Category: Ag Law

On July 23, 2025, the EPA opened the public comment period for the proposed registrations of three over-the-top (OTT, i.e., post-emergent) dicamba herbicides to be used with dicamba-tolerant cotton and dicamba-tolerant soybeans.  This announcement was accompanied by several updates to the labels originally proposed by the applicants (i.e., pesticide companies submitting proposed labels based on their own data).  While those updates by the EPA include a litany of factors ranging from runoff and irrigation mitigation to personal protective equipment (PPE) for applicators, the most interesting change in the label can be found in the new mechanism for application cutoffs.

Under the labels submitted by the pesticide manufacturers, there was either an application cutoff date or a complete prohibition on OTT applications.  For example, per Bayer’s submitted application for registration, the XtendiMax label would have prohibited any OTT applications on soybeans but allowed OTT applications on cotton through July 30^th.  These application cutoff dates were originally set in place by state agricultural agencies in 2018, in the immediate aftermath of dicamba drift issues.  However, the EPA in 2020 restricted the powers of those state agencies by scrutinizing FIFRA Section 24(c) registrations that state agricultural agencies had used to create application cutoff dates.  The EPA still maintains the position that state agricultural agencies cannot use FIFRA Section 24(c) to enact additional restrictions on a pesticide’s use.  As such, any application cutoff dates for OTT dicamba since that date have been applicable nationwide (e.g., a June 12^th application cutoff date would be put in place for farmers from Georgia to North Dakota).   

Under the EPA’s latest proposed OTT dicamba labels, the date-based cutoffs have been replaced in favor of temperature-based restrictions on applications.  Under the latest proposal, an applicator will have to know both the highest forecasted temperature for the day of the application as well as the highest forecasted temperature of the day following the application.  Temperature forecasts are required to be conducted by the National Weather Service (NWS) or the National Oceanic and Atmospheric Administration (NOAA).  If both of those temperatures are forecasted below 75 degrees Fahrenheit, the applicator can apply up to the maximum application rate of OTT dicamba, which is 0.5 pounds per acre with 20 fluid ounces of a volatility reducing agent (VRA). 

When the highest relevant temperature of the day of the application and the following day is between 75 degrees Fahrenheit and 85 degrees Fahrenheit, the applicator can still apply up to 0.5 pounds per acre but must increase the VRA to 40 fluid ounces.  When the highest temperature of the two relevant days is between 85 degrees Fahrenheit and 95 degrees Fahrenheit, the applicator must abide by the prior restriction but now must choose between reducing the area treated by 40% or eliminating tank mix partners (the VRA must still be included).  When the highest forecasted temperature of the day of the application or the day following the application is 95 degrees Fahrenheit or higher, any application of OTT dicamba herbicides is prohibited.     

Per the EPA, these temperature-based restrictions are intended to simplify the application process for farmers, ideally alleviating the oft-made complaint that the dicamba labels – which could reach 40 pages in length – were too complicated for farmers to effectively abide by.  Still, at least one state regulator has stated that a lack of specificity on dates and times in which farmers can spray OTT dicamba will be problematic for farmers who are preoccupied with every other matter that inevitably arises when crops are in the ground.

The timing of this announcement by the EPA indicates that OTT dicamba herbicides may be available for the 2026 growing season, though environmental groups have promised to fight such registrations just as those groups have successfully done with the prior two registrations of OTT dicamba.  

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Brown, Nicholas. “Latest Proposed Dicamba Labels Move to Temperature-Based Cutoffs.” Southern Ag Today 5(39.5). September 26, 2025. Permalink

“In this world nothing can be said to be certain, except death and taxes” – Benjamin Franklin, 1789. 

On July 3^rd, 2025, the passage of H.R. 1, commonly known as the One Big Beautiful Bill, made several changes to federal spending that directly impact American agriculture, including a permanent increase to the unified credit to $15 million per individual starting in 2026 and indexed to inflation moving forward. Why does this matter to American agriculture? Without the change to the unified credit in H.R.1, the credit would have sunset back to the 2018 amount of $5 million per individual adjusted for inflation which would have been around $7 million. For estates over the amount of the unified credit, the maximum estate tax rate is 40% of the net worth that exceed the current unified credit. As a simplified example, if a farmer owns a tractor worth $100,000 and has already used their unified credit, then their estate would need to pay $40,000 in taxes for that tractor at their death.

While $7 million sounds like a tremendous amount of money to an individual, in an economic reality where farm equipment can cost more than $800,000 per piece of equipment and land can bring more than $20,000 per acre in certain parts of the country, this credit can be rapidly expended. The net worth over this amount would be subject to the estate tax. A popular saying amongst producers is that farmers are “asset rich and cash poor.” This means that succeeding generations could be forced to sell off land or equipment to meet estate tax obligations. This has not been the case over the past several years because of the high unified credit, so the estate tax has only been an issue for some of the larger farms in the country. There is also the issue of portability, which is combining the unified credits of married couples with some simple estate and tax planning. Portability essentially allows the surviving spouse to double the unified credit in many cases. With a high unified credit and portability, this makes the likelihood of the vast majority of farming operations paying estate taxes remote for the immediate future.

