Environmental

By: Ellen Essman, Wednesday, September 09th, 2020

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. 

By: Ellen Essman, Friday, August 21st, 2020

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. 

By: Ellen Essman, Monday, August 10th, 2020

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. 

By: Peggy Kirk Hall, Thursday, July 23rd, 2020

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.

What remedy?

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.

What’s next?

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.

By: Ellen Essman, Wednesday, July 22nd, 2020

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. 

By: Ellen Essman, Friday, June 26th, 2020

Dicamba, Roundup, WOTUS, and ag-gag: although there are important updates, this week’s Harvest topics could be considered some of the Ag Law Blog’s “greatest hits.”   In addition to these ongoing issues, a bill that is meant to encourage farmers to participate in carbon markets was recently introduced in the Senate. June has certainly been a busy month. 

Decisions on dicamba. If you’ve been following along with our blog posts over the past few weeks, you know that the Ninth Circuit Court of Appeals vacated the registration of several over-the-top dicamba products, and in response, the EPA announced that all such products in farmers’ possession must be used before July 31, 2020 (our last post on the topic is available here).  The Ohio Department of Agriculture went a step further, making the final date for dicamba use in the state June 30, 2020, due to the state registrations expiring on that day.  Since the Ninth Circuit decision, the companies that produce dicamba products such as Engenia and, FXapan, and XtendiMax have filed numerous motions with the Ninth Circuit.  On June 25, the court declined a motion from the BASF Corporation, which makes Engenia, asking the court to pause and withdraw their decision from the beginning of the month.  What does this mean?  Basically, at this moment, the court’s ruling still stands, and use of certain over-the-top products will have to cease on the dates mentioned above.  That’s the latest on this “volatile” issue. 

Bayer settles Roundup lawsuits, but this probably isn’t the end. Bayer, the German company that purchased Monsanto and now owns rights to many of the former company’s famous products, has been fighting lawsuits on multiple fronts.  Not only is the company involved in the dicamba battle mentioned above, but over the past few years it has had a slew of lawsuits concerning Roundup. On June 24, Bayer, the German company that now owns the rights to Roundup, announced that it would settle around 9,500 lawsuits.  The lawsuits were from people who claimed that Roundup’s main ingredient, glyphosate, had caused health problems including non-Hodgkin’s lymphoma.  The amount of the settlement will be between 8.8 and 9.6 billion dollars.  Some of that money will be saved for future Roundup claims.  Although many are involved in this settlement, there are still thousands of claims against Bayer for litigants who did not want to join the settlement. 

Updated WOTUS still not perfect. As always, there is an update on the continuing saga of the waters of the United States (WOTUS) rule.  If you recall, back in April, the Trump administration’s “final” WOTUS rule was published.  Next, of course, came challenges of the rule from both sides, as we discussed in a previous Harvest post.  Well, the rule officially took effect (in most places, we’ll get to that) June 22, despite the efforts of a group of attorneys general from Democratically-controlled states attempting to halt the implementation of the rule.  The attorneys general asked the U.S. District Court for the Northern District of California a nationwide preliminary injunction, or pause on implementation of the rule until it could be sorted out in the courts.  The district court judge denied that injunction on June 19. On the very same day, a federal judge in Colorado granted the state’s request to pause the implementation of the rule within the state’s territory.  Remember that the 2015 rule was implemented in some states and not others for similar reasons.  The same trend seemingly continues with Trump’s replacement rule.  In fact, numerous lawsuits challenging the rule are ongoing across the country.  A number of the suits argue that rule does not go far enough to protect waters.  For instance, just this week environmental groups asked for an injunction against the rule in the U.S. District Court for the District of Columbia.  Environmental organizations have also challenged the rule in Maryland, Massachusetts, and South Carolina district courts.  On the other hand, agricultural groups like the New Mexico Cattle Growers Association have filed lawsuits arguing that the rule is too strict.

  No more ag-gag in NC?  We have mentioned a few times before on the blog that North Carolina’s ag-gag law has been embroiled in a lawsuit for several years (posts are available here).  North Carolina’s version of “ag-gag” was somewhat different from other states, because the statute applied to other property owners, not just those involved in agriculture. The basic gist of the law was that an unauthorized person entering into the nonpublic area of a business was liable to the owner or operator if any damages occurred.  This included entering recording or surveilling conditions in the nonpublic area, which is a tool the plaintiffs use to further their cause. In a ruling, the U.S. District Court for the Middle District of North Carolina was decided largely in the plaintiffs’ (PETA, Animal Legal Defense Fund, etc.) favor. In order to not get into the nitty gritty details of the 73-page ruling, suffice it to say that the judge found that that law did violate the plaintiffs’ freedom of speech rights under the First Amendment to the U.S. Constitution. Another ag-gag law bites the dust. 

