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It took five months of negotiation, but the Ohio General Assembly has enacted a controversial bill that grants immunity from civil liability for coronavirus injuries, deaths, or losses. Governor DeWine signed House Bill 606 on September 14, stating that it strikes a balance between reopening the economy and keeping Ohioans safe. The bill will be effective in 90 days.
The bill’s statement of findings and declaration of intent illustrate why it faced disagreement within the General Assembly. After stating its findings that business owners are unsure of the tort liability they may face when reopening after COVID-19, that businesses need certainty because recommendations on how to avoid COVID-19 change frequently, that individuals who decide to go out in public places should bear responsibility for taking steps to avoid exposure to COVID-19, that nothing in existing Ohio law established duties on business and premise owners to prevent exposure to airborne germs and viruses, and that the legislature has not delegated authority to Ohio’s Executive Branch to create new legal duties for business and premises owners, the General Assembly made a clear declaration of intent in the bill: “Orders and recommendations from the Executive Branch, from counties and local municipalities, from boards of health and other agencies, and from any federal government agency do not create any new legal duties for purposes of tort liability” and “are presumed to be irrelevant to the issue of the existence of a duty or breach of a duty….and inadmissible at trial to establish proof of a duty or breach of a duty in tort actions.”
The bill’s sponsor, Rep. Diane Grendell (R-Chesterland), refers to it as the “Good Samaritan Expansion Bill.” That name relates to one of the two types of immunity in the bill, a temporary qualified immunity for coronavirus-based claims against health care providers. In its original version of H.B. 606, the House of Representatives included only the health care immunity provisions. Of interest to farms and other businesses are the bill’s general immunity provisions, however, added to the final legislation by the Senate.
General immunity from coronavirus claims
The new law will prohibit a person from bringing a civil action that seeks damages for injury, death or loss to a person or property allegedly caused by exposure to or transmission of coronavirus, with one exception. The civil immunity does not apply if the exposure to or transmission of coronavirus resulted from a defendant’s “reckless conduct,” “intentional misconduct,” or “willful or wanton misconduct.” “Reckless conduct” means disregarding a substantial and unjustifiable risk that conduct or circumstances are likely to cause exposure to or transmission of coronavirus and having “heedless indifference” to the consequences.
Government guidelines don’t create legal duties
Consistent with the bill’s stated intent, the new law clarifies that a claimant cannot assert liability based on a failure to follow government guidelines for coronavirus. The law states that any government order, recommendation or guideline for coronavirus does not create a duty of care that can be enforced through a civil cause of action. A person may not admit such orders and guidelines as evidence of a legal right, duty of care or new legal cause of action.
No class actions
Another provision in the new law also prohibits a class action that alleges liability for coronavirus exposure or transmission if the law’s general immunity provisions do not apply.
Time period covered
The general immunity provisions apply only to a specified period of time: from March 9, 2020, when the Governor declared a state of emergency due to COVID-19, until September 30, 2021.
Workers compensation not addressed
An earlier version of the bill passed by the House of Representatives would have classified coronavirus as an “occupational disease” and would have allowed food workers, first responders and corrections officers to receive workers’ compensation benefits for the disease. However, the Senate removed the workers’ compensation provisions from the final bill based on its belief that the Bureau of Workers’ Compensation is already covering 85% of such claims.
What does H.B. 606 mean for agricultural businesses?
The new law provides certainty that agricultural businesses won’t be assailed by lawsuits seeking damages for COVID-19. A person claiming harm from exposure to COVID-19 at an agricultural business will only be successful upon a showing that the business acted recklessly and with intentional disregard or indifference to the possibility of COVID-19. That’s a high evidentiary standard and burden of proof for a claimant.
As is often the case when an immunity bill is enacted, however, there are several reasons why businesses should not let down their guards because of the new law. Note that while the law rejects government guidelines and orders about COVID-19 as a basis for placing legal duties upon businesses, following such guidelines and recommendations can counter an allegation of reckless or indifferent behavior about COVID-19 exposure or transmission. And there can be consequences from COVID-19 other than litigation, such as impacts on customer and employee health and safety, workers’ compensation claims, and negative publicity from an alleged COVID-19 outbreak. Continuing to take reasonable actions to manage COVID-19 and documenting actions taken can enhance the certainty offered by Ohio’s new COVID-19 immunity law.
Read H.B. 606 here.
