Category: Ag Law

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

Last week, the Trump administration reignited the legal fight over farm animal confinement laws by filing a new lawsuit challenging California’s egg-related regulations. The complaint argues that California’s laws are invalidated by the Egg Products Inspection Act (EPIA).

The DOJ claims California’s laws are preempted by the EPIA, a 1970 federal law ensuring the safety, quality, and labeling of eggs and egg products in interstate commerce. The EPIA authorizes USDA to set national standards for egg grading, sanitation, labeling, and packaging.

Challenged Provisions
The lawsuit challenges Proposition 12, Proposition 2, and AB 1437. Prop 2 (2008) imposed space requirements for pregnant sows, veal calves, and laying hens. AB 1437 (2010) extended those standards to all eggs sold in California. Prop 12 (2018) further expanded these laws, regulating the production and sale of veal, egg, and pork products, requiring minimum space per animal, and banning the sale of products from animals confined more restrictively. 

Standards Preemption

The DOJ relies on the EPIA’s preemption clause, which bars states from imposing additional or conflicting requirements. Under 21 U.S.C. § 1052(b), no state may impose standards “in addition to” or “different from” federal standards for egg “quality, condition, weight, quantity, or grade.”

DOJ argues California’s laws regulate egg “condition” and “quality,” defined by USDA regulations. DOJ points to AB 1437’s stated purpose—to protect consumer health—as an attempt to regulate inherent egg properties. It also cites Prop 12’s stated concern for health, safety, and foodborne illness risk.

Labeling Preemption
DOJ also claims California’s regulations conflict with EPIA’s labeling preemption. California requires specific terms in shipping manifests and bans “cage free” labeling unless eggs meet its standards. DOJ argues these are labeling rules that differ from USDA’s.

Next Steps
DOJ seeks a judgment declaring the California laws preempted and unenforceable. California will likely file a response, and a request for an injunction may follow.

For a more detailed analysis, click here for a NALC blog post. 

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Rumley, Beth. “Challenge to California’s Hen Housing Laws.” Southern Ag Today 5(31.5). August 1, 2025. Permalink

On April 22, 2025, Department of Health and Human Services (HHS) Secretary Robert Kennedy, Jr. announced the agency’s plan to “phase out” petroleum-based synthetic color additives. Though the announcement did not include any formal rulemaking or industry guidance documents, the agency described it as “a significant milestone in the administration’s broader initiative to Make America Healthy Again.” This article will assess where the phase out plan sits roughly two months after its announcement. 

Background on synthetic dyes

Color additives are defined by the Food and Drug Administration (FDA) as “a dye, pigment or other substance, which is capable of imparting color when added or applied to a food, drug, cosmetic or to the human body.” Color additives are distinguished from food additives by the Federal Food, Drug and Cosmetic Act (FDCA) and require pre-approval from the FDA before they can be used in food. Specifically, there are two types of color additives – naturally occurring and synthetic. Synthetic dyes are manmade, and the FDA requires that each batch of synthetic dye must be certified as safe for its approved purpose. Thus, all food in the US food supply that contains synthetic dyes has been certified by the FDA that the synthetic dye is safe at its approved level for its approved purpose. Synthetic dyes, which are the color additives targeted by this initiative, are typically petroleum-based. There are currently nine synthetic dyes that might be found in food today, and this initiative aims to phase all nine out of the food supply by the end of 2026.

FDA’s stated actions

Specifically, the phase out plan outlined six measures that the FDA will take:

• Establishing a national standard and timeline for the food industry to transition from petrochemical-based dyes to natural alternatives.
• Initiating the process to revoke authorization for two synthetic food colorings – Citrus Red No. 2 and Orange B – within the coming months.
• Working with industry to eliminate six remaining synthetic dyes – FD&C Green No. 3, FD&C Red No. 40, FD&C Yellow No. 5, FD&C Yellow No. 6, FD&C Blue No. 1, and FD&C Blue No. 2 – from the food supply by the end of next year.
• Authorizing four new natural color additives in the coming weeks, while also accelerating the review and approval of others.
• Partnering with the National Institutes of Health (NIH) to conduct comprehensive research on how food additives impact children’s health and development.
• Requesting food companies to remove FD&C Red No. 3 sooner than the 2027-2028 deadline previously required.

Industry “phase out” 

The third prong of FDA’s six-pronged phase out plan was to work with industry to eliminate six synthetic dyes – FD&C Green No. 3, FD&C Red No. 40, FD&C Yellow No. 5, FD&C Yellow No. 6, FD&C Blue No. 1, and FD&C Blue No. 2 – from the food supply by the end of 2026. While many were skeptical of the voluntary nature of this plan, in the two months since the announcement, several food companies have announced their intentions to remove synthetic dyes from their food portfolios. For example, Kraft Heinz, General Mills, Conagra Brands, Nestle USA, PepsiCo, and Tyson Foods have all announced their commitment to removing synthetic dyes from their products. 

