Agricultural Law Weekly Review—Week Ending October 14, 2022
Agricultural Finance: Socially Disadvantaged Farmers Allege Breach of Contract for Repeal of American Rescue Plan Act Debt Relief Program
On October 7, 2022, forty-one individuals filed a complaint in the U.S. Court of Federal Claims alleging breach of contract against the U.S. government for Congress’s repeal of the socially disadvantaged farmer debt relief program in the American Rescue Plan Act (ARPA). Boyd v. United States, No. 1:22-cv-01473. The repeal was part of the Inflation Reduction Act (IRA), Sec. 22008. The plaintiffs, who meet the definition of “socially disadvantaged farmers” (SDF) under ARPA’s Section 1005–1006 debt relief provisions, claim that the U.S. Department of Agriculture’s (USDA) issuance of form letters established a contractual offer—if an SDF “accepted USDA’s calculation of their eligible debt and waived their right to appeal it,” then USDA would discharge the listed amount owed. The plaintiffs state that they accepted USDA’s offer and relied on it by “maintain[ing] or expand[ing] their operations.” The plaintiffs’ claims face many legal challenges, including proving an enforceable contract was formed, overcoming Congress’s inherent constitutional power to terminate government programs or expenditures, and establishing the proper measure of damages, including mitigation by participation in the IRA’s new substitute debt relief program. On October 13, 2022, the U.S. government docketed an attorney appearance but has yet to respond to the complaint.
Agricultural Finance: Public Comment Sought on Revised Debt Relief Program
On October 14, 2022, the U.S. Department of Agriculture (USDA) published a notice in the Federal Register (87 FR 62359) requesting public comment regarding implementation of Section 22007 of the Inflation Reduction Act (IRA). Section 22007 provides $2.2 billion in funding for farmers, ranchers, and forest landowners impacted by discrimination in USDA farm lending programs. Also announced by USDA, the agency requests comments on 1) how former farm lending borrowers should be supported through the program; 2) how former borrowers who experienced discrimination should be identified; and 3) what criteria should be used to select a third-party administrator for the program. USDA will accept comments through three scheduled listening sessions on October 20, 26, and November 1, 2022, as well as through the Federal Register until November 11, 2022.
Agricultural Finance: FSA Sends Letters Asking Guaranteed Lenders to ‘Suspend Adverse Actions’ on Farm Loans Subject to Revised Debt Relief
On October 7, 2022, the U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) sent a letter to guaranteed farm loan lenders requesting that the lenders “suspend all adverse actions” for guaranteed borrowers until the implementation of Section 22006 of The Inflation Reduction Act (H.R. 5376). Section 22006 provides $3.1 billion for farm loan assistance for distressed borrowers with both direct and guaranteed loans. Additionally, the FSA is requesting that lenders who do proceed with adverse actions against guaranteed borrowers give the FSA a 14-day notice and submit the required liquidation plan to the agency so that FSA can propose alternatives.
Water Quality: Writ of Mandamus Sought to Compel Stricter Clean Water Act CAFO Regulations
On October 7, 2022, Food and Water Watch (FWW) and ten other environmental groups filed a petition for a writ of mandamus against the U.S. Environmental Protection Agency (EPA) in the U.S. Court of Appeals for the Ninth Circuit. Food & Water Watch, Inc., et al v. USEPA, Docket No. 22-70226. The petition seeks to compel EPA to respond to a 2017 petition filed by FWW, which called for the agency to promulgate stricter Clean Water Act (CWA) regulations for concentrated animal feeding operations (CAFO). EPA has issued no response to the petition in the five years since filing, which the petitioners claim violates the requirement to respond “within a reasonable time” required by 5 U.S.C. § 555(b) of the Administrative Procedures Act (APA).
Food Safety: DOJ Seeks Permanent Injunction Against California Noodle Company for Food Adulteration and Misbranding
On October 11, 2022, the U.S. Department of Justice (DOJ) filed a civil complaint against Cali Rice Valley, Inc. (Cali) requesting a permanent injunction against the company for numerous violations of the Federal Food, Drug, and Cosmetic Act and the law’s U.S. Food and Drug Administration (FDA) regulations (21 C.F.R. § 117, Subpart C, “Hazard Analysis and Risk-Based Preventive Controls”). U.S.A v. Cali Rice Valley, No. 3:22-cv-05967. The complaint alleges multiple food safety and sanitation violations (insects and birds in production areas) and misbranding violations (omission of food dyes and allergens on labels and incorrectly stated manufacturer location). DOJ seeks an injunction against Cali that would require it to cease all operations until the company complies with all applicable laws and FDA regulations.