Carbon markets for farmers?  And, now for something completely different. In the beginning of June, a bipartisan group of four U.S. senators introduced the “Growing Climate Solutions Act.”  On June 24, the Senate Committee on Agriculture, Nutrition, and Forestry held its first hearing on the new bill, numbered 3894.  The text of SB 3894 is not currently available online, but it would create “a certification program at USDA to help solve technical entry barriers that prevent farmer and forest landowner participation in carbon credit markets.”  The barriers “include[] access to reliable information about markets and access to qualified technical assistance providers and credit protocol verifiers” and “have limited both landowner participation and the adoption of practices that help reduce the costs of developing carbon credits.” You can read the Committee’s full press release about the bill here. It is backed by several notable businesses and groups, including the American Farm Bureau Federation, the National Corn Growers Association, the Environmental Defense Fund, and McDonalds and Microsoft. 

By: Peggy Kirk Hall, Thursday, June 11th, 2020

The dicamba roller coaster ride continues today, with a statement issued by the Ohio Department of Agriculture clarifying that the use of XtendiMax, Engenia, and FeXapan dicamba-based products in Ohio will end as of June 30, 2020.  Even though the US EPA has issued an order allowing continued use of the products until July 31, 2020, use in Ohio must end on June 30 because the Ohio registrations for the three dicamba-based products expire on that day.

As we’ve explained in our previous blog posts here and here, the Ninth Circuit Court of Appeals vacated the registration of the dicamba products on June 3, 2020.  In doing so, the court stated that the EPA had failed to perform a proper analysis of the risks and resulting costs of the products.  According to the court, EPA had substantially understated the amount of acreage damaged by dicamba and the extent of such damage, as well as complaints made to state agriculture departments.  The court determined that EPA had also entirely failed to acknowledge other risks, such as the risk of noncompliance with complex label restrictions, economic risks from anti-competition impacts created by the products, and the social costs to farm communities caused by dicamba versus non-dicamba users.  Rather than allowing the EPA to reconsider the registrations, the court vacated the product registrations altogether.

The EPA issued a Cancellation Order for the three products on June 8, stating that distribution or sale by the registrants is prohibited as of June 3, 2020.  But the agency also decided to examine the issue on the minds of many farmers:  what to do with the products.  Applying its “existing stocks” policy, the EPA examined six factors to help it determine how to deal with stocks of the product that are in the hands of dealers, commercial applicators, and farmers.  The EPA concluded that those factors weighed heavily in favor of allowing the end users to use the products in their possession, but that use must occur no later than July 31, 2020 and that any use inconsistent with the previous label restrictions is prohibited.

Despite the EPA’s Cancellation Order, however, the Ohio Department of Agriculture is the final arbiter of the registration and use of pesticides and herbicides within Ohio.  ODA patiently waited for the EPA to act on the Ninth Circuit’s ruling before issuing its guidance for Ohio users of the dicamba products.  In its guidance released today, ODA stated that:

  • After careful evaluation of the court’s ruling, US EPA’s Final Cancellation Order, and the Ohio Revised Code and Administrative Code, as of July 1, 2020, these products will no longer be registered or available for use in Ohio unless otherwise ordered by the courts.
  • While use of already purchased product is permitted in Ohio until June 30, further distribution or sale of the products is illegal, except for ensuring proper disposal or return to the registrant.
  • Application of existing stocks inconsistent with the previously approved labeling accompanying the product is prohibited.

But the roller coaster ride doesn’t necessarily end there.  Several dangling issues for dicamba-based product use remain:

  • We’re still waiting to see whether the plaintiffs who challenged the registrations (the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America) will also challenge the EPA’s Cancellation Order and its decision to allow continued use of the products, and will request immediate discontinuance of such uses. 
  • Bayer Crop Science, as an intervenor in the Ninth Circuit case, could still appeal the Ninth Circuit’s decision, as could the EPA. 
  • All of these orders add complexity to the issue of liability for dicamba damage.  That issue has already become quite controversial, often pitting farmer against farmer and requiring the applicator or damaged party to prove adherence to or violation of the complicated label restrictions.  But the Ninth Circuit’s attention to the risks of adverse impacts from the products raises additional questions about whether an applicator who chooses to use the products is knowingly assuming a higher risk, and whether a liability insurance provider will cover that risk.  For this reason, growers may want to have a frank discussion with their liability insurance providers about coverage for dicamba drift.

