May 11, 2021
Agricultural Law Weekly Review – Week Ending May 7, 2021
Chesapeake Bay: EPA Releases Evaluation of Draft Conowingo Watershed Implementation Plan 🌾
On May 6, 2021, the U.S. Environmental Protection Agency (EPA) announced that the agency had completed its evaluation of the draft Conowingo Watershed Implementation Plan (CWIP), which outlines a proposed plan to reduce 6 million pounds of nitrogen and 260,000 pounds of phosphorus added to the Conowingo Dam infill to compensate for the previously miscalculated capacity of the Conowingo Dam and reservoir to trap those nutrients accumulating behind the dam. According to EPA’s evaluation, the draft CWIP targets best management restoration practices “in the most effective areas of the Susquehanna River Basin,” although the agency raises three areas of concern: 1) that the CWIP “complements and does not compete with” the Phase III Water Implementation Plan (WIP) for resources and funding, 2) that the financing for the CWIP is still under development, and 3) that the CWIP does not contain a target date for its implementation. As proposed, 10% of the 6 million pounds of nitrogen reduction is set to come from development, 1% comes from the natural sector, and the majority—89%—comes from the agricultural sector. That comes to an additional 2.5 pound-per-acre reduction, an approximate 54% increase of the 4.6 pound-per-acre agricultural reduction rate already required by the Phase III WIP.
Biofuels: EPA Addresses Straggling Small Refinery Exemptions from Renewable Fuel Standards Obligations Granted by Prior Administration; Awaiting U.S. Supreme Disposition of Issue
On April 30, 2021, the U.S. Environmental Protection Agency (EPA) filed in the U.S. Court of Appeals for the Tenth Circuit a motion for vacatur and remand in appeals challenging EPA’s January 2021 issuance by the prior administration of three small refinery exemptions (SRE). Sinclair Wyoming Refining Comp, et al v. EPA, et al, No. 21-09528. See also ALWR—week ending January 22, 2021, “EPA Grants Three RFS Exemptions Before Administration Change; Federal Court Grants Immediate Stay.” As per previous Tenth Circuit’s jurisprudence, EPA may only grant an SRE if “disproportionate economic hardship” is caused by RFS compliance, and not other facts, and EPA now concedes that in two of the SREs such causation is lacking. EPA states that the costs of RFS compliance do not fall on refineries but are recovered in the cost of goods sold. Previously, on March 31, 2021, the U.S. District Court for the District of Columbia in United Refining Company v. Wheeler, No. 1:20-cv-01956, granted EPA’s motion to approve a consent decree with a third January 2021 SRE recipient which requires EPA to issue a revised decision within 60 days consistent with the Supreme Court’s decision in HollyFrontier Cheyenne Refining Co. V. Renewable Fuels Association, No. 20-472.
Agricultural Labor: Congressional Hearing Held on Farmworker Overtime Pay
On May 3, 2021, the Workforce Protections Subcommittee of the U.S. House Committee on Education and Labor held a legislative hearing titled, “From Excluded to Essential: Tracing the Racist Exclusion of Farmworkers, Domestic Workers, and Tipped Workers from the Fair Labor Standards Act.” The committee focused on expanding overtime pay for agricultural workers and H.R. 1080, titled “Fairness to Farm Workers Act,” which would phase in overtime pay for farmworkers nationally, consistent with the handful of states who have already done so.
Conservation: White House Issues America the Beautiful 2021 Report Fleshing Out Executive Order Containing “30 x 30” Goal
On May 6, 2021, the U.S. Departments of the Interior (DOI), Agriculture (USDA), and Commerce, and the White House Council on Environmental Quality published a report titled, “Conserving and Restoring America the Beautiful 2021,” which sets forth eight principles of a ten-year “locally led campaign to conserve and restore” lands, waters, and environment which represents the methodology by which to accomplish the Biden Administration’s so-called “30 by 30” goal of conserving at least 30 percent of U.S. lands and waters by 2030 contained in the January 27, 2021 Executive Order 14008, Tackling the Climate Crisis at Home and Abroad. The report also contains a set of six “Recommendations for Early Focus:”
- Creating more parks and safe outdoor opportunities in nature-deprived communities.