Written by Barry Ward, Leader, Production Business Management, OSU Extension
Ohio cropland varies significantly in its production capabilities and, consequently, cropland values and cash rents vary widely throughout the state. Generally speaking, western Ohio cropland values and cash rents differ from much of eastern Ohio and parts of southern Ohio cropland values and cash rents. The primary factors affecting these values and rates are land productivity and potential crop return, and the variability of those crop returns. Soils and drainage capabilities are the two factors that heavily influence land productivity, crop return and variability of those crop returns.
Other factors impacting land values and cash rents may include buildings and grain storage, field size and shape, field accessibility, market access, local market prices, field perimeter characteristics and potential for wildlife damage, previous tillage system and crops, tolerant/resistant weed populations, population density, USDA Program Yields, and competition for the cropland in a region. Ultimately, supply and demand of cropland will determine the value or rental rate for each parcel.
The Western Ohio Cropland Values and Cash Rents study was conducted from February through April in 2020. The opinion-based study surveyed professionals with a knowledge of Ohio’s cropland values and rental rates. Professionals surveyed were rural appraisers, agricultural lenders, professional farm managers, ag business professionals, OSU Extension educators, farmers, landowners, and Farm Service Agency personnel.
The study results are based on 167 surveys. Respondents were asked to group their estimates based on three land quality classes: average, top, and poor. Within each land-quality class, respondents were asked to estimate average corn and soybean yields for a five-year period based on typical farming practices. Survey respondents were also asked to estimate current bare cropland values and cash rents negotiated in the current or recent year for each land-quality class.
According to the Western Ohio Cropland Values and Cash Rents Survey, cropland values in western Ohio are expected to decline slightly in 2020 by 1.5 to 2.6 percent depending on the region and land class. Cash rents are expected to be flat to slightly lower decreasing from 0.7 to 2.0 percent depending on the region and land class.
For the complete survey research summary go to the OSU Extension Farm Office website at:
Despite the fact that “pumpkin spice” everything is back in stores, it is still summer, and if you’re anything like me, you’re still dealing with weeds. In fact, we have been receiving many questions about noxious weeds lately. This blog post is meant to be a refresher about what you should do if noxious weeds sprout up on your property.
What are noxious weeds?
The Ohio Department of Agriculture (ODA) is in charge of designating “prohibited noxious weeds.” The list may change from time to time, but currently, noxious weeds include:
- Shatter cane (Sorghum bicolor)
- Russian thistle (Salsola Kali var. tenuifolia).
- Johnsongrass (Sorghum halepense ).
- Wild parsnip (Pastinaca sativa).
- Grapevines (Vitis spp.), when growing in groups of one hundred or more and not pruned, sprayed, cultivated, or otherwise maintained for two consecutive years.
- Canada thistle (Cirsium arvense ).
- Poison hemlock (Conium maculatum).
- Cressleaf groundsel (Senecio glabellus).
- Musk thistle (Carduus nutans).
- Purple loosestrife (Lythrum salicaria).
- Mile-A-Minute Weed (Polygonum perfoliatum).
- Giant Hogweed (Heracleum mantegazzianum).
- Apple of Peru (Nicandra physalodes).
- Marestail (Conyza canadensis)
- Kochia (Bassia scoparia).
- Palmer amaranth (Amaranthus palmeri).
- Kudzu (Pueraria montana var. lobata).
- Japanese knotweed (Polygonum cuspidatum).
- Yellow Groove Bamboo (Phyllostachys aureasculata), when the plant has spread from its original premise of planting and is not being maintained.
- Field bindweed (Convolvulus arvensis).
- Heart-podded hoary cress (Lepidium draba sub. draba).
- Hairy whitetop or ballcress Lepidium appelianum).
- Perennial sowthistle (Sonchus arvensis).
- Russian knapweed (Acroptilon repens).
- Leafy spurge (Euphorbia esula).
- Hedge bindweed (Calystegia sepium).
- Serrated tussock (Nassella trichotoma).
- Columbus grass (Sorghum x almum).
- Musk thistle (Carduus nutans).
- Forage Kochia (Bassia prostrata).
- Water Hemp (Amaranthus tuberculatus).
The list of noxious weeds can be found in the Ohio Administrative Code section 901:5-37-01. In addition to this list, Ohio State has a guidebook that will help you identify noxious weeds in Ohio, which is available here. It may be helpful to familiarize yourself with the weeds in the book, so you can be on the lookout for noxious weeds on your property.
