March 10, 2024
Agricultural Law Weekly Review—March 11, 2024
Agricultural Labor: Fifth Circuit Remands ‘Independent Contractor’ Rule Challenge to District Court, DOL January 2024 Rule Effective March 11, 2024 🌾
On February 19, 2024, the U.S. Court of Appeals for the Fifth Circuit issued an order vacating the district court’s decision and remanding a case challenging the U.S. Department of Labor’s (DOL) March 2021 delay (86 FR 12535) and May 2021 withdrawal (86 FR 24303) of the agency’s independent contractor rule, issued on January 7, 2021 (86 FR 1168) shortly before the change of administration. Coalition v. Su, No. 22-40316. The January 2021 rule had revised the “economic realities” test to primarily analyze two “core factors” of a traditionally six-factor judicial test: “the nature and degree of the worker’s control over the work” and “the worker’s opportunity for profit or loss.” On January 10, 2024, DOL issued a new independent contractor rule restoring the six-factor test, which becomes effective March 11, 2024. The court’s action returns the case to the U.S. District Court for the Eastern District of Texas, which had vacated the delay and withdrawal of the rule and reinstated the January 2021 rule and, on March 8, 2024, granted the plaintiffs leave to amend their complaint. Coalition for Workforce Innovation v. Walsh, No. 1:21-cv-00130. See also ALWR—Jan. 18, 2024, “Department of Labor Publishes Final Rule: ‘Employee or Independent Contractor Classification Under the Fair Labor Standards Act’.”
Water Quality: Federal Court Vacates, Remands 2020 NRCS Wetlands Final Rule
On February 22, 2024, the U.S. District Court for the District of Columbia issued an opinion granting summary judgment to the plaintiffs and vacating the U.S. Department of Agriculture (USDA) Natural Resources Conservation Service’s (NRCS) “Highly Erodible Land and Wetland Conservation” 2020 final rule (85 FR 53137), which established legibility as a determining quality factor for pre-1996 wetland determination maps. Nat’l Wildlife Federation v. Lohr, No. 1:19-cv-02416. According to the opinion, “from 1996 to 2013, NRCS decided whether pre-1996 maps delineating wetlands should be considered ‘certified’ wetland determinations based on the map’s accuracy” (emphasis added). However, “[a] Department of Agriculture’s Inspector General’s report indicated that, in 2013, NRCS began treating pre-1996 determinations as certified so long as they included legible maps and informed farmers of their appeal rights,” rather than considering the map’s accuracy, and, in 2020, NRCS issued a final rule codifying that practice. The court found that “the 2020 Final Rule violates the [Administrative Procedure Act] because NRCS changed its policy regarding the certification of pre-1996 wetland determinations without providing a reasoned explanation” and remanded the rule to NRCS. See also the Center’s Waters of the United States Virtual Resource Room.
Antitrust: Federal Court Grants Temporary Restraining Order Against Kroger-Albertsons Merger, Federal Trade Commission to Hold Hearing
On February 27, 2024, the U.S. District Court for the District of Oregon issued a stipulated temporary restraining order prohibiting the proposed merger between The Kroger Company and Albertsons Companies, Inc. until at least five business days after the court rules on the U.S. Federal Trade Commission’s (FTC) motion for preliminary injunction, filed in conjunction with the agency’s administrative complaint on February 26, 2024. Federal Trade Commission v. Kroger Company, No. 3:24-cv-00347. Also announced by FTC, the agency alleges that the merger will “eliminate head-to-head competition” and result in market concentration in violation of the Federal Trade Commission Act and the Clayton Act. According to the administrative complaint, the agency will hold an evidentiary hearing before an FTC Administrative Law Judge on July 31, 2024 at 10:00am. See also ALWR—Oct. 28, 2022, “Kroger-Albertsons Merger ‘Special Dividend’ Payment Opposed by State Attorneys General and U.S. Senators” and the Center’s Agricultural Antitrust Issue Tracker.