Animal Health: Highly Pathogenic Avian Influenza Update
As of October 17, 2022, the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service’s (APHIS) HPAI 2022 Confirmed Detections database confirmed a total of 532 highly pathogenic avian influenza (HPAI) detections in 42 states (242 commercial flocks and 290 backyard flocks), resulting in 47.45 million birds depopulated nationally. October 2022 continues to see a resurgence in infected commercial poultry premises (13 new commercial premise detections and 32 backyard flocks), including the first detection in Arkansas—the second largest broiler-producing state—on October 7, 2022, which resulted in depopulation of 56,000 commercial broiler breeder pullets on a premise in Madison County, Arkansas. In Pennsylvania, there have been four backyard flock detections (Westmoreland, Lancaster, Berks, and Monroe Counties) and two commercial premise detections (Adams County—2,800 depopulated—and York County—25,500 turkeys depopulated) since September 29, 2022.
Water Quality: Chesapeake Executive Council to Take One Year to Develop ‘Path Forward’ Plan in Light of Missed 2025 Goals
On October 11, 2022, the Chesapeake Executive Council met for its annual meeting at the U.S. Environmental Protection Agency (EPA) headquarters in Washington, D.C. Prior to the meeting, on October 4, 2022, EPA released formal evaluations of each individual state’s progress in 2020–21 and established 2022–23 Chesapeake Bay milestones towards meeting the Bay’s total maximum daily load (TMDL) and the states’ obligations under the Chesapeake Bay Watershed Agreement. Although the council is composed of the six Bay State governors (Del., Md., Va., W. Va., Pa., and N.Y.), D.C. Mayor, Chesapeake Bay Commission Chair, and EPA Administrator, only members from Maryland, Virginia, EPA, and the Chesapeake Bay Commission were in attendance. At the meeting, EPA’s Chesapeake Bay Program Office released the “2021-2022 Bay Barometer: An Annual Report on the State of the Program and the Health of the Chesapeake Bay.” According to a post-meeting press release, “[T]he Council agreed to set a path forward over the next year to outline the necessary steps, and prioritize the actions needed, to meet the targets of the Watershed Agreement outcomes. This charge will consider recommendations on how to best address and integrate new science and restoration strategies, as well as emerging issues and changing conditions in the watershed (e.g., climate change). This critical plan is expected to be put into place in time for the 40th anniversary of the Chesapeake Bay Program in 2023. . . .”
Tax Policy: New Zealand Proposes Agricultural Emissions Tax
On October 11, 2022, New Zealand’s Ministry for the Environment announced the opening of the consultation period for the government’s proposed agricultural emissions pricing scheme. The proposed “farm-level, split-gas” assessment would require farmers to report and pay a tax on their farm’s emissions beginning in 2025, determined by their farm size, number of livestock, and nitrogen fertilizer use. According to the proposal, revenues from the emissions tax would fund emissions-reduction and carbon sequestration incentive payments. The consultation period closes November 18, 2022.
CENTER PROGRAMS & RESOURCES
New at [email protected]:
- Research Paper: An Overview of the Protections for Geographical Indications in the United States and the European Union. Chloe Marie, Research Specialist (Oct. 2022).
- Virtual Resource Room: Solar Electricity Generation on Rural Lands
- 226. PA Milk Marketing Board Signals Potential OOP Change and EPA Withdraws Roundup Decision (Oct. 14, 2022).
- 225. Joint Case Management Statement Filed in Roundup Cases; Biotech Executive Order Issued; and Avian Influenza Resurges (Oct. 11, 2022).
- 224. USDA’s Huge Climate, Domestic Food Purchasing, and Organic Farming Investments (Sept. 27, 2022).
Understanding Agricultural Law. A free monthly Zoom webinar series for all agricultural and rural business advisors. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials from prior webinars, more information, and registration available here. Next in the series:
- Oct. 21, 2022, noon ET: Understanding the Basics of Crop Insurance
- Recent webinar recordings available:
- Understanding the Basics of Livestock Market Regulation (Sept. 23, 2022)
- Under the Basics of Agricultural Cooperatives (Aug. 26, 2022)
- Understanding the Basics of Statutory Protections for Agricultural Operations (July 22, 2022)
Dairy Quarterly Legal Webinar. A free quarterly Zoom webinar series covering U.S. dairy industry legal and regulatory developments with an in-depth focus topic presentation. One hour of substantive CLE credit available for Pennsylvania-licensed attorneys at no charge. Recordings and materials from prior webinars, more information, and registration available here. Next in series:
- Oct. 25, 2022, noon ET: 3rdQuarter of 2022—2023 Farm Bill, Implications for Dairy
Legal Planning for Specialty Crop Producers. A free periodic Zoom webinar series. Register at any time to watch past recordings and attend all future webinars and access all materials. Next in series:
- Nov. 16, 2022, noonET: Licensing and Regulatory Obligations in Selling Raw and Processed Specialty Crop Products.