- Supporting Tribally led conservation and restoration priorities.
- Expanding collaborative conservation of fish and wildlife habitats and corridors.
- Increasing access for outdoor recreation.
- Incentivizing and rewarding the voluntary efforts of fishers, ranchers, farmers, and forest owners.
- Creating jobs by investing in restoration and resilience projects and initiatives, including the Civilian Climate Corps.
Additionally, the report proposes the creation of an interagency working group, headed by the U.S. Geological Survey, USDA’s Natural Resources Conservation Service (NRCS), and the National Oceanic and Atmospheric Administration (NOAA), to develop the “American Conservation and Stewardship Atlas” to showcase stakeholder efforts on national lands and waters.
Local Food: USDA Announces Allocation of $92.2 Million for Local Agriculture Market Program Grants
On May 5, 2021, the U.S. Department of Agriculture (USDA) announced the allocation of $92.2 million for three competitive grant programs under the Local Agriculture Market Program (LAMP), established by the 2018 Farm Bill. USDA will provide a combined total of $76.9 million to the Farmers Market Promotion Program (FMPP) supporting direct-to-consumer sales and the Local Food Promotion Program (LFPP) to develop local and regional food distributors and processors. USDA will also provide $15.3 million to the Regional Food System Partnerships (RFSP), which supports public and private partnerships to develop local and regional food systems. All three programs require a 25% match. The application deadline is June 21, 2021, for FMPP and LFPP grants, and July 6, 2021 for RFSP grants. USDA AMS plans to conduct grant application webinars (and post the recordings) in the near future, details of which will be posted on the respective program webpages linked herein.
Biofuels: Pesticide-Treated Seed Waste Turns Nebraska Ethanol Plant Site Toxic
On April 29, 2021, the Nebraska Department of Environment and Energy (NDEE) announced that it is working with the U.S. Environmental Protection Agency (EPA) to address environmental issues at AltEn, LLC’s Mead, Nebraska ethanol production site caused by the use of pesticide-treated seed as distiller’s grain. AltEn, which produced 24 million gallons of ethanol annually, is one of only two plants nationwide that accept pesticide-treated seed for ethanol production. After 2019 testing showed AltEn’s failing wastewater lagoons far exceeded AltEn’s National Pollutant Discharge Elimination System (NPDES) permit rates for pesticide residue, a consent agreement was imposed to remediate the lagoons and cease land applying wastewater. After a February 1, 2021, site visit determined that the lagoon still violated the consent decree, NDEE issued an emergency complaint and order on February 4, 2021 prohibiting AltEn from further discharging wastewater into the lagoons and “take whatever action is necessary” to come into compliance with its NPDES permit. On February 9, 2021, NDEE announced that AltEn had shut down, and on February 20, 2021, NDEE issued a second order directing AltEn to secure and prevent any migration of the wastewater and to remove it from the site. On March 1, 2021, the Nebraska attorney general filed a complaint in Nebraska state court against AltEn alleging 18 causes of action, each carrying a maximum fine of $10,000 per day. On April 29, 2021, the Nebraska legislature passed LB507 in a 48-0 vote, which prohibits the use of treated seed in the production of agricultural ethyl alcohol. The legislation was signed into law on May 5, 2021 by the Nebraska Governor.
