November 4, 2024
Agricultural Law Weekly Review—November 5, 2024
Pesticides/Herbicides: Massachusetts State Court Grants Summary Judgment for Monsanto on FIFRA Preemption 🌾
On October 21, 2024, the Essex County Superior Court of Massachusetts issued a memorandum and order granting summary judgment to Monsanto/Bayer on the issue of preemption, finding that the plaintiff’s state law failure to warn claim was preempted by the labeling requirements of the Federal Insecticide and Fungicide Act (FIFRA), which “provides that a state shall not impose . . . any requirements for labeling or packaging in addition to or different from those required under” FIFRA. Cardillo v. Monsanto, No. 2177CV00462. The court stated that “while [Plaintiff] claims . . . that Roundup caused her cancer . . . [she] does not specify how a revised Roundup label would read, except to assert that Monsanto had a duty to warn that Roundup contains ‘dangerous characteristics’ which include . . . ‘glyphosate,’ and that it ‘knew or should have known the unreasonable risks of harm associated with the use of and/or exposure to such products,’” concluding that “the reality of [Plaintiff’s] claim would make any label that falls short of a ‘Cancer Warning,’ a violation of the State’s common-law duty to warn.” However, the court found that FIFRA regulations “require the health warnings on a pesticide’s label to conform to the” EPA-approved proposed label and held that, “[a]s Monsanto’s alleged violation of the Massachusetts Duty to Warn did not constitute a violation of . . . [FIFRA], the two requirements are not equivalent . . . and [Plaintiff’s] claims for failure to warn are preempted under [FIFRA].” The court cited the Third Circuit’s recent opinion also finding state-law failure to warn pesticide claims preempted by FIFRA, stating that it “f[ound] . . . [the] reasoning persuasive . . . which held ‘that a state-law duty is preempted if relevant EPA regulations that give content to FIFRA’s misbranding standards would prohibit adding the warning that state law requires” (cleaned up, emphasis in opinion). See also ALWR—Sept. 10, 2024, “Third Circuit Finds FIFRA Preempts State Law Label Warning Requirement.”
Pesticides/Herbicides: EPA Publishes Final Rule Establishing Residue Tolerances for Glufosinate-P
On October 29, 2024, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a final rule (89 FR 85859) establishing glufosinate-P residue tolerances for multiple commodities, requested by BASF Corporation (EPA-HQ-OPP-2020-0250) and MITSUI Chemicals Crop & Life Solutions, Inc. (EPA-HQ-OPP-2020-0533). Also announced by EPA, the agency states that the herbicide “has similar benefits and uses to the currently registered glufosinate herbicide products” and that “the proposed glufosinate-P products result in less chemicals entering the environment compared to the currently registered glufosinate because they only require approximately half the application rate to be as effective.” According to the announcement, “glufosinate-P is the first new active ingredient registration where EPA has used its new Herbicide Strategy Framework, released in August 2024, to inform the level of mitigation necessary to reduce exposure to listed species and critical habitat from runoff and erosion.” According to the final rule, which became effective upon publication, “objections and requests for hearings must be received on or before December 30, 2024.” See also ALWR—Sept. 10, 2024, “EPA Publishes Final Herbicide Strategy for Federally Listed Species.”
Biosecurity: Electronic Eartag Rule Effective November 5, 2024, Cattle Groups Seek Injunction
On November 5, 2024, the final rule, “Use of Electronic Identification Eartags as Official Identification in Cattle and Bison,” (89 FR 39540) becomes effective. On October 30, 2024, several cattle producer groups filed a complaint in the U.S. District Court for the District of South Dakota seeking declaratory and injunctive relief against the rule. Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America v. United States Department of Agriculture, No. 5:24-cv-05085. The producers allege, among several claims, that the final rule violates the Animal Health Protection Act—which “requires that the action taken be ‘necessary to prevent the introduction or dissemination of any pest or disease of livestock’” (emphasis in original)—because “participants within the production chain may continue to use EID eartags in the exact same way that they use visual-only eartags,” and as such, the rule is not necessary because it “does not actually fix the problems it is supposedly addressing.” According to the complaint, “USDA has previously ‘stated that a participation rate of 70 percent of the nation’s cattle herd would be necessary for an [Animal Disease Traceability] program to be effective’ . . . but the Rule only applies to 11 percent of the nation’s cattle herd.” For background, see ALWR—May 24, 2024, “USDA Publishes Final Rule Requiring Electronic Eartags for Cattle and Bison.