So, does this solve the problem? H.R. 1 resolves one problem centered on the estate tax; however, a larger problem is looming for American agriculture, and that is the lack of succession planning. Suppose the principal operator of a farming operation is incapacitated in the immediate future. Do other members of the farming operation have the necessary experience and knowledge to keep the farm economically viable? Has the older generation planned and prepared for a transition in a way that may not fracture relationships between members of the younger generation? Because farms and families are unique, this means that succession plans are also going to need to be carefully tailored to meet their specific needs. Attorneys and CPAs have not done a good job of convincing their farm clients of the importance of succession planning, and farmers are more than willing to put off the issue to a later date. The problem is that Benjamin Franklin was correct when he stated that death was a certainty. Avoiding succession planning does not make the problem go away, it just leaves an even larger burden on the next generation. 

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Rumley, Rusty. “Federal Estate Taxes, Succession Planning and the One Big Beautiful Bill.” Southern Ag Today 5(38.5). September 19, 2025. Permalink

We are excited to bring you the 1,000th Southern Ag Today article! 

A recent federal district court decision constituted a big win for livestock and poultry operations around the country.  For years, there has been uncertainty related to livestock and poultry operations’ obligation to report air emissions under two federal laws, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA).  Congress amended CERCLA in 2018 to exempt livestock operations from air emissions reporting; however, it did not include a similar exemption in EPCRA.  Shortly after the change, the EPA exempted livestock operations from EPCRA’s reporting requirements.  Environmental groups sued over this exemption arguing that the exemption violated EPCRA.

In August 2025, the federal district court for the District of Columbia upheld the exemption in a Memorandum Opinionissued in Rural Empowerment Ass’n for Cmty. Help v. EPA, No. 18-2260 (TJK) (D. D.C. Aug. 7, 2025).  

Background

Congress enacted CERCLA and EPCRA to ensure federal, state, and local authorities could respond to hazardous substances released into the air. For years, the Congress and the EPA wrestled with whether livestock and poultry operations should be required to report air emissions from manure and decomposing manure. In 2018, Congress resolved part of the issue by passing the Fair Agricultural Reporting Method Act (FARM), which exempted such emissions from CERCLA reporting. Following FARM, the EPA enacted a rule extending the exemption to EPCRA Section 304, reasoning that because livestock and poultry emissions no longer triggered CERCLA’s reporting requirement, EPCRA’s parallel duty to notify local officials was likewise inapplicable. 

Environmental groups sued the EPA, arguing that in enacting the exemption the EPA had misinterpreted EPCRA and failed to consider environmental consequences, thereby violating EPCRA, the Administrative Procedure Act (APA) and NEPA.  Several agricultural groups intervened in the lawsuit including the American Farm Bureau Federation, National Cattlemen’s Beef Association, and National Pork Producers Council.

Court’s Reasoning

The court sided with the EPA and agricultural groups upholding the reporting exemption.  Specifically, the court relied upon the decades-old interpretation of the interplay between CERCLA reporting requirements and EPCRA reporting requirements.  Congress expressly tied the EPCRA reporting requirements to CERCLA, and the EPA has long required only those releases that require notification under CERCLA to report under EPCRA.   The EPA’s decision to exempt manure emissions from EPCRA based on Congress’s exemption under CERCLA was neither inconsistent nor unreasonable, according to the court.  Additionally, the court held that NEPA did not apply.  Congress made clear in the FARM Act that farm animal waste was exempted from CERCLA and that reporting under EPCRA is dependent on CERCLA.  Because of this, the EPA was not required to undertake a NEPA analysis to enact its exemption. 

Why is This Important?

For livestock operations, required reporting under CERCLA and EPCRA was burdensome, complex, and difficult to quantify.  Additionally, some believed that requiring such reports caused unnecessary alarm for citizens.  At least for now, this decision answers the long-standing legal battle over air emissions reporting from livestock and poultry operations.  It’s important to note, the environmental groups may appeal this decision to the D.C. Circuit Court of Appeals.

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Goeringer, Paul, and Tiffany Dowell Lashemt. “Clearing the Air on Manure: What the New Ruling Means for Agriculture.” Southern Ag Today 5(36.5). September 5, 2025. Permalink

Over the past five years, the number of data centers has doubled in the U.S.  The U.S. currently accounts for roughly 54 percent of total global data center capacity.  The number of data centers will only grow in the U.S. over time as we see more computing turning to artificial intelligence-based systems.  These data centers can bring economic benefits to the local economy but can also create additional problems in the areas where they are built.  If states make a push for data centers to develop in an area, this can increase power needs within that area, which will lead to increased infrastructure needs (such as transmission lines) to support the power needs of these data centers. New transmission lines may target your property.  With that in mind, let’s talk about what eminent domain is, why power companies have the right to utilize it, and what landowners should consider when presented with a notice.

