January 26, 2018 Weekly Round Up

I tell you what, it’s been a whirlwind of a week both for my travel schedule and for ag law news!  On Monday I spoke in Pampa at a program hosted by County Extension Agents Mike Jeffcoat, Michael Wilkes, and Jody Bradford.  Then on Tuesday, I headed to Lubbock for the Seeking Solutions Regional Extension meeting.  Wednesday found me back on the road to Lubbock to speak at the Texas Alliance for Water Conservation Water College. Today, I’ll be doing an online presentation for a graduate student group at Texas A&M.  Then I’ll need a nap!  Welcome to all of you joining from these events.

Here are some of the ag law stories in the news this week.

* US Supreme Court rules that WOTUS challenge should be heard in district court.  In a unanimous decision, the Justices held that challenges to the 2015 “Waters of the United States” rule should be filed in the federal district courts, rather than at the appellate level.  When challenges were filed across the country, some were filed at the district court level and some at the appellate level.  The federal government (under both President Obama and President Trump) took the position that the cases should be filed in appellate courts, arguing that this case was one of seven types of lawsuits identified in the Clean Water Act for which appellate courts had jurisdiction.  The challengers who filed at the district court argued that this particular dispute did not fall into one of those categories and should, like most other lawsuits, be filed at the trial court level.  The Court agreed and held that jurisdiction was vested in the district courts.   [Read full opinion here ].

Where things get more complicated now is when we consider the issue of whether the current stay that has prevented the 2015 rule from going into effect will remain since it was issued by the 6th Circuit Court of Appeals.  This stay has been responsible for preventing the 2015 Rule from going into effect across the country.  Currently, the EPA has proposed to additional regulations that would prevent the 2015 rule from going into effect for two years while the EPA works on revising the replacing that rule.  Neither of those have been finalized at this point.  Will the 6th Circuit lift the stay?  Will the EPA get a final regulation issued suspending the 2015 rule from going into effect?  Will various federal district courts issue injunctions against the 2015 rule?  Will the rule go in into effect across the country?  Will it go into effect in parts of the country?  We’ll have to wait and see…  [Read article here.]

Emissions reporting deadline for agricultural operations further delayed.  The January 22 deadline for producers to begin reporting air emissions under CERCLA appears to be delayed again.  The reporting requirement was slated to go into effect on Monday, but the EPA has requested an additional 90-day stay and the DC Circuit Court has yet to issue a mandate ordering producers to comply.  Once the mandate is issued, producers with emissions of over 100 pounds in a 24 hour period of ammonia or hydrogen sulfide will be required to file reports with the EPA, with the first report being due within 24 hours of the mandate.  Confusion still remains about the proper way to measure emissions and about how exactly reporting will logistically be handled.  [Read article here.]

*Arkansas Legislative Council signs off on April 15 dicamba ban, lawsuits pending.  As we’ve been following on a weekly basis, the dicamba drama continues in Arkansas.  Last week, the Arkansas Legislative Council approved a recommendation from the State Plant Board to ban the use of dicamba over-the-top on crops after April 15. Two lawsuits remain pending against the State Plant Board over this ban.  One was filed by Monsanto and the second was filed by a group of farmers challenging the cut-off date.  [Read article here.]

*Advice on negotiating milk supply contracts.  Indiana-based attorney Todd Janzen recently did a webinar for dairy farmers on negotiating milk supply contracts.  In today’s world, these contracts are increasingly important and increasingly complicated.  To listen to the recording of Todd’s webinar, click here.

Talking Texas v. New Mexico litigation.  Last week, I visited with Texas Farm Bureau’s Jessica Domel about what is going on in the Texas v. New Mexico case before the US Supreme Court.  We covered the underlying facts in the litigation as well as the procedural issue that is currently being considered by the Justices of the Supreme Court.  [Read article here.]

*FREE Webinar on how tax reform law will impact agriculture.  As everyone knows, Congress recently passed the biggest tax law overhaul in decades.  The American Agricultural Law Association will be hosting a free webinar talking about how this new law will impact agricultural producers.  The webinar will be on Tuesday, January 31 at 12noon CST.  The webinar is open to everyone–lawyer or not–and you can find more information here.

Programs Next Week

I’ll be slowing down a bit next week with only one program on the agenda, an online presentation on ag and environmental law to an Ag Leadership course at Mississippi State University.  I’ll be back on the road the following week!  As always, you can see my complete presentation schedule here.


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