In the world of agricultural law, 2023 was a year for significant developments and changes. In summary below, attorneys at the National Agricultural Law Center have identified and compiled the top legal and policy developments that affected agriculture this year, including many that will do so in years to come.
- This was a major year for waters of the United States, or WOTUS, the Clean Water Act (“CWA”) term that determines the jurisdiction of the Act and which waters are subject to CWA permitting. In March, the Environmental Protection Agency (“EPA”) released an updated WOTUS definition that was swiftly prevented from going into effect in roughly half of the country as lawsuits challenging the new rule were filed. Then in May, the Supreme Court released its long-awaited decision in Sackett v. EPA, a case concerning the definition of WOTUS that invalidated several portions of EPA’s latest rule. The agency released an updated version of its WOTUS rule before the end of the summer, and litigation challenging that rule remains ongoing. For more information on WOTUS, check out NALC series “WOTUS Update,” or click here to listen to the first of three NALC webinars exploring recent changes to WOTUS and what they mean for agriculture.
- A case challenging “Prop 12” was decided earlier this year by the Supreme Court. Proposition 12, a California ballot initiative, regulated the production and sale of many veal, egg, and pork products- regardless of where the products were produced. The Court ruled that Prop 12 was constitutional, allowing California (and any other state who chooses to do so) the ability to pass similar laws. Expect to see proposals regulating production practices in state legislatures in upcoming sessions. Note, however, that a similar law was passed in Massachusetts and is also being challenged. Its success will depend on how well the plaintiffs can separate the MA law from CA’s. To learn more about the challenges to these types of laws, visit our blog series here. To read the language of the state laws governing farm animal confinement, click here.
- On November 16, a one-year extension of the 2018 Farm Bill, technically known as the Agriculture Improvement Act of 2018, was signed into law. The extension is part of the broader stopgap government funding that funds the government though January 19, 2024. Most provisions of the 2018 Farm Bill expired on September 30, 2023. The extension allows time for Congress to attempt to reauthorize a multi-year Farm Bill potentially in the early months of 2024 before facing the prospect of whether the extend the Farm Bill yet again beyond the 2024 election cycle. For more information on Farm Bills, visit the Farm Bills Resources page. You can also visit applicable Reading Rooms such as Crop Insurance/Disaster Assistance, Commodity Programs, Conservation Programs, and Nutrition Programs
- This year, EPA has continued to roll out its updated ESA-FIFRA policy detailing how the agency will meet its Endangered Species Act responsibilities while taking action under the Federal Insecticide, Rodenticide, and Fungicide Act. Both the Draft Herbicide Strategy and the Vulnerable Species Pilot Project, which were available for public comment earlier this fall, outlined new application restrictions intended to reduce pesticide impacts to endangered species. However, numerous questions about the policy change remain, and more action is expected heading into 2024. To learn more about this policy change, check out NALC articles “EPA Draft Herbicide Strategy Open for Comment” and “EPA Proposes Vulnerable Species Pilot Project,” or click here to register for an upcoming NALC webinar exploring these changes.
- In 2023, the Arkansas state legislature enacted a foreign ownership law which seeks restricts investors from certain countries, including China, from acquiring an interest in land within the state. Arkansas is one of approximately twelve states to enact a foreign ownership law during the 2023 legislative session. In October, Arkansas became the first in the nation to enforce a state foreign ownership law when Arkansas Attorney General Tim Griffin ordered a subsidiary of Syngenta Seeds, a company ultimately owned by a Chinese state-owned enterprise, to divest its ownership interest in farmland it owned within the state. The text of Arkansas’ foreign ownership law is available here, and for more information on foreign ownership of ag land, please visit NALC’s resource page here. Nationally, federal and state policymakers have become increasingly concerned about foreign investments in U.S. land, especially agricultural land. Because there is no federal law that imposes a restriction on the amount of farmland that can be foreign owned, the 118th Congress (2023–2024) has proposed several measures that seek to increase oversight and restrict foreign investments and acquisitions of land located within the U.S. At the state level, approximately 36 states proposed some piece of legislation that sought to restrict certain foreign investments in land located within their state during the 2023 legislative session, twelve of which enacted a foreign ownership law. A list of the 2023 federal and state foreign ownership proposals is available on NALC’s website here, and click here for NALC articles discussing some of these legislative proposals.