The power of eminent domain comes from the U.S. and state constitutions, which allow governments or companies that have been granted eminent domain power by the government to take private property for public use, with just compensation. The law requires owners to be paid fair market value.  State legislatures often provide the power of eminent domain for easements to certain entities that provide a public service.  These private entities are frequently electric, gas, and cable companies.  When the use of eminent domain results in an easement being taken for a transmission line, the analysis of just compensation will depend on the impact on the property from the taking.  This is often not an easy analysis and will require experts to determine the impacts on the dominant estate.   

This entire process is driven by state law; it’s hard to do a basic overview for that reason.  What should landowners do when presented with notices that their land might be in a proposed transmission line path?  First, do not delay responding to the request, and look for competent legal representation with experience in eminent domain actions.  You can also talk to neighbors or other trusted advisors to get ideas on reasonable attorneys in your area.  An eminent domain attorney will understand how to assist you in intervening in any state processes to determine the route, understand the experts needed to help determine fair market value when looking at the value of the easement, and assist in drafting terms to protect the land in the easement document.

No one wants to get the notice in the mail that their property might be taken for a transmission line easement.  As we continue to see states make pushes for the development of data centers, we may see a rise in the need for increased transmission lines.  Not sitting on the notice and talking to attorneys early can help you better protect your rights.  At the same time, it will reduce your stress and, hopefully, let you keep doing what you enjoy doing on your property.  

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Goeringer, Paul. “High Voltage, Higher Stakes: When Data Demands Your Dirt.” Southern Ag Today 5(33.5). August 15, 2025. Permalink

The recent H.R. 1 budget reconciliation bill signed into law on July 3, 2025 made a number of changes to farm programs and qualifications that would normally be addressed in a five year farm bill. One of these is payment limitations on federal programs (e.g. conservation, crop insurance subsidies, disaster payments, etc.) imposed on farms organized as S corporations (S corps) or limited liability companies (LLCs). The need for this change was highlighted in a previous Southern Ag Today article that called attention to the disparate treatment of certain entities. As noted in the article, modern-day payment limitations trace their origins to the 1970 Farm Bill.. Since that time, larger farms – those with multiple owners actively engaged in operations – often have required specialized structuring to allow their operating or landholding entity to capture more than one payment limitation to contribute to the overall operation.

Since the 2008 Farm Bill, LLCs and S corps have been treated as “individuals” and limited to one payment limit, regardless of the number of members or shareholders in the entity. This was the case even though for federal income tax purposes, these entities are considered “pass through” entities where the individual equity owners pay or take their pro-rata share of tax liability (or loss). Partnerships and joint ventures on the other hand were explicitly exempt from the payment limit, so each partner could receive payments up to their individual limitation and apply to the business of the partnership or joint venture (i.e. the farm operation). One distinction is that such arrangements are not considered entities in that they do not require registration and formation under state law. As such, partnership arrangements are not considered legal individuals, and they do not shield the equity owners from individual liability for actions of the partnership or other partners.Such lack of liability protection made operating as a partnership risky to the individual partners, perhaps not worth the risk simply to attain multiple payment limitations. A workaround legal arrangement came into practice, whereby the farm firm would operate as a partnership, but the individual partners would organize single member limited liability companies or S corps and assign their interest to their LLC or corporation, such that the LLC or corporation became the partner, rather than them in their personal capacity. This had the theoretical effect of shielding their personal assets from any tort litigation liabilities of the partnership. The arrangement looked like this:

In this arrangement, instead of the farm being limited to one payment of $125,000, each individual LLC would qualify for a payment, so the farm operation could benefit from $375,000 in federal benefits (3 x $125,000).

The HB1 provision now places LLCs and S corps alongside partnerships and joint-ventures as pass-through entities for payment limitation purposes. Now, the farm may bypass the step of forming a partnership and organizing individual “partner entities,” and go straight to organizing the farm firm as one LLCs or S Corp. Each individual partner or shareholder who is “actively engaged in farming” will have their own payment limitation, so the farm firm benefits from the individual limitation multiplied by the number of members (LLC) or shareholders (S Corp). The limitation itself – previously set at $125,000 per individual – has also been raised to $155,000 per individual. The Secretary of Agriculture is authorized to increase this amount yearly with inflation. The simplified arrangement – along with the increased payment limit – may be formed as:

Whether farm firms will reorganize may be a matter of cost priority. The higher costs of the arrangement under the old rules came in the form of tax accounting for both the partnership and each individual partner entity, annual filing fees with the secretary of state, plus increased paperwork with the county Farm Service Agency office. For brand new operations, reduced legal fees and state filing fees should offer savings.

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Branan, Andrew. “New Federal Law Simplifies Payment Limitations.” Southern Ag Today 5(32.5). August 8, 2025. Permalink