Packers and Stockyards Act: USDA Publishes Final Rule Prohibiting Discrimination, Retaliation Under PSA
On March 6, 2024, the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) published in the Federal Register a final rule (89 FR 16092) titled “Inclusive Competition and Market Integrity Under the Packers and Stockyards Act.” Also announced by AMS, the final rule prohibits (1) “adverse actions” or “actions that inhibit market access . . . to covered producers on the basis of race, color, religion, national origin, sex, disability, marital status, or age . . . or because of the covered producer’s status as a cooperative,” (2) “retaliatory and adverse actions that interfere with lawful communications, assertion of rights, associational participation, and other protected activities,” and (3) “regulated entities employing false or misleading statements or omissions of material information in contract formation, performance . . . termination . . . [or] refusal to contract.” Additionally, the rule “[r]equire[s] recordkeeping to support USDA monitoring, evaluation, and enforcement of compliance with aspects of th[e] rule.” The final rule is effective May 6, 2024. See also materials and recording from Understanding the Basics of Livestock Market Regulation.
National Agricultural Policy: EPA Announces Office of Agriculture and Rural Affairs
On March 1, 2024, the U.S. Environmental Protection Agency (EPA) announced the establishment of its EPA Office of Agriculture and Rural Affairs (OARA). According to EPA, OARA will act “as the primary liaison between rural and agricultural stakeholders and the [EPA].” Through OARA, EPA aims to “increase coordination” with EPA regional agriculture policy advisors and “federal and state partners such as the U.S. Department of Agriculture, U.S. Food and Drug Administration, and state departments of agriculture” and “collaborate with small, underserved towns and rural communities that are seeking federal investment in infrastructure upgrades or other community improvement opportunities.” Additionally, OARA will house some of EPA’s agriculture-related committees, including the existing Farm, Ranch, and Rural Communities Federal Advisory Committee (FRRCC), and the new Animal Agriculture and Water quality (AAWQ) committee.
Environmental Credit Trading: USDA Announces ‘Intent to Establish Greenhouse Gas Technical Assistance Provider and Third-Party Verifier Program’
On February 27, 2024, the U.S. Department of Agriculture (USDA) published a report, also announced by the agency, detailing USDA’s intent to establish the “Greenhouse Gas Technical Assistance Provider and Third-Party Verifier Program” (7 U.S.C. § 6712). The program is authorized by the Growing Climate Solutions Act, introduced in both the House and Senate in 2020 (H.R.7393/S.3894) and 2021 (H.R.2820/S.1251) and passed through the 2023 Consolidated Appropriations Act (P.L. 117-328). USDA states that, through the program, the agency intends to “reduce market confusion by serving as a trusted authority on relevant carbon market information.” According to the report, the program will “list widely accepted voluntary carbon credit protocols” and “provide a list of qualified technical assistance providers and third-party verifiers who work with producers to generate carbon credits.” USDA states it will “soon solicit information on protocols to be evaluated for inclusion in the list to be published as part of the program” and plans to “establish the charter for the program’s advisory council and seek membership nominations in Summer 2024.” See also ALWR—Oct. 30, 2023, “USDA Publishes Report on ‘Role of Agriculture and Forestry in U.S. Carbon Markets.’”
