Trends & Updates in Agricultural Law

Trends & Updates in Agricultural Law (479) 575-7646 nataglaw@uark.edu

Outline • National Agricultural Law Center • Mission, Stakeholders, Research & Info Activities • Many Agricultural Law Issues • Post-Election dynamic • “Post-Last 24 hours dynamic” • Endangered Species Act • Pesticide Litigation/Regulation • Federal-State Checkoff Programs • Clean Water Act/Ag Nutrient Management • GM Labeling • Farm Bill • Cotton & Dairy in FY17 • Many Others

General Prefatory Comments “Agriculture Army” Supply Lines What happens in _______ stay in _______? Regulation Through Litigation “Insurance & Casinos”

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Executive Orders & Memos • Memo to agency heads shortly after inauguration halting issuance of regulations • “2 for 1” Executive Order on Jan. 30 • “Presidential Executive Order on Promoting Agriculture and Rural Prosperity in America” • Creates interagency Task Force led by Sec. Purdue to identify “legislative, regulatory, and policy changes to promote in rural America agriculture, economic development, job growth, infrastructure improvements, . . . and quality of life.” • “Enforcing the Regulatory Reform Agenda” • Required agency heads to evaluate existing regulations and make recommendations to repeal, replace, or modify regulations that create unnecessary burdens • EPA now seeking public input under this Executive Order • Also established the Regulatory Reform Task Force

FIFRA: The Basics • The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requires the registration of any substance intended to prevent, destroy, repel, or mitigate pests • However, the regulations allow an exemption for: • An article or a substance treated with or containing a pesticide to protect the article or substance itself • For example: Paint treated with a pesticide to protect the paint coating, or wood products treated to protect the wood against insects or fungus infestation, if the pesticide is registered for such use • Currently, EPA regulates neonicotinoids when they are to be sprayed, but not when used as a seed treatment

Neonic-coated seeds • Anderson et al v. EPA – argument was that EPA violated FIFRA and APA by applying “treated article” exemption to neonicotinoid-coated seeds • January 6 lawsuit sought to compel EPA to regulate neonics used as a seed treatment as a pesticide, as well as non-neonic pre-coated seeds EPA has or intends to approve • Goal was to require neonic-coated seed treatments to be regulated as a pesticide, and possibly others

Neonic-coated seeds May 13: Federal district court denied EPA’s motion to dismiss In considering CropLife America Motion to Intervene, court stated: “If plaintiffs obtain the relief they seek, seeds treated with these registered products will likely be removed from the market.” In late November, the court dismissed the case

Other Neonic Issues • May 8 decision in Ellis v. Housenger • Minnesota Executive Order (Aug. 2016) • Required farmers to obtain a “verification of need” in order to apply neonics

Endangered Species Act: The Basics • Purpose: to “protect and recover imperiled species and the ecosystems upon which they depend” • A species may be listed as either endangered or threatened • “Endangered” means a species is in danger of extinction throughout all or a significant portion of its range. • “Threatened” means a species is likely to become endangered within the foreseeable future. • The “take” of listed animals is prohibited • “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct.” • “Harm”- “an act which actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding or sheltering. • Includes nesting and reproduction

Endangered Species Act: The Basics • After its listing, USFWS will designate the creature or plant’s “critical habitat” • The “area occupied by the species at the time of listing and essential to its conservation” • May include both public and private lands

Endangered Species Act • September 27, 2016 final rule from USFWS & NMFS • Will no longer consider multi-species petitions • Requires petitioners to notify affected states 30 days pre-filing of petition • Seen as a positive development by ag community • Monarch Butterfly – The Clock is Ticking Towards 2019 • July 15, 2016 Settlement Agreement

ESA: Monarch Butterflies

ESA: Rusty Patched Bumblebee • Sept 21: FWS proposed listing the rusty patched bumble bee for federal protection as an endangered species. • Historically, its range included 28 states, the District of Columbia and 2 provinces in Canada. Since 2000, it has been found in only 12 states and 1 province. • March 21 it was listed as endangered

