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With 2018 over and 2019 underway, I want to take a minute to look back at the top legal developments impacting agriculture in 2018. Many of these legal developments may seem like repeats from my 2017 update; click here to see. For those interested embedded above is a join podcast episode I did with Tiffany Lashmet covering the top ag law developments Moving into 2019, we will likely see new issues emerge as a new Farm Bill is implemented and developments in the international trade area arise. If you have not already signed up for updates, see the bottom of this post to get email updates sent to you as new content is available.
North Carolina Hog Farm Nuisance Litigation
One of the more significant ag law stories in 2018 was the initial three verdicts involving neighbors of Murphy-Brown LLC's contract growers suing Murphy-Brown alleging the hog farms are nuisances. In 2017, the federal district court judge hearing the suits ruled that the right-to-farm law in North Carolina did not apply in these cases. The initial three trials resulted in multi-million dollar verdicts against Murphy-Brown. For more information on the cases, click here. For the fourth trial, a new judge heard this case in late December, resulting in different outcomes for the parties: a verdict of $102,000 for eight plaintiffs and the new judge holding that the plaintiffs had not met the standard necessary to receive punitive damages. The fifth trial is scheduled for later in January, and we will have to wait and see how that trial turns out.
No Air Emissions Reporting for Animal Agriculture Under Federal Law
In early 2018, many of you were frantically attempting to figure out the emissions of ammonia and hydrogen sulfide from your animal operations. For those who have forgotten, this came about because of a 2017 ruling by the DC Circuit Court of Appeals holding that EPA could not create exempt reporting hazardous waste emitted from animal operations potentially required under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Emergency Planning & Community Right to Know Act (EPCRA) (two federal environmental laws); for more information click here.
After several initial delays in the 2018 reporting deadline, Congress passed the Fair Agricultural Reporting Method Act (FARM Act) making clear that agriculture is exempt from CERCLA reporting requirements. EPA has since taken the view that reporting is not required under EPCRA now that reporting is not required under CERCLA. In October, EPA published a proposed rule which would exempt animal operations from reporting under EPCRA (click here to see rule). EPA’s position is currently being challenged in federal court, and this issue will stick around into 2019 or longer.
In April 2018, Judge Lungstrum, the federal judge overseeing the Syngenta litigation, granted preliminary approval to the $1.51 billion MIR162 settlement. The settlement included corn growers who did not use the Duricade or Viptera varieties from September 15, 2013, through the 2018 crop year. The settlement also includes those corn growers who did use those varieties, ethanol producers, and grain handlers during the same time frame. The bulk of the settlement ($1.44 billion) was for the corn growers who did not producer Duricade or Viptera. For more information on the settlement, click here .
Potential class members had till early October 2018 to file individual claims or opt out of the class. Judge Lungstrum presided over the final hearing in November and issued final approval for the settlement. This means farmers should begin receiving settlement checks in April 2019. At this time, it is still hard to estimate the size of potential settlement checks. And the settlement checks may not be the end of this litigation, as class members may still be able to challenge the final approval of the settlement. We will have to watch in 2019 to see if this settlement is finally over.
Dicamba Litigation Continues
Dicamba damage remained an issue in 2018. With that said, the injury was not as severe in 2018 with fewer reported incidents of drift damage. In October, EPA announced the agency would extend the registration of the new formulations of dicamba for over-the-top usage of soybeans and cotton, which comes with additional label requirements. Moving forward, only certified applicators will be able to apply these formulations of dicamba over-the-top of soybeans and cotton; previously an applicator could apply when supervised by a certified applicator. The additional label restrictions may be found here.
In 2017, a few federal lawsuits were filed seeking class-action status for growers who experienced damage from dicamba drift. These lawsuits did not sue individual farmers or applicators for the drift damage but rather the companies responsible for developing the new dicamba formulations. In February 2018, the U.S. Judicial Panel on Multidistrict Litigation ruled the litigation should be heard in the Eastern District of Missouri U.S. District Court consolidating these lawsuits into one case. The first case in this multidistrict litigation will be heard sometime in 2019 and will focus on drift damage to a Missouri peach farmer’s crop.
Various Maryland CAFO Litigation
2018 also brought us some decisions involving Maryland concentrated animal feeding operations (CAFOs). In May 2018, the Maryland Court of Special Appeals upheld the 2014 CAFO general discharge permit. Groups claiming that the Maryland Department of the Environment had not included enough requirements for collecting data and information related to discharges had challenged the permit. The court rejected many of the arguments brought by the groups and upheld the permit. For more about the decision, click here.
In September 2018, the federal district court in DC held that environmental plaintiffs did have standing and had presented verifiable claims in the lawsuit involving a Farm Service Agency (FSA) loan guarantee for an Eastern Shore poultry farm. The environmental groups claim that FSA did not do a proper environmental review required under federal law before granting the loan guarantee. Although the court held that the environmental groups could bring the claims, the court has yet to rule on the issues related to the environmental review of the poultry farm before approving the loan guarantee. To read more about this decision, click here.
2018 produced a few more legal issues impacting agriculture, and if you are interested, I encourage you to check out Tiffany Lashmet's blog with A&M AgriLife Extension and Roger McEowen's ag law and taxation blog. Both sites have provided great countdowns of the top legal issues as well as some of the issues which did not make the top countdown.