The dicamba roller coaster ride will surely continue, and we’ll keep you updated on the next development. 

Read the ODA’s Official Statement Regarding the Use of Over-the-Top Dicamba Products here.

By: Peggy Kirk Hall, Tuesday, June 09th, 2020

When we explained in our last blog post the recent Court of Appeals decision that vacated the registration of three dicamba-based products, we mentioned that one possibility for answering the “what happens now” question was for the EPA to issue a cancellation order that would allow end users to use existing stocks of the products.  That’s exactly what happened yesterday, when the US EPA made a final order that cancels the registrations of XtendiMax, Engenia, and FeXapan but allows for movement and use of the products.  Here’s a summary of the agency’s order.

Authority to issue the cancellation order

After reviewing the background of the dicamba product registrations vacated by the Ninth Circuit Court of Appeals last week for lack of “substantial evidence” supporting the registrations, the EPA stated that it was relying upon the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to establish provisions for the disposition of existing stocks of registrations that are found to be invalid.   “The Administrator may permit the continued sale and use of existing stocks of a pesticide whose registration is suspended or canceled under [sections 3, 4 or 6 of FIFRA] to such extent, under such conditions, and for such uses as the Administrator determines that such sale or use is not inconsistent with the purposes of [FIFRA]” stated the agency. 

The EPA noted that FIFRA does not prohibit the use of unregistered pesticides, but only prohibits the sale and distribution of unregistered pesticides.  The agency noted that without its action, end users holding stocks of the products aren’t prevented from using the stocks without following the now voided label directions and restrictions.  And the agency pointed to a similar action it took after a 2015 court order that vacated the registration of sulfoxaflor and a 2010 court decision that vacated the registration of spirotetramat.  In both cases, the EPA utilized a cancellation order to establish terms and conditions for the disposition of existing stocks of the products.

Existing Stocks Determination

Back in 1991, the EPA established an “existing stocks policy” to help the agency assess how to treat existing stocks of cancelled pesticides, both when no significant risk concerns have been identified and when there are significant risk concerns for a cancelled product.  The agency noted that it considered the six factors outlined in the policy for considering significant risk concerns associated with a cancelled pesticide and reached the conclusion that “distribution and use in certain narrow circumstances is supported.”  The six factors the agency considered in determining what to do with the existing stocks of dicamba products are:

  1.  Quantities of existing stocks at each level of the channels of trade

The agency noted that due to the current timing of the growing season, significant existing stocks are present in the possession of end users and throughout the channels of trade.  Stating that it couldn’t determine the exact quantities of existing stocks at each level of the channels of trade, the EPA estimates that “approximately 4 million gallons could be in the channels of trade.”

  1.  Risks resulting from the use of the existing stocks

Again concluding that because the product registrations were vacated and the labels therefore voided, end users were not legally bound to follow label restrictions if using the dicamba products.  The agency concluded that such non-label uses would have greater potential for adverse effects than if the agency issued an order allowing and regulating the use of the existing stocks.  Such an order is imperative, said the agency, to ensure that any use of the products would be consistent with previously approved labeling and could be enforced in order to prevent unreasonable adverse effects on the environment.  Surprisingly, the EPA gave little attention to the volatility concerns raised by the Ninth Circuit in its decision last week, and evidence the court pointed to in that case that suggested that even applications by those who carefully followed the label restrictions were subject to drift and damage.

  1. The benefits resulting from the use of existing stocks

Capitalizing on the unfortunate timing of the Ninth Circuit’s vacation of the pesticide in regards to immediate needs for the current growing season, the agency concluded that “the benefits resulting from the use of the products are considerable and well established, particularly for this growing season.”  The EPA reiterated many of the numerous communications it had received stating how essential the over-the-top products are, especially with the growing season underway. It also concluded that allowing non-over-the-top uses would result in substantially greater benefits to users and society than would disposal of the products.