Regulatory Policy: FDA Announces Human Food Program FY 2025 Priority Deliverables
On October 30, 2024, the U.S. Food and Drug Administration announced that the agency’s Human Foods Program (HFP) had published its FY 2025 Priority Deliverables, grouped into three main categories: (1) Microbiological Food Safety, (2) Food Chemical Safety, and (3) Nutrition. Relevant to agricultural activities, FDA states that it will “finalize an implementation plan and . . . educat[e] industry and other partners on the new requirements in the . . . final rule on Pre-harvest Agricultural Water” and “advance the Highly Pathogenic Avian Influenza (HPAI) silo study in collaboration with the U.S. Department of Agriculture (USDA), the Centers for Disease Control and Prevention (CDC), the National Conference on Interstate Milk Shipments (NCIMS), and state partners to monitor the safety of dairy and milk products,” among other actions. See also ALWR—Oct. 11, 2024, “Food and Drug Administration Announces Reorganization Structures.”
Animal Welfare: Iowa Depopulates 1.3 Million Birds Claimed from Pure Prairie Poultry
On October 25, 2024, the Iowa Department of Agriculture & Land Stewardship published an update stating that the Department had depopulated the 1.3 million broiler chickens recently claimed by the state after Pure Prairie Poultry announced that the company was unable to purchase feed for the birds. According to the update, although “the Department was able to secure an initial offer to purchase all 1.3 million birds and had a tentative agreement in place . . . the day before the scheduled hearing, attorneys for some of the other interested parties notified the Department that they would assert their lien rights and security interests in the chickens, including against the buyer’s proceeds from the sale of the post-processed meat” and “the buyer backed away from their offer,” “citing costs surrounding potential litigation due to the lien claims.” The Department further reported that, due to the “unavailability of buyers and lack of processing capacity combined with the ever-increasing feed and yardage costs, as well as the taxing of Department staff resources managing broilers with no end-market . . . the Department [was] authoriz[ed] to begin depopulation,” which “concluded on Friday, October 25.” The Department states that it “will pursue all available avenues to recoup taxpayer costs from responsible parties, including through possible future legal remedies.” On October 25, 2024, several Congress members sent a letter to U.S. Department of Agriculture (USDA) Secretary Tom Vilsack requesting information regarding the agency’s oversight of Pure Prairie Poultry, which, according to the letter, had received a $38.7 million USDA loan and a $6.9 million USDA grant. See also ALWR—Oct. 23, 2024, “Iowa Takes Custody of 1.3 Million Broiler Chickens from Pure Prairie Poultry.”
National Agricultural Policy: USDA Announces $3 Billion, ‘Farmer Benefit Plan Framework’ for Empowering Rural America Program
On October 25, 2025, the U.S. Department of Agriculture (USDA) announced that the agency is providing over $3 billion through its Empowering Rural America (New ERA) Program, funded by the 2022 Inflation Reduction Act. According to the announcement, about $2.5 billion will go to the Tri-State Generation and Transmission Association, a cooperative power supplier with members in Nebraska, Wyoming, Colorado, and New Mexico, and almost $1 billion in grants and loans will be provided to six electric cooperatives that serve rural communities in Minnesota, South Dakota, South Carolina, Colorado, Nebraska, and Texas. Additionally, USDA announced a Farmer Benefit Plan framework, which an energy developer may use to “outlin[e] . . . actions or processes the[y] . . . plan to incorporate to make sure that farmers benefit from the project,” in partial fulfillment of the Community Benefit Plan, required for 2022 Inflation Reduction Act clean energy programs.
