Category: Ag Law

If you have been following the national agricultural news lately, beyond discussions on policy, there has been a focus on states’ legislatures considering “Crop Protection” legislation. This liability protection would extend to companies producing federally approved pesticides. 

We have all seen the news of large settlements from users of federally approved pesticides claiming linkages between their use and cancer. The biggest of these lawsuits is the Roundup litigation. To date, Bayer has paid roughly $10 billion to settle claims that Roundup has caused cancer.  At the same time, class actions have been filed against Syngenta, the manufacturer of Paraquat, for claims that the product causes Parkinson’s Disease.  Finally, AMVAC Chemical Corporation has been sued due to claims that Dacthal (DCPA) has caused birth defects.  

The debate on Crop Protection legislation concerns this type of litigation. Under the legislation being proposed in several states, as long as the federally approved pesticide includes a label with the most recent human health assessment required under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) or a label containing consistent with the Environmental Protection Agency’s (EPA) carcinogenicity classification for the pesticide required under FIFRA this would be a sufficient warning label.  Under the legislation, this label would be enough to meet the duty to warn under state law.  This would severely limit the ability for users to sue later for alleged health issues (such as cancer or Parkinson’s Disease).  

This legislation has been signed into law in North Dakota, and as of the writing of this article, it has passed the Georgia legislature and has not been signed by the Governor.  Similar legislation is currently before the legislatures in Florida, Iowa, Missouri, Oklahoma, and Tennessee. 

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Georinger, Paul. “What is Crop Protection Legislation.” Southern Ag Today 5(20.5). May 16, 2025. Permalink

A significant change to the Endangered Species Act (“ESA” or the “Act”) was proposed on April 17, 2025 which could significantly change the landscape to which ESA is applied, quite literally. The U.S. Fish and Wildlife Service (“FWS”) and National Oceanic and Atmospheric Administration (“NOAA”) (collectively the “Services”) propose to eliminate the current regulatory definition of “harm” under the Act. The ESA declares it unlawful for any person to “take” an endangered or threatened species. The Act defines a “take” as acts which “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”^[i]In 1995, the Services, through the regulatory rulemaking process, defined “harm” to include significant habitat modification or degradation which actually kill or injure protected species by affecting behavior patterns.^[ii] This definition has proven problematic for energy producers, agriculturalists, and foresters whose privately owned land may encompass suitable habitat for endangered or threatened species, even though the species itself may not actually be found there. 

An extreme example of this came to a head in 2001, when owners of a Louisiana tree farm brought suit against FWS for designating 1,500 acres of the privately owned farm as critical habitat under the ESA because two historical breeding sites of the protected Mississippi gopher frog were located there even though the frog had not been observed there in nearly 40 years. Despite the ESA providing the Services authority to exclude areas from critical habitat designation where the benefits of such exclusion outweigh the designation,^[iii]conflict between farmers and ranchers in the southeast and application of the ESA to habitats for protected species such as the whooping crane, eastern indigo snake, gopher tortoise, red wolf, and others has intensified. The Services now propose to rescind the current definition of “harm” under the Act, stating that it is inconsistent with the statutory language, unnecessary, and does not reflect the single best meaning of the statutory text. The Services suggest that the word “harm” in the statute is clear enough without expounding further upon the term as the current regulatory definition does.

Though not yet final, the Services’ proposal to rescind the definition of “harm” is primed for legal challenges. The proposed rule would narrow the scope of the ESA’s reach by removing mention of habitat in consideration of whether one has harmed a protected species. This would have broad implications for energy producers, ranchers, loggers, and developers across the U.S. The proposed rule is open for public comment through May 19, 2025.^[iv]

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^[i] 16 U.S.C. 1532(19) (emphasis added).

^[ii] 50 CFR 17.3. This definition was upheld by the U.S. Supreme Court in Babbit v. Sweet Home Chapt. Comms. for Ore. 51 U.S. 687 (1995). relying on the Chevron doctrine of agency deference which has since been overturned. See Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024).

^[iii] 16 U.S.C. 1533(b)(2).

^[iv] https://www.regulations.gov/document/FWS-HQ-ES-2025-0034-0001

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Friedel, Jennifer. “Defining Harm. Proposed Changes for the Endangered Species Act.” Southern Ag Today 5(19.5). May 9, 2025. Permalink

In the first quarter of 2025, state legislatures across the United States have proposed bills regulating cell-cultured meat, including both labeling requirements and sales restrictions. Cell-cultured meat, also known as “lab-grown meat” or even “fake meat”, is produced by cultivating animal cells in a controlled environment, offering a potential alternative to traditional livestock farming.​

Federal Oversight and Labeling

At the federal level, the regulation of cell-cultured meat involves both the U.S. Department of Agriculture (USDA) and the Food and Drug Administration (FDA). FDA oversees the pre-harvest production phase, while the USDA’s Food Safety and Inspection Service (FSIS) manages post-harvest processing, packaging, and labeling. In 2023, FSIS authorized the sale of cell-cultured chicken produced by two California startups, marking the first-ever approval by the federal agency. The products were sold in a limited capacity though a few restaurants shortly after that approval, but are not commercially available at this time. 

