Environmental law issues were at the forefront in 2021, and 2022 is shaping up to be no different. With on-going lawsuits, potential Supreme Court hearings, and further federal regulations taking shape, 2022 will be another big year for environmental law. The following is a non-comprehensive collection of environmental law issues to watch as the year moves forward.
Clean Water Act
Once again, the Clean Water Act (“CWA”) is expected to be a major topic over the course of the year as on-going lawsuits and regulatory efforts progress.
Wetlands at the Supreme Court
On January 7, the Supreme Court will consider whether to hear a lawsuit concerning the nature of wetlands under the CWA. If the Court decides to take up the case, its decision could impact agricultural producers across the country. The lawsuit, Sackett v. U.S. Env’tl Protection Agency, No. 24-454 (2022), was first filed in 2008 after the Environmental Protection Agency (“EPA”) determined that land recently purchased by the plaintiffs contained a wetland which the plaintiffs were required to restore in order to come into compliance with the CWA. While many issues have been raised over the course of this litigation, the question that the Supreme Court will consider taking up is to what degree wetlands may be regulated under the CWA.
In the landmark case, Rapanos v. United States, 547 U.S. 715 (2006), the Supreme Court determined that the CWA does not regulate all wetlands, but there was no majority opinion explaining why. Instead the case resulted in a plurality opinion written by Justice Scalia, and a concurring opinion written by Justice Kennedy. The plurality opinion argued that only those wetlands which have a continuous surface water connection to waters regulated under the CWA should fall under CWA jurisdiction. Meanwhile, the concurring opinion argued that a wetland could be regulated under the CWA so long as it had a “significant nexus” to a traditionally navigable water. A wetland may have a significant nexus with a navigable water if it “significantly affect[s] the chemical, physical, and biological integrity” of other waters under CWA jurisdiction. Since Rapanos was decided, lower courts and regulatory agencies have tended to apply the significant nexus test when considering whether a wetland is protected by the CWA.
On appeal to the Supreme Court, the plaintiffs in Sackett v. U.S. Env’tl Protection Agency are asking the Court to reconsider Rapanos and issue a decision that provides greater clarity on wetland regulation. Specifically, the plaintiffs ask that the Court formally adopt the plurality’s continuous surface water test and do away with the significant nexus test. EPA has filed a response petition asking the Court not to take up the case, in part because EPA is currently in the process of drafting a new rule to define which waters fall under CWA jurisdiction. If the Supreme Court decides to hear this case, a ruling would have the potential to impact wetland regulation throughout the country.
WOTUS Continued
At the end of 2021, EPA released its long-awaited proposed rule to revise the definition of “waters of the United States” (“WOTUS”) under the CWA. The term is critical to the CWA because only those waters which are defined as WOTUS may receive CWA protection. The definition of WOTUS has changed multiple times since the CWA was originally passed in 1972, but has been in a particular state of flux for the past several years. The proposed rule released by EPA in 2021 represents the third time the agency has attempted to change the definition of WOTUS since 2015. Click here to see a full timeline of WOTUS definitions, and here to see more posts on the recent WOTUS changes. For more information on the proposed WOTUS rule, click here.
EPA will take comments on the newly proposed rule through February 7, 2022, and a final rule is expected sometime in late fall or early winter of this year. Additionally, EPA is likely to undertake a second WOTUS rulemaking to build off the recently proposed rule. While this second rulemaking was initially expected to be unveiled in February 2022, it now appears that the may not happen until later in the year.
Pesticides
Pesticides will continue to remain a hot topic in 2022. Along with continued litigation pesticide litigation, new findings from EPA on dicamba restrictions ensure that pesticide issues will continue to be of interest as the year progresses.
Glyphosate Appealed to Supreme Court
Along with the wetlands case, on January 7 the Supreme Court will also decide whether to hear an appeal of a glyphosate ruling from the Ninth Circuit. The lawsuit is one of the first to be filed by a plaintiff claiming that exposure to glyphosate caused them to develop non-Hodgkin’s lymphoma. Originally filed in 2016, the case raised several state law claims against Monsanto Company (“Monsanto”), the manufacturer of glyphosate. One of those claims was a state law failure-to-warn claim, under which the plaintiff alleged that Monsanto was liable for the plaintiff’s injuries because it had failed to warn consumers about the risks of glyphosate exposure. At trial, the jury found in favor of the plaintiff on all counts, including failure-to-warn.
Following the jury verdict, Bayer (the current defendant in the case after purchasing Monsanto in 2018) appealed to the Ninth Circuit, arguing that the failure-to-warn claim raised by the plaintiff should have been dismissed before trial because it is preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). Ultimately, the Ninth Circuit disagreed. It issued a decision concluding that FIFRA did not preempt state law failure-to-warn claims, and upholding the trial verdict. Bayer has appealed that decision to the Supreme Court. To learn more about the preemption issue and the Ninth Court’s ruling, click here.
