Harrison Pittman

Harrison M. Pittman is director of the National Agricultural Law Center, which is part of the University of Arkansas System Division of Agriculture. The Center serves as the nation’s leading source of agricultural and food law research and information and deals with legal issues around the country that impact agriculture at the state and federal levels.

By Harrison Pittman

Some major national issues – supremely important issues, so to speak – have been on our radar at the National Agricultural Law Center recently. In this edition, we provide some background on these and how they are playing out in federal courts and we also explore some pressing issues at the state and international level.

Since 2016, thousands of lawsuits have been filed throughout the United States by plaintiffs who claim that glyphosate – the active ingredient in Roundup and among the most widely used crop protection products – caused them to develop cancer. A key issue for the future of these lawsuits is whether the federal law that governs the use of pesticides (the Federal Insecticide, Fungicide, and Rodenticide Act, or “FIFRA”) preempts state law failure to warn claims raised by plaintiffs. Typically, plaintiffs assert that the defendant failed to warn of the health dangers allegedly associated with Roundup. The counterargument is that the state law claim is preempted by FIFRA. A state law claim that is preempted by FIFRA eliminates that claim from the lawsuit, thereby weakening the plaintiffs’ cases. Two significant lawsuits – both of which had held that FIFRA did not preempt the state law claims at issue – were appealed to the Supreme Court in 2021. Recently, to the disappointment of many agriculture groups, the Court announced that it would not take up either case. Additionally, just a few weeks later, the U.S. Court of Appeals for the 11th Circuit held that FIFRA did not preempt the plaintiffs’ failure to warn claims in that case. Thus, the issue of preemption will have to wait for other lawsuits to evolve through the court system before we learn whether the Supreme Court will weigh in on this critical issue.

It’s no secret that fertilizer costs have skyrocketed, creating a financial pain point for producers and the overall agricultural industry. Recently, the U.S. International Trade Commission ruled to not impose tariffs on nitrogen fertilizers imported from three countries, including Russia. This decision should make it easier to import these fertilizer products into the U.S., thereby increasing supply and hopefully softening input prices for the agriculture industry. Additionally, a forthcoming decision from the U.S. Court of International Trade will determine whether the International

Trade Commission properly determined that imports of phosphate fertilizer from Morocco economically damaged U.S.-based fertilizer manufacturers. In June, a key hearing was held before Court of International Trade Judge Stephen Vaden, who previously served as the USDA General Counsel from 2016-2020. The nature of Judge Vaden’s questioning of the International Trade Commission could signal that a ruling is forthcoming that would open the U.S. market to the Moroccan fertilizer. That decision will likely be issued within the next few months.

In June, the Circuit Court of Pulaski County, 16th Division, held that the process for appointing certain members to the Arkansas State Plant Board was unconstitutional. Specifically, the court considered whether the requirement that the Governor appoint members to the State Plant Board derived from lists of names provided by private business associations was an unconstitutional delegation of public power to private entities. This was the latest legal development following the issuance in 2021 of the Arkansas Supreme Court decision in McCarty v. Arkansas State Plant Board, which held that the appointment process for several members of the State Plant Board was an unconstitutional delegation of public power to private entities. The trial court decision was not appealed before the timeline to file an appeal.

The U.S. Supreme Court will be taking actions directly related to agriculture in Arkansas and throughout the country. As previously noted in this column, the Court will render a decision regarding the jurisdictional scope of the Clean Water Act in Sackett v. EPA. This will be one of the most anticipated ag-related decisions and the Court will hear the case on October 3. A week later, on Oct. 11, the Court will hear oral arguments to legal challenges brought by the National Pork Producers Council and American Farm Bureau Federation to California’s Proposition 12. Proposition 12, if and when implemented, would effectively ban the sale of pork in California from hogs produced in states that do not meet the much more stringent production standards set forth in Proposition 12. Additionally, in late June, the Court issued a decision in West Virginia v. EPA that likely significantly limits the authority of the EPA. While the specific facts of that case involved coal-fired power plants, the nature of the decision could have wide-ranging impacts on agriculture and other industries regulated by EPA. Finally, the Court declined to take up a case involving a challenge to the constitutionality of the national beef checkoff.

To learn more about these and other issues impacting agriculture in Arkansas and the nation, be sure to visit the Center’s website at www.nationalaglawcenter.org. *

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