Happy Holidays! I love doing these year in reviews and look forward to writing them every year. There was certainly no shortage of ag law news in 2020. Here is a look at some of the biggest ag law stories from the last 365 days. On Thursday, Paul Goeringer and I will release a joint podcast recapping some of these issues as well.
Dicamba Controversy and Litigation
For cotton and soybean farmers, dicamba certainly has to the biggest issue of 2020. To hear more, listen to this podcast episode with Brigit Rollins.
The year started with Bader v. Monsanto, the first trial in a slew of cases involving drift issues related to the dicamba tolerant cotton and soybean seeds and corresponding pesticides. The plaintiff, a peach farmer, filed suit against Monsanto and BASF for drift damage to his orchard in 2015-2016. He claimed Monsanto should be liable for “willful and negligent release of a defective crop system without an accompanying, EPA-approved dicamba herbicide.” In February, the jury sided with the plaintiff, awarding $265 million in damages. [Read more here.]
Next, a decision from the US Court of Appeals for the Ninth Circuit in June threw farmers for a loop when the court vacated the label for three of the over-the-top dicamba products. [Read blog post here.] This resulted in a great deal of uncertainty and confusion about what farmers, most of whom had already planted the seeds and purchased their chemicals. Shortly thereafter, the EPA issued a Cancellation Order for the three pesticides, which included an existing stocks provision. This allowed producers to use any stocks through July 31, 2020 if the products were packaged, labeled, and released for shipment prior to the June 3 decision from the Ninth Circuit. [Read more here.]
In October, the EPA issued a new registration for three of the over-the-top dicamba products for 2021-2025. [Read more here.] The EPA imposed a number of additional restrictions, including a nationwide cutoff date of June 30 for soybeans and July 30 for cotton, an increased buffer requirement, the use of a pH buffering agent, and a simplified label. Additionally, the EPA will no longer allow states to further restrict the federal label through the use of FIFRA Section 24(c), the “special local needs labels.” While expansions may still be allowed under Section 24(c), restrictions will not. Instead, any additional restrictions must be done through Section 24(a). This will require a much slower, more cumbersome process to further restrict the federal label. Essentially, if a state wanted to impose more restrictions than the federal label, as some states have previously done with earlier cut off dates, the state regulators would have to go through a state law or rulemaking process. [Read more here.]
Lastly, the American Soybean Association and Plains Cotton Growers have filed suit challenging the EPA’s registration. In particular, the plaintiffs claim that the additional restrictions are arbitrary and capricious and exceed the EPA’s authority under FIFRA and the Endangered Species Act. [Read Complaint here.]
Trump Administration Unveils Navigable Waters Protection Rule
The meaning of “waters of the United States” continues to make the year in review list for the 5th year in a row. This year, the Environmental Protection Agency and US Army Corps of Engineers issued its final “Navigable Waters Protection Rule (NWPR),” the newest agency definition of the term “waters of the United States” under the Clean Water Act. Under this rule, there are four categories of water that are jurisdictional: (1) territorial seas, and waters currently used, previously used, or may be susceptible to use in interstate or foreign commerce, including waters subject to the ebb and flow of the tide; (2) tributaries; (3) lakes, ponds, and impoundments of jurisdictional waters; and (4) adjacent wetlands. This definition is narrower than the prior WOTUS definition published by the Obama administration, expressly excluding intermittent streams, for example. Numerous lawsuits have been filed, some arguing the rule is too broad and others claiming it is too narrow. Currently, the NWPR is in force in every state with the exception of Colorado, where an injunction was issued to prevent its enforcement. [Read more here and listen to a podcast episode with Jim Bradbury here.]
US Supreme Court Decides Clean Water Act Case
The United States Supreme Court issued an opinion this Spring in County of Maui v. Hawaii Wildlife Foundation, addressing the issue of indirect discharges under the Clean Water Act. This case involved disposal wells that injected effluent into groundwater in Hawaii. The pollutants in the effluent then made their way into the Pacific Ocean. Hawaii Wildlife Foundation filed suit, claiming that this activity required a NPDES permit pursuant to the Clean Water Act. Maui County, however, argued that because there was no direct discharge into a water of the US, the Clean Water Act did not apply. I was fortunate to attend the oral argument with several of my ag law friends, and we did a fun recap of that experience on this podcast episode.
Early this year, the US Supreme Court ruled 6-3 that the Clean Water Act applies when there are direct discharges or discharges that are the “functional equivalent” of a direct discharge of a pollutant into a water of the United States. The Court identified seven factors that could potentially be considered depending on the circumstances of the specific case: (1) transit time; (2) distance traveled; (3) the nature of the material through which the pollutant travels; (4) the extent to which the pollutant is diluted or chemically changes as it travels; (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source; (6) the manner by or area in which the pollutant enters the navigable waters; and (7) the degree to which the pollution (at that point) has maintained its specific identity. The Court stated that time and distance will be the most important factors in most, but not necessarily all, cases. The exact meaning of “functional equivalent of a direct discharge,” and how broad the impact of this decision may be will remain to be seen as other cases work their way through the courts. [To hear more about this decision, click here for a podcast episode with Jesse Richardson and Anthony Schutz.]
Beef Checkoff Litigation Continues
In March, the United States District Court for the District of Montana ruled in favor of the Montana Beef Council in a lawsuit challenging the constitutionality of the Montana checkoff program. R-Calf filed suit against the MBC claiming that their advertising, which does not differentiate between US beef and foreign beef, violated the First Amendment. During the pendency of the litigation, the MBC and other similarly qualified state beef councils in other states entered into a Memorandum of Understanding with the USDA whereby the USDA is given “significant discretion” to approve or reject any of the beef councils’ promotional material prior to publication. In light of this, the federal judge in Montana found that the fact that USDA has approval authority over all materials means that the beef councils’ speech is public and, therefore, not constitutionally protected. R-Calf appealed this decision to the US Court of Appeals for the Ninth Circuit. Additionally, in September, R-Calf filed a new lawsuit against the USDA over the Memorandums of Understanding entered into with the qualified state beef councils without following required rulemaking regulations. [To learn more, read this prior blog post and listen to my podcast episode with Harrison Pittman.]
North Carolina Nuisance Verdict Affirmed; Settlement Announced
There were major developments recently in the North Carolina lawsuits filed against Smithfield subsidiary, Murphy-Brown, involving alleged nuisances at various hog farms. Approximately 26 lawsuits involving hundreds of plaintiffs were filed in North Carolina involving hog operations. [To hear more background, listen to this podcast episode and this podcast episode with Jake Parker.] In November 2020, the US Court of Appeals for the Fourth Circuit issued a decision in McKiver v. Murphy-Brown, LLC, upholding the trial court’s verdict with regard to liability for both compensatory and punitive damages. The court reversed, however, with regard to the amount of punitive damages because of evidentiary errors by the trial court. Thus, the amount of punitive damages was remanded for a new trial. Almost immediately after the Fourth Circuit opinion was released, Smithfield announced a confidential settlement had been reached that will likely apply to all cases. [Read more here.] We will dive deeper into this opinion and the status of the North Carolina Right to Farm law in our first podcast episode of 2021. My conversation with Jake Parker will release on January 7, so be sure you’ve subscribed to the Ag Law in the Field Podcast!