Pesticides/Herbicides: European Union Court of Justice Denies Bayer’s Appeal of Neonicotinoid Restriction
On May 6, 2021, the Court of Justice of the European Union (CJEU) issued a judgment denying Bayer’s appeal of the European General Court’s (ECG) dismissal of Bayer’s May 2018 suit seeking annulment of Regulation 485/2013 of 24 May 2013 restricting the use of neonicotinoids in the European Union. C‑499/18 P, Bayer CropScience AG and Bayer AG v. European Commission. The regulation restricts the sale and use of seeds containing the neonicotinoids clothianidin, thiamethoxam and imidacloprid in accordance with the commission’s assessment of the pesticides’ potential harmful risks to bees. Bayer claimed, among other arguments, that the risk assessment and scientific evaluation were not sufficiently exhaustive to justify the regulation. The court denied Bayer’s appeal, stating that the “precautionary principle,” which authorizes the regulation, establishes that where there is uncertainty as to the existence or extent of risks, including risks to the environment, protective measures may be taken without having to wait until “the reality and seriousness of those risks become fully apparent.” The court held that an exhaustive risk assessment is not required nor must a regulation “be deferred solely on the grounds that studies are underway which may call into question the available scientific and technical data.” The court dismissed the appeal and ordered Bayer to pay court costs for opposing parties, including the European Commission.
Center for Agricultural and Shale Law Programs & Resources:
Podcast: Penn State Agricultural Law Podcast, listen to our latest weekly episode here.
Webinar:
Utility-Scale Solar Development – For Lawyers, Landowners & Others
An Online Legal Educational Symposium
Tuesday, June 15, 2021 12:00pm – 3:30pm
Thursday, June 17, 2021 12:00pm – 3:30pm
This symposium is geared for both beginning and intermediate levels of knowledge about photovoltaic electrical generation for the grid and is designed in a progressive manner, each session building upon the knowledge gained in the last. Upon completion, an attorney, landowner, government professional, educator or other interested attendee will have a well-rounded understanding of the legal facets of the proliferation of utility-scale solar development project proposals in Pennsylvania, across the region, and throughout much of the United States.
$179 – Registration Fee (6 hours of substantive Pennsylvania CLE Credits)
$99 – Registration Fee (without CLE credits)
CLICK HERE for details, agenda and registration
Penn State News, Research & Resources:
Mediterranean Diet with Lean Beef May Lower Risk Factors for Heart Disease (Apr. 15, 2021).
Mutant Corn Gene Boosts Sugar in Seeds, Leaves, May Lead to Breeding Better Crop (May 3, 2021).
Penn State to Lead Critical Minerals Consortium Powered by $1.2 Million from DOE (May 6, 2021).
Webinars:
Hemp Webinar Series: CBD Research Update, Penn State Extension, May 17, 2021, noon EDT
Leasing for Solar Development, Penn State Extension, May 19, 2021, noon EDT
Other Agricultural Law/Policy Resources of Interest:
Tiffany Lashmet, Court Analyzes TX Farm Animal Liability Act When Horse Injures Bridesmaid at Wedding Venue (May 3, 2021).
Kristine A. Tidgren, A Look at the American Families Plan (May 5, 2021).
Micah Brown, Considering Carbon: Markets & More (May 4, 2021).
Brigit Rollins, Ninth Circuit Finds Chlorpyrifos Tolerances Unlawful (May 6, 2021).
Paul Goeringer, Federal Judge Allows New Lawsuit to Continue Against Smithfield and Murphy-Brown (May 4, 2021).
Peggy Kirk Hall, Carbon as a Commodity for Agriculture? (May 5, 2021).
Roger A. McEowen, Planning for Changes to the Federal Estate and Gift Tax System (May 7, 2021).
Weekly Featured Graphics:
The Economic Impact of Agriculture in Pennsylvania: 2021 Update
AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Agriculture Press Releases:
Ag Secretary, Dauphin County Treasurer Call For Practical Solution To Crisis Impacting PA Dogs, Local Government Finances (May 5, 2021).
Wolf Administration Funds 42 Projects To Improve Urban Agriculture Infrastructure, Overcome Food Deserts (May 7, 2021).
U.S. Department of Agriculture (USDA) Press Releases:
USDA Invests $92.2 Million in Grants for Local, Regional Food Producers Affected by the Pandemic (May 5, 2021).
FACT SHEET: Update on USDA Activities to Contain the COVID-19 Pandemic (May 5, 2021).