  1. The financial expenditures users and others have already spent on existing stocks

Echoing the concerns of many farmers and again pointing to the current growing season, the agency concluded that “the costs to farmers are not limited to their existing stocks of these dicamba products, but include other sunk costs made in expectation of the availability of these products (seed purchase, tilling, planting, etc.) as well as the lost opportunity to switch to a different crop or to another herbicide or weed management method.”

  1. The risks and costs of disposal or alternative disposition of the stocks

The EPA concluded that disposal of the existing stocks of dicamba products would incur substantial costs for all and for stock already in the hands of end users, “may be neither feasible nor advisable.”  Additionally, the agency pointed to disposal or return of opened containers which would have high risks of spillage and increased expenses for proper disposal.

  1. The practicality of implementing restrictions on distribution, sale, or use of the existing stocks

Another option available to the agency under FIFRA would be to issue individual stop sale, use and removal orders to all end users holding dicamba products, but the EPA concluded that such an action would be unwarranted under the present facts because tracking the existing stocks would be burdensome, inaccurate and impractical and that “hard-pressed farmers who have made large investments in their existing stocks may be uncooperative with a cancellation order that requires disposal.” 

Final Order

After weighing the six factors above, the EPA concluded that the six factors weigh heavily in support of allowing end users to use existing stocks of the dicamba products in their possession.   However, the agency imposed a July 31 , 2020 cut-off date for use of existing stocks in order to “further reduce the potential for adverse effects.”  Here are the final orders the agency made for distributed, sale and use of the products:

  1. Distribution or sale by the registrant.  Distribution or sale by the registrant of all existing stocks of the products listed below is prohibited effective as of the time of the order on June 3, except for distribution for the purposes of proper disposal.
  2. Distribution or sale by persons other than the registrant.  Distribution or sale of existing stocks of the products listed below that are already in the possession of persons other than the registrant is permitted only for the purposes of proper disposal or to facilitate return to the registrant or a registered establishment under contract with the registrant, unless otherwise allowed below.
  3. Distribution or sale by commercial applicators.  For the purpose of facilitating use no later than July 31, 2020, distribution or sale of existing stocks of products listed below that are in the possession of commercial applicators is permitted.
  4. Use.  Use of existing stocks of products inconsistent in any respect with the previously-approved labeling accompanying the product is prohibited.  All use is prohibited after July 31, 2020.

Now what? 

While the manufacturers of XtendiMax, Engenia, and FeXapan are prohibited from selling and distributing their products effective as of June 3, 2020, the EPA’s cancellation order allows others to return, dispose of, or use the products according to the previous label restrictions and no later than July 31, 2020.  But a few other factors come into play:

  • Some states have already taken actions to restrict the use of the dicamba products within their states, which is within a state’s authority.  Ohio has not done so, and instead has stated that it has been awaiting US EPA guidance on the legal status of the products and will communicate options for farmers afterwards.  This means that users in Ohio should keep a close eye on the Ohio Department of Agriculture to see if it will go along with the US EPA’s guidance or direct otherwise.
  • A cancellation order issued by the EPA is a final agency action that is subject to appeal, so we might see an immediate of the cancellation order and a request to stay the order pending appeal.  Such an appeal could challenge whether the EPA has the authority to regulate existing stocks of the products and whether the agency’s analysis sufficiently addressed the risks of adverse impacts from continued use.

As seems often to be the case with dicamba, there’s a mixed sense of drama and dread with what lies ahead.  We’ll be sure to keep you posted on the next legal news for dicamba.

Read the US EPA’s cancellation order for XtendiMax, Engenia, and FeXapan here.

Posted In: Biotechnology, Crop Issues, Environmental
Tags: dicamba, FIFRA, EPA
Comments: 0
By: Peggy Kirk Hall, Thursday, June 04th, 2020

Dicamba has had its share of legal challenges, and a decision issued yesterday dealt yet another blow when the Ninth Circuit Court of Appeals  vacated the product’s registration with the U.S. EPA.  In doing so, the court held that the EPA’s approval of the registration violated the provisions of the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), which regulates the use of herbicides and other chemicals in the U.S.  Here’s a summary of how the court reached its decision and a few thoughts on the uncertainty that follows the opinion.