Recent State-Level Legislative Actions

• Mississippi: In March, Mississippi became the third state to prohibit the manufacture, sale, or distribution of lab-grown meat. Violations of this law are classified as misdemeanors, carrying penalties of fines up to $500 and/or imprisonment for up to three months. Further, retail food establishments may lose their licenses if they sell or distribute the products.  The Mississippi law will go into effect on July 1, 2025.  This legislation aligns with similar bans enacted by Florida and Alabama in 2024.  More information about the Florida and Alabama laws is available here.   
• South Dakota: HB 1022 allows for the sale of cell cultured meat products, but requires additional language (either “cell-cultured” or “lab grown”) on the label.  It was signed into law in February.  HB 1118, also enacted in 2025, prohibits the use of any state funds in connection with the research, production, promotion, sale, or distribution of cell-cultured meat within the state, but does not apply to any institution under the control of the South Dakota Board of Regents.
• Utah: HB 138 is also a labeling law, requiring additional verbiage for “cultivated meat product[s]” or “plant or insect based meat substitute[s]” that are “reasonably certain to notify a consumer” that the food contains those ingredients.  It was signed into law in March.
• Georgia: House Bill 201, like MS, FL, and AL, would prohibit the sale of cell cultured meat within the state.  It is currently in committee.  House Bill 163 would allow for the sale of both “cell cultured meat” and “plant based meat alternative” products, but would impose requirements on food service establishments that required additional disclosures that those products are not “conventional meat products.”  It has made it through the House and is pending in the Senate.   
• South Carolina: Senate Bill 103 would prohibit labeling of cell cultured products as “beef, poultry, fish, crustacean, or any other animal protein that the cell-cultivated food product may resemble.  Additionally, the label must state that “[t]his product contains protein that was developed in a lab and grown from a biopsy of animal cells. The protein in this product is not naturally grown beef, poultry, fish, crustacean, or any other animal protein.”  The bill is currently with the Agricultural Committee. 
• Oklahoma: HB 2829 has passed the House and is currently pending in the Senate.  It would make it unlawful to “manufacture, sell, hold or offer for sale, or distribute any cultivated meat product”.  However, it would allow research on the development of those products to be conducted in the state.  There are also two additional bills that originated in and are pending in the Oklahoma Senate, both of which would impact the labeling of cell cultured products.  SB 96 would apply the labeling restrictions to both cell-cultured and “insect-protein food products”. While SB 22 focuses only on cell-cultured products, in addition to the labeling restrictions it would prohibit the manufacture of those products within the state.  
• Other states, including Colorado, Illinois, Indiana and Wyoming, have also proposed bills on this topic this year.

​While the products are not currently available to the United States consumer, legislative attention is certainly focused on how- and whether- they should be in the future.  As the market continues to evolve, an ongoing dialogue among federal and state lawmakers, industry stakeholders, and consumer advocacy groups will be crucial to establishing a framework that balances all interests.  

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Rumley, Elizabeth. “A Steak by Any Other Name: How States Are Shaping the Future of Cultivated Meat.” Southern Ag Today 5(15.5). April 11, 2025. Permalink

Succession can be a very sensitive topic for farmers to discuss.  Some farmers want their children to take over the farm and operate it in the same manner.  Other farmers, either due to a lack of interested children or due to skyrocketing land prices, would rather sell the whole farm for a non-agricultural use such as neighborhood development.  Regardless of anyone’s farm succession plan, everyone has at least one similar goal: minimize (or, ideally, eliminate) their estate tax burden.  

Tool #1: Estate Tax Exemption

            Generally speaking, an individual’s taxable estate includes all assets owned by that individual at the time of death, including assets owned through an LLC that the individual owns or through a revocable trust in which the individual is a beneficiary.  So, if a farmer establishes a revocable trust that owned the LLC that owns the farm (a common probate avoidance-liability protection strategy), the farmer’s estate would still be deemed to own the farm, including its land (measured at fair market value), equipment, livestock, buildings, and so forth.

            Unlike the other tools which will necessitate an attorney, the estate tax exemption is something that every taxpayer automatically utilizes at death.  The estate tax exemption in 2025 is $13.99 million for individuals and $27.98 million for married couples.  In other words, if an individual were to pass away in 2025 with less than $13.99 million in their estate, that individual’s estate would not be responsible for paying estate taxes.  While Congress may change the law for 2026 and beyond, the estate tax exemption for 2026 is set to revert to pre-2017 Tax Cuts and Jobs Act levels, putting the individual exemption at approximately $7 million and the married exemption at approximately $14 million.  

Even at these lower amounts, most farmers have nothing to worry about.  Still, some farmers place estate taxes as their primary concern when conducting succession planning, so hopefully this first tool alleviates those worries.  

