Modern Agriculture's Big Five Issues (and How the Law is Reacting to Them)

For this next year, I’m serving as the chair of the American Bar Association’s (ABA) Agricultural Management Committee. The Committee is part of the wider ABA Section on the Environment, Energy and Resources and focuses on cutting-edge issues involving agriculture and the environment, including biotechnology, livestock, sustainability, and food safety. One of the chair’s duties is to create an Action Plan, identifying the five top issues related to agriculture and the environment. Here’s my list and brief explanation of the laws that these issues affect.

1. State GMO labeling initiatives. Opponents of genetically modified organisms (GMOs) in our food supply are hard at work pushing ballot initiatives and legislation in various states that would require labeling of GMO containing food. These laws, if they become effective, would not only create logistical problems for food producers, but also legal problems. Historically, the Food and Drug Administration (FDA) has administered food labeling requirements nationwide. State-specific GMO labeling could create a new regulatory patchwork quilt.
2. Air Emissions from Agriculture. The past few years, the EPA and other researchers have spent considerable effort studying the air emissions from concentrated animal feeding operations (CAFOs). Poultry, dairy, and swine facilities that concentrate animals and manure produce particulate matter, ammonia, methane, and other emissions that the EPA has not historically regulated when originating on farms. Push from environmental groups may change that in the future.  
3. Numeric Nutrient Criteria for the Nation’s Waters. Many believe that the large dead zone in the Gulf of Mexico—called “gulf hypoxia”—is the result of nutrient run-off from those states in the Mississippi watershed. Although nutrient loading comes from many sources, agriculture is sure to play a role in the legal battleground over the cause and solution. After all, most of the run-off from the nation’s breadbasket flows into the Mississippi River. As a result, the EPA is being pressured to create “numeric nutrient criteria” in this watershed that would establish specific allowable nitrogen and phosphorus loading levels for tributaries of the mighty Miss. The impact to Midwestern farms could be enormous.
4. National Food Safety Issues. Various recalls over food contamination issues over the past few years have highlighted the continuing need to ensure food is grown, packaged, and prepared safely in the United States. Federal legislation, including the Food Safety Modernization Act and Country of Origin Labeling Law (COOL), has changed food safety regulations in the U.S. to address consumer concerns. Food is frequently transported across national boundaries, making the effectiveness of these acts more relevant now than ever. At the opposite end of the spectrum, various states have advanced “raw milk” legislation that allows for the sale of unpasteurized, unregulated milk. 
5. Livestock Producers vs. the EPA. National Pork Producers, et al. v. EPA, et al., 635 F.3d 738 (5th Cir. 2011) significantly curtailed the EPA’s ability to require CAFOs to obtain Clean Water Act permits (referred to as “CAFO” or “NPDES” permits). States have scrambled to revise their own regulations implementing the Clean Water Act. Tension remains high between the EPA and producers, after this past year the EPA released sensitive producer data to environmental groups following the receipt of a Freedom of Information Act request.

If you are an attorney interested in following these issues, please join the ABA’s Agricultural Management Committee. Otherwise, please stay tuned as we discuss these issues in the year to come.

By Todd Janzen