Part of the reason for the skepticism was that though HHS Secretary Kennedy stated that there was an “understanding” between FDA and food manufacturers at the phase out plan’s press conference, no formal agreement was published, nor was any food industry representative present at the event. Part of the willingness of food industry might have something to do with the movement of this issue on a state level. California and West Virginia have banned foods containing certain food additives from being sold in their state. Additionally, California, Delaware, Louisiana, Tennessee, West Virginia, Virginia, and Utah have passed legislation banning school meals from containing certain food additives. Texas and Louisiana have passed legislation requiring disclosure labels on foods containing certain listed food additives – important to note that at the time of writing this article the Louisiana bill has not yet been signed by its governor. This state level inconsistency might have led to a desire by industry for federal movement on the color additive conversation. Specifically, FDA Commissioner Marty Makary, MD, MPH, stated in the press conference that food companies “want to do this,” and that they particularly “don’t want to deal with patchwork of 30 different state plans.”

New Color Additives 

The fourth prong of the phase out plan has also seen movement in the past two months. In May, the FDA announced its approval of three new natural color additives. These color additives occur naturally and are not man made, but even natural color additives must be approved as safe for their intended use by the FDA before they can be used in foods. 21 § USC 379e. Here, the FDA has approved Galdieria extract blue, butterfly pea flower extract, and calcium phosphate. Galdieria extract blue produces a blue color and is derived from the unicellular red algae Galdieria sulphuraria. Butterfly pea flower extract is also a blue color and it can be used to produce shades of blue like bright blues, intense purple, and natural greens. Calcium phosphate is a white color approved for use in ready-to-eat chicken products, white candy melts, doughnut sugar, and sugar for coated candies. 

Additionally, as part of the six-pronged plan, FDA stated that it would fast track the authorization of four new natural dyes – the three approved here, and gardenia blue. The FDA also said it would accelerate the review and approval of other natural dyes and would issue guidance to industry. So far, the FDA has not published a guidance, nor made any announcements about the approval of gardenia blue or other natural dyes. 

Partnership with NIH 

The fifth prong in FDA’s phase out plan was to partner with the National Institutes of Health (NIH) to conduct comprehensive research on the effect food additives might have on the health and development of children. NIH is a federal agency housed in the Department of Health and Human Services and is primarily responsible for conducting and supporting federal medical research. On May 9, 2025, the FDA announced the creation of a joint research initiative with the NIH, titled the Nutrition Regulatory Science Program. This program will implement a nutrition research agenda that provides “critical information to inform effective food and nutrition policy actions to help make Americans’ food and diets healthier.” Specifically, the initiative highlighted the following questions it will aim to answer:

• How and why can ultra-processed foods harm people’s health?
• How might certain food additives affect metabolic health and possibly contribute to chronic disease?
• What is the role of maternal and infant dietary exposures on health outcomes across the lifespan, including autoimmune diseases?

This joint initiative will mirror the FDA and NIH’s Tobacco Regulatory Science Program in structure and collaboration with FDA providing expertise in regulatory science and NIH providing the infrastructure for research. FDA states that the initiative will bring together experts in chronic disease, nutrition, toxicology, risk analysis, behavioral science, and chemistry, but is committed to conducting research that is “fair, independent and free of conflicts of interest.”

Remaining prongs

In the past two months, there has been no movement yet on the remaining three prongs of the FDA’s phase out plant. First, the FDA has not published an industry guidance document, promulgated formal rulemaking, nor posted any further documents regarding a national standard and timeline. Second, the FDA has not publicly announced that it has initiated the process for revoking Citrus Red No. 2 or Orange B. Last, though no company who has publicly committed to removing synthetic color additives from its food portfolio specifically mentioned Red Dye 3, it can likely be assumed that it is included under the board definition most are using to describe FD&C dyes. 

Conclusion 

In only two months, the FDA has moved extraordinarily fast on accomplishing portions of its six-pronged phase-out plan. With an administration that has stated its commitment to “restor[ing] the focus on the ‘F’ in FDA,” it can be assumed that food-related policies will continue to be a priority. For up-to-date information on FDA announcements, click here to subscribe to NALC’s bi-weekly newsletter “The Feed.”  To learn more about the phase out plan, click here to read NALC article “FDA Announces Plan to ‘Phase Out’ Synthetic Dyes.” To learn more about other FDA updates, click here to read “FDA Updates: June 2025.” 