Tool #2: Family LLCs

            The estate tax exemption is reduced by any reportable gifts made during the decedent’s lifetime.  In 2025, a donor must report to the IRS any gifts to individuals that are worth more than $19,000 and gifts to married couples that are worth more than $38,000.  As such, a farmer can gift shares of their farm LLC to their children that are under the gift tax reporting thresholds over a period of time, ideally decades, to reduce their taxable estate once the farmer does pass away.

            A few aspects of family LLCs are noteworthy.  First, the farmer should be gifting shares of the farm LLC that lack voting rights, which the IRS will view as less valuable than normal LLC shares, thereby allowing the farmer to gift a higher percentage of the LLC each year without exceeding annual gift tax limits.  Second, farmers with children who are married can conduct this strategy more efficiently than farmers with children who are not married.  Moreover, the children who receive shares are not necessarily obligated to retain the shares – the children can sell the shares, including amongst themselves.  

Tool #3: Internal Revenue Code 2032A 

            At its core, IRC 2032A allows for an additional estate tax exemption of up to $1.42 million in 2025 (i.e., thus increasing an individual’s estate tax exemption to $15.41 million and a married couple’s estate tax exemption to $29.4 million).  Concisely, there are both pre-death and post-death requirements that must be met for the IRC 2032A increase to be utilized.  The State of Washington Department of Revenue has a very readable frequently asked questions page on IRC 2032A which more comprehensively details the requirements.  

            With respect to just the high points, the decedent must have been farming the land for five of the last eight years of his or her life.  Specifically, the decedent must have been providing ‘material participation’ on the farm, not just leasing land to third parties.  The land and equipment used on the farm must also constitute significant percentages of the farmer’s estate.  After death, the decedent’s ‘qualified heir’ (usually a child) must continue farming the land for the next ten years.  Like the decedent, the qualified heir must materially participate on the farm – not just lease it out to a third party.  If the qualified heir ceases farming operations at any point during those ten years, the qualified heir will be personally liable for the estate tax burden and must pay it within six months of the deviation.  

Tool #4: Irrevocable Life Insurance Trusts (ILIT)

            For high-net-worth farmers who will not avoid the estate tax through the above tools, an irrevocable life insurance trust (ILIT) is an option.  While both assets in a revocable trust and some life insurance policies are included in a decedent’s estate, assets placed in an irrevocable trust more than three years before death are not included in the estate.  For an ILIT, a farmer would set up an irrevocable trust, purchase a life insurance policy, and place that policy within the trust.  When the farmer dies, the ILIT would receive life insurance proceeds that were excluded from the estate and distribute them to the surviving spouse or children in order to pay the estate taxes and otherwise provide liquidity to the farm.

            ILITs can be very expensive, however.  It will cost several thousand dollars for the initial document drafting to be done, and then anywhere from a few hundred dollars to tens of thousands of dollars for the annual life insurance premiums.  In short, farmers who will never approach the estate tax exemption levels should not invest in ILITs.

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Brown, Nicholas. “Four Ways for Farmers to Avoid Estate Taxes in 2025.“ Southern Ag Today 5(14.5). April 4, 2025. Permalink

As we continue to see rural landowners offered renewable energy leases, it’s important to remember the phases these agreements often include and what may happen during each phase.  If you are presented with a lease agreement for a renewable energy project and are considering it, talk with an attorney with experience in the area before signing.  In many cases, you can go to your state bar association’s website and look for members in your area and talk with them to better understand their experience with these agreements.  At the same time, you can reach out to groups like the American Agricultural Law Association to see if any of their members may have experience in your area.  Working with an attorney early on can help ensure you get a fair deal that protects your interests.

Wind and solar energy agreements usually have three stages: an easement period, an option period, and a lease period. In the first stage, the easement period, the landowner allows the developer to study the land to see if it’s good for a wind or solar project. The developer may survey the land, place sensors to measure wind and sunlight and study the impact on the environment and wildlife. They will also check if the land is suitable for construction. This stage can last anywhere from one to three years. During this time, the landowner can still use the land if they don’t interfere with the developer’s equipment on the property during the surveying.  At the same time, the landowner will continue to receive rental payments.

During the second phase, called the option to lease, the developer works on getting permits and funding for the project. For example, in Maryland, they need approval from the Public Service Commission and other permits to start construction. Other states may need different permits from local governments and approval to connect to the power grid. This phase usually lasts two to five years. The developer is not required to proceed with the project during this time. The landowner can still use the land as usual and will also receive rental payments for the land during this phase.

The third and final phase is the lease. In this phase, solar panels or wind turbines are installed, and the landowner starts receiving lease payments. This phase includes building, operating, possible renewal, and eventually removing the equipment. All told this phase of the agreement may run for 30 or more years with renewals included.  The landowner will have limits on how they can use the land to avoid interfering with the project.

This agreement could end early in the first phase if the surveys show the property is unsuitable for renewable energy development.  It could also end in the second phase if the permitting is not approved.  As mentioned earlier, it’s important to always talk with an attorney and have the agreement reviewed before signing it.

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Goeringer, Paul. “Understanding Renewable Energy Agreements: Easement, Option, and Lease Phases Explained.” Southern Ag Today 5(13.5). March 28, 2025. Permalink