Agricultural and Agribusiness Law

An Introduction for Non-Lawyers

Theodore A. Feitshans

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429885815
• Edition: 2
• Topic: Derecho
• Subtopic: Derecho agrario

This introductory textbook provides an overview of the concepts necessary for an understanding of agricultural and agribusiness law. The text will help students of land-based industries with little or no legal background to appreciate and identify issues that may require referral or consultation with legal counsel. This new edition is fully revised and updated, particularly addressing developments in taxation and trade, and includes a new chapter on criminal law, an area of increasing relevance to agriculture.

Each concise chapter addresses a different legal issue that those employed in agriculture and agribusiness may face, and both federal law and representative examples of state law are included. In addition to traditional topics such as contracts, property law, and estate planning, the book also covers more contemporary issues such as organic certification, animal law, genetically engineered crops, and food safety.

Agricultural law extends beyond those directly engaged in farming to those in agribusiness who provide services and inputs to farmers, buy farmers' products, store or transport products, manufacture food products and serve as intermediaries between farmers and consumers. The book will, therefore, also serve as a reference and a guide for those employed in agribusiness and agriculture.

Chapter 1

Understanding the U.S. legal system

Introduction

The key to understanding the U.S. legal system is that it is not one system but many. The U.S. legal system is a federal system composed of separate systems that include the states, other associated territorial entities, and the Indian tribes.¹ Over all of these entities sits the federal government. The relationship between the federal government and the states is governed by the Constitution. The relationship between the federal government and associated territorial entities and the Indian tribes is governed by the Constitution and a complex of treaties, statutes, and court orders. Most of these entities, but not all, use some version of English common law. This chapter provides an overview of these systems and how they are linked.

English common law is a system of judge-made law that is used in Great Britain and its former colonies and dependencies. Each published judicial decision creates law not only for the case but for all subsequent decisions by that court or any court below it. This is in contrast to civil law systems that are used in most other countries, except for some Muslim countries that use a sharia law system. Civil law systems use comprehensive codes that attempt to capture all possible situations that may arise. As one may imagine, such codes are very comprehensive. The Napoleonic code was the basis of the first modern civil law systems. Statutes in common law systems tend to be rather sparse by comparison. In common law systems, the gaps in statutes are filled by regulations promulgated by regulatory agencies and by judicial decisions. Common law will be discussed in more detail later in this chapter.

The rise of the modern regulatory agency has led to a convergence between common law and civil law systems. Regulatory agencies such as those of the U.S. Department of Agriculture, the U.S. Environmental Protection Agency, the U.S. Food and Drug Administration, and a host of others provide much of the detail missing from legislation through regulations and “guidance.” State agencies, and even local agencies, function in much the same way, although often with less public input and transparency. The rise of the modern regulatory agency was one of the major developments in the law in the United States during the twentieth century. Agency law is usually referred to as administrative law. Much of the law applicable to agriculture in the United States is administrative law. An introduction to administrative law will be provided later in this chapter.

Constitutions and key provisions of the U.S. Constitution

Most modern nations have written constitutions. A constitution is a written document that sets forth the powers and limitations of government. The U.S. Constitution represents an agreement between states to limit their own sovereignty in favor of a central government with the power to handle certain enumerated functions. The constitutions of the respective states provide the consent of the peoples of those respective states to a form of government and the exercise of certain sovereign powers. The powers of any government under its constitution are never absolute; some powers are always reserved to the people. Sovereignty is defined as the characteristics of an independent government. The federal government and state governments are all sovereign, but usually municipal and county governments are not. In many states, local governments have no power except that given to them by the state legislature. In some states, local governments have sovereignty delegated to them through the state constitution. This can be an important distinction because it determines whether a local government may act independently of the state legislature. Indian tribes are sovereign preexisting extra-constitutional entities whose relationship to the United States is governed by treaty or other law. U.S. territories are federal entities, like counties and cities of states that have no independent sovereignty. There are, in addition, a few associated entities that have sovereignty of their own.

The federal Constitution is the highest source of U.S. laws. No other law can override it. The federal Constitution divides sovereign powers between the federal and state governments. It grants some powers to the federal government only (called “exclusive” powers), grants some powers to the federal and state governments (“concurrent” powers), and refuses other powers to both the federal and state governments (“denied” powers). Any power not mentioned by the federal Constitution in one of these three categories is implicitly a power of the states. When a power is given to the states it is said that it is a power for the people. The federal government is, therefore, a government of limited powers. State governments are considered, conversely, as having plenary power, limited only by restrictions placed on them by their respective constitutions and by the explicit and implicit limits established by the U.S. Constitution.