- Nov. 30, 2022, noon ET: Municipal Law & Zoning for Agritourism/Agritainment, Specialty Crop Processing & Sales.
- Dec. 14, 2022, noon ET: Statutory Protections/Restrictions: Understanding PA’s Ag Area Security, Right-To-Farm, ACRE, and Clean & Green Laws.
Resources Of Interest:
Webinars & Events
- Keystone Development Center (KDC)’s 2022 Co-op Academy, various dates Oct. 2022–Feb. 2023. Registration.
- S. Food & Drug Admin., FDA Virtual Listening Session on the Regulation of Animal Foods with Certain Types of Claims, Oct. 18, 2022, 10:00 a.m. ET. Registration closes Oct. 11, 2022.
- Farmer and Farmland Owner Income Tax Webinar, Ohio State University Extension, Nov. 17, 2022, 6:30–8:30 p.m. ET. $40, Registration. More info.
Academic & Government Resources of Interest
- Dept. of Env. Protection, 2021 Healthy Waters Healthy Communities Annual Report (Oct. 4, 2022).
- Dept. of Env. Protection, Healthy Waters Sept/Oct. Newsletter, DEP’s Chesapeake Bay Office is now the Bureau of Watershed Restoration and Nonpoint Source Management (Oct. 5, 2022).
- Ohio St. Univ. Ext. Farm Off. Blog, Ohio’s Right to Farm Law helps with neighbor nuisance complaints, Peggy Kirk Hall (Oct. 13, 2022).
- Nat’l Agric. Law Ctr., Pesticide Review: Recent Actions from Various Pesticide Legal Challenges, Brigit Rollins (Oct. 13, 2022).
- Law & Tax’n Blog, Court Says COE Acted Arbitrarily When Declining Jurisdiction Over Farmland, Roger A. McEowen (Oct. 12, 2022).
- Nat’l Agric. Law Ctr., Focus on Food: the Proposed “Healthy” Rule and the White House Conference, Jana Caracciolo (Oct. 11, 2022).
- A&M Agric. Law Blog, Did the Life Estate Conveyance Include the Minerals?, Tiffany Dowell Lashmet (Oct. 10, 2022).
- of Ill.’s farmdoc daily:
- Mulling Over Margin, Part 1: Introduction and Historical Background, Coppess, J., et al. (Sept. 15, 2022);
- Mulling Over Margin, Part 2: the “Elusive” Cost of Production, Coppess, J., et al. (Sept. 22, 2022);
- Mulling Over Margin, Part 3: Chasing the Cost of Production Across Regions, Janzen, J. and J. Coppess (Oct. 6, 2022).
- World Perspectives, Inc., Consumer Price Impacts of Mexican Restrictions on GM Corn: An Economic Analysis (Sept. 19, 2022) and Executive Summary (Sept. 2022).
Media & Industry Resources of Interest
American Farm Bureau Federation:
- AFBF Establishes 2023 Farm Bill Priorities and (Oct. 13, 2022).
- 2023 Farm Bill Policy Priorities (pdf)
- Market Intel, recent Farm Bill resources:
- Environmental Groups Allege EPA Failed to Conduct Endangered Species Act Evaluation of Enlist Herbicides, Todd Neeley (Oct. 12, 2022).
- Ag Policy Blog – Canadian Ag Minister: Ag Emission Goals Ambitious But Necessary, Chris Clayton (Oct. 12, 2022).
- Chief Justice Questions Why California Morals Matter Most in Prop 12, Todd Neeley (Oct. 11, 2022).
- Ag Policy Blog – RIPE Pitches Higher Conservation/Climate Payments in Next Farm Bill, Chris Clayton (Oct. 11, 2022).
- Mexico’s Threatened Ban on GM Corn Might Temper Feed Prices, but at a Heavy Cost, Victoria Myers (Oct. 10, 2022).
- Archer Daniels Midland Fights to Exclude Expert Testimony in Ethanol Market Manipulation Case, Todd Neeley (Oct. 10, 2022).
- Ethanol Blog – Growth Energy, RFA Motion to Intervene in Endangered Species Act RFS Lawsuit, Todd Neeley (Oct. 5, 2022).
AEI.ag Presents, podcast Seasons 1, 2 (complete) and 3 (ongoing).
