February 9, 2018 Weekly Round Up

This week I enjoyed speaking on water law at the High Plains Irrigation Conference in Amarillo.

Photo by Kay Ledbetter

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

*Lawsuit filed against EPA’s 2-year delay of WOTUS rule.  Ten states have filed suit against the EPA challenging the agency’s 2-year delay of the 2015 WOTUS rule.  They allege that the delay was imposed without consideration of the “environmental and public health consequences of doing so” and that by reverting to the pre-2015 approach, the agency has undertaken a “redefinition” for which they failed to comply with the required notice and comment rulemaking.  The suit seeks a declaration from the court that the 2-year delay is unlawful and an order vacating it.  [Read article here and Complaint here.]

* Will US Supreme Court decision in criminal sentencing case impact the Clean Water Act and scope of WOTUS?  Speaking of WOTUS, E&E News published a fascinating article this week discussing how a criminal case before the US Supreme Court this term could have significant impacts on how courts interpret the Clean Water Act and scope of “waters of the United States.”  The criminal case, Hughes v. United States, will look at the issue of how courts should apply a fractured Supreme Court decision, where Justices end up voting 4-1-4.  This 4-1-4 vote is exactly how the Justices wound up ruling in Rapanos v. United States, the most recent decision on the jurisdictional scope of the Clean Water Act.  In that case, four justices led by Justice Scalia found that the land at issue was not a WOTUS and signed off on an opinion utilizing one test, while Justice Kennedy agreed with the outcome of the Scalia group, he issued a concurring opinion as his decision based on a wholly different rationale.   Appellate-level courts are split on whether the proper analysis under a 4-1-4 decision is to apply the rationale of the concurrence (the 1 vote) or whether the lower courts should consider the rationales of both the plurality opinion and well as the concurrence.  A decision in Hughes could have major impacts on Clean Water Act jurisdictional analysis going forward.  [Read article here.]

*China launching probe into sorghum imports from the United States.  China has announced it will conduct an investigation into imports of sorghum from the United States to determine whether US companies are “dumping” sorghum on the Chinese market and whether the US crop was illegally subsidized.  The US is the largest producer of sorghum globally and is the largest supplier to China, exporting 4.76 million tons in 2017.  The announcement of the probe came on the heels of a US tariff imposed on solar panels and washing machines, which China recently called an “abuse of trade remedy measures.” According to Tim Lust, CEO of the National Sorghum Producers, “US sorghum farmers do not dump our products into China or elsewhere, and our products are not unfairly subsidized.  A fair proceeding will demonstrate these facts.”  [Read article here.]

Texas A&M Agrilife photo by Steve Byrns

* Dicamba class action cases to be consolidated in Missouri MDL.  Judges presiding over a number of class action cases filed around the country have ruled they should be consolidated for discovery and other pre-trial proceedings in one venue, the Eastern District of Missouri.  Each of these 11 cases involves suits by farmers who allege drift damage due to others use of dicamba products.  [View Order here.]

* Article highlights disputes between Western ranchers and the government.  NPR published a great article discussing some of the legal issues related to grazing allotments in the West.  The article, specififically focusing on rural New Mexico, provides a look at some of the disputes and the different approaches to fighting what ranchers say is unfair.  [Read article here.]


Programs Next Week

Next week, I’ll be hitting the road again.  On Thursday evening, I’ll be in Denton County for an Extension program (more info here) and on Friday, I’ll be in Weatherford for a Country Living and Land Stewardship Workshop, hosted by the Parker County Soil and Water Conservation District (more info here).  As always, you can see all of my upcoming programs by clicking on this link.

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