency committee to coordinate activities of the Federal Government relating to biotechnology oversight, and for other purposes.” Referred to the House Committee on Agriculture. (May 23, 2024)

H.R.8522 “To improve connections between the Department of Agriculture and national and homeland security agencies, and for other purposes.” Referred to the House Committee on Agriculture. (May 23, 2024)

H.R.8513 “To direct the Secretary of Agriculture to carry out a demonstration project to allow Tribal entities to purchase agricultural commodities under the commodity supplemental food program, and for other purposes.” Referred to the House Committee on Agriculture. (May 22, 2024)

H.R.8510 “To amend the Food Security Act of 1985 to encourage the use of native vegetation, and for other purposes.” Referred to the House Committee on Agriculture. (May 22, 2024)

H.R.8492 “To prohibit wildlife killing contests on public lands, and for other purposes.” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. (May 22, 2024)

H.R.4763 “Financial Innovation and Technology for the 21st Century Act” Motion to reconsider laid on the table Agreed to without objection. (May 22, 2024)

H.R.8488 “To amend the Food Security Act of 1985 to expand the provision of farmer-led technical assistance, and for other purposes.” Referred to the House Committee on Agriculture. (May 21, 2024)

H.R.8472 “To amend the Consolidated Farm and Rural Development Act to support the expansion of freight rail infrastructure to support the transport of agricultural inputs and products to farms, and for other purposes.” Referred to the House Committee on Agriculture. (May 21, 2024)

H.R.8467 “Farm, Food, and National Security Act of 2024” Referred to the House Committee on Agriculture. (May 21, 2024)

U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:

S.4421 “A bill to establish the Office of Biotechnology Policy in the Department of Agriculture, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (May 23, 2024)

S.4420 “A bill to improve connections between the Department of Agriculture and national and homeland security agencies, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (May 23, 2024)

S.4386 “A bill to amend the Agricultural Research, Extension, and Education Reform Act of 1998 to direct the Secretary of Agriculture to establish a program under which the Secretary shall award competitive grants to eligible entities for the purpose of establishing and enhancing farming and ranching opportunities for veterans, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (May 22, 2024)

Agriculture-Related Legislative Hearings & Reports

U.S. Senate Subcommittee on Commodities, Risk Management, and Trade, Pathways to Farming: Helping the Next Generation of Farmers (June 4, 2024)

STATE ACTIONS—EXECUTIVE & LEGISLATIVE

PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES

Shapiro Administration Awards $2.07 Million To 57 Foodbanks, Pantries, And Soup Kitchens To Expand Emergency Food Access Across Pennsylvania (May 24, 2024)

PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 21—May 25, 2024): 

Department of Agriculture

54 Pa.B. 2819 Notice: “Interstate and International Quarantine Order; Restriction of Movement and Pre-Movement Influenza Testing of Dairy Cattle”

Department of Environmental Protection

54 Pa.B. 2823 Notice: “Applications, Actions and Special Notices”

Susquehanna River Basin Commission

54 Pa.B. 2917 Notice: “Projects Approved for Consumptive Uses of Water”

PENNSYLVANIA LEGISLATURE

HR 445 “A Resolution designating the month of June 2024 as “Dairy Month” in Pennsylvania.” Referred to Agriculture and Rural Affairs. (May 21, 2024)

HB 2309 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in crop insurance, further providing for short title of chapter, for purpose of chapter, for definitions, for establishment of program and for powers and duties of department; providing for dairy margin coverage program financial assistance; and making an editorial change.” Referred to Agriculture and Rural Affairs. (May 21, 2024)

HB 2310 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, providing for the Agriculture Innovation Grant Program; and promulgating regulations.” Referred to Agriculture and Rural Affairs. (May 21, 2024)

HB 2293 “An Act amending the… Milk Sanitation Law, further providing for raw milk and handling; and abrogating a regulation.” Referred to Agriculture and Rural Affairs. (May 20, 2024)

 

Contributors:
Victoria Dutterer—Research Assistant
Samuel Sweeten—Research Assistant
Audry Thompson—Staff Attorney