When am I responsible for noxious weeds?
The Ohio Revised Code addresses noxious weeds in different parts of the code. When it comes to noxious weeds on the property of private individuals, there are two scenarios that may apply: noxious weeds on private property, and noxious weeds in line fence rows.
Noxious weeds on your property
If your property is located outside of a municipality, a neighbor or another member of the public can inform the township trustees in writing that there are noxious weeds on your property. If this happens, the township trustees must then turn around and notify you about the existence of noxious weeds. After receiving a letter from the trustees, you must either destroy the weeds or show the township trustees why there is no need for doing so. If you do not take one of these actions within five days of the trustees’ notice, the township trustees must cause the weeds to be cut or destroyed, and the county auditor will assess the costs for destroying the weeds against your real property taxes. If your land is in a municipality, similar laws apply, but you would be dealing with the legislative authority, like the city council, instead of township trustees.
What if you rent out your land out to be farmed or otherwise? Are you responsible for noxious weeds on your property in that situation? The answer is probably. The law states that the board of township trustees “shall notify the owner, lessee, agent, or tenant having charge of the land” that they have received information about noxious weeds on the property (emphasis added). Furthermore, the law says that the “person notified” shall cut or destroy the weeds (or have them cut or destroyed). In all likelihood, if you own the land, you are going to be the person who is notified by the trustees about the presence of weeds. If you rent out your property to be farmed or otherwise, you may want to include who is responsible for noxious weeds in the language of the lease.
Noxious weeds in the fence row
The “line fence law” or “partition fence law” in Ohio requires landowners in unincorporated areas to cut all noxious weeds, brush, briers and thistles within four feet and in the corners of a line fence. A line fence (or partition fence) is a fence that is on the boundary line between two properties. If you fail to keep your side of the fence row clear of noxious weeds and other vegetation, Ohio law provides a route for adjacent landowners concerned about the weeds. First, an adjacent landowner must request that you clear the fence row of weeds and must allow you ten days to do so. If the weeds still remain after ten days, the complaining landowner may notify the township trustees of the situation. Then, the township trustees must view the property and determine whether there is sufficient reason to remove weeds and vegetation from the fence row. If they determine that the weeds should be removed, the township trustees may hire someone to clear the fence row. Once again, if this occurs, the county auditor will assess the costs of destruction on your property taxes.
Being aware of noxious weeds is key.
As a landowner, it is really important for you to keep an eye out for noxious weeds on your property. If you keep on top of the weeds, cutting them or otherwise destroying them as they grow, it will certainly make your life a lot easier. You will avoid awkward conversations with neighbors, letters from your township trustees, and extra charges on your property taxes. Additionally, you will help to prevent the harm that noxious weeds may cause to crops, livestock, and ecosystems in general.
To learn more about Ohio’s noxious weed laws, you can access our law bulletin on the subject here. While the bulletin addresses the responsibilities of landowners, it also goes beyond the scope of this blog post, addressing weeds on roadways, railroads, and public lands, as well as how to respond if your neighbor has noxious weeds on their property. Additionally, the bulletin has a helpful section of “frequently asked questions” regarding noxious weeds.
Our newest report for the National Agricultural Law Center examines the different approaches states are taking to regulate hemp under the 2018 Farm Bill. Innovative State Approaches to Hemp Regulations under the 2018 Farm Bill is available on our website here and on the National Agricultural Law Center website here.
Over the last few years, the agricultural sector has been buzzing with excitement about the potential of a new crop—industrial hemp. For years, hemp was increasingly regulated across the country because it was legally classified the same as marijuana, another type of cannabis.
In 1970, the Controlled Substances Act completely illegalized hemp production. This criminalized approach to hemp changed with the 2018 Farm Bill, however, which removed hemp from the definition of “marijuana” and gave states a chance to create their own hemp regulation programs. Many states seized the opportunity. As of May 5, 2020, the United States Department of Agriculture (USDA) had approved hemp plans from 16 states: Delaware, Florida, Georgia, Iowa, Kansas, Louisiana, Montana, Nebraska, New Jersey, Ohio, Pennsylvania, South Carolina, Texas, Washington, West Virginia, and Wyoming.