Biden-Harris Administration Outlines “America the Beautiful” Initiative (May 6, 2021).
USDA Awards $15 Million in Grants to Expand Wood Products, Wood Energy Markets and Community Forests (May 7, 2021).
USDA Agency Press Releases:
USDA Seeks Nominees for the National Dairy Promotion and Research Board, Agricultural Marketing Service (May 4, 2021).
Some Things to Consider For 2021 Periodical Cicada Season, Agricultural Research Service (May 4, 2021).
African Swine Fever Virus Vaccine Candidate Now Produced in a Cell Line, Agricultural Research Service (May 6, 2021).
APHIS Seeks Comment on Draft Pest Risk Assessment for the Importation of Hibiscus (Hibiscus rosa-sinensis) cutting for planting from the Netherlands, Animal and Plant Health Inspection Service (May 3, 2021).
APHIS Invites U.S. Stakeholders to Submit Topics on IPPC Standards and Implementation, Animal and Plant Health Inspection Service (May 5, 2021).
APHIS Posts New Pale Cyst Nematode (PCN) Eradication Program Report, Animal and Plant Health Inspection Service (May 6, 2021).
Private Exporters Report Sales Activity for China, Mexico, and Unknown Destinations, Foreign Agricultural Service (May 5, 2021).
Private Exporters Report Sales Activity for China and Unknown Destinations, Foreign Agricultural Service
May 7, 2021).
Additional FY 2021 Funds Available for Export Credit Guarantee Program (GSM-102), Foreign Agricultural Service (May 3, 2021).
USDA Awards $15 Million in Grants to Expand Wood Products, Wood Energy Markets and Community Forests, Forest Service (May 7, 2021).
Reminder: USDA NIFA Farm of the Future Virtual Stakeholder Listening Session, National Institute of Food and Agriculture (May 5, 2021).
NIFA Invests $17.2M for Ag Education and Workforce Development, National Institute of Food and Agriculture (May 5, 2021).
STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies (Pa. Bulletin Vol. 51, No. 19—May 8, 2021):
Department of Agriculture
51 Pa.B. 2494 Notice: “Pennsylvania Certified Hemp Sampling Program; General Standards and Requirements for Pennsylvania Certified Hemp Sampling Agents.”
Department of Environmental Protection
51 Pa.B. 2558 Notice: “Extension of National Pollutant Discharge Elimination System General Permit for Discharges from Small Flow Treatment Facilities (PAG-04).”
51 Pa.B. 2558 Notice: “Extension of National Pollutant Discharge Elimination System General Permit for Wet Weather Overflow Discharges from Combined Sewer Systems (PAG-06)”
51 Pa.B. 2499 Notice: “The Pennsylvania Clean Streams Law And The Federal Clean Water Act: 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.”
Pennsylvania Legislature
HB 110 “An Act amending . . . as the Hardwoods Development Council Act, further providing for Hardwoods Development Council.” Signed in House (May 3, 2021).
HB 385 “An Act amending . . . the Tax Reform Code of 1971, in personal income tax, further providing for classes of income [‘Exempting Paycheck Protection Loans from State Income Tax’].” Removed from table [House] (May 3, 2021).
HB 359 “An Act amending . . . The Fiscal Code, in emergency finance and tax provisions, providing for exemption from taxation [‘Exempting Federal COVID-19 Cash Payments from State and Local Taxes’].” Removed from table [House] (May 3, 2021).
HB 122 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in registration of vehicles, further providing for vehicles exempt from registration; and, in licensing of drivers, further providing for persons exempt from licensing.” Laid on the table [House] (May 5, 2021).
HB 1360 “An Act amending . . . the Seasonal Farm Labor Act. . .in wages and hours, further providing for minimum wages, for piece rates, for employment of minors, for discrimination on account of sex prohibited, for records required and notice to workers, for wage payment and for hours of labor and providing for minimum guaranteed period of employment . . . . [Equal Rights for Agricultural Workers in Pennsylvania]” Referred to Labor and Industry [House] (May 7, 2021).
