From AgWeb: 10 Things to Watch in 2015

Originally posted on AgWeb Dec. 31, 2014 by John Dillard in his column Ag in the Courtroom. John Dillard grew up on a beef cattle farm and now works as an agricultural and environmental litigation attorney with OFW Law. His blog analyzes legal issues and court decisions that affect America’s farmers and ranchers.

2014 was certainly an interesting year to be involved in agriculture. We got to see supply and demand in full effect. Good weather sent grain prices tumbling while continuing tight supplies have kept cattle prices soaring. The Republicans made strong gains and will enter 2015 with control of both the House and Senate.  In popular culture, Kanye West finally made an honest woman out of Kim Kardashian, Taylor Swift swore off country music, and Serial has left us pondering the nature of truth.

While I have not spent the $27.68 necessary to acquire a crystal ball on Amazon, I do feel the need to join the crowded field of writers, bloggers and seers that are making predictions for the upcoming year. Accordingly, I have compiled a list of the 10 legal and policy issues that I see facing agriculture in 2015.

1.  Drones
2014 was supposed to be the year when the Federal Aviation Administration (FAA) would release its proposed rules for integrating commercial drones into the national airspace. Because of this, I received a little flack for leaving drones off of last year’s list. However, FAA has continued to blow past every deadline that it has set for itself. Hopefully, this can be attributed to the agency trying to get the job done right the first time.

I am confident that FAA will release its proposed regulations for small drones (< 55 lbs.) some time in early 2015. The agency has acknowledged that it considers agricultural uses relatively low-risk and it understands that many farmers are moving ahead with adopting the technology regardless of the absence of regulations. Once FAA proposes its regulations for small drones, we’ll have a better idea of how the final rules will look in terms of operator qualifications, aircraft requirements, and allowable operations. This will be welcome news for those looking to capitalize on this new technology and the farmers and consultants that have been “recreationally” monitoring their crops for the past couple years.

2. The “Waters of the U.S.” Rule
While many hoped that Congress would use the recent “CROmnibus” (ugh) bill to stop EPA and the U.S. Corps of Engineers from implementing a broad definition of “waters of the United States,” the legislation failed to do so. This means that EPA and the Corps will continue to move forward on this measure. The agencies received almost half a million comments during the public comment period, with most in opposition to the new power grab. EPA and the Corps are expected to finalize the rule sometime in the first half of 2015. Once the rule is finalized, there will almost certainly be a lawsuit filed to enjoin the rule.

3. Vermont’s GMO-labeling Lawsuit
In 2014, Vermont became the first state to pass binding legislation that will require food manufacturers to label products containing ingredients produced through genetic engineering. This law places an onerous and undue burden on food manufacturers in an attempt by the state of Vermont to stigmatize genetically-engineered food. With no firm scientific basis for requiring labels, Vermont’s law is particularly vulnerable to a legal challenge on First Amendment and Commerce Clause grounds. Grocery Manufacturers Association, joined by the Snack Food Association, International Dairy Foods Association, and the National Association of Manufacturers, filed suit against the Vermont’s Attorney General this summer to enjoin the law.

There will be a preliminary injunction hearing on January 7th to decide whether Vermont should halt moving forward on implementing this law while the courts decide this issue on the merits. Regardless of the outcome, I suspect that this case will reach at least the Second Circuit Court of Appeals. Other states that are considering similar labeling measures would be wise to watch the outcome of this case.

4. Rep. Pompeo’s GMO-labeling Preemption Bill
In that same vein, the GMO-labeling preemption bill being pushed by Rep. Mike Pompeo (R-KS) and Rep. G.K. Butterfield (D-NC) may gain some traction in the 114th Congress. This legislation would preempt states from enacting their own GMO-labeling laws and codify our federal government’s current GMO policies. It would limit mandatory GMO-labeling to only ingredients that are unsafe or materially-different from their conventional counterparts. It would also require genetically-engineered crops bound for human consumption to receive approval from the federal Food and Drug Administration (this is currently a voluntary measure).

Pro-GMO labeling advocates vehemently oppose this legislation and it was initially dead-on-arrival in the 113th Congress. However, this bill has started to gain some momentum and faces better prospects in the new Congress. I would not be surprised if we saw this come to a vote in 2015.

