Department of Labor Abandons Proposed Changes to Child Labor Standards

Last fall I authored a post about the U.S. Department of Labor's efforts to revise decades-old labor laws that would change how children work on a farm:  "New Child Labor Restrictions Will Impact Farm Life"  Yesterday, that story became old news, as the Department of Labor issued a press release saying it was abandoning this process:

"The Obama administration is firmly committed to promoting family farmers and respecting the rural way of life, especially the role that parents and other family members play in passing those traditions down through the generations. The Obama administration is also deeply committed to listening and responding to what Americans across the country have to say about proposed rules and regulations.

"As a result, the Department of Labor is announcing today the withdrawal of the proposed rule dealing with children under the age of 16 who work in agricultural vocations. 

"The decision to withdraw this rule – including provisions to define the 'parental exemption' – was made in response to thousands of comments expressing concerns about the effect of the proposed rules on small family-owned farms. To be clear, this regulation will not be pursued for the duration of the Obama administration.

"Instead, the Departments of Labor and Agriculture will work with rural stakeholders – such as the American Farm Bureau Federation, the National Farmers Union, the Future Farmers of America, and 4-H – to develop an educational program to reduce accidents to young workers and promote safer agricultural working practices."

The press release can be found here.  This is a great result.

China's Hunger for U.S. Breeding Stock

This weekend I met a dairy farmer that derives part of his farm income from selling embryos from his high quality breeding stock. That by itself is not unusual in the dairy industry, but what he told me next is. He sells the embryos to buyers in China.

That is remarkable. Many United States' dairy farms have spent generations developing the world’s most efficient milking cows. China currently bans the importation of live cattle from the U.S., which is why embryos are shipped across the Pacific Ocean to start new herds in China.

Kicking the Raw Milk Can Down the Road

This past year a bill was proposed in Indiana to legalize the sale of "raw" milk.  The bill was met with a firestorm of criticism from industry groups and dairy farmers who view the sale of unpasteurized milk as dangerous and unfair, since "raw" milk does not have to pass the same milk quality inspections as Grade A store-bought milk.  Ultimately, the legalization of raw milk was defeated, but that is not the end of the road for raw milk sales in Indiana.

Buried in the end of House Bill 1129 (HB 1129), which was passed and signed by Governor Mitch Daniels, was a provision requiring the State Board of Animal Health (BOAH) to "conduct a study of the issue of farmers selling unpasteurized milk to consumers."   That's it.  The rest of the details are left up to BOAH, including the how, what, or who should be included in the study.  The study must be concluded by November 1, 2012 and reported to the governor by December 1, 2012.

Here's my list of questions for BOAH as it undertakes this process:

1. Can raw milk be sold in a way that minimizes the potential health dangers?
2. If raw milk sales are legalized, what warning labels should be required?
3. How can raw milk products be regulated so that they meet all other standards (aside from pasteurization) applicable to grade A milk? For example, regular store-bought milk is tested for antibiotic residue but raw milk sold on the black market lacks such tests.
4. How extensive are raw milk sales on the black market today? If raw milk sales are legalized and regulated, will these black market sellers disappear or continue to sell raw milk anyway?
5. How have other states regulated raw milk sales?
6. Does the likelihood of raw milk related illness increase in places where it is legal?
7. Is products liability insurance coverage available to sellers of raw milk, so that those farmers wishing to sell raw milk are insured in the case of illness?  Would such insurance be required along with a license to sell raw milk?

I look forward to BOAH's raw milk report.  Feel free to add your own list of questions in the comments below and I will gladly share with BOAH officials.

To read about what Indiana law currently says about raw milk sales, continue reading after the jump, click here.

By Todd Janzen

Raising the Stakes in Farm Nuisance Cases

Indiana farms that are the victims of "nuisance" suits by neighbors who don't like the smell, sounds, or sights associated with farming are generally protected by Indiana's Right to Farm Act.  The Right to Farm Act bars nuisance suits against "agricultural operations" that have been in operation for more than one year at the time the alleged "nuisance" began.  An "agricultural operation" is broad category, encompassing crop farming, raising livestock and poultry, and forestry.  In addition, conversion from one type of agricultural operation to another--e.g. from raising hogs to milking cows--does not strip away the Right to Farm Act's protections. In essence, if the area where the complained-of nuisance exists was "agricultural" for more than one year before the suit began, the Right to Farm Act bars the claim.

There are good reasons for this.  The Indiana legislature declared that it wanted to protect farmland and encourage its development for agricultural purposes.  The Right to Farm Act states:

The general assembly declares that it is the policy of the state to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products. The general assembly finds that when nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits. As a result, agricultural operations are sometimes forced to cease operations, and many persons may be discouraged from making investments in farm improvements. It is the purpose of this section to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.

Indiana Code 32-30-6.

