I am always amazed when I sit down and look at all of the agricultural law news over the last year.  2023 was no exception, and there was no shortage of news in the ag law realm.  If you prefer to listen rather than read, or want to do both, check out this podcast episode I did with Paul Goeringer recapping the year.

Photo by Phillip Flores on Unsplash

Here is my list of the key ag law issues for 2023 across the country.

WOTUS Definition

Yet again, there was significant movement on the definition of “Waters of the United States” (WOTUS) under the Clean Water Act.  In January, the Biden administration’s WOTUS definition was published, which essentially included both relatively permanent bodies of water and those with a significant nexus to a traditional navigable water as being jurisdictional. [More information in this blog post and this podcast episode.] Lawsuits were filed and injunctions issued prohibiting the Biden Rule from going into effect in about half of the states, including Texas.  For those states not involved in the litigation, the Biden Rule went into effect in March.

Then, in May, the U.S. Supreme Court decided Sackett v. EPA, holding that the “significant nexus” test was not the proper method to determine jurisdiction under the Clean Water Act. Instead, the Court held that wetlands are jurisdictional only when they are “as a practical matter indistinguishable from waters of the United States.” In other words, a “continuous surface connection” between the wetland and jurisdictional water is required. Additionally, a majority of the justices also agree that to qualify as a WOTUS, a water must be a “relatively permanent body of water.”  [More information in this blog post and this podcast episode.]

In light of the Sackett decision, the EPA and U.S. Army Corps of Engineers revised the WOTUS definition, publishing an amended final rule on Sept. 8, 2023, doing away with the significant nexus test, limiting jurisdiction to relatively permanent bodies of water, and requiring a continuous surface connection between a jurisdictional water and a wetland to qualify. [Read more here.]  Again, due to litigation, the revised rule is not in effect in about half of the states, including Texas.

In November, several of the lawsuits challenging the initial Biden Rule were amended to now focus on the amended Biden Rule issued in September.  The challenges include both substantive concerns as well as procedural concerns with how the revised final rule was promulgated.  So, even though the Supreme Court did give some guidance in Sackett, the litigation and uncertainty continues.

Animal Confinement Statutes

Speaking of the US Supreme Court, in May the justices decided National Pork Producers Council v. Ross.   This lawsuit challenged the constitutionality of California’s Prop 12, a law requiring certain animal welfare standards be met for most eggs, pork, and veal sold in California.   The National Pork Producers Council claimed this law violated the Dormant Commerce Clause.  In a fractured opinion, the Court upheld the dismissal of the lawsuit challenging the constitutionality of California’s law, meaning that Proposition 12 was allowed to stand.  A number of other states have passed similar laws, including Massachusetts’ Question 3, which is currently facing legal challenge as well.  It will be interesting to see the result of these lawsuits and whether we will see states enact additional laws, whether in the animal confinement area or more broadly. [More on information on this topic in this blog post and this podcast episode.]

Foreign Agricultural Land Ownership Laws

Undoubtedly one of the biggest issues of the year was states passing foreign agricultural land ownership laws.  Although such laws vary greatly by state, they each focus on limiting ownership and/or leasing of land by certain foreign persons, governments, or entities.  At the beginning of the year, only 14 states had this type of law on the books.  This year, 36 state legislatures considered some form of bill that would have limited foreign ag land ownership.   Of those, 10 states passed such laws. At least one lawsuit has been filed challenging the constitutionality of the Florida law. [More information on these laws on this podcast episode.]

Also, interestingly, the first enforcement action under one of these laws has been taken on Arkansas where Governor Huckabee Sanders ordered a Chinese company to divest ownership of 160 acres of farmland and the Attorney General imposed a $280,000 fine for failure to report ownership as required under the Arkansas law.

Greenwashing/ESG Litigation

There continue to be lawsuits filed around the country challenging claims made by companies related to environmental friendliness, humane animal treatment, and other issues that fall within the Environmental Social and Governance realm. Examples include a lawsuit challenging claims made by Vital Farms related to its egg production in Texas and a class action suit filed against Delta Airlines challenging its claim of being the world’s first carbon neutral airline. [Learn more with this blog post, this podcast episode, and this podcast episode.]

Endangered Species Act Impact on Pesticide Approvals

As  Emily Unglesbee predicted on my Ag Law in the Field Podcast early in 2022, the Endangered Species Act (ESA) has had a significant impact on pesticide registration and labeling under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  The ESA is administered by the US Fish and Wildlife Service, while FIFRA is administered by the Environmental Protection Agency.  The ESA requires that all federal agencies take endangered species into account before taking any action, including the EPA when registering pesticides.  In light of a number of lawsuits claiming that the EPA failed to do required Section 7 consultations as required by the ESA, the EPA announced it would be changing the policy for how it will  be doing pesticide registrations.   Brigit Rollins at the National Agricultural Law Center will be doing a webinar on this topic in February.  For more information, click here.

Farm Bill Extension

There will not be a Farm Bill in 2023.  In November, the current Farm Bill was extended through the end of 2024, giving Congress another year to negotiate on what the Congressional Budget Office says may be the first $1 trillion Farm Bill.