Environmental Credit Trading: New York Alleges JBS ‘Net Zero by 2040’ Campaign Fraudulent in State Court Complaint
On February 28, 2024, the New York Attorney General (AG) filed a complaint in the Supreme Court of the State of New York, County of New York, alleging that JBS US Food Company and its subsidiaries violated the state’s General Business Law by “repeatedly and persistently ma[king] unsubstantiated and misleading environmental marketing claims to New York consumers even after [the Better Business Bureau’s National Advertising Division (NAD)] and [NAD’s] Review Board found such claims to be unsubstantiated and recommended that the JBS Group stop making them.” New York v. JBS USA. According to the complaint, JBS began advertising in 2021 that it would achieve “Net Zero by 2040” (later changed by the company to “ambition to achieve”), but JBS’s “2022 Sustainability Report, published in August 2023, indicate[d] that [JBS] did not yet have a concrete plan to achieve its net zero commitment” and JBS’s “CEO admitted at the September 2023 Climate Week event [JBS] would not begin to develop an ‘action plan’ for achieving its ‘Net Zero by 2040’ goal until the company identified all of its Scope 3 emissions, which it had not yet done as of that date.” As such, New York claims JBS’s actions are “fraudulent” and “deceptive” under New York law. Also announced by the New York AG’s office, the state requests that JBS be enjoined from engaging in fraudulent, deceptive, and illegal marketing practices and disgorge all profits, funds, and assets earned through its conduct. See also the Farmland Energy Podcast: An Introduction to Carbon Pricing Programs and Agriculture (Part 1) and An Introduction to Carbon Pricing Programs and Agriculture (Part 2).
WOTUS: Twenty-Four States File Motion Seeking Vacatur of 2023 WOTUS Rule
On February 26, 2024, twenty-four states filed, in the U.S. District Court for the District of North Dakota, a motion for summary judgment seeking vacatur of the “Waters of the United States” (WOTUS) final rule, issued September 2023. West Virginia v. EPA, No. 3:23-cv-00032. The states argue that the final rule violates the Administrative Procedure Act and that the U.S. Environmental Protection Agency (EPA) did not act in compliance with the Supreme Court’s ruling in Sackett v. United States. Additionally, the State of West Virginia and the Cass County Farm Bureau filed a memorandum in support of the motion for summary judgment, outlining the States’ argument that the final rule violates the Clean Water Act, the Commerce Clause, the major questions doctrine, and is an improper delegation of legislative powers. See also ALWR—Nov. 20, 2023, “Twenty-Four States File Amended Complaint Challenging New WOTUS Rule,” and the Center’s Waters of the United States Agricultural Issue Tracker.
Crop Insurance: USDA Announces Nursery Value Select Program Available Nationwide
On February 27, 2024, the U.S. Department of Agriculture’s (USDA) Risk Management Agency (RMA) announced that the agency is amending its Nursery Value Select (NVS) program to be available to all nursery producers within the United States. Although initiated in 2021, NVS was only available to nursery producers “in select counties in . . . Alabama, Colorado, Michigan, New Jersey, Oregon, Tennessee, Texas, and Washington.” According to the announcement, “NVS will now be available in all counties in all states” starting with the 2025 crop year. AMS states, “The sales closing date for the 2025 crop year is May 1, 2024, or September 1, 2024, as provided in the actuarial documents.”
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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:
- Mar. 22, 2024, Understanding the Basics of Organic Production
- Apr. 26, 2024, Understanding the Basics of Producer Protections for Buyer Default
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:
- Apr. 16, 2024, Overview of U.S. State Milk Pricing Systems
Exploring Succession and Estate Planning: A Panel Discussion
- Mar. 15, 2024. 2:00–4:00pm. Staff Attorney Brook Duer presents “Pros and Cons of Various Transition Methods/Tools” with the panel.
Podcasts:
Agricultural Law Podcast
Dicamba Registrations Vacated Again (Feb. 19, 2024)
California’s Proposition 12 Finally Fully Effective (Feb. 13, 2024)
EPA Proposes More Stringent Meat and Poultry Processing Plant Effluent Discharge Standards (Jan. 24, 2024)
Farmland Legal Energy Podcast
Introduction to Wind Farms and How Farmers Can Utilize Wind Power
Methane Production From Manure
An Introduction to Hydrogen and Agriculture
An Introduction to Anaerobic Digestion
Publications:
Anaerobic Digestion: An Alternative Energy Source for Farmers (Dec. 2023).
