September 21, 2021
Agricultural Law Weekly Review – Week Ending September 17, 2021
Pennsylvania Senate Agriculture and Rural Affairs Committee Hearing: Utility Scale Solar Development and Agricultural Land in Pennsylvania, September 21, 2021, at 9:00 am. Agenda, witness list and live streaming are available here.
Antitrust: Minnesota Federal Court Denies All Motions to Dismiss Filed by Beef Packers in Consolidated Civil Antitrust Class Action Litigation 🌾
On September 14, 2021, the U.S. District Court for the District of Minnesota issued a memorandum opinion and order denying approximately twenty motions to dismiss in a large consolidated civil class action antitrust case wherein multiple plaintiffs allege multiple beef industry participants, acting individually and in concert, committed various anti-competitive practices in violation of various federal laws. In Re: DPP Beef Litigation, U.S.D.C. Minn., consolidated to lead case 0:20-cv-01319 – JRT-HB. However, the opinion and order remain under seal and have not been released to the public. No portion of the case was dismissed, which means that no defendant was successful in having any portion of the anti-trust allegations against them dismissed and all cases will continue in litigation towards trial, pending possible motions for summary judgment at a later stage. The complaints in the various consolidated cases are public and the named defendants include Cargill, JBS, National Beef Packing Company, Swift Beef Company, and Tyson Foods. Plaintiffs are various class representatives, purchasers, wholesalers and retailers.
Water Quality: Federal Appeals Court Invalidates EPA’s NPDES Idaho CAFO Permit
On September 16, 2021, the U.S. Court of Appeals for the Ninth Circuit issued an opinion vacating a National Pollutant Discharge Elimination System (NPDES) Permit issued by the Environmental Protection Agency (EPA) for Concentrated Animal Feeding Operations (CAFOs) in Idaho because it failed to have monitoring requirements for verification of compliance with prohibited underground releases of pollutants from production areas or dry-weather releases from land application areas. Food & Water Watch Inc. et al. v. EPA, 9th Cir., No. 20-71554. The court held that self-certification is not a sufficient compliance verification mechanism for prohibited practices in a Clean Water Act NPDES permit.
WOTUS: EPA Rescinds Prior Guidance Document on Maui Case
On September 15, 2021, the U.S. Environmental Protection Agency rescinded by memorandum a previous January 14, 2021 guidance document titled “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program.” The guidance document was issued after the Maui decision and published at 86 F.R. 6321. No substitute guidance document was issued in its place. This rescission was precipitated by a July 26, 2021, ruling by the U.S. District Court for the District of Hawaii which rejected and criticized the reasoning contained in the guidance document for applying the “functional equivalent” threshold for the National Pollutant Discharge Elimination System (NPDES) permit requirement. For background, see ALWR-July 30, 2021, “WOTUS: Court Amends Ruling that County of Maui Must Obtain an NPDES Permit” and ALWR-July 23, 2021, “WOTUS: County of Maui Filing Requests Court to Follow EPA Guidance, No Need for NPDES Permit.”
COVID-19: USDA Extends Pandemic Livestock Indemnity Program Deadline to October 12, 2021
On September 16, 2021, the United States Department of Agriculture (USDA) extended the September 17, 2021 deadline for applications for the Pandemic Livestock Indemnity Program (PLIP) to October 12, 2021. PLIP provides producers payments of 80% of the fair market value of livestock and poultry, for the cost of depopulation and disposal, and for livestock or poultry depopulated from March 1, 2020, through Dec. 26, 2020, due to insufficient processing access due to COVD-19.
CENTER FOR AGRICULTURAL AND SHALE LAW PROGRAMS & RESOURCES
Agricultural Law Podcast:
Weekly Episode #194. White House Addresses Meat Industry Consolidation & USDA Announces $1.4 Billion in Grants for Food Workers and Small Businesses (Sept. 10, 2021).
Weekly Episode #193. Federal Court Vacates 2020 WOTUS Rule & D.C. Appeals Court Rules Animal Rights Groups May Challenge Hormel’s “Natural Choice” Advertising (Sept. 7, 2021).
