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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.