Water Quality: EPA Publishes Final Rule for Lead and Copper Drinking Water Regulation
On October 30, 2024, the U.S. Environmental Protection Agency (EPA) published in the Federal Register a final rule titled, “National Primary Drinking Water Regulations for Lead and Copper: Improvements” (LCRI) (89 FR 86418). The LCRI is structured around “five focus areas: (1) achieving lead pipe replacement within 10 years, (2) locating legacy lead pipes, (3) improving tap sampling, (4) lowering the lead action level, and (5) strengthening protections to reduce exposure.” The LCRI requires full replacement of all lead service lines in the United States within 10 years, but, according to an EPA fact sheet, “for a limited number of drinking water systems . . . that cannot replace every lead pipe in 10 years, the rule establishes some additional time to get the job done.” Also announced by the White House, The LCRI also requires water systems to “track lead connectors in their inventories and replace them as they are encountered,” “make their service line inventories publicly available,” and “use a validation process to ensure the service line inventory is accurate.” The final rule becomes effective December 30, 2024, and the compliance date for community water systems is November 1, 2027.
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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:
- Dec. 13, 2024, Understanding the Basics of Children, Minors & Farm Work
Podcasts:
Farmland Legal Energy Podcast
Introduction to Precision Agriculture
An Overview of Critical Minerals
Commercial Energy Payments on Farmland
Resources of Interest:
Southern Ag Today, What Other State Decisions Can Tell Us About Right-to-Farm Laws, Paul Goeringer, Univ. of Maryland (Oct. 25, 2024)
Nat’l Agric. Law Ctr., Deadline Approaches for Business Owners to Comply with Corporate Transparency Act, Drew Viguet (Oct. 23, 2024)
Agric. Law & Tax’n Blog, Discontinuing Building Border Wall Violates Environmental Law—Rancher’s Property Rights Upheld, Roger A. McEowen (Oct. 23, 2024)
Nat’l Agric. Law Ctr., WOTUS Update: Judge Recommends Resolving CWA Dispute in Favor of Landowner Following Sackett Decision, Brigit Rollins (Oct. 22, 2024)
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S. ENVIROMENTAL PROTECTION AGENCY
Biden-Harris Administration Announces $3.6 Billion for Water Infrastructure Through Investing in America Agenda (Oct. 23, 2024)
EPA Finalizes Cancellation of the Pesticide Dacthal (Oct. 22, 2024)
U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES
USDA Announces Early Release of Select Commodity Tables for Agricultural Projections to 2034 (Oct. 23, 2024)
USDA Announces Department-wide Effort to Support Terrestrial Wildlife Habitat Connectivity (Oct. 21, 2024)
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service
USDA Settles Case with Beltex Corporation, d/b/a Frontier Meats, a/k/a Frontier Packing Company and Eric Nauwelaers (Oct. 23, 2024)
USDA Issues a Packers and Stockyards Complaint against Bert E. Smith IV dba Rowdy Livestock LLC. (Oct. 23, 2024)
USDA Under Secretary Moffitt Highlights Investments in Organic Agriculture (Oct. 23, 2024)
Animal and Plant Health Inspection Service
USDA/HHS Fact Sheet: Biden-Harris Administration Takes New Action to Halt the Spread of Bird Flu, including in California and Washington (Oct. 24, 2024)
Farm Service Agency
USDA Makes Acreage Reporting Improvements to Allow Flexibility for Urban and Innovative Producers (Oct. 22, 2024)
USDA to Begin Issuing $2.14 Billion to Agricultural Producers through Key Conservation and Safety-Net Programs (Oct. 21, 2024)
National Institute of Food and Agriculture
NIFA Invests $4M in Regional Climate-Informed Solutions for Agricultural and Natural Resource Managers (Oct. 23, 2024)
National Resource Conservation Service
USDA Announces Department-Wide Effort to Support Terrestrial Wildlife Habitat Connectivity (Oct. 21, 2024)
FEDERAL EXECUTIVE AGENCIES (Federal Register Oct. 21–25, 2024):
Agricultural Department
89 FR 85137 Notice: “Submission for OMB Review; Comment Request [Meeting the Information Requirements of the Animal Welfare Act Workshop Registration Form]” (Oct. 25, 2024)
89 FR 85138 Notice: “Submission for OMB Review; Comment Request; Correction [Outreach and Assistance to Socially Disadvantaged Farmers and Ranchers and Veteran Farmers and Ranchers Program (2501 Program) Application and Performance Reporting]” (Oct. 25, 2024)