ESA: Rusty Patched Bumblebee • Reasons for declining populations, per FWS • Habitat loss : Prairies/grasslands converted to farms, cities and roads • Intensive farming: Increased farm sizes and technology advances have led to increased use of pesticides, loss of crop diversity, loss of hedgerows and the flowers that grew there, and loss of legume pastures. • Disease: Pathogens and parasites may pose a threat to rusty patched bumble bees • Pesticides: The rusty patched bumble bee may be vulnerable to pesticides used across its range. Pesticides are used widely on farms and in cities and have both lethal and sublethal toxic effects. Bumble bees can absorb toxins directly through their exoskeleton and through contaminated nectar and pollen. Rusty patched bumble bees nest in the ground and may be susceptible to pesticides that persist in agricultural soils, lawns and turf. • Global climate change: Climate changes that may significantly harm bumble bees include increased temperature and precipitation extremes, increased drought, early snow melt and late frost events.

ESA: Farm Loans Animal Legal Defense Fund & Center for Biological Diversity Arkansas and other states ALDF recently requested a moratorium on all loans for poultry operations issued in northeast Arkansas

ESA Consultation & FIFRA • Center for Biological Diversity; Pesticide Action Network North America v. EPA et al, No. 14-16977 (9th Cir. Feb. 2, 2017) • Alleges EPA violated the ESA when it registered certain pesticide active ingredients and pesticide products without engaging in consultation with the National Marine Fisheries Service and U.S. Fish & Wildlife Service • Anticipate new challenges at state level

CWA: Basics of NPDES Permits/Ag Exemption • Rule: • Point sources may not discharge pollutants to surface waters without a National Pollution Discharge Elimination System (NPDES) permit • Point Source Definition: • Any “discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural storm water discharges and return flows from irrigated agriculture.”

Des Moines Water Works

Lake Erie Litigation/TMDLs • Filed April 25 • Conservation groups vs. EPA • Plaintiffs want EPA to disapprove Ohio’s “impaired waters” list submitted Oct. 20, 2016 • If listed as impaired, it would trigger the establishment of TMDLs • Recall the 3rd Circuit Chesapeake Bay decision

Federal-State Checkoff Programs • Significant legal issues and developments could alter checkoff program structure and implementation • R-CALF Lawsuit: Is a state beef council (or state soybean board) a “private entity” for purposes of the “government speech” test? • Remember Johanns at USSC in 2005 • USDA Redirection Proposed Rule • Converts state-retained dollars to federal dollars • AMS MOU Providing Direct Oversight of Council & Binding Third Parties

“Redirection Rule” AMS states* that rule would apply when: There is no state law requiring assessments to a state board or council; or There is a state law requiring* assessments, but the state law allows for refunds.

“Redirection Rule” • AMS predicts 10 out of 569,998 soybean producers and 20 cattle producers out of 915,000 operations will use the rule • AMS states that rule could result in decreased assessments to state boards and councils • Impossible to predict application/scope of rule • Examples: Idaho, Delaware, Arkansas, and others

“Redirection Rule” • AMS states that a producer who receives a state refund will be in violation of the Beef/Soybean Act • Even though AMS’s position is that a request for refund triggers “redirection” • State refund provisions preempted or superseded by federal law? • Potentially competing interpretations

Additional Issues & Discussion • Farm Bill & FY18 • Path to Farm Bill increasingly difficult (Cotton & Dairy in FY17 approps) • New Truck, or Just New Tires? • Effort to “Split” the Farm Bill • Whether permanent law will be repealed • Impact of 2016 Elections • Ag Trade (TPP, NAFTA, Korean FTA) • Immigration/Labor • USDA and Ag Funding (the FY17 proposed cut of 21%) • Questions/Discussion

National Agricultural Law Phone: (479) 575-7646 Email: nataglaw@uark.edu www.nationalaglawcenter.org Contact Information:

Trends & Updates in Agricultural Law