The 2020 ag law year in review

To say 2020 was a year full of the unexpected would be an understatement. The COVID-19 pandemic certainly changed life for many around the world for a good portion of the year. It certainly impacted both the beef industry and the legal system across the nation. There were, however, a number of important agricultural law developments of which beef producers should be aware.

Tiffany Lashmet

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

Email Tiffany Lashmet

Beef Checkoff litigation continues

In March, the U.S. 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 U.S. 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 the 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 U.S. Court of Appeals for the 9th 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 rule-making regulations.

Trump administration unveils Navigable Waters Protection Rule

The meaning of “waters of the United States” (WOTUS) continues to make the year-in-review list for the fifth year in a row. This year, the EPA and U.S. 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. 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.

U.S. Supreme Court decides Clean Water Act case

The U.S. 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. In that case, the 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 U.S. 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.

Lawsuits and investigations against beef packers

The “Big Four” beef packers (Tyson Foods, JBS SA, Cargill, and National Beef/Marfrig) faced a flurry of litigation and investigation in 2020. The U.S. Department of Justice (DOJ) sent civil investigative demands to the Big Four likely related to requests that the DOJ investigate anti-trust activities by the packers.

Additionally, Central Grocers filed a class action lawsuit against the Big Four claiming they conspired to constrain beef supplies since at least 2015. Additionally, plaintiffs in New Mexico filed class actions against the Big Four for their use of “Product of the USA” label on meat from cattle that were raised in other counties and imported live to the U.S. prior to slaughter. The lawsuits were dismissed upon the judge in the U.S. District Court for the District of New Mexico determining that any lawsuits related to USDA-approved labeling were pre-empted by federal law. The plaintiffs have appealed to the U.S. Court of Appeals for the 10th Circuit.

With these pending cases, 2021 will certainly be an exciting year for agricultural law. If you are interested in following along with what happens in these cases and more throughout the year, please subscribe to my Texas Agriculture Law Blog at agrilife.org/texasaglaw.