SB 630 “An Act amending Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in food protection, further providing for rules and regulations [‘Establishing Consistency in Regulatory Oversight of the Bottled Water Industry’].” Referred to Agriculture and Rural Affairs [Senate] (May 3, 2021).
SB 629 “An Act amending . . . the Pennsylvania Safe Drinking Water Act, further providing for definitions [‘Establishing Consistency in Regulatory Oversight of the Bottled Water Industry’].” Referred to Environmental Resources and Energy [Senate] (May 3, 2021).
SB 637 “An Act amending . . . The Second Class Township Code, in storm water management plans and facilities, further providing for fees [‘Stormwater Fee Protections for Farms’].” Referred to Local Government [Senate] (May 4, 2021).
FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies (Federal Register May 3–7, 2021):
Agriculture Department
86 FR 23670 Notice: “Submission for OMB Review; Comment Request [Animal and Plant Health Inspection Service: Communicable Diseases in Horses]” (May 4, 2021).
86 FR 24582 Notice: “Submission for OMB Review; Comment Request [Forest Service: Federal and Non-Federal Financial Assistance Instruments]” (May 7, 2021).
Agricultural Marketing Service
86 FR 24513 Proposed Rule—Comment Period: “Lamb Promotion, Research, and Information Order; Activity Changes; Comment Period Reopened” (May 7, 2021).
Animal and Plant Health Inspection Service
86 FR 23342 Notice—Comment Period: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Lacey Act Declaration Requirement; Plants and Plant Products” (May 3, 2021).
86 FR 24378 Notice: Addition of Republic of Korea to the List of Regions Affected With African Swine Fever” (May 6, 2021).
Employment and Training Administration
86 FR 24368 Proposed Rule—Comment Period: “Adjudication of Temporary and Seasonal Need for Herding and Production of Livestock on the Range Applications Under the H-2A Program” (May 6, 2021).
86 FR 24613 Notice—Comment Period: “Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Tolerance Petitions for Pesticides on Food or Feed Crops and New Food Use Inert Ingredients (Renewal)” (May 7, 2021).
Environmental Protection Agency
86 FR 23963 Notice: “Disclosure of Information Claimed as, or Determined by EPA To Be, Confidential Business Information in Renewable Fuel Standard (RFS) Small Refinery Exemption Petitions and All RFS Related Information in EPA’s Moderated Transaction System (EMTS)” (May 5, 2021).
Fish and Wildlife Service
86 FR 23422 Notice: “List of Bird Species to Which the Migratory Bird Treaty Act Does Not Apply; Correction” (May 3, 2021).
86 FR 23869 Rule, notification of findings: “Endangered and Threatened Wildlife and Plants; Three Salamander Species Not Warranted for Listing as Endangered or Threatened Species” (May 5, 2021).
86 FR 23976 Notice, comments accepted: “Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Status Reviews of 23 Species in the Southwest” (May 5, 2021).
86 FR 23978 Notice: “Updated Collision Risk Model Priors for Estimating Eagle Fatalities at Wind Energy Facilities” (May 5, 2021).
86 FR 24573 Proposed Rule—Comment Period: “Regulations Governing Take of Migratory Birds; Proposed Rule” (May 7, 2021).
Food and Drug Administration
86 FR 24564 Proposed Rule: Canadian Oilseed Processors Association; Withdrawal of Food Additive Petition (Animal Use)” (May 7, 2021).
86 FR 24629 Notice—Comment Period: “Agency Information Collection Activities; Proposed Collection; Comment Request; Quantitative Research on a Voluntary Symbol Depicting the Nutrient Content Claim “Healthy” on Packaged Foods” (May 7, 2021).
Food and Nutrition Service
86 FR 23914 Notice—Comment Period: “Agency Information Collection Activities: Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) Infant and Toddler Feeding Practices Study-2 (WIC ITFPS-2) Year 9 Extension” (May 5, 2021).