Resources of Interest:
Nat’l Agric. Law Ctr., Federal Court Revokes Florida’s CWA Section 404 Permitting Authority, Brigit Rollins (Feb. 29, 2024)
Ohio St. Univ. Ext. Farm Off. Blog, The Contract Law Harvest, Jeffrey Lewis (Feb. 29, 2024)
Iowa St. Univ. Ctr. Agric. Law & Tax’n, Does a Farmer Have to File and Pay Taxes by March 1?, Kristine Tidgren (Feb. 28, 2024)
Ohio St. Univ. Ext. Farm Off. Blog, Farm Transition Planning Strategies for Second Marriages – Part 1, Trusts, Robert Moore (Feb. 27, 2024)
Nat’l Agric. Law Ctr., Update on Cottage Food Laws – 2024 Proposed Legislation, Emily Stone (Feb. 27, 2024)
Tex. A&M Agric. Law Blog, Texas Supreme Court Rules in Case Involving Implied Easement, Tiffany Dowell Lashmet (Feb. 27, 2024)
Agric. Law & Tax’n Blog, Animal Ag Facilities and Free Speech – Does the Constitution Protect Saboteurs? (An Update), Roger McEowen (Feb. 26, 2024)
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FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES
USDA Announces Progress on Newly Authorized Climate Programs (Feb. 27, 2024)
ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES
Biden-Harris Administration invests $3B into clean ports as part of President Biden’s Investing in America agenda (Feb. 28, 2024)
Biden-Harris Administration Announces $74 Million WIFIA Loan to Pajaro Valley Water Management Agency in Santa Cruz (Feb. 27, 2024)
Biden-Harris Administration announces over $1 billion to start new cleanup projects and continue work at 100 Superfund sites across the country (Feb. 27, 2024)
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
USDA Announces Grant Funding and New Resources Available for Local and Regional Food Systems Development (Feb. 27, 2024)
Agricultural Research Service (ARS)
Scientists Find Butyrate’s Possible Anticancer Potential is Cell-Type Specific (Feb. 27, 2024)
USDA Scientists Develop Technology to Reduce Pathogens in Intact Eggs (Feb. 26, 2024)
Animal and Plant Health Inspection Service (APHIS)
APHIS Bolsters Animal Health Surveillance with Funding for Unexplained Morbidity or Mortality Investigations (Feb. 27, 2024)
Economic Research Service (ERS)
SNAP Policy Data Sets (Feb. 29, 2024)
Agricultural Exchange Rate Data Set (Feb. 28, 2024)
An Analysis of the Effect of Sunsetting Tax Provisions for Family Farm Households (Feb. 27, 2024)
Forest Service
The National Forest Foundation and USDA Forest Service Launch Nature Connects Us Campaign (Feb. 26, 2024)
Natural Resources Conservation Service (NRCS)
NRCS Missouri Announces Second Batching Date for FY 2024 Environmental Quality Incentives Program Funding (Feb. 29, 2024)
USDA Announces Grants for Urban Agriculture and Innovative Production (Feb. 27, 2024)
FEDERAL EXECUTIVE AGENCIES (Federal Register Feb. 26–Mar. 1, 2024):
Agriculture Department
89 FR 15116 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service (NASS): Fast Track Generic Clearance for Qualitative Feedback on Customer Satisfaction Surveys.]” (Mar. 1, 2024)
89 FR 14622 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: U.S. Origin Health Certificate]” (Feb. 28, 2024)
89 FR 14040 Notice: “Submission for OMB Review; Comment Request [Rural Utilities Service: 7 CFR part 1744, subpart B, Lien Accommodations and Subordination Policy]” (Feb. 26, 2024)
89 FR 14041 Notice: “Submission for OMB Review; Comment Request [Agricultural Marketing Service: Cotton Classification and Market News Service] (Feb. 26, 2024)
89 FR 14041 Notice: “Submission for OMB Review; Comment Request [Animal Plant and Health Inspection Service: Black Stem Rust; Identification Requirements and Addition of Rust-Resistant Varieties]”
Commodity Credit Corporation
