U.S. Agriculture & Deference to Federal Agency Decision-making:  Recent & Emerging Issues


The agricultural industry is heavily impacted by the decisions, actions, and interpretations issued by federal agencies.  Wetlands determinations made by the USDA Natural Resources Conservation Service, notices of alleged Clean Water Act violations issued by the EPA, food safety rules issued by the Food and Drug Administration and USDA Food Safety Inspection Service, trucking regulations issued by the Department of Labor, and Final Agency Determinations governing federal crop insurance issued by the USDA Risk Management Agency are a few of many examples.  In many instances, landowners and producers who challenge a particular agency action confront the reality that the agency action at issue is commonly given considerable deference by courts and other decisionmakers within the applicable administrative or judicial process.   But, as this webinar will reflect, this reality could be quietly changing.  Recent memorandums issued by the U.S. Department of Justice (DOJ) known as the Brand Memo and the Sessions Memo, which were recently incorporated into DOJ’s Justice Manual, indicates that the DOJ will significantly curtail using its civil enforcement authority to transform agency guidance documents and other statements not issued through notice-and-comment rulemaking into binding rules.  Additionally, in late 2018 the U.S. Supreme Court agreed to consider the potentially landmark case of Kisor v. Wilkie, which presents the issue of whether the longstanding doctrines of agency deference espoused in Bowles v. Seminole Rock and Sand Co., 325 U.S. 410 (1945) and Auer v. Robbins, 519 U.S. 452 (1997) should be overruled.  The implications of the Brand Memo and Kisor apply far beyond agriculture, but could reshape the interrelationship between federal agencies and the agricultural industry.

This webinar features two attorneys with extensive experience in this area of law.  First, Andrew Varcoe will overview the current state of agency deference and the implications of the Brand Memo, Kisor, and related agency deference issues.  Following that discussion, Grant Ballard will discuss practical implications of these areas on agricultural landowners, producers, and others who are directly impacted by agency decisionmaking.


This webinar was recorded on April 26, 2019.  To listen to a recording of the webinar, please click here.


Andrew Varcoe is a partner at Boyden Gray & Associates, a law firm in Washington, D.C. He regularly writes and speaks on administrative law and environmental law issues. He previously served as Deputy General Counsel for Agriculture and Environment at the Biotechnology Innovation Organization (BIO); as an appellate attorney at the U.S. Department of Agriculture, where he briefed, argued, and mediated cases in the federal courts of appeals and helped manage the Department’s nationwide appellate litigation docket; and as associate and then counsel at Wilmer Cutler Pickering Hale and Dorr LLP (previously Wilmer, Cutler & Pickering). He was a law clerk to Justice Francis X. Spina of the Massachusetts Supreme Judicial Court and to Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit. He is a graduate of the University of Chicago (A.B.) and Harvard Law School (J.D.). Varcoe serves on the Distance Education Committee of the American Agricultural Law Association and is currently Chairman of the Executive Committee of the Federalist Society’s Environmental Law & Property Rights Practice Group.

Grant Ballard  is a partner with the firm of Ark Ag Law, PLLC, which maintains a nationwide practice focused on the representation of agricultural producers and other rural businesses. Ballard focuses his practice on the representation of farmers and ranchers in areas including Federal Farm Programs, Crop Insurance litigation, contract law, environmental law, and governmental compliance investigations. Ballard has extensive experience in crop insurance and farm program payment litigation where he has represented producers in litigation before private arbitrators, State and Federal Courts, and the USDA National Appeals Division. He has also regularly defended individuals charged with violating federal program requirements and Federal Criminal Laws. Ballard practices across the Nation and is currently admitted to practice before multiple Federal District Courts, the Eighth Circuit Court of Appeals, the Eleventh Circuit Court of Appeals, and the Supreme Court of the United States. Ballard regularly speaks to agricultural groups across the Country, including at events such as the Beltwide Cotton Conference, and he has written on legal issues facing today’s agricultural producers for various publications including the Drake Journal of Agricultural Law, The Delta Farm Press, The Southwest Farm Press, and The Arkansas Lawyer.  His Practitioners Guide to the Litigation of Federally Reinsured Crop Insurance Claims, previously published in the Drake Journal of Agricultural Law, has received wide recognition.

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