Over the past year, the environmental law arena has seen various issues and developments that have had impacts on agriculture. Some of these issues are likely to carry on to 2023 and beyond. The following is an overview of some of the top environmental law issues of 2022, with a look at what to keep an eye on going forward.

EPA’s New ESA Policy for Registering Pesticides Under FIFRA

In January of this year, the Environmental Protection Agency (“EPA”) announced that it was adopting a new policy regarding its Endangered Species Act (“ESA”) responsibilities under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). Initially, EPA applied this policy only to new pesticide active ingredients that were being registered under FIFRA for the first time, but over the course of the year EPA has been expanding the policy with the goal of applying it to all FIFRA actions. According to EPA, it is still in the process of fully developing and applying the policy and that process will continue into 2023.

The ESA is considered the primary wildlife protection law in the United States, and it is administered by both the Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (collectively, “the Services”). Its stated purpose is to conserve endangered and threatened species, and the ecosystems upon which those species rely. 16 U.S.C. § 1531(b). To achieve that goal, the ESA directs every federal agency to engage in ESA consultation any time the agency carries out an “agency action” which is defined as “any action authorized, funded, or carried out” by a federal agency. 16 U.S.C. § 1536(a)(2). The ESA requires federal agencies to determine whether any agency action “may affect” any species or habitat protected under the ESA. 50 C.F.R. § 402.14(a). If the agency determines that the action is “likely to adversely affect” protected species or habitat, then the agency must reach out to the Services for further consultation. 50 C.F.R. § 402.14(a). Consultation with the Services will usually result in recommended mitigation measures that the agency can adopt to help ensure that the agency action does not imperil protected species or habitat.

FIFRA is the principal law regulating pesticides in the United States. It is administered by EPA, and requires every pesticide to have a registered label prior to being sold or used in the United States. Additionally, labels registered under FIFRA must be reviewed by EPA every 15 years to ensure that they still meet FIFRA standards. Almost every decision EPA makes under FIFRA is considered an “agency action” under the ESA and requires consultation. However, EPA has acknowledged it has had trouble meeting its ESA responsibilities when carrying out FIFRA actions. According to EPA, this has left the agency vulnerable to lawsuits that challenge the credibility of its pesticide registrations which in turn creates instability for pesticide users. In an effort to address this issue, EPA announced in January 2022 that it would be adopting a new policy to help it meet its ESA obligations for FIFRA actions. At the time, EPA stated that it would be applying the policy only to new pesticide active ingredients, though it would be expanding the policy over time. In April, the EPA announced that it was expanding its new ESA policy to include all FIFRA actions, and published the new policy in full along with a detailed plan for how the policy would be implemented. The plan is available here. An update to the plan that focuses specifically on ESA mitigation for FIFRA pesticide registration reviews was released in November and is available here.

Because this is a new policy, it is currently unclear what the total impacts will be. While EPA hopes the policy will help it to create pesticide labels which are more likely to survive lawsuits, it is likely that additional restriction measures will be added to the labels. This issue will continue into 2023 and beyond.

Preemption in Pesticide Lawsuits

Once again, this year saw the issue of preemption frequently raised in pesticide injury lawsuits. As pesticide injury litigation continues into 2023, the developments from this year will affect how those lawsuits progress.

Pesticide injury lawsuits are filed by plaintiffs that claim to have suffered an injury as the result of exposure to a pesticide. Over the past several years, this has become a large area of litigation the includes plaintiffs who claim that exposure to glyphosate caused them to develop cancer, plaintiffs who claim that exposure to paraquat caused them to develop Parkinson’s disease, and others. Most of these lawsuits raise very similar claims, almost all based in state law. For a look at some of the claims commonly raised in pesticide lawsuits, click here. One of the most frequently raised claims is failure to warn. Under a failure to warn claim, a plaintiff argues that the defendant pesticide manufacturer had a duty to warn consumers that using the pesticide could result in injury, and that by failing to do so the defendant violated its legal duty. For more information on failure to warn claims, click here.