89 FR 14372 Rule: “Dairy Margin Coverage Production History Adjustment and Program Extension” (Feb. 27, 2024)
Environmental Protection Agency
89 FR 15040 Rule—Comment Period: “1,4-Bis[[3-[2-(2-hydroxyethoxy)ethoxy]propyl]amino]-9,10-anthracenedione in Pesticide Formulations; Tolerance Exemption” (Mar. 1, 2024)
89 FR 15046 Rule—Comment Period: “Various Fragrance Components in Pesticide Formulations; Tolerance Exemption” (Mar. 1, 2024)
89 FR 14795 Proposed Rule—Comment Period: “Receipt of a Pesticide Petition Filed for Residues of Pesticide Chemicals in or on Various Commodities (January 2024)” (Feb. 29, 2024)
89 FR 14591 Rule: “Triclopyr; Pesticide Tolerances” (Feb. 28, 2024)
Farm Service Agency
89 FR 15117 Notice: “Continuation of Farm Service Agency’s Conservation Reserve Program” (March 1, 2024)
Food and Nutrition Service
89 FR 14622 Notice—Comment Period: “Agency Information Collection Activities: Special Supplemental Nutrition Program for Women, Infants and Children (WIC); Food Delivery Portal (FDP)” (Feb. 28, 2024)
Forest Service
89 FR 14746 Rule: “Subsistence Management Regulations for Public Lands in Alaska-2023-24 and 2024-25 Subsistence Taking of Wildlife and Fish and Shellfish Regulations” (Feb. 29, 2024)
89 FR 14008 Proposed Rule—Comment Period: “Subsistence Management Regulations for Public Lands in Alaska-Subpart B; Federal Subsistence Board Membership” (Feb. 26, 2024)
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.6292 “Future FARMER Act” Referred to the Subcommittee on Conservation, Research, and Biotechnology. (Mar. 1, 2024)
H.R.6203 “Farmers Feeding America Act of 2023” Referred to the Subcommittee on Nutrition, Foreign Agriculture, and Horticulture. (Mar. 1, 2024)
H.R.6142 “LAST ACRE Act of 2023” Referred to the Subcommittee on Commodity Markets, Digital Assets, and Rural Development. (Mar. 1, 2024)
H.R.7479 “To authorize certain States to take certain actions on certain Federal land to secure an international border of the United States, and for other purposes.” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture. (Feb. 29, 2024)
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
S.3856 “A bill to require certain forest supervisors of units of the National Forest System to submit to the Chief of the Forest Service a harvesting improvement report, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Feb. 29, 2024)
S.3836 “A bill to improve drought-related disaster assistance programs of the Department of Agriculture, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Feb. 29, 2024)
S.3824 “A bill to amend the Food and Nutrition Act of 2008 to establish online and delivery standards, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Feb. 27, 2024)
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
No New Actions.
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 8—Feb. 24, 2024):
Department of Environmental Protection
54 Pa.B. 1197 Notice: “APPLICATIONS FOR NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) PERMITS AND WATER QUALITY MANAGEMENT (WQM) PERMITS UNDER THE CLEAN STREAMS LAW AND FEDERAL CLEAN
WATER ACT”
54 Pa.B. 1263 Notice: “Draft National Pollutant Discharge Elimination System General Permit for Discharges of Stormwater Associated with Construction Activities (PAG-02)”
54 Pa.B. 1266 Notice: “Household Hazardous Waste Education Grant Award under Section 901 of the Municipal Waste Planning, Recycling and Waste Reduction Act, Act 101 of 1988”
Fish and Boat Commission
54 Pa.B. 1273 Notice: “Mentored Youth Fishing Day Program; Trout—2024”
PENNSYLVANI A LEGISLATURE
No New Actions
Contributors:
Victoria Dutterer—Research Assistant
Lonzie Helms—Research Assistant
Esther Thomas—Research Assistant
Audry Thompson—Staff Attorney
