National Agricultural Policy
Agricultural Law Weekly Review—Week Ending March 19, 2021
Water Quality: Exelon’s Conowingo Dam Relicensed As Per Settlement with Maryland 🌾
On March 18, 2021, the Federal Energy Regulatory Commission (FERC) issued a new 50-year license to Exelon Generation Company, LLC’s Conowingo Hydroelectric Project, the nearly century-old dam located on the Susquehanna River in Maryland approximately ten miles north of its entry to the Chesapeake Bay. Exelon Generation Company, LLC, Project Nos. 405-106 and 405-121, 174 FERC ¶ 61,217. In recent years it was discovered that previous modeling of phosphorous, nitrogen and sediment trapped behind the dam were flawed and pollutants previously assumed to be trapped behind the dam […]
Agricultural Law Weekly Review—Week Ending March 5, 2021
Animal Welfare: U.S. Supreme Court Petitioned to Hear Commerce Clause Challenge to California’s Proposition 12 🌾
On February 26, 2021, the North American Meat Institute (NAMI) filed a petition for writ of certiorari with the U.S. Supreme Court requesting that it hear an appeal of the Ninth Circuit U.S. Court of Appeals’ decision that California’s Proposition 12 does not violate the U.S. Constitution’s Commerce Clause in establishing animal confinement standards for all pork and veal products sold in the state. A response is due from the California Attorney General by April 2, 2021. North American Meat Institute v. Xavier Becerra, […]
Agricultural Law Weekly Review—week ending January 8, 2021
COVID-19: USDA Announces Fifth Round of Food Box Purchases
On January 4, 2021, the U.S. Department of Agriculture announced a fifth round of food purchases of $1.5 billion for the Farmers to Families Food Box Program. The funding for this fifth round was provided through the COVID-19 relief funding legislation signed into law on December 27, 2020, the Consolidated Appropriations Act (see “$900 Billion Appropriations Act Includes $13 Billion in COVID-19 Relief for Agriculture,” ALWR—week ending January 1, 2021). USDA will solicit offers from more than 240 suppliers with previous Basic Ordering Agreements (BOA) and issue awards by January 19, 2021. USDA states that it will amend the BOA to include pre-cooked seafood products, which may now be combined […]
Agricultural Law Weekly Review—week ending November 20, 2020
Right to Farm: North Carolina Swine Production Facility Nuisance Verdict Upheld On Appeal and Smithfield Announced Unspecified Settlement of Claims
On November 19, 2020, the U.S. Court of Appeals for the Fourth Circuit issued an opinion affirming in part and vacating in part a judgment entered in the U.S. District Court for the Eastern District of North Carolina (McKiver v. Murphy-Brown, LLC, No. 7:14-cv-00180) upon an April 26, 2018 verdict awarding compensatory damages for nuisance of $75,000 each and punitive damages of $5 million each (reduced by state law to $250,000 each) in favor of ten neighboring landowners […]
Agricultural Law Weekly Review—week ending September 18, 2020
Biofuels: EPA Denies Sixty-Eight Small Refinery Exemptions to Renewable Fuel Standard 🌾
On September 14, 2020, the U.S. Environmental Protection Agency (EPA) announced its denial of sixty-eight pending small refinery exemption (SRE) petitions requesting relief from Renewable Fuel Standard (RFS) blending compliance for 2011–2018. Following the Tenth Circuit Court of Appeals’ January 24, 2020 ruling in Renewable Fuels Assn. v. EPA, holding that EPA’s grant of economic hardship exemptions, rather than statutory-authorized extensions, exceeded EPA’s legal authority. Refiners filed sixty-eight petitions seeking, in various ways, to backfill their previous history of exemptions with new EPA grants of […]
Agricultural Law Weekly Review—week ending August 14, 2020
On July 17, 2020, the Plaintiffs in the case Himsel v. Himsel (Ind. Ct. App. 18A-PL-00645) filed a petition for writ of certiorari in the U.S. Supreme Court (docket No. 20-72) challenging the constitutionality of Indiana’s Right to Farm Act. The Indiana Court of Appeals affirmed the trial court’s grant of summary judgment in favor of the Defendants, dismissing the Plaintiffs’ claim that the “noxious emissions” from a neighboring concentrated animal feeding operation (CAFO) constituted “nuisance, negligence, and trespass” (No. 32D04-1510-PL-000150). The Plaintiffs claim that the act violates the Takings Clause of […]
Agricultural Law Weekly Review—week ending June 26 , 2020
Pesticides: Bayer Announces Settlement of Glyphosate Exposure and Dicamba Drift Claims
On June 24, 2020, Bayer announced that it will make a settlement payment of $8.8 billion to $9.6 billion to settle “approximately 75%” of current glyphosate personal injury chemical exposure lawsuits, including the claims contained in the multi-district litigation consolidated for judicial administration in the U.S. District Court for the Northern District of California, as well as a payment of $1.25 billion to settle future claims through a class action process to be established. The settlement does not include the three California bellwether jury verdicts returned so far, […]
Agricultural Law Weekly Review – February 28, 2020
Food Labeling: Pennsylvania Department of Agriculture Provides Whole Milk Labeling Guidance
On February 19, 2020, the Pennsylvania Department of Agriculture, Bureau of Food Safety issued a guidance document to Pennsylvania dairy processors outlining what methodology can be employed in labeling the fat content of whole milk. In March 2019, a collection of Pennsylvania dairy farmers formed an advocacy group called “97 Milk, LLC,” which advocates for whole milk consumption and designating whole milk as ‘97% Fat Free.’ However, the guidance document states that, according to FDA, a ‘% Fat Free’ label can only be employed on 1% Low Fat or Skim milk […]
Agricultural Law Weekly Review—February 13, 2020
National Agricultural Policy: USDA Inspector General Confirms Investigation of Trade Aid Package
On February 11, 2020, USDA Inspector General Phyllis K. Fong confirmed during testimony before the U.S. House of Representatives Committee on Appropriations’ Subcommittee on Agriculture that her office is conducting an investigation of the legal authority and administration of the so-called “Trade Aid Packages” for 2018 and 2019. The trade aid packages were undertaken by USDA pursuant to Section 5 of the Commodity Credit Corporation (CCC) Charter Act of 1948, 15 U.S.C. 714 et seq., to compensate agricultural producers for lost revenue due to Chinese tariff retaliation and trade […]
Agricultural Law Weekly Review – October 3, 2019
On September 26, 2019, the Supreme Court of Pennsylvania reversed the Commonwealth Court’s order, holding that local governments cannot impose stricter nutrient management requirements on small farms than those already imposed upon large agricultural operations under the state Nutrient Management Act (NMA) (Russell Berner, et al., v. Montour Township, et al., No. 39 MAP 2018). The question of whether and to what extent the NMA preempts local regulation of agricultural operations that are not “concentrated agricultural operations” (CAOs) became the central issue of this […]
