January 5, 2018 Weekly Round Up

Originally published by tiffany.dowell.

Hello and Happy New Year!  I hope everyone enjoyed a wonderful holiday.  We’re back in the saddle and here are some of the top ag law stories in the news this first week of 2018.

*US Supreme Court gears up for oral argument in Texas v. New Mexico.  On Monday, Justices will hear oral arguments at the US Supreme Court in the water law case Texas v. New Mexico.  This case involves a 1938 Rio Grande Compact that requires New Mexico to deliver water at the Elephant Butte Reservoir for Texas.  However, the Texas state line is about 100 miles from Elephant Butte, and Texas claims that New Mexico has allowed residents to drill groundwater wells near the Rio Grande, thereby decreasing the amount of water actually reaching Texas.  The Court’s focus on Monday will not be the full merits of the case, but instead on whether the US should be allowed to intervene as a party in the case. For some detailed background, read this prior blog post, this argument preview by the SCOTUS Blog, and this article in the Texas Standard.

* EPA denies petition to include CAFOs Under Clean Air Act.  EPA Commissioner Scott Pruitt denied a petition filed by environmental groups seeking to include confined animal feeding operations (“CAFOs”) under the list of entities required to report emissions under Section 111 of the Clean Air Act.  [Read article here.]

* Ninth Circuit Court of Appeals strikes down most of Idaho “ag gag statute.” You may remember that Idaho had appealed a lower court decision declaring its “ag gag” statute unconstitutional.  [Read prior blog post.]  This week, the United States Court of Appeals for the Ninth Circuit affirmed most of that decision, striking down much of the law.  Two provisions–one prohibiting using misrepresentations to obtain farm records and one prohibiting gaining employment with the goal of causing economic harm–were allowed to stand.  [Read article here and Opinion here.]  I’ll have a more detailed blog post explaining the decision forthcoming.

* Dicamba drama continues in Arkansas.  You may have rested over the holiday break, but dicamba issues did not.  On December 15, the Arkansas Legislative Council decided to send the Arkansas State Plant Board’s decision to impose an April 15 cut-off date for application of dicamba in 2018 back to the Board for reconsideration based on “scientific-based evidence.”  The Council also suggested the Board consider a north-south dividing line to create zones which could have different rules and ambient temperature and humidity applicable to temperature inversion during overnight hours.  On Wednesday, the Plant Board announced it would not change its recommendation that there be a state-wide cutoff date for over-the-top application of dicamba of April 15.  This will now be sent back to the Legislative Committee on January 16 and then to the full Legislative Council.  [Read article here.]

*  Washington State to consider whether marijuana should be considered “agricultural activity.”  In Washington, agricultural activities receive an exemption from the state’s Clean Air Act.  Now, one marijuana grower seeks for this exemption to apply to marijuana.  After he was fined by the state’s clean air agency, he appealed, and the hearing board will tour his operation and make a determination as to whether it should be considered an agricultural activity.  Similarly, the Washington legislature considered a bill that would have added marijuana to protected ag operations under the state’s Right to Farm Act, but that bill never came up for a vote during the 2017 session.  [Read article here.]

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