If the Supreme Court takes up the case, its ruling could potentially impact not only on-going glyphosate litigation, but other on-going and future pesticide litigation as well. Plaintiffs that have filed lawsuits claiming that exposure to a particular pesticide caused them to develop a serious injury have typically raised failure-to-warn claims. If the Supreme Court concludes that those claims are preempted by federal law, plaintiffs in pesticide lawsuits may no longer be able to raise failure-to-warn claims.
EPA Reviews Dicamba
In December 2021, EPA released a report summarizing dicamba-related incident reports from the 2021 growing season. According to the report, the control measures implemented in EPA’s October 2020 dicamba registration decision did not reduce the number of dicamba-related incidents to the extent that EPA had hoped. Accordingly, EPA has announced that it is reviewing whether use of dicamba directly on crops can be done in a manner “that does not pose unreasonable risks to non-target crops and other plants, or to listed species and their designated critical habitats.”
While it will be conducting a review of dicamba use, EPA has stated that it does not expect to implement any additional restrictions to dicamba for the 2022 growing season. However, EPA also noted that it would work with states that want to further restrict application of dicamba directly onto crops. Agricultural producers who are planning to apply dicamba over-the-top of their crops during the 2022 growing season should be aware that their state may set application restrictions beyond what the federal label currently allows. For more information on dicamba use and related lawsuits, click here.
Federal Regulations
When the Biden Administration took office in January 2021, President Biden issued an Executive Order directing federal agencies to review all agency actions taken between January 20, 2017 and January 20, 2021. The Order highlighted some regulations for particular review, including various environmental regulations that had been adopted during that timeframe. Over the course of 2021, federal agencies began conducting the required reviews with many deciding to undertake new rulemakings in order to repeal or revise the reviewed regulations. That is expected to continue into 2022.
Particularly relevant to agriculture are agency reviews of regulations for the Endangered Species Act (“ESA”) and the National Environmental Policy Act (“NEPA”) because both statutes can impact agricultural activity. In October 2021, the United States Fish and Wildlife Service (“FWS”) published a proposed rule to rescind critical habitat regulations adopted in 2020 and early 2021. Under the ESA, federal agencies are prohibited from carrying out any action, including granting permits or providing funds, that may destroy areas that have been designated as critical habitat for listed species. A regulation adopted by FWS in 2020 altered the process for considering whether to exclude areas from designation of critical habitat, and in 2021 the Service adopted an additional regulation defining the term “habitat” for the first time. To learn more about the 2020 and 2021 ESA regulations, click here. The proposed rule published by FWS in October 2021 seeks to rollback both the 2020 and early 2021 regulations, returning to its previous method of determining when to exclude an area from critical habitat designation, and rescinding the definition of “habitat.” A final regulation is expected sometime in early 2022. Other actions expected from FWS this year include revisions to the regulations for listing species and designating critical habitat, a proposed rule to reinstate the “blanket 4(d)” rule which automatically extends species listed as threatened under the ESA the same protections as species listed as endangered, and revisions to the ESA’s interagency consultation process. FWS has outlined its regulatory plans here.
Under NEPA, federal agencies are required to assess the environmental impacts of their proposed agency actions prior to making decisions. It was passed in 1970, and prior to 2020 its implementing regulations had remained the same for nearly forty years. In 2020, the Council on Environmental Quality (“CEQ”) published a series of regulations that were regarded as an overhaul of NEPA. Information on the 2020 regulations is available here and here. The Biden Administration identified the 2020 NEPA regulations as requiring particular review, and in October 2021, CEQ published a proposed rule announcing its intentions to “generally restore regulatory provisions” that were in place prior to 2020. To do so, CEQ will undertake a two-phase rulemaking. The first phase was addressed in the October 2021 proposed rule with CEQ reverting three aspects of the 2020 rule back to the previous regulations. A final rule is likely to come in 2022. Currently, CEQ has not announced when it intends to start the second phase of its rulemaking, but it is possible that the second phase could begin sometime this year.
Conclusion
2022 is expected to be a big year for agriculture and environmental law. The above is just a highlight of all the things that are headed down the pipeline. Check back in with the National Agricultural Law Center as the year progresses for further updates.
To read the plaintiff’s appeal to the Supreme Court in Sackett v. U.S. Env’tl Protection Agency, click here.
To read EPA’s proposed WOTUS rule, click here.
To read Bayer’s appeal to the Supreme Court, click here.
To read FWS’s proposed ESA rules, click here and here.
For more NALC resources on the CWA, click here.
For more NALC resources on pesticides, click here.
Fore more NALC resources on the ESA, click here.
Fore more NALC resources on NEPA, click here.