In this white paper, we examine the requirements for state hemp programs prescribed by the 2018 Farm Bill. Even within these “requirements,” there is room for states to innovate. We’ll take a look at how they’ve done so as we summarize the unique aspects of state hemp programs that go beyond the USDA’s minimum requirements. There are many creative approaches that states are taking in regulating hemp production. We will touch on some of these notable approaches and highlight the similarities and differences among the approved state hemp regulatory programs.
The USDA’s National Agriculture Library funded our research on this project, which we conducted in partnership with the National Agricultural Law Center.
This edition of the Ag Law Harvest is heavily focused on recent environmental case law at the federal level. Read on to find out how habitats, migratory birds, environmental and administrative laws, and Trump’s new Waters of the United States rule have fared in recent decisions.
What does “habitat” mean to you? Think about it carefully, because now is your chance to provide your input to the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS). Readers of the blog may remember we reported on a Supreme Court case dealing with critical habitat under the Endangered Species Act (ESA) a few years ago. The Supreme Court remanded the case back to the Fifth Circuit Court of Appeals. The Court of Appeals was charged with interpreting the word “habitat.” The Court of appeals then punted the interpretation to the U.S. District Court for the Eastern District of Louisiana, where the parties settled the case. Even with a settlement, the question of what “habitat” means remains. To remedy this omission, the FWS and NMFS published a proposed rule on August 5th to define “habitat” under the ESA. In this proposal, FWS and NMFS put forward two possible definitions of “habitat”:
- The physical places that individuals of a species depend upon to carry out one or more life processes. Habitat includes areas with existing attributes that have the capacity to support individuals of the species; or
- The physical places that individuals of a species use to carry out one or more life processes. Habitat includes areas where individuals of the species do not presently exist but have the capacity to support such individuals, only where the necessary attributes to support the species presently exist.
The agencies are asking for public comment on the two definitions, and “on whether either definition is too broad or too narrow or is otherwise proper or improper, and on whether other formulations of a definition of ‘habitat’ would be preferable to either of the two definitions, including formulations that incorporate various aspects of these two definitions.” The comment period is open until September 4, 2020.
Will a lawsuit stop planned changes to NEPA? At the end of July, a number of environmental groups banded together and filed a 180-page complaint against the U.S. Council on Environmental Quality (CEQ). The complaint challenges the Council’s update to rules under the National Environmental Protection Act (NEPA). The groups’ basic argument is that the CEQ, under the direction of the Trump administration, published a new administrative rule under NEPA, but did not follow the Administrative Procedure Act (APA), which governs agency actions, when doing so. The lawsuit alleges: “[r]ather than make this drastic change deliberately and with the careful process the APA requires, CEQ cut every corner. The agency disregarded clear evidence from over 40 years of past implementation; ignored the reliance interests of the citizens, businesses, and industries that depend on full and complete NEPA analyses; and turned the mandatory public engagement process into a paper exercise, rather than the meaningful inquiry the law requires.” Basically, the groups argue that the administration ignored the APA all together. Why is this important? The environmental groups argue that the new rule essentially makes it possible for the federal government to push through projects that might have impacts on citizens and the environment, such as pipelines and roadways, much more quickly, and without much input from the public. You can read the final NEPA rule here. We will have to wait and see whether the court agrees that the APA was violated in the creation of this rule.
Ruling on Migratory Bird Act clips the administration’s wings. Another lawsuit against the federal government was decided on August 11, 2020. The U.S. District Court for the Southern District of New York sided with a number states as well as environmental groups, including the Natural Resources Defense Fund and the National Wildlife Federation. The Court found that the U.S. Department of the Interior (DOI) and FWS (at the direction of the administration) could not overturn 50 years of DOI interpretations of what “killings” and “takings” of birds meant under the Migratory Bird Treaty Act of 1918 with a single memo. Traditionally, the killing or taking any migratory bird, even accidentally or incidentally, has been interpreted as a violation of the Act. DOI’s memo sought to change this, only making the Act only apply to intentional hunting, killing, or taking. Essentially, if a business or person had a pond full of wastewater, and migratory birds swam in it, eventually killing the birds, it would only be “incidental” taking and not intentional under DOI’s logic in the memo. Ultimately, Judge Valerie Caproni channeled Atticus Finch by stating “It is not only a sin to kill a mockingbird, it is also a crime,” meaning that one memorandum could not overturn the fact that incidental and accidental takings of birds are still takings punishable by the Act.
