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2015 legal review

Will Rogers said, “If you’re ridin’ ahead of the herd, take a look back every now and then to make sure it’s still there.” Spending time rehashing the past is not one of my favorite things, but 2015 had some important agricultural legal developments that are worth noting.

Due to the algae problems in Lake Erie and its western basin, the Ohio Legislature passed new manure regulations for parts of Ohio, effective on June 21, 2015. New restrictions include prohibitions for hauling on frozen or wet ground. A crucial component of the law is the provision that provides the planting of cover crops to increase manure handling options. These or similar restrictions will likely be law for all of the state in the future.

A federal court in Idaho ruled that Idaho’s “ag gag” law was unconstitutional as it violated the first and fourteenth amendments of the Constitution. These laws that restrict photographing livestock and other forms of speech were passed as a reaction to undercover activists recording alleged animal abuses and then releasing the films to the media. Temple Grandin, the expert on animal handling for the agricultural industry, gave a fascinating presentation in Celina in 2015. While she did not approve of the activists’ activities, Grandin stressed that prohibiting speech just causes the general public to question what farmers are doing.

Class action lawsuits have started over Syngenta’s release of a corn variety in 2014 that contained a genetic trait to control armyworms, MR162. While these seeds were U.S. approved in 2010, they did not gain clearance in China until 2014. China, however, found traces of the genetic material in U.S. corn shipments in 2013 and rejected them. Consequently, in 2015, a class action lawsuit was brought on behalf of farmers who did not plant the corn variety with MR162 against Syngenta for disruption of the U.S. corn market. Syngenta countered that at the time China was not a major buyer of U.S. corn, and there is no evidence that the release of MR162 impacted the corn market. These suits are in the early stages, so it is too early to guess an outcome. Plaintiff lawyers love class actions because if they are successful, their attorney fees are typically paid by the Defendant, a rare occurrence in our legal system.

Proposed federal regulations for use of drones in agriculture were released in early 2015, and the comment period closed in April 2015. FAA (Federal Aviation Administration) is planning to release the final regulations this year. Drones have many potential applications in agriculture, so this could be fascinating.

Thanks to an Iowa case, there is a determination that the EPA is not required to regulate CAFO air emissions. In 2013, a group of Iowa plaintiffs filed a citizen suit under the Clean Air Act to force EPA to regulate air emissions from CAFOs. (Obviously these people have too much free time on their hands.) The federal district court held that EPA was not required to regulate air emissions from sources till EPA determines the sources meet the requirements under the Clean Air Act. In this case, EPA had not made that determination so the court could not force EPA to act. In 2015, the DC Court of Appeals upheld the lower court’s decision. More importantly, in November 2015, the U.S. Supreme Court denied a petition for writ of certiorari ending this case.

Other federal action in 2015 involved the Waters of the U.S. Rule. The EPA and the Army Corp of Engineers proposed a revised definition of “waters of the U.S.” under the Clean Water Act in 2014. The final version of the rule was announced in May 2015 and effective as law on August 28, 2015. In October of last year, the Sixth Circuit Court of Appeals issued a nationwide stay from EPA enforcing the rule. To date, Congress has been unsuccessful in passing bills, which would overturn the new language. This may be interesting to watch this year.

That is about as much looking back at 2015 as I can handle. It is time to put the crop disaster, low prices and heavy rains in the past. Will Rogers wisely advised, “Don’t let yesterday take up too much of today.”

 

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