- Season 1, Escaping 1980, 7 episodes about the 1980s farm financial crisis and “what we can do to avoid the next one.”
- Season 2, Corn Saves America, 10 episodes about the rise of corn ethanol and “lessons that are applicable to the current enthusiasm about carbon offsets.”
- Season 3, Nothing Borrowed, Nothing Gained, on-going series which AEI.ag describes as a “spotlight on the often-mysterious world of agricultural lending. How does a farm loan work? Where, exactly, does the money that farmers borrow come from? Tune in to connect the dots from the farm to the Federal Reserve and Wall Street.”
Penn State News, Research & Resources:
- PSU Ext., What Is Your Most Profitable Crop? (Oct. 12, 2022).
- PSU Ext., How Do You and Community Leaders Decide the Best Use of Land? (Oct. 12, 2022).
- Computer games may be a key to ecological learning, study says (Oct. 11, 2022).
- PSU Ext., What Can Plants Teach You? (Oct. 11, 2022).
- Long-term impacts of famine include health and socioeconomic challenges (Oct. 10, 2022).
- Saltier sea water may predict heavy summer rains in the U.S. corn belt (Oct. 10, 2022).
- PSU Ext., Herbicide Modes of Action – Cell Membrane Disruptors and Contact Herbicides (Oct. 10, 2022).
- PSU Ext., Sanitation Is the Key to Prevent Diseases in High Tunnels (Oct. 10, 2022).
- PSU Ext., Supply Chain Issues May Force You to Re-Think How You Do Business (Oct. 10, 2022).
Top #AgLaw HotLinks Oct. 10–14, 2022:
- USDA grant pays for stress counseling for ND farmers, AgWeek
- USDA Raises Milk Production and Price Expectations, Brownfield
- Legislation would expedite federal cost-share relief programs after natural disaster, Brownfield
- SCOTUS Proposition 12 Oral Argument Begins Today, Tuesday Oct. 12, Supreme Court of the United States
- SCOTUS oral arguments begin Tuesday for Prop 12, American Agriculturalist
Pennsylvania Farm/Food Employers’ Listserv (PFEL) is a human resources networking group exclusively for farm and food employers. Subscribe by email with “subscribe” in the subject line to [email protected].
FEDERAL ACTIONS—EXECUTIVE & LEGISLATIVE
U.S DEPARTMENT OF AGRICULTURE (USDA) PRESS RELEASES
ENVIRONMENTAL PROTECTION AGENCY (EPA) PRESS RELEASES
USDA AGENCY PRESS RELEASES:
Agricultural Marketing Service (AMS)
Agricultural Research Service
Animal and Plant Health Inspection Service (APHIS)
Food Safety and Inspection Service (FSIS)
Foreign Agricultural Service (FAS)
Export Sales to China, Philippines, and Unknown Destinations (Oct. 14, 2022).
Export Sales to China and Unknown Destinations (Oct. 13, 2022).
Export Sales to China (Oct. 12, 2022).
FEDERAL EXECUTIVE AGENCIES (Federal Register Oct. 10–14, 2022):
Agricultural Marketing Service
87 FR 61559 Notice—Public Comment: “Information Collection for National Science Laboratories” (Oct. 12, 2022).
87 FR 61559 Notice—Public Comment: “United States Standards for Beans: Chickpea/Garbanzo Beans” (Oct. 12, 2022).
87 FR 61561 Notice: “United States Standards for Wheat” (Oct. 12, 2022).
87 FR 61268 Proposed Rule—Public Comment: “National Organic Program; Organic Livestock and Poultry Standards” (Oct. 11, 2022).
87 FR 61268 Proposed Rule—Public Comment: “Inert Ingredients in Pesticides for Organic Production” (Oct. 11, 2022).
87 FR 62359 Request for Information: “Notice of Request for Public Comment on Providing Financial Assistance for Producers and Landowners Determined To Have Experienced Discrimination” (Oct. 14, 2022).
87 FR 62066 Notice: “Privacy Act of 1974; Systems of Records” (Oct. 13, 2022).
87 FR 61276 Notice—Public Comment: “Submission for OMB Review; Comment Request” (Oct. 11, 2022).
Environmental Protection Agency
87 FR 61534 Final Rule: “Lysate of Willaertia magna C2c Maky; Exemption From the Requirement of a Tolerance” (Oct. 12, 2022).
87 FR 61531 Final Rule: “Dimethyl Sulfoxide; Exemption From the Requirement of a Tolerance” (Oct. 12, 2022).
87 FR 61537 Final Rule: “Siloxanes and Silicones, di-Me, Me Hydrogen; Tolerance Exemption” (Oct. 12, 2022).
87 FR 61557 Proposed Rule: “Notification of Submission to the Secretary of Agriculture; Pesticides; Addition of Chitosan (Including Chitosan Salts) to the List of Active Ingredients Permitted in Exempted Minimum Risk Pesticide Products” (Oct. 12, 2022).