The challenge:  EPA’s approval of three dicamba products

We first have to step back to 2016, when the EPA approved three dicamba-based products-- Monsanto’s XTendiMax, DuPont’s FeXapan, and BASF’s Engenia--as conditional use pesticides for post-emergent applications in 34 states, including Ohio.  Although dicamba has been around for years, the approval came after the companies reformulated dicamba to make it less volatile and in anticipation of the development of dicamba tolerant soybean and cotton seeds.  The agency conducted a risk assessment and concluded that if used according to the label restrictions, the benefits of the dicamba products outweighed “any remaining minimal risks, if they exist at all.”  The EPA also provided that the registrations would automatically expire if there was a determination of an unacceptable level or frequency of off-site dicamba damage.

Before the conditional registrations were set to automatically expire in late 2018, the EPA approved requests by Bayer CropScience (previously Monsanto), Cortevo (previously DuPont) and BASF to conditionally amend the registrations for an additional two years.  The approval came despite widespread concerns about dicamba drift and damage during the 2017 growing season.  To address those concerns, EPA chose not to conduct a new risk assessment and instead adopted additional label restrictions that had been proposed by Monsanto/Bayer to minimize off-field movement of dicamba.   Many states added restrictions for dicamba use that exceeded the label restrictions, including banning any use of the product during certain periods.

Several organizations challenged the EPA’s dicamba registration approvals.  The National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America filed suit against the EPA, claiming that the agency violated both FIFRA and the Endangered Species Act in approving the product registrations.  Monsanto requested and was granted permission to intervene in the case.

The Ninth Circuit’s review

To approve the request to amend the dicamba registrations, FIFRA required the EPA to make two conclusions:  first, that the applicant had submitted satisfactory data related to the proposed additional use of the pesticide and second, that the approval would not significantly increase the risk of unreasonable adverse effects on the environment.  The task before the Ninth Circuit Court of Appeals was to review the EPA’s 2018 decision  and determine whether there was substantial evidence to support the EPA's conclusions and amend the registrations.

The conclusion that drew the most attention from the court was the EPA’s determination that amending the dicamba registrations for two years would not cause unreasonable adverse effects on the environment.  The court determined that the EPA erred in making this conclusion when it substantially understated several risks of dicamba registration, such as:

  • Misjudging by as much as 25% the amount of acreage on which dicamba would be used in 2018.
  • Concluding that complaints to state departments of agriculture could have either under-reported or over-reported the actual amount of dicamba damage, when the record clearly showed that complaints understated the amount of damage.
  • Failing to quantify the amount of damage caused by dicamba, “or even to admit that there was any damage at all,” despite having information that would enable the EPA to do so.

But that’s not all.  The court pointed out that the agency had also “entirely failed to acknowledge other risks, including those it was statutorily required to consider,” such as:

  • The risk of substantial non-compliance with label restrictions, which the court noted became “increasingly restrictive and, correspondingly, more difficult to follow” and to which even conscientious applicators could not consistently adhere.
  • The risk of economic costs.  The court stated that the EPA did not take into account the “virtually certain” economic costs that would result from the anti-competitive effect of continued dicamba registration, citing evidence in the record that growers were compelled to adopt the dicamba products just to avoid the possibility of damage should they use non-dicamba tolerant seed.
  • The social costs of dicamba technology to farming communities.  The court pointed out that a farmer in Arkansas had been shot and killed over dicamba damage, that dicamba had “pitted neighbor against neighbor,” and that the EPA should have identified the severe strain on social relations in farming communities as a clear social cost of the continued registration of the products.

Given the EPA’s understatement of some risks and failure to recognize other risks, the Court of Appeals concluded that substantial evidence did not support the agency’s decision to grant the conditional registration of the dicamba products.  The EPA “failed to perform a proper analysis of the risks and resulting costs of the uses,” determined the court.  The court did not address the Endangered Species Act issue.

What remedy?

A critical point in the decision is the court’s determination of the appropriate remedy for the EPA’s unsupported approval of the dicamba products.  The EPA and Monsanto had asked the court to utilize its ability to “remand without vacatur,” or to send the matter back to the agency for reconsideration.  The remedy of “vacatur,” however, would vacate or void the product registrations.  The court explained that determining whether vacatur is appropriate required the court to weigh several criteria, including:

  • The seriousness of the agency’s errors against the disruptive consequences of an interim change that may itself be changed,
  • The extent to which vacating or leaving the decision in place would risk environmental harm, and
  • Whether the agency would likely be able to offer better reasoning on remand, or whether such fundamental flaws in the agency’s decision make it unlikely that the same rule would be adopted on remand.