Where federal law supersedes state law, state law is said to be preempted, meaning that it is not enforceable. There are three types of preemption: express, field, and conflict. Express preemption is found where either the Constitution or a statute expressly preempt state law. Field preemption is one of the two types of implied preemption. Field preemption occurs when the law enacted by Congress is so comprehensive that it leaves no room for states to regulate in the field. Example 1.1 provides an example of field preemption. This type of implied preemption is rare in agricultural law. Example 1.2 discusses a Supreme Court decision where field preemption was rejected. The second type of implied preemption is conflict preemption. Where federal law and a state law are in conflict, the federal law will preempt the state law. Example 1.3 discusses a Supreme Court decision where conflict preemption was rejected by a 5 to 4 majority. The dissent provided an excellent argument for why conflict preemption should be applied in an agricultural context.

Example 1.1 The state of X decided to promote innovation by issuing certificates of innovation to inventors. No person in the state of X was allowed to make, use, or sell any product or service embodying an invention protected by a certificate of innovation without the written permission of the certificate holder. Federal courts have long held that protection of inventions through the patent system under Article I, Section 8, Clause 8 (the Patent and Copyright Clause) occupies the field, leaving no room for state protection of inventions. It would be an adequate defense for any person sued for violation of such a state certificate to assert field preemption.

Example 1.2 Dow Agrosciences’ label and its marketing campaign represented that its pesticide, Strongarm, was suitable for all peanut crops. The Supreme Court took as fact the finding of the trial court that Dow Agrosciences knew or should have known that its pesticide would severely stunt peanuts in soils with a pH level of 7.0 or higher. Dow Agrosciences eventually reregistered its label with the Environmental Protection Agency (EPA) to recommend that Strongarm not be used on peanuts planted in soils with pH levels of 7.2 or higher. EPA approved a supplemental label for New Mexico, Oklahoma, and Texas, the primary states where those soils are found. The plaintiffs, Texas peanut farmers who experienced severe crop damage prior to the label change, brought state tort claims based on strict liability and negligence. They also raised state law claims based upon fraud, breach of warranty, and violation of the Texas Deceptive Trade Practices-Consumer Protection Act. Dow Agrosciences countered that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) preempts state law that imposes additional or different packaging or labeling requirements from those approved by EPA.² In Bates v. Dow Agrosciences,³ the Supreme Court held that FIFRA’s express preemption of different or additional labeling or packaging requirements for pesticides was limited. State laws are not preempted if they are sufficiently similar to the federal law or if the state did not require a change to federally mandated packaging or labeling. The Supreme Court analyzed the boundaries of federal preemption and remanded the case to the lower courts for a determination of which state law claims survived and which were preempted. That the Bates decision was not unanimous underscores the difficulty determining the outer boundary of express preemption in a particular case.

Example 1.3 In the Supreme Court decision in Florida Lime & Avocado Growers v. Paul,⁴ the Court declined to invalidate a California standard for avocados based upon conflict preemption by the federal standard for avocados. The Court found no actual conflict and no actual intent by Congress to preempt the field. In this decision, only five of the nine justices on the court agreed that there was not conflict preemption, again illustrating the difficulties in drawing the boundaries of preemption. The four dissenting justices noted that the California standard for avocado maturity resulted in Florida avocados certified as mature under the federal standard being rejected and destroyed by California.

Articles of the U.S. Constitution

The original text of the Constitution as ratified included seven articles that defined the original powers of the federal government. Article I of the U.S. Constitution defines the functions and powers of Congress, the legislative branch of federal government. Congress as established by the Constitution consists of two houses: the Senate and the House of Representatives. Each state has two Senators. Representation in the House is apportioned by population, with each state having at least one member. Congress has the exclusive authority to legislate through the enactment of statutes or laws. Every federal statute begins in a bill introduced in either house of Congress. For Congress to enact a bill, both houses must pass an identical version of the bill to be sent to the president. The president may either sign the bill, veto the bill and return it to Congress with an explanation of his or her objections, allow the bill to become law without his or her signature or, in rare cases, exercise a pocket veto. A regular presidential veto may be overridden by a two-thirds vote of each house of Congress.