87 FR 61259 Final Rule: “Methoxyfenozide; Pesticide Tolerances” (Oct. 11, 2022).
Food and Nutrition Service
87 FR 61561 Notice: “Agency Information Collection Activities: Proposed Collection; Comment Request; Understanding the Relationship Between Poverty, Well-Being and Food Security” (Oct. 12, 2022).
Susquehanna River Basin Commission
87 FR 62174 Notice: “Public Hearing” (Oct. 13, 2022).
87 FR 62173 Notice: “Projects Approved for Consumptive Uses of Water” (Oct. 13, 2022).
87 FR 62175 Notice: “Projects Approved for Minor Modifications” (Oct. 13, 2022).
U.S. HOUSE AGRICULTURE COMMITTEE:
H.R.9186 “To authorize the Secretary of Agriculture to provide grants to States to address contamination by perfluoroalkyl and polyfluoroalkyl substances on farms, and for other purposes.” Referred to the House Committee on Agriculture. (Oct. 14, 2022).
H.R.9184 “To codify the authority of the Secretary of Agriculture and the Secretary of the Interior to conduct certain landscape-scale forest restoration projects, and for other purposes.” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture. (Oct. 14, 2022).
H.R.9183 “To facilitate the creation of designated shooting ranges on National Forest System land and public land administered by the Bureau of Land Management for the public to use for recreational target shooting, and for other purposes.” Referred to the Committee on Natural Resources, and in addition to the Committee on Agriculture. (Oct. 14, 2022).
U.S. SENATE COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY:
S.5070 “A bill to authorize the Secretary of Agriculture to provide grants to States to address contamination by perfluoroalkyl and polyfluoroalkyl substances on farms, and for other purposes.” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry. (Oct. 11, 2022).
STATE ACTIONS—EXECUTIVE & LEGISLATIVE
PENNSYLVANIA DEPARTMENT OF AGRICULTURE PRESS RELEASES:
PENNSYLVANIA EXECUTIVE AGENCIES (Pa. Bulletin Vol. 52, No. 42—Oct. 15, 2022):
Department of Agriculture
52 Pa.B. 6456 Notice: “Agricultural Hemp Promotion, Education and Export Promotion Matching Grant Program; 2022-2023 Application Period.”
52 Pa.B. 6457 Notice: “Pennsylvania Wine Marketing and Research Board; Grant Solicitation and Application Procedures for Agricultural Commodities Marketing Act Funding.”
Department of Environmental Protection
52 Pa.B. 6462 Notice: “Applications, Actions and Special Notices.”
52 Pa.B. 6505 Notice—Bid Opportunity: “Acid Mine Drainage Abatement Project, Cucumber Run Rehab, Stewart Township, Fayette County.”
52 Pa.B. 6505 Notice—Bid Opportunity: “Cleaning Out and Plugging Ten Orphan Gas Wells, Moon Township, Ohio Township, and Sewickley Heights Borough, Allegheny County.”
52 Pa.B. 6506 Notice—Bid Opportunity: “Cleaning Out and Plugging 15 Orphan Gas Wells, Otto Township, McKean County.”
52 Pa.B. 6506 Notice—Bid Opportunity: “Cleaning Out and Plugging Eight Orphan Gas Wells, Eulalia Township and Abbot Township, Potter County.”
52 Pa.B. 6506 Notice—Bid Opportunity: “Cleaning Out and Plugging 24 Orphan Gas Wells, Concord Township, Butler County.”
52 Pa.B. 6506 Notice—Bid Opportunity: “Cleaning Out and Plugging 22 Orphan Gas Wells, Eldred Township and Eldred Borough, McKean County.”
52 Pa.B. 6507 Notice: “Mine Families First Response and Communication Advisory Council Meeting.”
52 Pa.B. 6507 Notice: “Mosquitoborne Disease Control County Grants; Notice of Availability”
52 Pa.B. 6507 Notice: “Oil and Gas Technical Advisory Board Meeting Rescheduled”
52 Pa.B. 6508 Notice: “Planning Grant Awards under Section 901 of the Municipal Waste Planning, Recycling and Waste Reduction Act, Act 101 of 1988”
No new agriculture-related actions this week.
Dillon Lightfoot—Research Assistant
Megan Guess—Research Assistant
Audry Thompson—Staff Attorney
Brook Duer—Staff Attorney