In spite of the strength of the Right to Farm Act, nuisance suits against Indiana farmers--based upon my unscientific observations--have been on the rise in recent years, due to the expansion of small farms combined with the number of non-farmers moving into rural areas.  This year House Bill 1091 (HB 1091) was introduced to the Indiana legislature to try to bolster the Right to Farm Act by giving farmers that successfully defended against "frivolous" lawsuits an award of attorneys' fees.  HB 1091 stirred up a lot of controversy, and as a result, the final bill that the governor signed into law is substantially watered-down.  It now states:

(a) If a court finds that an agricultural operation
that is the subject of a nuisance action:
(1) was not a nuisance under section 9 ofthis chapter and that
the nuisance action was frivolous,the courtshall award court
costs and reasonable attorney's fees, to the defendant in the
action; or
(2) was a nuisance under this chapter and that the defense of
the nuisance action was frivolous,the courtshall award court
costs, including reasonable attorney's fees, to the plaintiff in
the action.

The key difference between the enrolled act and the original introduced bill is that now plaintiffs--neighbors complaining of nuisance--can also be awarded their attorneys' fees if the farmer's "defense of the nuisance action was frivolous."  In sum, now either side risks having to pay the opposing side's attorneys' fees if they take a position in the litigation that was "frivolous."  (Indiana law already provides an award of attorneys' fees if the lawyer asserts a frivolous claim or defense in any litigation.  See IC 34-52-1-1).  Still, HB 1091 raises the stakes of nuisance litigation.

But the stakes were already high.  My prediction is that HB 1091 will have no measurable effect on the number of nuisance suits filed in Indiana.

Posted by Todd Janzen

What is a "nuisance"?

Sackett v. EPA: Landowners Win!

The past few months I've been watching Sackett v. EPA, a case involving one couple's fight against an EPA enforcement order compelling restoration of a "wetlands" on a residential lot they purchased for development.  (See prior posts: Sackett v. EPA: The Supreme Court Reviews the EPA's Ability to Regulate Wetlands and Sackett v. EPA: Quotes from Oral Argument). The case has tremendous implications for farmers who are often accused by the EPA of intentionally destroying "wetlands" while doing innocent ditch, stream, or levee maintenance.  Fortunately, the landowners won this one--which does not mean the end of wetlands, but it does restore some due process to EPA enforcement proceedings.  Thanks to Dan Cory for being the guest blogger on this story: 

The U.S. Supreme Court issued its most anticipated decision in the environmental arena this term in Sackett v. U.S. Environmental Protection Agency - a case that has been dubbed a sort of David vs. Goliath battle by property rights advocates - finding in favor of the landowner and against EPA.

The basic facts of Sackett are relatively straight-forward: the Sacketts owned a residential lot near Priest Lake, Idaho and were preparing to build a home there. After they performed grading and fill work at the site, EPA officials served the couple with an administrative compliance order advising them that their parcel constituted wetlands subject to federal permit jurisdiction under section 404 of the Clean Water Act. The order directed the Sacketts to restore the lot to its original condition without delay; and threatened the Sacketts with substantial daily fines (quantified by the Solicitor General at oral argument as up to $75,000/day) for non-compliance with the CWA and administrative order. 

The landowners then sought a hearing to make their case that the property was not actually a wetland. This request was denied and the Sacketts filed suit in federal district court to challenge EPA’s wetlands classification of their lot. The district court dismissed their lawsuit, holding that EPA administrative compliance orders issued under the CWA do not constitute final agency actions subject to judicial review. The Ninth Circuit affirmed, joining numerous other federal circuits that had previously come to the same conclusion. 

The Supreme Court disagreed, holding that a compliance order issued under the CWA is final agency action under the APA and subject to judicial review. The Supreme Court did not reach the issue of whether EPA violated the Sacketts' due process rights by depriving them of the opportunity for judicial review. Had the Court reached this issue, it would likely have had impacts on administrative law far beyond the wetlands context. Instead, the Court restricted its opinion to the question of whether the administrative compliance order was a final agency action, and found that it was. 

This decision will likely make life more difficult for EPA regulators, requiring the agency often to engage in costly litigation before actual compliance with its administrative orders is required. But a system in which EPA can use the threat of significant daily fines in order to force compliance without the landowners having any opportunity for judicial review is inequitable and was in need of fixing. Judicial review should also reduce waste in many cases because it will allow courts to decide disputed issues before the landowner is required to pay significant compliance costs. This is particularly important when the issue, as in Sackett, is whether EPA has jurisdiction over the site at all. Presumably the availability of judicial review will also make EPA think twice before denying a request for a hearing from a landowner.

The full opinion of Sackett v. EPA can be found at http://pub.bna.com/lw/101062.pdf.

Dan Cory regularly blogs on The Monitoring Well.