Defendants in pesticide injury lawsuits have routinely argued that courts should dismiss failure to warn claims because the claims are preempted by FIFRA. Preemption occurs when law from a higher level of government conflicts with law from a lower level of government. Here, the defendants argue that the federal statute FIFRA should preempt the state law failure to warn claims. FIFRA prohibits states from adopting any requirements for pesticide labeling or packaging that is “in addition to or different from” the labeling requirements under FIFRA. The defendants in pesticide injury cases argue that the plaintiffs’ failure to warn clams are preempted by FIFRA because in order to avoid liability under those claims, the defendants would need to affix warning labels to their pesticides which would be in addition to or different from the federally registered label. In response, the plaintiffs have pointed to another provision of FIFRA which prohibits the sale of “misbranded” pesticides. A pesticide is misbranded if, among other things, “the labeling does not contain a warning or caution statement which may be necessary […] to protect health and the environment[.]” 7 U.S.C. § 136(q)(1)(G). The plaintiffs claim that their failure to warn claims are not preempted because they run parallel to the FIFRA prohibition on misbranding.

To date, courts have tended to side with plaintiffs, concluding that the failure to warn claims should not be preempted. This past year, two cases were appealed to the Supreme Court by defendant pesticide manufacturers asking the Court to review the preemption issue. The Court declined to take up either case. It is possible that the defendants will try again to get preemption before the Supreme Court, or before other appellate courts at the state or federal level. It is likely that this issue will continue into 2023. Click here to learn more about preemption in pesticide injury lawsuits.

Sackett v. EPA, the CWA, and WOTUS

This past summer, the United States Supreme Court heard oral arguments in Sackett v. EPA, 8 F.4^th 1075 (9^th Cir. 2021), cert. granted Jan. 24, 2022, a case concerning the scope of wetlands jurisdiction under the Clean Water Act (“CWA”). The Supreme Court’s decision is not expected until 2023, and in the meantime, EPA is in the middle of a rulemaking process to redefine the term “waters of the United States” (“WOTUS”) which is crucial for determining CWA jurisdiction. Whichever way the Court rules, its decision is expected to impact EPA’s rulemaking.

The purpose of the CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To accomplish that purpose, the CWA grants protection to any waterbody that meets the definition of “waters of the United States.” In passing the CWA, Congress left it up to EPA to determine what qualifies as a WOTUS. Since the CWA was adopted in 1972, EPA has redefined WOTUS multiple times, and is currently in the process of redefining the term again. For a look at the history of WOTUS, click here.

One of the issues that has arisen in trying to find a lasting definition of WOTUS is the degree to which wetlands should be included. In 2006 the Supreme Court issued a ruling in the landmark case Rapanos v. U.S., 547 U.S. 715 (2006) which offered two different approaches. The Court did not reach a majority in Rapanos, but instead issued a plurality opinion authored by Justice Scalia and a concurring opinion authored by Justice Kennedy. Justice Scalia argued that only those wetlands which shared a “continuous surface connection” with a waterbody already classified as a WOTUS should receive CWA protections. Justice Kennedy argued that a wetland could be a WOTUS if it shared a “significant nexus” with another WOTUS. Courts and the EPA have tended to apply Justice Kennedy’s significant nexus test.

In Sackett v. EPA, the plaintiffs have asked the Supreme Court to revisit the issue of wetland jurisdiction under the CWA. Specifically, the plaintiffs have asked the Court to formally adopt Justice Scalia’s continuous surface connection test and to overturn Justice Kennedy’s significant nexus test. Any ruling from the Court will have significant impacts on how the CWA is carried out, particularly as EPA is in the process of redefining WOTUS. Although it is still unclear what EPA’s final proposed WOTUS definition will be, it seems as though the Agency would like to incorporate both the significant nexus test and the continuous surface connection test into the new rule. Therefore, the Supreme Court’s ruling in Sackett v. EPA is likely to impact how EPA’s rulemaking ultimately concludes. Neither an opinion from the Court nor a proposed rule from EPA are expected before the end of the year, so this issue will carry over into 2023. For more information on Sackett v. EPA, click here, and for more information on EPA’s WOTUS rulemaking, click here.