Another WOTUS lawsuit bites the dust. There’s always something going on with the Waters of the United States (WOTUS) rule. In April, the Trump administration published its final rule on WOTUS, which replaced the Obama administration’s beleaguered rule from 2015. Almost immediately, the rule was challenged in court by those who thought it went too far in protecting waters, as well as those who felt it didn’t go far enough. The Oregon Cattlemen’s Association, which falls into the latter camp, filed suit against the EPA and the U.S. Army Corps of Engineers over the 2015 rule, later amending their complaint to address the 2020 rule. The Association claimed that both the old and new rules went too far, and that EPA did not have the authority to carry them out under the Clean Water Act. The judge dismissed the Association’s case without prejudice for lack of standing, meaning that the issue may be litigated again, but the Oregon Cattlemen’s Association could not show that its members are being negatively affected by the 2020 rule at this time.
Farming has always been an unpredictable way to make a living, and that unpredictability can lead to financial stress. Whether caused by down markets, weather impacts, rising input costs, high land values, poor decision making, medical issues or a host of other unforeseen circumstances, serious financial stress can be a reality a farmer must face.
Filing bankruptcy can be one way to address farm financial stress. But because of its consequences, bankruptcy is not a decision to take lightly and might not be the best option. Our newest resources target farmers who are dealing with financial challenges and considering bankruptcy. Facing Farm Financial Stress: An Overview of the Bankruptcy Option offers a seven part series of law bulletins and infographics focused on bankruptcy issues for farmers. The series covers:
- Assessing the bankruptcy option. Steps to take and considerations to make when dealing with financial stress, including alternatives to bankruptcy and farmer to farmer advice from families that have been through the bankruptcy process.
- An overview of bankruptcy law. We explain and visualize the legal process, people, institutions and legal terms involved in bankrptcy with a focus on Chapter 12, the law reserved for qualifying farmers and fishermen.
- Thriving after a farm bankruptcy. Ideas for setting a course to attain farm financial stability and reestablish relationships after filing bankruptcy, including farmer to farmer advice from those who've survived bankruptcy.
Our team of authors, which included myself along with OSU's David Marrison, Hannah Scott and Chris Zoller--created the resources with support from the USDA's National Agriculture Library and in partnership with the National Agricultural Law Center (NALC). The series is available on our Farm Office site here or on NALC's site here.
Welcome to August! Despite the fact that most of us haven’t seen much besides the inside of our homes lately, the world still turns, which is also true for the gears in Washington D.C. In this issue of the Ag Law Harvest, we will take a look at some recently introduced and passed federal legislation, as well as a proposed federal rule.
Great American Outdoors Act is a go. The Great American Outdoors Act, one of the last pieces of legislation introduced by the late Representative John Lewis, was signed into law by the President on August 4. The new law secures funding for deferred maintenance projects on federal lands. The funding will come from 50% of the revenues from oil, gas, coal, or alternative energy development on federal lands. The funding will be broken down between numerous agencies, with 70% to the National Park Service each year, 15% to the Forest Service, 5% to the U.S. Fish and Wildlife Service, 5% to the Bureau of Land Management, and 5% to the Bureau of Indian Education. You can read the law in its entirety here.
A meat processing slowdown for worker safety? In addition to the Great American Outdoors Act, numerous bills have been introduced to help farmers, ag-related businesses, and rural areas in the wake of COVID-19. For instance, in early July, Ohio’s own Representative from the 11th District, Marcia Fudge, introduced H.R. 7521, which would suspend increases in line speeds at meat and poultry establishments during the pandemic. Notably, if passed, the bill would “suspend implementation of, and conversion to the New Swine Slaughter Inspection System,” which has been planned since the USDA published the final rule in October of 2019. It would also make the USDA suspend any waivers for certain establishments related to increasing line speed. The resolution was introduced to protect the safety of workers, animals, and food. In theory, slower line speeds would make it easier for workers to social distance. This is especially important in the wake of outbreaks among workers at many processing plants. On July 28, Senator Cory Booker introduced a companion bill in the Senate.