Weekly Episode #192. Tenth Circuit Holds Kansas Ag-Gag Law Unconstitutional & USDA Announces SARS-CoV-2 Animal Surveillance Framework (Sept. 2, 2021).
Events:
Webinar: Pennsylvania’s Agritourism Act with the Farm Bureau, Sept. 30, 2021, 12:00 p.m.
Penn State News, Research, & Resources:
Physical Distance May Not Be Enough to Prevent Viral Aerosol Exposure Indoors (Sept. 10, 2021).
Loggers, Landscapers Face Deadly Danger Felling Trees in Forests and Urban Areas (Sept. 14, 2021).
Agricultural Law/Policy Resources of Interest:
USDA APHIS, Where ASF Exists and What’s at Stake; Steps the United States is Taking to Prevent and Prepare for ASF; ASF and the Benefits of Biosecurity; What to Expect in an ASF Outbreak; ASF and the Feral Swine Factor (African Swine Fever Action Week recorded webinars) (Sept. 13 -17, 2021)
Center for Dairy Excellence, Dairy Industry Conference Call on Pandemic Market Volatility Program and DMC (recording) (Sept. 14, 2021).
Chris Clayton (DTN/Progressive Farmer), Ag Policy Blog: From NAMI to R-CALF, the Daily Beef and Press Releases (Sept. 14, 2021)
UCDavis CLEAR Center, Pathway to Climate Neutrality for U.S. Beef and Dairy Cattle Production (Sept. 14, 2021)
Harrison Pittman, Legal Checkup on Checkoffs: R-CALF in the Ninth Circuit (Sept. 14, 2021).
Tiffany Lashmet, Tyler Court of Appeals Affirms Nuisance Verdict, Permanent Injunction Against Chicken Farm (Sept. 13, 2021).
NALC, Heat Safety and Wildfire Smoke Standards and Guidelines at the State and Federal Level, (Sept. 16, 2021).
Paul Goeringer, State Court Decision Highlights When Right-to-Farm Laws Might Not Apply (Sept. 15, 2021).
Peggy Kirk Hall, The Ag Law Roundup: Your Ag Law Questions Answered (Sept. 17, 2021).
Ad Crable/Bay Journal, Pennsylvania counties take the lead in Chesapeake cleanup plans (Sept. 15, 2021)
On September 21, 2021, Pennsylvania’s Center for Dairy Excellence will conduct their 2021 Dairy Financial and Risk Management Conference: “Turning the Page” in Harrisburg, Pennsylvania. Speakers/panelists will include Pennsylvania Agriculture Secretary Russell Reading, Dr. Marin Bozic, Jennifer Huson of Dairy Farmers of America, and Troye Cooper of Maryland & Virginia Milk Producers Cooperative Association, Inc.
On September 21, 2021, at 9:00am – 11:30 am, the Pennsylvania Senate Agriculture and Rural Affairs Committee will conduct a legislative hearing on utility scale solar development and agricultural land in Pennsylvania in Harrisburg, PA. Get the agenda, list of witnesses and watch live here. Brook Duer from the Ag Law Center will be testifying.
Weekly Featured Graphic:
USDA APHIS, African Swine Fever: A Producer’s Guide to the Federal Emergency Response Process (Sept. 2021)
AGENCY PRESS RELEASES—STATE/FEDERAL
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
Department Of Agriculture Opens $500,000 Program To Improve Urban Agriculture Infrastructure, Food Sovereignty (Sept. 14, 2021).
Second Lady Fetterman, Secretary Of Agriculture Promote Health, Food Equity At Free COVID-19 Vaccine Clinic (Sept. 15, 2021).
All-American Dairy Show Returns To Farm Show Complex Showcasing U.S. Dairy Industry’s Promising Future, Proud Present (Sept. 16, 2021).
Secretary Of Agriculture Reveals 2022 PA Farm Show Theme: Harvesting More (Sept. 16, 2021).
U.S. DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES:
USDA Encourages Ag Producers, Residents to Prepare for Tropical Storm Nicholas (Sept. 13, 2021).