Section 7 of Article I requires that all appropriations bills (spending bills) originate in the House of Representatives. The Senate must agree. All spending bills enacted by Congress must be submitted to the president. The process of authorizing funds for any federal activity is complex. Substantive legislation typically authorizes the spending of up to a certain amount of money. So for example, a bill that establishes a program to encourage farmers to use conservation practices may authorize spending of $200 million per year. That authorization is only the first step. Congress must pass a budget each year that funds the authorized program. It is not unusual for the actual funding provided to be much less than the authorization. Actual funds provided for some programs may even be zero. This two-step process is a source of both confusion and disappointment to the members of the public who attempt to plan their activities based upon expected federal funding.

Section 8 of Article I enumerates the legislative powers of Congress. These powers include those typical powers of government that include powers to tax and spend, borrow money, coin money, and establish post offices and roads. Powers important to agriculture include the power to establish rules for immigration (naturalization), exclusive authority over bankruptcies, authority to establish patent and copyright systems to protect the intellectual property of inventors and authors, and the power to regulate interstate and international commerce and commerce with Indian tribes. Two of these powers are the authority for most federal agricultural programs. The first of these is the power to spend money. This power is found in the first clause of Section 8. It is called the Spending Clause, or sometimes, the Taxing and Spending Clause. Many of the federal programs designed to help farmers protect soil and water are based upon the Spending Clause. Farmers are voluntarily enticed to participate to obtain the federal funds provided to participants. The second power, often called the Commerce Clause, is found in the third clause of Section 8. The Commerce Clause provides the express power to the federal government to regulate foreign and interstate commerce and commerce with the Indian tribes.

The Commerce Clause has been expanded to cover many situations and is the basis for much federal law. It is often called the elastic clause as Congress has stretched it to provide authority for federal laws covering many subjects including agriculture and protection of the environment. The test used by the Supreme Court to determine whether Congress is acting within the scope of its authority under the Commerce Cause is whether an activity has a substantial impact on interstate commerce. Example 1.4 illustrates the application of this test.

Example 1.4 The Supreme Court decision in Wickard v. Filburn⁵ affirmed that Congress may regulate an activity that is entirely intrastate based upon a substantial impact on interstate commerce. Indeed, the activity was not only intrastate but was confined to one farm. Mr. Filburn grew wheat that was entirely consumed on his farm. While his individual use was trivial, the Supreme Court found that the collective effect of farmers raising and consuming their own crop had a substantial impact on interstate commerce by reducing market demand, thereby undermining federal efforts to support the price of wheat.

The Commerce Clause may prohibit state action even when Congress has not acted. This doctrine is referred to as the dormant Commerce Clause. An action by a state that tends to burden interstate commerce may be prohibited by the Commerce Clause directly, without congressional action. Any state regulation that substantially burdens either interstate or international commerce risks being preempted by the dormant Commerce Clause.⁶

An explicit limitation on state power is found in the Contract Clause of Section 19 of Article I. The Contract Clause prohibits states from unreasonably impairing private contracts. This is an example of a denied power. Example 1.5 provides an example of how the Contract Clause limits state legislative options.

Example 1.5 North Carolina enacted legislation to limit the exploration phase of oil and gas leases to ten years. The legislation applied only to those leases signed after the date upon which the legislation became law. Thus, the legislation did not apply to contracts already signed before the effective date of the legislation. To apply the law to such preexisting leases with terms greater than ten years would have substantially impaired existing contracts in violation of the Contract Clause.

Article II of the Constitution vests the executive power in the president. Article II defines the functions and powers of the executive branch. Section 2 of Article II defines the powers of the president, one of which is to make treaties with foreign countries with the consent of two-thirds of the senators present. Article I, Section 10 prohibits states from making treaties with foreign nations and from taxing exports and imports. There is an exception that allows for fees associated with inspections. This exception allows states to operate and charge for agricultural inspections to prevent transmission of disease and the introduction of unwanted species that may endanger valuable crops and livestock. States are prohibited from making agreements with other states unless Congress consents. Such agreements, formally approved by Congress, are called interstate compacts.

Under Article II, the president is the elected official who is responsible for enforcing the federal law. He or she is commander-in-chief of the armed forces. The president shares war-making powers with Congress. While the president has the authority to respond to crises and minor incidents, the president must notify Congress of extensive engagements and seek funding to support those efforts from Congress. Article II is the source of the president’s po...