Will livestock markets become more competitive? On July 9, a group of Representatives from Iowa introduced H.R. 7501. The bill would amend the Agricultural Marketing Act of 1946 “to foster efficient markets and increase competition and transparency among packers that purchase livestock from producers. To achieve this outcome, the bill would require packers to obtain at least 50% of their livestock through “spot market sales” every week. This means that the packers would be required to buy from producers not affiliated with the packer. “Unaffiliated producers” would have less than a 1 percent equity interest in the packer (and vice versa), no directors, employees, etc. that are directors, employees, etc. of the packer, and no fiduciary responsibility to the packer. Additionally, the packer would not have an equity interest in a nonaffiliated producer. Basically, this bill would make it easier for independent producers to sell to packers. This bill is a companion to a Senate Bill 3693, which we discussed in a March edition of the Ag Law Harvest. According
New bill would make changes to FIFRA. Just last week, a new bill was proposed in both the House and Senate that would alter the Federal Insecticide, Fungicide, and Rodenticide Act. The bill is called the “Protect America’s Children from Toxic Pesticides Act of 2020.” In a press release, the sponsoring Senator, Tom Udall, and Representative, Joe Neguse, explained that the proposed law would ban organophosphate insecticides, neonicotinoid insecticides, and the herbicide paraquat, which are linked to harmful effects in humans and the environment. Furthermore, the law would allow individuals to petition the EPA to identify dangerous pesticides, close the loopholes allowing EPA to issue emergency exemptions and conditional registrations to use pesticides before they are fully vetted, allow communities to pass tougher laws on pesticides without state preemption, and press the pause button on pesticides found to be unsafe by the E.U. or Canada until they undergo EPA review. Finally, the bill would make employers report pesticide-caused injuries, direct the EPA to work with pesticide manufacturers on labeling, and require manufacturers to include Spanish instructions on labels. You can read the text of the bill here.
USDA AMS publishes proposed Organic Rule. Moving on to federal happenings outside Congress, the USDA Agricultural Marketing Service published a proposed rule on August 5. The rule would amend current regulations for organic foods by strengthening “oversight of the production, handling certification, marketing, and sale of organic agricultural products.” The rule would make it easier to detect any fraud, trace organic products, and would make organic certification practices for producers more uniform. Anyone interested in commenting on this proposed rule has until October 5, 2020 to do so. You can find information on how to submit a comment on the website linked above.
It wasn’t that long ago that “agritourism” was an unfamiliar term to in the agricultural community. But agritourism has been on the rise in the U.S. and agritourism income tripled between 2002 and 2017. Many farmers and ranchers are now familiar with the economic benefits agritourism presents. Along with the agritourism industry’s continued growth and prospects, however, has been an evolution of laws and legal issues.
Join me with OSU Extension Educators Eric Barrett and Rob Leeds on August 19, 2020 for a free webinar on "The Evolution of Agritourism: Current Legal Issues and Future Trends," hosted by the National Agricultural Law Center. We’ll examine opportunities in agritourism today and the legal challenges agritourism faces from COVID-19 and other anticipated legal issues. Here's what we'll cover:
- What’s new and hot: agritourism marketing trends and opportunities
- In the courts: litigation against agritourism operations
- COVID-19: legal issues for agritourism
- What may come: anticipated legal challenges for the future
- How to deal with it: thoughts on managing agritourism legal risk
Additional information and a registration link for the webinar are available at https://nationalaglawcenter.org/webinars/agritourism2020/. If you can't make the live webinar, visit the same page later for a recorded version.
In a decision that turns largely on scientific methodology and reliable data, the Ninth Circuit Court of Appeals yesterday allowed continued registration of the Enlist Duo herbicide developed by Dow AgroScience (Corteva). Unlike last month’s decision that vacated registrations of three dicamba herbicides, the two-judge majority on the court held that substantial evidence supported the EPA’s decision to register the herbicide. Even so, the court sent one petition back to the EPA to further consider the impact of Enlist Duo on monarch butterflies in application areas. One dissenting judge would have held that the science used to support the Enlist Duo registration violates the Endangered Species Act.
The case began in 2014, when the same organizations that challenged the dicamba registrations (National Family Farm Coalition, Family Farm Defenders, Beyond Pesticides, Center for Biological Diversity, Center for Food Safety and Pesticide Action Network North America) and the Natural Resources Defense Council each filed petitions challenging the EPA’s registration of Enlist Duo. The EPA later amended the registration in 2015 and 2017, eventually allowing use of the herbicide on corn, soybeans and cotton in 34 states. The petitioners challenged the 2015 and 2017 registrations as well, and the Ninth Circuit consolidated the challenges into the case at hand.