U.S. Department of Agriculture Announces Key Staff (Sept. 13, 2021).
Statement by Agriculture Secretary Tom Vilsack on the Intent to Nominate Margo Schlanger to Serve as USDA Assistant Secretary for Civil Rights (Sept. 16, 20210).
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service
USDA Changes the Handling Regulations for Irish Potatoes Grown in Idaho and Oregon (Sept. 13, 2021).
USDA Announces United Sorghum Checkoff Program Board Appointments (Sept. 16, 2021).
USDA Announces Appointments to the American Lamb Board (Sept. 16, 2021).
Agricultural Research Service
Scientific Collaborations Are Creating New Trends to Find Solutions in Dryland Crop Production Systems (Sept. 16, 2021).
Animal and Plant Health Inspection Service
Economic Research Service
The Effect on Family Farms of Changing Capital Gains Taxation at Death (Sept. 2021).
Farm Service Agency
USDA Extends Deadline to Apply for Pandemic Assistance to Livestock Producers with Animal Losses (Sept. 16, 2021).
Food and Nutrition Service
USDA Announces Approval of D-SNAP for Louisiana Disaster Areas (Sept. 15, 2021).
Food Safety and Inspection Service
Foreign Agricultural Service
Private Exporters Report Sales Activity for Unknown Destinations (Sept. 13, 2021).
Secretary Vilsack to Attend G20 Agriculture Ministerial in Italy (Sept. 13, 2021).
Private Exporters Report Sales Activity for China and Unknown Destinations (Sept. 15, 2021).
Private Exporters Report Sales Activity for China (Sept. 16, 2021).
Secretary Vilsack Remarks at G20 Open Forum on Sustainability (Sept. 16, 2021).
Private Exporters Report Sales Activity for China (Sept. 17, 2021).
National Institute of Food and Agriculture
NIFA Invests $30M to Help Boost Organic Farming and Ranching (Sept. 15, 2021).
NIFA Invests 5.1 Million in Food and Agricultural Sciences Research Equipment (Sept. 17, 2021).
NIFA Invests 3.3 Million in Graduate and Postgraduate Food and Agricultural Research Students (sept. 17, 2021).
Rural Development
USDA Launches Resource Guide to Help Rural Communities Seeking Disaster Resiliency and Recovery Assistance (Sept. 15, 2021).
STATE ACTIONS—EXECUTIVE/LEGISLATIVE
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 51, No. 38—Sept. 18, 2021):
Department of Conservation and Natural Resources
51 Pa.B. 6051 Notice: “Conservation and Natural Resources Advisory Council Public WebEx Meeting.”
Department of Environmental Protection
51 Pa.B. 6052 Notice: “Applications For NPDES and WQM Permits Under The Clean Streams Law And Federal Clean Water Act.”
51 Pa.B. 6112 Notice: “Extension of National Pollutant Discharge Elimination System General Permit for Discharges of Stormwater Associated with Industrial Activity (PAG-03).”
51 Pa.B. 6113 Notice: “Pennsylvania’s Agriculture Energy Efficiency Rebate Program.”
PENNSYLVANIA LEGISLATURE:
HB 1850 “An Act amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, in general provisions relating to civil actions and proceedings, providing for liability for easements to benefit landlocked properties.” Referred to JUDICIARY [House] (Sept. 13, 2021).
HB 604 “An Act amending . . . The Administrative Code of 1929, providing for environmental permits and plan approvals; making related repeals; and abrogating regulations.” Laid on the table [House] (Sept. 15, 2021).
HB 637 “An Act authorizing the Department of Environmental Protection to conduct a public comment process on and submit to the General Assembly a measure or action intended to abate, control or limit carbon dioxide emissions by imposing a revenue-generating tax or fee on carbon dioxide emissions.” Laid on the table [House] (Sept. 15, 2021).
HB 1307 “An Act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, in registration of vehicles, further providing for vehicles exempt from registration [Multipurpose Agricultural Vehicles].” Laid on the table [House] (Sept. 15, 2021).