The court’s weighing of these criteria led to its conclusion that vacating the registrations of the products was the appropriate remedy due to the “fundamental flaws in the EPA’s analysis.”  Vacating the registrations was not an action taken lightly by the court, however.  The judges acknowledged that the decision could have an adverse impact on growers who have already purchased dicamba products for the current growing season and that growers “have been placed in this situation through no fault of their own.”  Clearly, the court places the blame for such consequences upon the EPA, reiterating the “absence of substantial evidence” for the agency’s decision to register the dicamba products.

What now?

The court raised the issue we’re all wondering about now:  can growers still use the dicamba products they’ve purchased?  Unfortunately, we don’t have an immediate answer to the question, because it depends largely upon how the EPA responds to the ruling.  We do know that:

  • FIFRA § 136a prohibits a person from distributing or selling any pesticide that is not registered. 
  • FIFRA § 136d allows the EPA to permit continued sale and use of existing stocks of a pesticide whose registration is suspended or canceled.  The EPA utilized this authority in 2015 after the Ninth Circuit Court of Appeals vacated  the EPA’s registration of sulfoxaflor after determining that the registration was not supported by substantial evidence.  In that case, the EPA allowed continued use of the existing stocks of sulfoxaflor held by end-users provided that the users followed label restrictions.  Whether the agency would find similarly in regards to existing stocks of dicamba is somewhat unlikely given the court's opinion, but remains to be seen.  The EPA’s 2015 sulfoxaflor cancellation order is here.
  • While the U.S. EPA registers pesticides for use and sale in the U.S., the product must also be registered within a state in order to be sold and used within the state.  The Ohio Department of Agriculture oversees pesticide registrations within Ohio, and also regulates the use of registered pesticides.
  • If the EPA appeals the Ninth Circuit’s decision to the U.S. Supreme Court, the agency would likely include a request for a “stay” that would delay enforcement of the court’s Order.
  • Bayer strongly disagrees with the decision but has paused its sale, distribution and use of XtendiMax while assessing its next step and awaiting EPA direction.  The company states that it will “work quickly to minimize any impact on our customers this season.”  Bayer also notes that it is already working to obtain a new registration for XtendiMax for the 2021 season and beyond, and hopes to obtain the registration by this fall.  See Bayer’s information here
  • BASF and Corteva have also stated that they are awaiting the EPA’s reaction to the decision, and will “use all legal remedies available to challenge this Order.”
  • Syngenta has clarified that its Tavium Plus VaporGrip dicamba-based herbicide is not part of the ruling and .that the company will continue selling that product.

For now, all eyes are on the U.S. EPA’s reaction to the Ninth Circuit’s decision, and we also need to hear from the Ohio Department of Agriculture.  Given the current state of uncertainty, it would be wise for growers to wait and see before taking any actions with dicamba products.  We’ll keep you posted on any new legal developments.  Read the court's decision in National Family Farm Coalition et al v. U.S. EPA here.

 

 

By: Peggy Kirk Hall, Tuesday, May 19th, 2020

Written by Ellen Essman and Peggy Kirk Hall

Many people are still working from home, but that hasn’t stopped legal activity in Washington, D.C.  Bills have been proposed, federal rules are being finalized, and new lawsuits are in process.  Here’s our gathering of the latest ag law news.

SBA posts Paycheck Protection Program (PPP) loan forgiveness application.  We’ve been waiting to hear more about how and to what extent the SBA will forgive loans made under the CARES Act’s PPP that many farm businesses have utilized.  The SBA recently posted the forgiveness application and  instructions for applicants here.  But there are still unanswered questions for agricultural applicants as well as talk in Congress about changing some of the forgiveness provisions, suggesting that loan recipients should sit tight rather than apply now.  Watch for our future blog post and a discussion on the forgiveness provisions in our next Farm Office Live webinar.    

House passes another COVID-19 relief bill.  All predictions are that the bill will go nowhere in the Senate, but that didn’t stop the House from passing a $3 trillion COVID-19 relief package on May 15.  The “HEROES Act” includes a number of provisions for agriculture, including an additional $16.5 billion in direct payments to producers of commodities, specialty crops and livestock, as well as funds for local agriculture markets, livestock depopulation losses, meat processing plants, expanded CRP, dairy production, other supply chain disruptions, and biofuel producers (discussed below).  Read the bill here.