89 FR 84328 Notice: “Submission for OMB Review; Comment Request [Pecan Promotion, Research, and Information Program]” (Oct. 22, 2024)
Agricultural Marketing Service
89 FR 85137 Notice—Comment Period: “Notice of Request for Extension of a Currently Approved Information Collection” (Oct. 25, 2024)
89 FR 84828 Proposed Rule—Comment Period: “Pears Grown in Oregon and Washington; Increased Assessment Rate for Fresh Pears” (Oct. 24, 2024)
Animal and Plant Health Inspection Service
89 FR 84862 Notice: “Privacy Act of 1974; System of Records” (Oct. 24, 2024)
89 FR 84109 Notice—Comment Period: “Notice of Request for Approval of an Information Collection; A Survey of Livestock Producer Perceptions of Predators and Predator Damage Management Methods” (Oct. 21, 2024)
89 FR 84110 Notice: “Importation of Acer spp. (Acer buergerianum, A. palmatum, and A. pseudosieboldianum) Dwarf Plants from the Republic of Korea Into the Continental United States” (Oct. 21, 2024)
Environmental Protection Agency
89 FR 84574 Notice: “Dimethyl Tetrachloroterephthalate (DCPA); Final Cancellation Order for Pesticide Registrations” (Oct. 23, 2024)
Food and Nutrition Service
89 FR 85138 Notice—Comment Period: “Agency Information Collection Activities: Food Distribution Program on Indian Reservations Participant Characteristics and Program Operations Study” (Oct. 25, 2024)
89 FR 85147 Notice—Comment Period: “Agency Information Collection Activities: FNS 245-Supplemental Nutrition Assistance Program Negative Case Action Review Schedule” (Oct. 25, 2024)
Forest Service
89 FR 84522 Notice: “Hood-Willamette Resource Advisory Committee” (Oct. 23, 2024)
89 FR 84521 Notice: “Wenatchee-Okanogan Resource Advisory Committee” (Oct. 23, 2024)
89 FR 84111 Notice: “Newspapers Used for Publication of Legal Notices by the Intermountain Region, Utah, Idaho, Nevada, and Wyoming” (Oct. 21, 2024)
Natural Resources Conservation Service
89 FR 84523 Notice—Comment Period: “Proposed Revisions to the National Handbook of Conservation Practices for the Natural Resources Conservation Service” (Oct. 23, 2024)
Rural Housing Service
89 FR 85035 Rule: “Updates to the Off-Farm Labor Housing (Off-FLH), Loan and Grant Rates and Terms; Clarification of Grant Agreement Terms” (Oct. 25, 2024)
89 FR 84523 Notice: “Notice of Funds Availability (NOFA) for the Multifamily Housing Preservation and Revitalization Demonstration Program (MPR) and for Section 515 Subsequent Loans for Preservation Activities for the Fiscal Year (FY) 2024; Correction” (Oct. 23, 2024)
Rural Utilities Service
89 FR 85148 Notice: “Notice of Funding Opportunity for Section 313A Guarantees for Bonds and Notes Issued for Utility Infrastructure Purposes for Fiscal Year (FY) 2025” (Oct. 25, 2024)
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.10045 “Farmer Assistance and Revenue Mitigation Act of 2024” Referred to the Committee on Agriculture, and in addition to the Committee on the Budget, 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 (Oct. 24, 2024)
H.R.10042 “PASTURES Act” 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 (Oct. 25, 2024)
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
No agriculture actions Oct. 21–25, 2024.
Agriculture-Related Legislative Hearings & Reports
No upcoming hearings or reports.
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES
No press releases Oct. 21–25, 2024.
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 54, No. 43—Oct. 26, 2024):
54 Pa.B. 6717 Notice: “General Quarantine Order; 2025 Exhibition of Market Birds, Non-Poultry, Hatchlings, Feathers, and Eggs”
PENNSYLVANIA LEGISLATURE
HB 2393 “An Act amending the act of July 7, 1980 (P.L.380, No.97), known as the Solid Waste Management Act, in general provisions, further providing for definitions and for powers and duties of department; in applications and permits, further providing for permits and licenses required, transition scheme and reporting requirements and providing for food processing residuals; and imposing penalties” Referred to Environmental Resources and Energy (Oct. 24, 2024)
Contributors:
Riley Amdor—Research Assistant
Victoria Dutterer—Research Assistant
Samuel Sweeten—Research Assistant
Audry Thompson—Staff Attorney
