On September 18, 2018, the Supreme Court of Pennsylvania denied a Petition for Allowance of Appeal filed by landowners involved in a lawsuit against owners of a concentrated animal feeding operation (Burlingame v. Dagostin, No. 296 MAL 2018). Will-O-Bett Farm originally operated as a dairy farm, then as a beef farm, and eventually was converted to a swine operation in 2011. A few years later, the farm began spreading liquid swine manure on its fields, and several neighboring landowners filed suit against the farm alleging that the resulting odor constituted a nuisance. Will-O-Bett Farm filed for summary judgment, arguing that it was protected from suit under Pennsylvania's Right to Farm Act (RTFA) (3 P.S. §§ 951-957). Under the RTFA, an agricultural operation is protected from a nuisance claim so long as it has been in operation for at least one year and the conditions complained of have not changed during that one-year period. Where the agricultural operation has undergone an expansion or substantial alteration, the one-year time period, within which a lawsuit can be filed, is effectively eliminated if the changes were addressed in a nutrient management plan. Ruling in favor of Will-O-Bett Farm, the trial court found that the farm's application of liquid swine manure had been addressed in an approved nutrient management plan. As such, the RTFA provided a defense to the nuisance lawsuit. The Pennsylvania Superior Court affirmed the trial court's order, and now the Pennsylvania Supreme Court has declined further appeal.

On September 14, 2018, the U.S. Food & Drug Administration (FDA) Center for Veterinary Medicine (CVM) released its five year plan, Supporting Antimicrobial Stewardship in Veterinary Settings. In the initial announcement of this plan on July 31, 2018, FDA explained that overuse of antimicrobial drugs can promote development of antimicrobial-resistant bacteria. In order to slow the growth of resistant bacteria, CVM will be encouraging judicious use of antimicrobial drugs in food-producing animals. Under CVM policy, "medically important antimicrobial drugs should only be used when necessary to treat, control, or prevent disease." CVM requires each animal drug to go through a pre-approval review, and CVM conducts post-approval surveillance and monitoring. The key goals of the plan include aligning antimicrobial drug use with the principles of antimicrobial stewardship, fostering stewardship in veterinary settings, and enhancing the monitoring of antimicrobial resistance. One of the anticipated changes set forth in the plan includes the revision of conditions for antimicrobial use approval in food-producing animals. CVM also will develop and implement a strategy to promote antimicrobial stewardship in companion animals. Educational materials will be prepared for veterinarians and animal producers explaining how to implement effective antimicrobial stewardship in veterinary settings. In addition, CVM plans to strengthen compliance programs, increase international outreach, and increase data sharing and reporting.

On September 18, 2018, California Governor Jerry Brown signed into law new legislation which will permit small home kitchen businesses to prepare and sell food products from their homes. The new law, AB 626, redefines "food facility" to include microenterprise home kitchen operations with no more than $50,000 in gross annual sales (2018 Cal Stats. Ch. 470). The law provides the governing county or city with discretion to authorize permits. To obtain a permit, the applicant must submit information such as the type of food products to be prepared, the food handling process, cleaning methods, and holding temperatures. After the initial inspection, these operations will generally not be subject to routine inspections. Microenterprise home kitchen operations must not include catering, and the operator must sell directly to consumers and not through any retailer or wholesaler. In addition, there can be no more than one full-time employee, not including family members or others living in the home. The law also limits the home business to no more than 30 individual meals per day and no more than 60 meals per week. According to the legislature, the law is intended to create economic opportunity for individuals, often minorities, who may be unable to participate in traditional food employment.

On September 17, 2018, the U.S. District Court for the Middle District of Pennsylvania granted the motion of three Pennsylvania state senators – Joseph B. Scarnati, Lisa Baker, and Gene Yaw – to intervene in court proceedings initiated by the Wayne Land and Mineral Group (Wayne), LLC, challenging the Delaware River Basin Commission's moratorium on hydraulic fracturing in the Basin (Wayne Land and Mineral Group LLC v. Delaware River Basin Commission, No. 13:16-cv-00897-RDM). On November 30, 2017, the Commission published draft regulations prohibiting high-volume hydraulic fracturing within the Basin. Wayne has filed suit to contest the Commission's jurisdiction to review and approve natural gas projects located in the Delaware River Basin and thus its authority to prohibit hydraulic fracturing operations. The U.S. District Court for the Middle District of Pennsylvania originally dismissed Wayne's complaint, but on July 3, 2018, the U.S. Court of Appeals for the Third Circuit remanded the case back to the District Court. In their Motion to Intervene, the three senators argued that they have a "significant protectable interest" in the proceedings as they are a "contracting party" to the Delaware River Basin Compact and, more particularly, because they "have a cognizable property interest in the subject matter of this action; the Commission's moratorium is not confined to private property, but also extends to Commonwealth-owned property that is part of the Trust, over which the Senators and other elected officials have trustee obligations."

Professor Ross Pifer, CASL Director
Sean High, Staff Attorney
Jacqueline Schweichler, Education Programs Coordinator
Chloe Marie, Research Fellow
Brennan Weintraub, Research Assistant

The Center for Agricultural and Shale Law provides interested individuals with relevant and timely agricultural and shale law updates through various media sources. These sources include:

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The Center for Agricultural and Shale Law conducts research and disseminates information on agricultural and shale law topics. Through its programs, the Center serves a wide variety of stakeholders including agricultural producers, landowners and royalty owners, business professionals, judges, attorneys, legislators, government officials, community groups, and the general public. Center programs are funded in part by the Pennsylvania Department of Agriculture and supported by a multi-year grant from the United States Department of Agriculture National Agricultural Library (an entity within the Agricultural Research Service).

The Center for Agricultural and Shale Law is one of four members of the National Agricultural and Food Law Consortium which includes The National Agricultural Law Center at the University of Arkansas, The National Sea Grant Law Center at the University of Mississippi School of Law, and The Agricultural and Resource Program at the Ohio State University. Consortium members collaborate to provide objective agricultural law and food law information on national issues such as land-based food, fiber, and energy production systems as well as seafood and marine-based production via aquaculture.

This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.

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