- Concerns about competition in the livestock and poultry industries has been a theme of 2023. The Biden Administration has focused on regulations strengthening provisions of the Packers and Stockyards Act, with more upcoming in the new year. Civil antitrust claims have been filed by the Department of Justice (Agri Stats) and brought to trial as part of a long-running case titled In re: Broiler Chicken Antitrust Litigation. Sanderson Farms, the processor brought to trial, was acquitted on allegations on price-fixing. Several other defendants were either dismissed or settled the case before it went to trial. To learn more about the Packers and Stockyards Act proposals, click here
- Issues around water use and the Colorado River continued to heat up as Lakes Powell and Mead, the two reservoirs that all seven states located in the Colorado River Basin rely on, remained at historically low levels. In May, the three Lower Basin states – Arizona, California, and Nevada – agreed to a plan that would conserve at least 3 million-acre-feet of water through the end of 2026. The plan relies on federal and state dollars to compensate water users for making reductions. While the Bureau of Reclamation works to finalize the proposal, the seven Basin states have turned their attention to developing post-2026 water use guidelines. For more information about the laws and regulations impacting water use in the United States, check out NALC’s Water Law Reading Room.
- The right-to-repair movement gained traction as farmers continued to advocate for the right to access manufacturer-controlled tools and information. Over the past year, American Farm Bureau entered into memorandums of understanding with five major agricultural equipment manufacturers to provide farmers and independent mechanics with access to repair materials. Additionally, Colorado enacted the first right-to-repair legislation specifically targeting agricultural equipment, and the right-to-repair multi-district anti-trust lawsuit against John Deere remains ongoing. For more information on recent events, review NALC article “Update on right-to-repair”, and to learn more about right-to-repair generally, click here for NALC webinar “Right to Repair Statutes: Overview, Issues Presented, and Current Status of State Legislation.”
- The goals of industrial hemp production have changed dramatically. Three years ago, the emphasis for hemp growers was the production of CBD but in the past year the market has shifted to Delta-8 THC. Delta-8 THC is an intoxicating substance similar to Delta-9 THC (the active intoxicant in marijuana). Earlier this year Arkansas passed Act 629 to prohibit the production and sale of intoxicating substances (Delta-8, Delta-9 and Delta-10 THC) derived from industrial hemp. This statute was challenged in federal court and the judge enjoined- or prevented- the enforcement of the new Arkansas statute until a trial takes place next year. To learn more about this issue click here and to learn more about industrial hemp in general, click here.
- Civil litigation over pesticides picked up steam with juries in Missouri and Pennsylvania awarding over $2 billion to plaintiffs who claimed that exposure to the glyphosate in Roundup products caused them to develop cancer. While pesticide injury lawsuits continued to play out in state court, pesticide litigation at the federal level saw the Eighth Circuit issue a ruling to overturn a 2021 decision from EPA to revoke all food uses for the pesticide chlorpyrifos which effectively made the pesticide unavailable for use. EPA also faced judicial challenges to what plaintiffs describe as a “loophole” in how the agency regulates seeds that have been treated or coated in pesticides, as well as challenges to its registration of Enlist One, Enlist Duo, and Dicamba. To learn more about these current events, check out the “pesticides” tag on NALC’s Ag & Food Law Blog.
Looking ahead to 2024, many of the top issues from this year will continue to develop. Additional areas to watch are the implementation of corporate transparency rules requiring disclosure of ownership interests in companies (including single member LLCs), proposed changes to the H2A program via the Department of Labor and Department of Homeland Security, and U.S. Supreme Court consideration of issues that could significantly impact the degree of deference future courts must give when reviewing agency actions.