Agricultural Law Weekly Review – September 13, 2019

Water Quality: EPA Seeks Comment on Water Quality Trading Policy
On September 5, 2019, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced that the agency is seeking comment on guidance issued in the memorandum, Updating the EPA’s Water Quality Trading Policy to Promote Market-Based Mechanisms for Improving Water Quality.  Specifically, EPA requests comment on one of the principles outlined in the memo which states that EPA “encourages simplicity and flexibility in implementing baseline concepts.”  The memo asks stakeholders to consider the best way to apply the load allocation baseline in order to improve water quality.  Under the Clean Water Act, facilities experiencing increased costs due to pollution control or seeking to comply with a pollutant discharge permit may buy “environmentally equivalent (or superior) pollution reductions” from other entities to satisfy regulations. EPA stated that it will hold a public meeting regarding water quality trading and other market-based programs to improve water quality and that it will be accepting comments at https://www.regulations.gov (Docket ID no. EPA-HQ-OW-2019-0415).

Agricultural Labor: OSHA Signs Alliance with Poultry Industry Participants
On September 4, 2019, U.S. Department of Labor Occupational Safety and Health Administration (OSHA), in conjunction with the U.S. Poultry & Egg Association, National Chicken Council, and the National Turkey Federation, signed a two-year agreement creating a Poultry Industry Alliance.  Announced on the same day by the National Chicken Council and National Turkey Federation, the agreement consists of two main parts, “Raising Awareness” and “Training and Education.”  To raise awareness of workplace hazards, the agreement focuses on developing new methods of communication, participating in meetings, speaking at conferences or events, and information sharing through materials or workshops.  Under the agreement, the participants will work to create training and education programs to avoid workplace hazards and to promote safety and health.

Industrial Hemp/Cannabis: Court of Appeals Reverses Lower Court Decision in Hemp Transportation Case
On September 4, 2019, the U.S. Court of Appeals for the Ninth Circuit reversed the lower court’s decision where it denied a Motion for a Preliminary Injunction in a case involving hemp transportation (Big Sky Scientific LLC, v. Jan M. Bennetts, Idaho State Police, et al., D.C. No. 1:19-cv-00040-REB).  The Ninth Circuit stated that there is an “ongoing state judicial proceeding,” and therefore, the district court should have abstained from its decision.  The plaintiffs, Big Sky Scientific LLC (Big Sky) were stopped by authorities in Idaho when transporting industrial hemp through the state from Oregon to Colorado in January 2019.  The industrial hemp was seized, and the driver was arrested for marijuana trafficking. Big Sky argued that under the 2018 Farm Bill “No State or Indian Tribe shall prohibit the transportation or shipment of hemp…” (§10114(b)).  Idaho, however, does not distinguish industrial hemp from marijuana and argued that the 2018 Farm Bill does not apply in this case.  Idaho argued that the language in the 2018 Farm Bill relies on government regulations which have not yet been promulgated.

Biofuels: Court of Appeals Holds that EPA Violated Endangered Species Act for Renewable Fuel Program 2018 Standards
On September 6, 2019, the U.S. Court of Appeals for the District of Columbia Circuit remanded the 2018 Rule (82 FR 58486) promulgated by the Environmental Protection Agency (EPA) to establish renewable fuel targets under the Renewable Fuel Program (Am. Fuel & Petrochemical Mfrs. v. EPA, 2019 No. 17-1258).  This case was brought by various petitioners, some of whom argued that the fuel targets were too high and others who argued that the targets were too low.  According to the court, only one challenge to the rule had merit. The court determined that EPA did not meet its obligations under the Endangered Species Act by failing to determine whether the 2018 Rule would affect endangered or threatened species and critical habitat.  In light of this, the court remanded the case and directed EPA to make an effects determination in compliance with the Endangered Species Act.