The court’s opinion begins with an explanation of why it agreed with the parties who brought the challenges that they had the legal right to do so, or had “associational standing.” Likely of higher interest to our readers is how the court answered the questions of whether the EPA adequately examined the potential impacts of Enlist Duo under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the federal Endangered Species Act (ESA). Here’s what the court had to say about the petitioners’ claims under each law:
The FIFRA claims. The monarch butterfly issue was the only successful FIFRA claim advanced by the petitioners. The court agreed that the EPA didn’t properly assess adverse harm to monarch butterflies that would result from increased 2,4-D use on milkweed in application fields, despite evidence suggesting that the butterflies might be adversely affected. The EPA stated that it didn’t do so because the approval of Enlist Duo would not change the amount of milkweed being controlled by herbicides—those milkweeds would still be controlled with or without Enlist Duo. The court disagreed, stating that FIFRA required the agency to determine whether any effect was “adverse” before then determining whether the effect on the environment was unreasonable, which EPA didn’t do in regard to the monarch butterfly.
The court rejected all of the petitioners’ other arguments under FIFRA:
Applicable standards. Several claims that the EPA applied the wrong FIFRA registration standards failed. The agency correctly used the broader and more stringent standard, which was to determine whether the registration would cause any unreasonable adverse effects on the environment.
Increased glyphosate use. Petitioners also argued that the EPA erred in determining that approval of Enlist Duo would not cause unreasonable adverse effects on environment because glyphosate was already being used. The registration would only impact which glyphosate was being used but not how much glyphosate was in use. The court agreed with EPA’s assertion that due to the “nearly ubiquitous use” of glyphosate across the country before the approval of Enlist Duo registration, there would not be an increase in overall glyphosate use and no increased risks. Interestingly, the court distinguished increased use from new data about glyphosate use, stating that “this does not mean, of course, that new data about glyphosate will go unconsidered….”
Volatility risk. The court also rejected volatility risk arguments, one of the science-heavy parts of the opinion (begin at page 37 for a good read). The EPA had concluded the type of 2,4-D in Enlist Duo exhibits lower volatility and off-site vapor drift than other forms of 2,4-D. EPA reached this conclusion based several studies and data points: a laboratory study that examined degree of visual damage, six publicly available studies assessing plant growth and survival damage, data from a vapor flux study used to perform computer modeling to determine dose level and air concentration in order to predict adverse damages to plants off-field, a second type of modeling that assesses drift of wet and dry depositions, and atmospheric monitoring data. Petitioners claimed limitations to the studies and methodology used, contradictions between EPA scientists, failure to follow regulatory guidelines and to consider large enough field sizes in its modeling. The court commented that the evaluation of volatility “probably could have been better,” but found no evidence showing that EPA’s conclusion was wrong or that volatility fears had materialized since approval of the herbicide. The court explained that the agency may apply its expertise to draw conclusions from probative preliminary data and “it is not our role to second-guess EPA’s conclusion.”
Mixing risks. Petitioners also argued that Dow intended to mix Enlist Duo with glufosinate and EPA failed to account for the synergistic effect of such mixing. With no evidence other than an abandoned patent application for a mixed product by Dow, the court held that FIFRA doesn’t require an analysis of theoretical tank mixing but only that which is contemplated on the label.
Nearly all of the EPA’s FIFRA decisions were supported by substantial evidence, the court concluded, with the exception of the monarch butterfly analysis.
The ESA claims. Science is a recurring theme in the court’s analysis of the petitioners’ ESA arguments, and also the source of sharp disagreement on the court. ESA’s section 7 requires a determination of the biological impacts of a proposed action. ESA consultation among the agencies is required if determined that an agency’s action “may affect” a listed species or critical habitat in an “action area.” The petitioners claimed that EPA failed in its determination on several grounds, requiring the court to review whether the EPA’s determination was arbitrary, capricious, an abuse of discretion, or contrary to law. Here are the arguments, and the court’s responses:
“No effect” finding. The petitioners argued that the EPA erred in determining that Enlist Duo approval would have “no effect” on plant and animal species and the court responded with another lengthy science-heavy discussion of “risk quotient” methodology and legal requirements to use the “best scientific and commercial data available.” The EPA employed a risk quotient methodology to conclude that there would be exposure to the herbicide but that such exposure would not lead to an effect on plants and animals. The two judges in the majority were willing to defer to the agency on this conclusion and its dependence on the risk quotient methodology, but Judge Watford strongly disagreed. Pointing out that the National Academy of Sciences had advised the EPA that the risk quotient method was “scientifically unsound,” the dissent concluded that the data derived from the methodology did not qualify as “scientific data” and therefore violated the ESA. The majority stated that the risk quotient methodology doesn’t violate the duty to use the best scientific and commercial data available, which means that the EPA must not disregard available scientific evidence that is better and does not require the agency to conduct new tests or make decisions on data that doesn’t exist. Deference to the agency was warranted, said the majority, and restraint against second guessing or using the court’s judgment.