Water Law, Drought, and the IRA

In August of this year, President Biden signed into law a $739 billion spending package referred to as the Inflation Reduction Act (“IRA”). It included billions in spending on agricultural programs, including $4 billion specifically for drought relief. The funding is set aside for projects in the “Reclamation States,” which include Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington, and Wyoming. 43 U.S.C. § 391. According to the IRA, the drought funding will be used for “grants, contracts, or financial assistance agreements” that will facilitate activities intended to mitigate the impacts of long-term drought, with priority given to projects located in the Colorado River Basin. H.R. 5376, 117^th Con. § 50233(b).

This comes during another year of extreme drought that has particularly impacted the Colorado River Basin and Western United States. In August, the Bureau of Reclamation (“Reclamation”) which manages federal water projects in Western states, announced that it was declaring a Tier 2a shortage on the Colorado River for 2023. Under a Tier 2a shortage, Arizona, Nevada, and Mexico will all face reductions of the annual amount of water they receive from the Colorado River. While Reclamation has already used IRA funding to begin implementing a program that will offer financial incentives to Colorado River water users who make reductions, the issue is expected to continue into next year with the likelihood of more mitigation measures being introduced.

Additionally, the Supreme Court’s recent decision to hear a case involving the Navajo Nation’s water rights on the Colorado River could add additional challenges to managing the River. In early November, the Court announced that it would hear appeals from a Ninth Circuit decision concluding that the government may owe a full accounting of the Navajo Nation’s water needs. If the Supreme Court finds that a full accounting is appropriate, the federal government would need to determine the extent to which the Navajo Nation needs Colorado River water to satisfy its agricultural needs. Because the Colorado River is already fully allocated, any additional uses of water in one area will reduce the water available for other users. Oral arguments for the case will likely be heard in 2023. For more information, see here.

West Virginia v. EPA

In late June, the Supreme Court issued its opinion in West Virginia v. U.S. Envt’l Protection Agency, 597 U.S. __ (2022). The case concerned EPA’s scope of authority under the Clean Air Act (“CAA”), and focused specifically on the Clean Power Plan (“CPP”), a series of regulations from the Obama Administration that EPA proposed but never carried out. Although the focus of the lawsuit was relatively narrow, the broader implications of the Supreme Court’s decision could impact the scope of agency authority going forward.

The lawsuit challenging the CPP was first filed in 2015. According to the plaintiffs, the CPP exceeded the authority granted to EPA by Congress under the CAA by proposing to implement a program that would require states to shift their electricity generation from higher-emitting power plants to lower-emitting plants. The plaintiffs claimed that because the text of the CAA did not mention generation shifting, but instead focused on technologies and practices that individual stationary sources of air pollution could adopt to reduce emissions, the CPP was outside the scope of CAA authority. The plaintiffs argued that the CPP violated the major questions doctrine, a legal doctrine developed by the Supreme Court which holds that federal agencies may not pass regulations concerning issues of “vast economic or political significance” unless Congress has explicitly granted it the authority to do so. In response, EPA argued that the lawsuit should be dismissed because since the CPP never went into effect, there was no regulation for the Supreme Court to review. Additionally, EPA claimed that the major questions doctrine did not apply because the generation shifting was only a suggested method that states could have used to meet emissions reductions under the CPP, not a mandate.

Ultimately, the Supreme Court sided with the plaintiffs. The Court concluded that the CPP violated the major questions doctrine and exceeded EPA’s authority under the CAA. While the case does not specifically concern agriculture, it presents an issue that has the potential to impact the agricultural industry moving forward because of its implications on agency authority. For more information on the case, and the Supreme Court’s decision, click here.

Conclusion

Once again, the past year was significant for environmental law developments. The above is only some of the main environmental law issues that impacted the agricultural industry in 2022. Many of these issues will advance into 2023, and the National Agricultural Law Center will continue to provide updates on these important topics.

For more National Agricultural Law Center resources on pesticides, click here.

For more National Agricultural Law Center resources on the ESA, click here.

For more National Agricultural Law Center resources on the CWA, click here.

For more National Agricultural Law Center resources on water law, click here.