HB 1658 “An Act amending Title 74 (Transportation) of the Pennsylvania Consolidated Statutes, in public utility facilities, further providing for adjustment [Financial Relief for Rural Landlines].” Laid on the table [House] (Sept. 15, 2021).
HB 1874 “An Act providing for regulation of the meatpacking and food processing industry by creating facility health and safety committees in the workplace; establishing the industry workers’ rights coordinator within the Department of Labor and Industry; and providing for public health emergency protections for workers.” Referred to LABOR AND INDUSTRY [House] (Sept. 16, 2021).
FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
FEDERAL EXECUTIVE AGENCIES (Federal Register Sept. 13–17, 2021):
Agriculture Department
86 FR 51649 Notice, comments accepted: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Team Nutrition Database]” (Sept. 16, 2021).
86 FR 51860 “Submission for OMB Review; Comment Request [Farm Service Agency: Direct Loan Servicing—Special]” (Sept. 17, 2021).
Agricultural Marketing Service
86 FR 50837 Final Rule: “Modification of Handling Regulations for Irish Potatoes Grown in Designated Idaho and Eastern Oregon Counties” (Sept. 13, 2021).
86 FR 51626 Proposed Rule—Comment Period: “Amendments to the United States Potato Board Membership and Assessment Methods” (Sept. 16, 2021).
Agricultural Research Service
86 FR 51649 Notice—Comment Period: “Notice for Comment on Two Strategic Plans for the Subcommittee on Aquaculture Science Planning and Regulatory Efficiency Task Forces and on Updating the National Aquaculture Development Plan” (Sept. 16, 2021).
Environmental Protection Agency
86 FR 50882 Notice: “Disapproval of Pesticide Product State Registrations for Special Local Needs” (Sept. 13, 2021).
86 FR 51001 Final Rule, comments accepted: “Defensin Proteins Derived From Spinach in Citrus Plants; Temporary Exemption From the Requirement of a Tolerance” (Sept. 14, 2021).
86 FR 51665 Notice: “Final National Pollutant Discharge Elimination System (NPDES) Pesticide General Permit for Point Source Discharges From the Application of Pesticides; Reissuance” (Sept. 16, 2021).
Farm Credit Administration
86 FR 50956 Final Rule: “Standards of Conduct” (Sept. 13, 2021).
Food and Drug Administration
86 FR 51358 Notice—Comment Period: “Agency Information Collection Activities; Proposed Collection; Comment Request; Food Contact Substance Notification Program” (Sept. 15, 2021).
Food and Nutrition Service
86 FR 51098 Notice—Comment Period: “Agency Information Collection Activities: Proposed Collection; Comment Request-School Nutrition and Meal Cost Study-II” (Sept. 14, 2021).
Foreign Agricultural Service
86 FR 50871 Notice: “Adjustment of Appendices Under the Dairy Tariff-Rate Quota Import Licensing Regulation; Correction” (Sept. 13, 2021).
86 FR 50871 Notice: “Determination of Total Amounts of Fiscal Year 2022 WTO Tariff-Rate Quotas for Raw Cane Sugar and Certain Sugars, Syrups and Molasses” (Sept. 13, 2021).
Forest Service
86 FR 51650 Notice: “Tahoe National Forest; California; North Yuba Landscape Resilience Project EIS” (Sept. 16, 2021).
Rural Business-Cooperative Service
86 FR 51338 Notice—Comment Period: “Notice of Request for Extension of a Currently Approved Information Collection [Strategic Economic and Community Development]” (Sept. 15, 2021).
Rural Utilities Service
86 FR 51860 Notice—Comment Period: “Notice of Request for Revision of a Currently Approved Information Collection; Comments Requested [Substantially Underserved Trust Areas]” (Sept. 17, 2021).
Susquehanna River Basin Commission
86 FR 51217 Notice: “Grandfathering (GF) Registration Notice” (Sept. 14, 2021).
86 FR 51217 Notice: “Projects Approved for Consumptive Uses of Water” (Sept. 14, 2021).
86 FR 51217 Notice: “Projects Approved for Minor Modifications” (Sept. 14, 2021).
86 FR 51709 Notice: “Advertisement for Mandatory Pre-Proposal Conference and Site Visit” (Sept. 16, 2021).
Tennessee Valley Authority
Trade Representative, Office of the United States
86 FR 51712 Notice: “Fiscal Year 2022 Tariff-Rate Quota Allocations for Raw Cane Sugar, Refined and Specialty Sugar, and Sugar-Containing Products” (Sept. 16, 2021).