Land Management Bureau
86 FR 23737 Notice—Comment Period: “Agency information collection activities; Application for Land for Recreation or Public Purposes” (May 4, 2021).
86 FR 24661 Notice—Comment Period: Notice of Realty Action: Proposed Non-Competitive (Direct) Sale of Public Land in Elko County, Nevada, to the City of West Wendover” (May 7, 2021).
86 FR 24663 Notice: “Notice of Availability of the Record of Decision for the Crimson Solar Project and the Proposed Amendment to the California Desert Conservation Area Plan, Riverside County, CA” (May 7, 2021).
Small Business Administration
86 FR 23483 Notice: “Presidential Declaration of a Major Disaster for the State of ALABAMA” (May 3, 2021).
Tennessee Valley Authority
86 FR 23484 Notice—Comment Period: “Moore County Solar Project” (May 3, 2021).
Wage and Hour Division
86 FR 24303 Final Rule, withdrawal: “Independent Contractor Status Under the Fair Labor Standards Act (FLSA): Withdrawal” (May 6, 2021).
U.S. House Agriculture Committee
H.R.2989 “To amend securities, commodities, and banking laws to make the information reported to financial regulatory agencies electronically searchable. . . .” Referred to the Committees on Financial Services and Agriculture (May 4, 2021).
H.R.3000 “To build on America’s spirit of service to nurture, promote, and expand a culture of service to secure the Nation’s future, address critical needs of the Nation, and strengthen the civic fabric of American society.” Referred to the Committees on Education and Labor, Armed Services, Foreign Affairs, Agriculture, Natural Resources, Ways and Means, Oversight and Reform, Veterans’ Affairs, Homeland Security, Intelligence (Permanent Select), House Administration, the Judiciary, and Energy and Commerce (May 4, 2021).
H.R.1617 “Transforming Hiring in Rural Industries and Vital Economies Act of 2021.” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (May 6, 2021).
H.R.3014 “To preserve access to Federal lands, control fires, and for other purposes.” Referred to the Committees on Natural Resources and Agriculture (May 7, 2021).
H.R.3028 “To establish the Land Port of Entry Modernization Trust Fund, and for other purposes.” Referred to the Committees on Ways and Means, Homeland Security, Transportation and Infrastructure, and Agriculture (May 7, 2021).
H.R.3039 “To amend the Internal Revenue Code of 1986 to eliminate certain fuel excise taxes and impose a tax on greenhouse gas emissions to provide revenue for maintaining and building American infrastructure, and for other purposes.” Referred to the Committees on Ways and Means, Energy and Commerce, Natural Resources, Education and Labor, Transportation and Infrastructure, Science, Space, and Technology, and Agriculture (May 7, 2021).
U.S. Senate Committee Agriculture, Nutrition, and Forestry:
No new actions May 3–7, 2021
Connect with the Center on Facebook or on Twitter @AgShaleLaw
Top #AgLaw HotLinks May 3–7, 2021
Minnesota Researchers Develop New Test for Chronic Wasting Disease, AGWEEK
Groups Want Climate Recognition in Trade Negotiations, Brownfield
More Than $18 Million Invested into Lake Erie Conservation Projects, Brownfield
EPA is Given 60 Days to Ban or Modify Rules for Chlorpyrifos, Successful Farming
U.S. EPA Files Motion to Vacate Three Biofuel Exemptions Given to Sinclair, Reuters
US Dairy Consolidation Likely to Continue Down the Road, Farm and Dairy
83 Smithfield Lagoons in Missouri Now Producing Renewable Natural Gas, Successful Farming
Subscribe to the Pennsylvania Farm Employers’ Listserv (PFEL), an email networking and resource-sharing group about human resources topics exclusively for agricultural operations and producers, by sending an email with “subscribe” in the subject line to pfel-subscribe-request@lists.psu.edu.
Written by:
Audry Thompson—Research Assistant
Brook Duer—Staff Attorney