5. Lawyers, Dust and Feathers: Rose Acre Farms v. N.C. DENR
Remember the Altcase? A West Virginia poultry producer sued EPA over its claim that she needed a NPDES permit based on dust and feather “discharges” from her farm’s ventilation fans. EPA asserted that a permit was necessary because these particles would enter “waters of the U.S.” during precipitation events. A federal district court judge disagreed. EPA initially appealed and then cynically withdrew its appeal to avoid the prospect of a precedent that would tie the agency’s hands.

The Rose Acre case is another opportunity to litigate the dust-and-feathers issue in federal court. Although there are some technical differences between the Rose Acre case and the Alt case, the court will ultimately be asked to determine whether the Clean Water Act allows dust emitted from poultry barns to be controlled as a “point source” discharge. This case may have huge implications for agriculture as it could set the boundaries for what does and does not constitute a point source discharge.

6. Mississippi River Basin Numeric Limitations on Nutrients
The Chesapeake Bay TMDL was supposed to be EPA’s case study in approaching large scale watershed restoration efforts. EPA’s plan was to take the lessons that it learned from the Bay TMDL and apply it to other watersheds across the country, with the Mississippi River being the ultimate goal. However, some environmental groups were impatient with EPA’s approach. They petitioned EPA to develop numeric limitations for nitrogen and phosphorus for all waters in the Mississippi River Basin. When EPA denied this petition, the environmental groups took them to court. A federal court held that EPA has to respond to the petition and determine whether numeric nutrient limitations are appropriate for the Mississippi River Basin. EPA has appealed this decision to the Fifth Circuit Court of Appeals. Oral arguments were heard on the appeal on December 4, 2014. We can expect a decision from the court in the first half of 2015.

7. FSMA Finalization
FDA is required to finalize its major rules under the Food Safety Modernization Act (FSMA) by June 30, 2015. The agency has been scrambling to put together the safety rules to meet this deadline over the last couple years. Except for produce operations, many farmers will not be directly affected. However, FSMA is going to have a substantial impact on the livestock feed and human food industry. Many of the requirements will not go into place until 2016, but we can expect to see several regulatory headaches this year as agribusinesses and food companies begin to implement the FSMA requirements.

8. Immigration Reform
A relatively small number of agricultural workers received relief under President Obama’s recent executive action that postponed deportation for approximately 5 million undocumented immigrants. The new Republican majority would like to override President Obama’s executive order. However, the President will most certainly veto any measure that does not offer a suitable alternative to his order. It is possible that Congress may answer the President’s challenge and propose immigration reform measures. There is hope that agriculture’s immigration issues could be addressed in this legislation if it comes to fruition.

9. Trade Agreements
Most of the growth opportunities for U.S. agriculture depend on increasing foreign demand. Agriculture has benefitted substantially from our free trade agreements (FTAs) with Canada, Mexico, and Central America. However, many valuable markets remain restricted due to protectionist tariffs and burdensome trade barriers. The U.S. Trade Representative is currently negotiating two major FTAs – the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership. Agriculture is one of the main sticking points in these negotiations, due in large part to America’s cost advantages. In particular, Japan is seeking to protect much of its agriculture sector from competition with American farmers while the E.U. is trying to use biotechnology as a wedge in the negotiations. The White House should make agriculture’s inclusion in these FTAs non-negotiable. Furthermore, it should ensure that all non-tariff trade barriers have a basis in science, not protectionism. Congress should fully support these efforts.

10. Country-of-Origin Labeling and the WTO
Mandatory Country-of-Origin Labeling (mCOOL) for meat products, especially pork and beef, has proven to be an expensive measure for Canadian and Mexican livestock producers as well as packinghouses that depend on slaughtering imported livestock. Meanwhile, the only apparent winners so far have been attorneys. While a challenge to the law in the federal court system failed, the governments of Canada and Mexico were successful at challenging the labeling measure before the World Trade Organizations (WTO) Dispute Settlement Body. The U.S. Trade Representative is attempting to appeal this decision; however, it is unlikely that it will be overturned. This means that U.S. industries could face substantial retaliatory tariffs by this summer unless the mCOOL law is changed. It is highly unlikely that Congress is willing to let other industries suffer just to keep mCOOL going. Hopefully, Congress will put mCOOL out to pasture.

John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA.  John focuses his practice on agricultural and environmental law.  He occasionally tweets at @DCAgLawyer.  This column is not a substitute for legal advice.

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