Antitrust: Chicken Processing Plant Workers Bring Class Action Lawsuit Against Chicken Processors
On August 30, 2019, a class action lawsuit was brought in the U.S. District Court for the District of Maryland against chicken processors (Jien et al. v. Perdue Farms, Inc. et al, Case No. 1:19-cv-2521).  The defendant processors include Perdue Farms, Inc; Tyson Foods, Inc; The Hillshire Brands Co.; Pilgrim’s Pride Corporation; and others.  The plaintiffs allege that senior executives of the defendant processors met secretly to share data and fix wages and benefits for chicken processing plant workers.  According to the plaintiffs, these actions constitute a conspiracy in violation of the Sherman Antitrust Act (15 U.S.C. §1).

From National Ag Law Experts:
Tiffany Dowell Lashmet, 2019 USDA Land Values Summary (September 9, 2019)
Brigit Rollins, RINsanity: Court Issues Decision on RFS Program Fuel Blender Designation (September 5, 2019)

Federal Actions and Notices:
Agricultural Marketing Service
“Establishment of a Milk Donation Reimbursement Program” (September 5, 2019)

Agricultural Research Service
“Notice of Intent To Grant Exclusive License” (September 6, 2019)

Environmental Protection Agency
“Pesticide Experimental Use Permit; Receipt of Application; Comment Request (93167-EUP-E)” (September 11, 2019)
“Abamectin; Pesticide Tolerances” – Final Rule (September 9, 2019)
“Pesticides; Interim Process for Evaluating Potential Synergistic Effects of Pesticides During the Registration Process; Notice of Availability and Request for Comments” (September 9, 2019)

Fish and Wildlife Service
“Endangered and Threatened Wildlife and Plants; Reclassifying the American Burying Beetle From Endangered to Threatened on the Federal List of Endangered and Threatened Wildlife With a 4(d) Rule” (September 9, 2019)
“Endangered and Threatened Wildlife and Plants; 90-Day Findings for Three Species” (September 6, 2019)

Food Safety and Inspection Service 
“Notice of Request To Renew an Approved Information Collection: Specified Risk Materials” (September 9, 2019)

Rural Housing Service 
“Announcement of the Availability of Disaster Relief Act 2019 Grant Funds for Community Facilities” (September 10, 2019)

Pennsylvania Actions and Notices:
Department of Environmental Protection
“Nutrient Credit Trading Program; Actions; Administrative Extension” (September 7, 2019)
“Nutrient Credit Trading Program; Mass Certification” (September 7, 2019)
“The Clean Streams Law And The Federal Clean Water Act: Applications For National Pollutant Discharge Elimination System (NPDES) Permits And Water Quality Management (Wqm) Permits”  (September 7, 2019)

Environmental Quality Board
“Meeting Cancellation – September 17, 2019” (September 7, 2019)

Penn State Research:
“Ash Tree Species Likely Will Survive Emerald Ash Borer Beetles, but Just Barely”—Penn State News (September 7, 2019)
“Livestock Disease Risk Tied to Herd Management Style in Tanzania”—Penn State News (September 3, 2019)

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks:
“Legislative Committee Schedules Hearing on Sunday Hunting in Pennsylvania”—Penn Live (Sep. 9, 2019)
“Mississippi to ‘Tighten Up’ Food Labeling Law”—Meat + Poultry (Sep. 9, 2019)
“Hemp Farming Quadrupled in the U.S. This Year, New Report Shows”—Forbes (Sep. 5, 2019)
“Tyson Ventures Invests in Plant-Based Shellfish”—Feedstuffs (Sep. 5, 2019)
“The Poultry Clash Awaiting U.S.-U.K Trade Talks”—Politico (Sep. 6, 2019)
“Disaster Relief Funding Available for Farms in Seven PA Counties”—Morning Ag Clips (Sep. 4, 2019)
“How the Trump Administration Limited the Scope of the USDA’s 2020 Dietary Guidelines”—Washington Post (Aug. 30, 2019)
“US Dairy Piles Pressure on Washington to Complete Japan Trade Deal”—DairyReporter.com (Aug. 21, 2019)
“America’s Chicken Industry Accused of Conspiring to Keep Immigrant Wages Down”—Bloomberg (Sep. 3, 2019)
“Retaliatory Tariffs Bite U.S. Farmers, Not the Importers”—Successful Farming (Sep. 4, 2019)

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Written by:
Jackie Schweichler—Staff Attorney
Audry Thompson—Research Assistant