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.4252 “To provide additional funding for scholarships for students at 1890 institutions.” Referred to the Subcommittee on Biotechnology, Horticulture, and Research (Sept. 14, 2021).
H.R.4269 “Dairy Pricing and Policy Commission Act of 2021.” Referred to the Subcommittee on Livestock and Foreign Agriculture (Sept. 14, 2021).
H.R.4274 “Wildland Firefighter Fair Pay Act” Referred to the Subcommittee on Conservation and Forestry (Sept. 14, 2021).
H.R.4541 “Responding Aggressively to Prevent Insects and Disease Act” or the “RAPID Act”. Referred to the Subcommittee on Conservation and Forestry (Sept. 14, 2021).
H.R.5048 “Streamlining Nutrition Assistance Paperwork Act of 2021” or the “SNAP Act of 2021.” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (Sept. 14, 2021).
H.R.5100 “Virtual Currency Consumer Protection Act of 2021.” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Sept. 14, 2021).
H.R.5101 “U.S. Virtual Currency Market and Regulatory Competitiveness Act of 2021.” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Sept. 14, 2021).
H.R.5122 “Community Wood Facilities Assistance Act of 2021.” Referred to the Subcommittee on Conservation and Forestry (Sept. 14, 2021).
H.R.5124 “Manufacturing Reinvestment Corporation Act.” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (Sept. 14, 2021).
H.R.5243 “To modernize the Fallon Range Training Complex in Churchill County, Nevada, through the withdrawal and reservation of additional public lands for military use, to provide for transfer of ownership of certain Federal lands in northern Nevada, to authorize the disposal of certain Federal lands in northern Nevada for economic development, to promote conservation in northern Nevada, and for other purposes.” Referred to the Committees on Natural Resources, on Armed Services, and Agriculture
H.R.5244 “Animal Freedom from Testing, Experiments, and Research Act of 2021’” or the “AFTER Act of 2021.” Referred to the House Committee on Agriculture (Sept. 14, 2021).
H.R.5246 “Expanding Markets for State-Inspected Meat Processors Act of 2021.” Referred to the House Committee on Agriculture (Sept. 14, 2021).
U.S. SENATE COMMITTEE AGRICULTURE, NUTRITION, AND FORESTRY:
S.2716 “American Beef Labeling Act of 2021.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Sept. 13, 2021).
S.2750 “A bill to amend the Food, Conservation, and Energy Act of 2008 to establish a precision agriculture loan program, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Sept. 13, 2021).
U.S. CONGRESSIONAL LEGISLATIVE HEARINGS:
Senate Agriculture Committee:
Milk Pricing: Areas for Improvement and Reform (recorded Sept. 15, 2021).
Connect with the Center on Facebook or on Twitter @AgShaleLaw
Top #AgLaw HotLinks Sept. 13–17, 2021
EPA Requests Updated Dicamba Data in Preparation for Registration Decision, Brownfield
UN Report Calls for Repurposing of $470 Billion of Agricultural Support That Distorts Prices and Steer Us Away from Environment and Social Goals, Food and Agriculture Organization of the UN
Declining Milk Production Lends Itself to Higher Prices, Brownfield
EPA Eyes Dicamba Injury, DTN Progressive Farmer
House Dems Drop Changes to Stepped-up Basis in Reconciliation Package, Brownfield
ARA Says WOYUS Is Likely to End up at the Supreme Court, Brownfield
Northeast Ohio Vineyards at Risk from Invasive Spotted Lanternfly, Farm and Dairy
Big Drop in Farm Income Forecast as Pandemic Aid Ends, Successful Farming
As Labor Pool Shrinks, Illinois Farmers Turn to Foreign Workers, The Counter
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
