Although predicting the future is always a risky exercise, I believe making any firm predictions about the direction of agricultural policy in 2016 is outright foolish. Let’s face it – 2016 is a wildcard. As proof, I only need to note that the orange guy from The Apprentice is leading the polls for the GOP nomination. With that said, I still believe that 2016 will be an important year for agricultural policy. Here are 9 matters that I think will have an impact on agricultural policy in the coming year:
1.Obama’s Last Year
Presidents tend to use their last year in office to shore up their legacy and tie up loose ends. It is unlikely that President Obama will pursue any new major legislative initiatives during 2016. However, the Obama Administration has a number of regulatory initiatives that it intends to finalize and implement in 2016. Of note for agriculture are the regulations implementing the Food Safety Modernization Act. While the major regulations were finalized in 2015, how these rules are actually applied to agriculture and food processors will be largely shaped in 2016.
Also, no American politician is less accountable to voters than a lame-duck president after voters have selected a replacement. As we saw with Bush (43) and Clinton (42), I would not be surprised to see executive orders on public land use restrictions or endangered species listings during the last few days of the President’s term.
Free trade is an area where the President and the Republican-controlled Congress appear to agree in principle. However, the devil is always in the details. Such is the case with the Trans Pacific Partnership (TPP). While the TPP is favorable for most of the ag. sector, provisions related to tobacco products and intellectual property appear to be holding up Congressional approval. While Congress may vote on the TPP, it is likely that they will wait out Obama’s term in hopes of having a Republican partner in the White House in 2017.
The “Waters of the U.S.” rule is currently being held up by a stay issued by the 6th Circuit Court of Appeals. It will take a while for the federal court system to work through the numerous legal attempts to halt implementation of the over-reaching WOTUS Rule. Agriculture can breathe a temporary sigh of relief because it is unlikely that these lawsuits will be resolved this year.
It is unlikely that we will see any major changes in our immigration system this year. Congress has made clear that they intend to wait out Obama’s term. Several presidential candidates have also made immigration a top issue in the 2016 campaign. While taking a hard line may be smart politics, it does nothing to fix the current labor situation in agriculture, which relies heavily on undocumented workers.
Unless the federal courts stop it, Vermont is poised to become the first state in the nation to require GMO labeling on July 1st. Vermont’s law is bad policy, raises food costs, and is nearly impossible to comply with. It appears that Congress may come together to pass legislation that would preempt state GMO labeling measures. However, this legislation may contain some compromise measures, such as a mandated phase-in of QR code “smart labels” that would indicate whether products are produced with genetic modification. This will require greater efforts to educate consumers on what genetic modification is and is not.
6.2016 Presidential Election
In all seriousness, agriculture policy has not been a priority at this point in either party’s nomination contests. Ethanol policy has been divisive in the Republican contest with many free-market candidates shying away from taking a strong position on the RFS (or flat-out opposition a la Sen. Cruz). Immigration has received a significant amount of attention from both parties, but there has been little focus on how this impacts our food production systems.
7.The Monarch Butterfly
The population of monarch butterflies has decreased substantially in recent years, so much so, that many activist groups are calling for it to be listed under the Endangered Species Act. These activists point to glyphosate as the root cause of the decline in monarch populations, which feed on milkweed. Listing of the monarch could trigger a number of onerous restrictions on land use in an effort to revitalize the population. With a migration path that covers much of the United States, an ESA designation could have serious impacts for some farmers.
I expect that the U.S. Fish and Wildlife Service, which has the responsibility for ESA listings, will pursue creative routes for population revitalization without having to resort to listing. The agency took this approach with the greater sage grouse, although it still resulted in numerous restrictions on federal land use. I would expect to see FWS pursue some alternatives to listing the monarch butterfly in 2016, such as programs to encourage milkweed growth on (butter)flyways.
8.Non-traditional Environmental Lawsuits
While government agencies and private plaintiffs still primarily rely on nuisance torts and the Clean Water Act to target agricultural producers, we have seen an uptick in more creative approaches to litigation. Some activists (and the federal government) have started to use the Safe Drinking Water Act and the Resource Conservation and Recovery Act to target dairies on the west coast with some success. If these approaches to litigation take hold, then producers will need to adapt to protect their rights and ensure that they are in compliance.
9.Unleashing the Drones
FAA has announced that it intends to finalize its rules for commercial operation of small unmanned aerial vehicles (drones) in 2016. FAA’s new rules will dramatically expand the number of commercial drone operators, which has been currently limited to licensed pilots flying under a Section 333 exemption. However, the proliferation of drone flights will likely add to the growing concerns over privacy related to drone operations over private property. I expect some states may consider some privacy measures to restrict drone flights over private residences and farms.
Happy New Year!
John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA. John focuses his practice on agricultural and environmental law. He occasionally tweets at @DCAgLawyer. This column is not a substitute for legal advice.