Proposed bipartisan bill designed to open cash market for cattle.  Last week, Republican Senator Chuck Grassley and Democratic Senator Jon Tester introduced a bill that “would require large-scale meatpackers to increase the proportion of negotiable transactions that are cash, or ‘spot,’ to 50 percent of their total cattle purchases.” The senators hope this change would bring up formula prices and allow livestock producers to better negotiate prices and increase their profits. In addition, the sponsors claim ithe bill would provide more certainty to a sector hard hit by coronavirus.  Livestock groups aren’t all in agreement about the proposal.  You can read the bill here, Senator Grassley’s press release here and Senator Tester’s news release here. 

New Senate and House bills want to reform the U.S. food system.  Representative Ro Khanna from California has introduced the House companion bill to the Senate's Farm System Reform Act first introduced by Senator Cory Booker in January.  The proposal intends to address underlying problems in the food system.  The bill places an immediate moratorium on the creation or expansion of large concentrated animal feeding operations and requires such operations to cease by January 1, 2040.  The proposal also claims to strengthen the Packers and Stockyards Act and requires country of origin labeling on beef, pork, and dairy products.  The bill would also create new protections for livestock growers contracted by large meat companies, provide money for farmers to transition away from operating animal feeding facilities, strengthen the term “Product of the United States” to mean “derived from 1 or more animals exclusively born, raised, and slaughtered” in the U.S., and, similar to the Grassley/Tester bill above, require an increased percentage of meatpacker purchases to be “spot” transactions.

Lawmakers ask Trump to reimburse livestock producers through FEMA.  In another move that seeks to help livestock producers affected by the pandemic, a bipartisan group of U.S. Representatives sent a letter to Donald Trump imploring him to issue national guidance to allow expenses of livestock depopulation and disposal to be reimbursed under FEMA's Public Assistance Program Category B.  The lawmakers reason that FEMA has "been a valued Federal partner in responding to animal losses due to natural disasters," and that the COVID-19 epidemic should be treated "no differently."  You can read the letter here.

More battling over biofuels.  Attorneys General from Wyoming, Utah, Louisiana, Oklahoma, Texas, Arkansas and West Virginia have sent a request to EPA Administrator Andrew Wheeler to waive the Renewable Fuel Standard (RFS) because of COVID-19 impacts on the fuel economy. The letter states that reducing the national quantity of renewable fuel required would alleviate the regulatory cost of purchasing tradable credits for refiners, who use the credits to comply with biofuel-blending targets.   Meanwhile, 70 mayors from across the U.S. wrote a letter urging the opposite, and criticizing any decisions not to uphold the RFS due to the impact that decision would have on local economies, farmers, workers, and families who depend on the biofuels industry.  The House is also weighing in on the issue.  In its recently passed HEROES Act, the House proposes a 45 cents per gallon direct payment to biofuel producers for fuels produced between Jan 1 and May 1, 2020 and a similar payment for those forced out of production during that time.  

New USDA rule for genetically engineered crops.  A final rule concerning genetically engineered organisms is set to be published this week.  In the rule, USDA amends biotechnology regulations under the Plant Protection Act.  Importantly, the new rule would exempt plants from regulation by the Animal and Plant Health Inspection Service (APHIS) if the plants are genetically engineered but the same outcome could have occurred using conventional breeding.  For instance, gene deletions and simple genetic transfers from one compatible plant relative to another would be exempted.  If new varieties of plants use a plant-trait mechanism of action combination that has been analyzed by APHIS, such plants would be exempt.  You can read a draft of the final rule here.

Trump’s new WOTUS rule attacked from both sides of the spectrum.  A few weeks ago, we wrote about the Trump Administration’s new “waters of the United States” or WOTUS rule.  Well, it didn’t take too long for those who oppose the rule to make their voices heard. The New Mexico Cattle Growers Association (NMCGA) sued the administration, claiming that the new rule is still too strict and leaves cattle ranchers questioning whether waters on their land will be regulated.  In their complaint, NMCGA argues that the new definition violates the Constitution, the Clean Water Act, and Supreme Court precedent.  On the other side, the Natural Resources Defense Council (NRDC), along with other conservation groups, sued the administration, but argued that the new rule does not do enough to protect water and defines “WOTUS” too narrowly.  Here we go again—will WOTUS ever truly be settled?

The Farm Office is Open!  Join us for analysis of these and other legal and economic issues facing farmers in the Farm Office Team’s next session of “Farm Office Live” on Thursday, May 28 at 9:00 a.m.  Go to this link to register in advance or to watch past recordings.

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