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Stone, Emily. “Two Months In: Assessing the Movement on FDA’s Plan to “Phase Out” Synthetic Dyes.” Southern Ag Today 5(27.5). July 4, 2025. Permalink

As of mid-June 2025, agricultural stakeholders are increasingly aware of claims by clean water advocates and regulatory concerns that land-applying municipal sewage waste (biosolids) may contaminate soil and groundwater with per- and polyfluoroalkyl substances (PFAS). In 2023, approximately 60% of U.S. biosolids were land-applied, according to the U.S. Environmental Protection Agency (EPA).  Also,  according to the EPA, PFAS exposure may pose health risks, though ongoing research continues to assess the impacts of low-level, long-term exposure, especially in children.

Federal and state regulators are working to eliminate PFAS compounds considered the most dangerous to our environment and our health, perfluorooctanoic acid (PFOA) or perfluorooctane sulfonic acid (PFOS), from consumer products.  However, reducing environmental PFAS loads will also require alterations to current practices which may simply be recycling existing environmental loads, including agricultural uses of biosolids. Legal changes are expected.  Farmers, who own or rent most of the land involved in applications of biosolids, will be a central focus.  

What we have seen over the last few years has been a smattering of individual state government actions restricting and limiting the practice of land application of biosolids in various ways.  In some extreme instances, these have included quarantine orders of entire tracts of farmland preventing or limiting further agricultural production.  

A compilation of those individual state actions has been assembled by a national environmental consulting firm, ALL4 , and it is publicly available at this link: State-by-State Regulatory Update (March 2025 Revision)(see Table 2 – State Water Regulation Highlights).  This documents the patchwork in regulatory landscape faced across the country.  

Complicating enforcement, biosolids are increasingly transported across state lines, undermining the consistency of state-level regulation and calling for a more unified approach. This regulatory inconsistency challenges both land-applicators and regulators tracking PFAS from production to final disposal.

While the Clean Water Act (CWA), via the National Pollutant Discharge Elimination System (NPDES), governs the permitting of biosolid land applications, PFAS-specific regulation under this system remains limited. EPA has issued only non-binding guidance to states for performing their CWA duties. 

Adding a new pollutant to those already identified and regulated in biosolids is ultimately controlled by the text of 33 U.S.C. §1345(d) of the CWA (“Disposal or Use of Sewage Sludge”), and regulations at 40 CFR Part 503. These require EPA to establish numeric limits and mandatory management practices to protect public health and the environment from the reasonably anticipated adverse effects of designated pollutants during the use or disposal of biosolids. EPA is also required to review these regulations at least every two years and develop standards where evidence warrants.  To date, EPA has not established numeric PFAS limits for biosolids, but a draft risk assessment released on January 15, 2025, marks a first step in that direction. 

Historically, EPA’s “PFAS Strategic Roadmap” progress reports have stated it would complete by winter 2024 a risk assessment for PFAS in biosolids for use in determining whether to regulate these particular substances in biosolids.  

On January 15, 2025, EPA commenced that process by publishing in the Federal Register the following document, “Draft Sewage Sludge Risk Assessment for Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonic Acid (PFOS).  After multiple extensions, the public comment period is now scheduled to close on August 14, 2025.  The public comments so far are available at the following regulatory docket: EPA-HQ-OW-2024-0504.  

The upshot of EPA’s draft risk assessment states the following: 

The draft risk assessment indicates that there are potential risks to human health to those living on or near impacted properties or primarily relying on their products from land application. . .  

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After the public comment period has closed, the EPA will. . . prepare a final risk assessment. . . If the final risk assessment indicates that there are risks above acceptable thresholds when using or disposing of sewage sludge, the EPA expects to propose a regulation under CWA section 405 to manage PFOA and/or PFOS in sewage sludge to protect public health and the environment. 

Last year, on June 6, 2024, a federal lawsuit was commenced seeking to compel EPA to establish regulatory standards for PFAS in land-applied biosolids. Farmer, et al. v. EPA, No. 24-cv-1654.  The plaintiffs in that case allege the EPA’s inaction has allowed PFAS-laden biosolids to contaminate millions of acres, harming farmers and the public.  This lawsuit is currently moving slowly with preliminary matters and no resolution is expected for at least another year.

One thing is certain in the coming months and years.  Those farmers and agricultural stakeholders across the country involved in the common practice of land-applying biosolids will see significant change mandated in their practices and operations by the emergence of PFAS regulation in biosolids. 

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Duer, Brook, and Paul Goeringer. “Why aren’t PFAS compounds in land applied biosolids prohibited by EPA?” Southern Ag Today 5(26.5). June 27, 2025. Permalink