Reviewing the year with ag law

This article breaks down the top five legal issues impacting the cattle industry in 2018.

Associate Professor & Specialist / Texas A&M University AgriLife Extension

Air emissions reporting for animal agriculture

The issue of whether animal agriculture operations had to report air emissions under federal environmental laws CERCLA and EPCRA came to a head in 2017 when the U.S. Court of Appeals for the D.C. Circuit found EPA exemptions excusing animal agriculture from filing such reports was illegal.

Thus, the court ordered ag operations to begin reporting emissions of hazardous substances like ammonia and hydrogen sulfide from animal manure in January 2018.

After several delays of the reporting deadline, Congress stepped in. In March, Congress passed the Fair Agricultural Reporting Method (“FARM”) Act, which made clear the reporting requirements of CERCLA do not apply to air emissions from animal waste at a farm. Similarly, EPA took the position reporting emissions from animal waste is not required under EPCRA.

The issue seemed settled until September 2018, when numerous environmental groups filed suit challenging the EPA’s position that reporting of animal waste emissions is exempted from EPCRA.

Specifically, the plaintiffs claim the EPA does not have authority to make such an exemption and, even if it did, it failed to comply with the notice and comment rule-making procedures required by the Administrative Procedures Act.

North Carolina nuisance litigation related to swine farms

When 26 nuisance lawsuits were filed against swine operations in North Carolina, the livestock industry across the U.S. paid attention.

Hundreds of landowners who are neighbors of swine farms that are contract growers for Murphy-Brown LLC (a subsidiary of Smithfield Foods) filed suits against Murphy-Brown alleging the operations were a nuisance. In particular, they complained about odor, flies and heavy traffic at these hog farms.

In an extremely critical pre-trial ruling, the presiding judge held the North Carolina Right to Farm statute did not apply in any of the 26 cases. This meant the Right to Farm affirmative defense – which was designed to apply in cases like this – could not be argued by the defendants in these lawsuits.

Three of the lawsuits have been heard to date, each one resulting in multimillion-dollar verdicts in the plaintiffs’ favor.

Twenty-three lawsuits remain in line to be heard, but currently the trial court has allowed an interlocutory appeal, which means although the litigation is not over, the court will allow the defendants to appeal certain rulings at this stage, including the Right to Farm decision, rather than waiting for all 26 cases to be tried.

In light of these lawsuits, the North Carolina legislature made significant modifications to its Right to Farm Act this year, offering stronger protections for agricultural operations. Although these provisions will not apply to the cases already filed, they will be in place for any future lawsuits.

Waters of the U.S. battle continues

For the third year in a row, the issue of what is meant by “Waters of the U.S.” in the Clean Water Act makes the list of the biggest agricultural law issues. By way of brief background, in 2015, the EPA promulgated a new definition of what constitutes a Water of the U.S. and, consequently, what is subject to federal jurisdiction under the Clean Water Act.

Numerous lawsuits were filed over that definition, some at the trial level and others at the appellate-level federal courts around the country. A nationwide stay was issued by the U.S. Court of Appeal for the Sixth Circuit in 2015.

In January of 2018, the U.S. Supreme Court ruled the proper venue for cases challenging the Waters of the U.S. definition were in trial-level federal courts. This caused a bit of turmoil to occur. First, the EPA passed a rule that said the 2015 rule would not go into effect until 2020, thus giving the EPA time to draft and publish a new definition.

Next, because the Sixth Circuit was not the proper venue for cases to be filed, the nationwide stay on the new Waters of the U.S. definition was lifted. In August, a South Carolina federal court held the EPA’s rule suspending enforcement until 2020 was invalid and issued an order preventing such suspension.

At that point, the 2015 Waters of the U.S. definition was in place across the country unless there was a trial-level injunction issued to prevent the application of the definition.

After the dust settled, the following states currently have an injunction in place preventing the enforcement of the 2015 rule: Alaska, Arkansas, Arizona, Colorado, Idaho, Indiana, Florida, Georgia, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, North Carolina, North Dakota, Nebraska, Nevada, New Mexico, South Carolina, South Dakota, Texas, Utah, Wisconsin, West Virginia and Wyoming. For all other states, the 2015 definition is currently in effect.

Meanwhile, despite the resignation of EPA Administrator Scott Pruitt earlier this year, the EPA has said it plans to unveil a new Waters of the U.S. definition for public comment early next year.

Federal hauling regulations modified

The Federal Motor Carrier Safety Administration (FMCSA) was not an agency on the radar of many cattle producers, but that changed in 2018.

In December, new regulations were passed by the FMCSA that require electronic logging devices (ELDs) on certain vehicles hauling property, including livestock and horses. Initially, there was a good deal of concern and confusion these regulations could apply to anyone driving a one-ton pickup and pulling a horse trailer.

After certain clarification was offered and additional laws passed, these regulations are in place but will not impact the vast majority of cattle producers – but will certainly apply to commercial haulers.

The ELD rule did not modify the already-existing hours-of-service limitations but will require electronic logging of hours driven rather than manual, paper records previously used. Given concern over animal welfare impacts of the new regulations, a waiver of the new rules was issued, making them inapplicable to livestock and insect haulers at least through December 2018.

Beef checkoff litigation

Litigation filed by the Ranchers-Cattleman Action Legal Fund (“R-CALF”) challenging the validity of beef checkoff programs was filed in Montana but could spread to additional states as well.

R-CALF filed litigation in Montana back in 2016 claiming the checkoff program, which collects $1 per head of cattle sold in Montana and gives 50 cents to the National Cattlemen’s Beef Board and 50 cents to the state-level Montana Beef Council, violated their First Amendment rights.

Specifically, the plaintiffs challenged being forced to pay a portion of their assessment to the state-level beef council to fund messages and programs with which the plaintiffs did not agree. A federal judge issued an injunction in that case, expressly directing that assessments be sent to the national level unless a producer completed a form directing 50 cents of his $1 assessment go to the Montana Beef Council.

In August 2018, this legal challenge expanded far beyond the Big Sky country when the plaintiffs sought to expand their injunction to similar beef checkoff programs in 13 states.

The plaintiffs are seeking similar injunctions against allowing payments to state beef councils unless an express request to do so is made by the seller in the following states: Hawaii, Indiana, Nebraska, Nevada, New York, North Carolina, Pennsylvania, South Carolina, South Dakota, Texas, Vermont and Wisconsin.

Conclusion

As you can see, many of these legal issues are ongoing and will certainly continue to be in the news in 2019. Agricultural law disputes are the gift that keeps on giving.