November 2, 2018 Weekly Round Up

Last week, I traveled to beautiful Portland, Oregon for the 39th Annual American Agricultural Law Association Conference.  On Monday, I’ll be sharing some highlights and emerging legal issues we discussed at that event.

Photo by James Wheeler from Pexels

One quick note before we get into the Round Up.  The blog I posted on Monday discussing legal issues surrounding the death of a ranch hand went viral on social media.  Thanks to those of you who shared and retweeted!  This is clearly an issue you all are interested in, and rightly so.  If you missed that post, click here.

Here are some of the ag law stories making news over the past couple of weeks:

* EPA published proposed rule to expressly exempt animal agricultural facilities from reporting air emissions under EPCRA.  This is an issue we’ve long been following.  You may remember earlier this year that Congress passed a law specifically exempting air emissions from animal waste on farms from reporting requirements under the federal CERCLA statute.  The EPA’s position since that time has been that reporting under EPCRA was exempt as well.  This week, the agency took the next step to formalize this in the text of the EPCRA rule by expressly listing animal waste from farms as exempt and by defining the meaning of “animal waste” and “farm.”  The proposed rule will now go through notice and comment period prior to being officially finalized and published. [Read Proposed Rule here.]

*EPA extends registration of over-the-top dicamba products for two more years; new label restrictions for 2019.  In a much-watched decision, the EPA has extended the registration for over-the-top dicamba products an additional two years.  The initial two-year registration was set to expire in November, and many wondered whether EPA would extend given the number of drift complaints around the country.  In addition to the extension, EPA has imposed new label requirements for 2019.  These include that the applicator must be certified (not merely supervised by a certified applicator), post-planting cut offs of 45 days for soybeans and 60 days for cotton, decreased number of allowable applications for cotton, timing restrictions, additional buffer requirements, and enhanced label and clean-out instructions.  [Read article here.]

* California judge overturns punitive damage order in Round Up cancer case.  You may recall that earlier this year, a California jury found that Round Up cased Dewayne Johnson’s cancer and awarded him $289 million.  Of that amount, $250 million was punitive damages and $39 million was compensatory damages.  In a post-trial ruling last week, the judge upheld the jury’s finding that the plaintiff’s exposure to Round Up was a substantial factor in causing his cancer, but overruled the punitive damage award.  The court found that the award should be reduced to be equal to the compensatory damages number of $39 million, which would reduce the total verdict award to $78 million.  The plaintiff was given the option to chose to accept the reduced award or the judge will order a new trial on the issue of punitive damages only. He announced on Thursday that he will accept the reduced award.  Monsanto can still appeal the decision, but their motion for a new trial will be denied by the trial court. [Read Order here and article here.]

Fourth Circuit finds gag order imposed in North Carolina nuisance lawsuits unconstitutional.  The United States Court of Appeals for the Fourth Circuit sided with Smithfield Foods, finding that the gag order violated the First Amendment.  The gag order prohibited the parties, their lawyers, and all potential witnesses from “giving or authorizing any extrajudicial statement…relating to the trial, the parties or issues in this case” if the statement could reasonably reach “public communications media” and could “interfere with a fair trial or prejudice any plaintiff, the defendant, or the administration of justice.”  The concern over pre-trial publicity was not enough to justify this type of gag order.  As the court noted, “gag orders should be a last resort, not a first impulse.”  [Read Order here.]

*First dicamba case for trial in October 2019.  The first of several dicamba-related  lawsuits has been set for trial.  Bader Farms v. Monsanto, filed by peach farmers in Georgia, has been scheduled for trial in October 2019.  This case is an individual action (rather than a class action like many others) and claims that Monsanto should be liable for releasing a defective crop system without the accompanying EPA-approved herbicide.  The farm claims their crops were damaged in 2015 and 2016.  [Read article here.]

* PRF Rainfall Insurance deadline coming up November 15.  Don’t forget that if you are interested in signing up for Pasture, Range, and Forage insurance (better known as “rainfall insurance”) for 2019, the deadline to do so is November 15.  Any crop insurance agent can help get you signed up.  To learn more about this risk management tool, click here to listen to a prior podcast focused exclusively on it.  [Read article here.]

Programs Next Week

I’ve only got one stop on the agenda for next week.  On Monday evening at 7:00 pm, I’ll be in Panhandle at the War Memorial Building speaking on estate and transition planning.  For more information, contact Carson County Extension here.

As always, you can see all of my upcoming programs (including those set for 2019) by clicking here.


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