Action area. For its ESA determination, the EPA limited the “action area” to treated fields, while petitioners argued that the herbicide would drift beyond treated fields. Again turning to the EPA’s science, the court held that the agency had science-based reasons for limiting the target area. The EPA had appropriately accounted for drift through empirical data, mitigation measures, and label restrictions and no evidence in the record supported that the agency had made an error.
Critical habitat. The final argument advanced by petitioners was that EPA did not meet its duty to insure that there would be no “adverse modification” of critical habitat from the registration. Although there were 154 species with critical habitats in the states where Enlist Duo would be approved, EPA concluded that 176 of the species would not be in corn, cotton or soybean fields. Of the eight species remaining, the agency determined that there would be no modification to their critical habitats as a result of Enlist Duo registration because none of the species’ essential features or “primary constituent elements” were related to agriculture. Petitioners challenged the methodology EPA employed to reach this conclusion, but the court once again disagreed and deferred to the agency.
With only the monarch butterfly impact analysis in need of further study, the Ninth Circuit declined the petitioners’ request to vacate the Enlist Duo registration. The court chose instead to remand the petition without vacating the registration, stating that the EPA’s failure to consider harm to monarch butterflies was technical and not a “serious” error. Pointing also to the “disruptive” consequences of removing a pesticide that has been in use for over five years, the court stated that vacatur was not warranted when the EPA had substantially complied with FIFRA and fully complied with the ESA.
Enlist Duo registration will continue. The EPA must address evidence that its destruction of milkweed in fields harms monarch butterflies, however. The court advised the agency to “move promptly” in doing so.
Further action by the petitioners is likely. According to correspondence with DTN, the petitioners are disappointed and will fight the decision. They will likely also follow the EPA’s science quite closely as it reexamines the monarch butterfly issue.
Read the Ninth Circuit's decision National Family Farm Coalition et al v. U.S. EPA and Natural Resources Defense Council v. Wheeler, here.
Since the advent of the Clean Water Act (CWA), states have attempted to address agricultural nutrient pollution through the National Pollutant Discharge Elimination Permit (NPDES) system. But legal challenges have plagued state NPDES permit programs from their beginnings, and litigation has become a common tool for reducing water quality impacts from manure and other agricultural nutrients. States have developed their own water quality laws and policies, and there have been legal challenges to those as well. These legal challenges arise from environmental interests and impacted neighbors and communities and can be pre-emptive or reactionary. Our newest report for the National Agricultural Law Center examines litigation involving agricultural nutrients from 2018 through 2020.
In the report, the cases are broken down into several categories. We examine what the courts have to say when it comes to NPDES permits for individual farms and whether they are properly issued by states, whether or not the government (state and federal) is following its own laws and regulations when carrying out water pollution policies, the validity of state CAFO General Discharge permits, and whether or not neighboring landowners have redress for potential agricultural runoff. Some of the cases are challenges to state water quality laws, or the issuance of an NPDES permit. A few other cases directly target agricultural producers. The report is entitled Agricultural Nutrients and Water Quality: Recent Litigation in the United States, and can be found here.
In addition to the paper, we also recently updated part of our nutrient management project on the National Agricultural Law Center’s website. The project was first published last year, and includes a report and a state chart. The chart tracks which states require nutrient management plans, nutrient application restrictions, and certification and education for nutrient applicators, and can be found here. The chart also provides links to states’ nutrient management laws and regulations. A few changes and additions have been made to state laws and regulations within the chart.
The USDA’s National Agriculture Library funded our research on these related projects, which we conducted in partnership with the National Agricultural Law Center.