Southern Ag Today

Category: Ag Law

  • HPAI in Dairy Cattle:  Is Pasteurization Dairy’s Only Reliable Protection? 

    HPAI in Dairy Cattle:  Is Pasteurization Dairy’s Only Reliable Protection? 

    It has been approximately eight weeks since the U.S. dairy industry became immersed in efforts to monitor and potentially control the outbreak of Highly Pathogenic Avian Influenza in dairy cattle confirmed in 63 locations across 9 nine states as of May 28, 2024, from Idaho to North Carolina.  FDA maintains a wealth of on-line data which is updated regularly and appears to be a model of government transparency. 

    On March 25, 2024, the first joint USDA/FDA/CDC public confirmation of  a HPAI outbreak in dairy cattle in Texas and Kansas, along with communication by most federal and state animal health and food safety authorities has contained this by-now familiar public health advisory:

    “The FDA and USDA have indicated that based on the information currently available, our commercial milk supply is safe because of these two reasons:

    1) the pasteurization process and

    2) the diversion or destruction of milk from sick cows.”

    These statements are based upon the standardized dairy production practices and safeguards mandated in the U.S. Department of Health and Human Services, United States Public Health Services’ Grade “A” Pasteurized Milk Ordinance, 2019 Revision (PMO). In its earliest forms, the PMO dates back to 1924 and acts as the comprehensive and uniform national regulation of milk production for human consumption, its pasteurization, and sales in interstate commerce. It is enforced in all 50 states by a system of milk regulatory officials employed in federal and state government and by private industry through cooperative agreements in some jurisdictions. Pasteurization and the destruction of milk from sick cows is required by the PMO.  

    However, these public health statements contain buried and fundamental assumptions about regulatory and disease control processes that should be unpacked for a clearer understanding of why the impact and nature of these HPAI detections are qualitatively different than detections in poultry. Many distinguishing points exist.  

    • Milk production, processing and sale for the vast majority of human consumption nationwide mandates pasteurization, a “kill step” which has proven to be a relatively foolproof regulatory requirement for the prevention of disease transmission through milk. Perhaps no commodity is better situated to deal with the potential of HPAI in its supply chain. 
    • The biological circumstances of both the disease and the host animal—a large mammal of significant monetary value—do not indicate euthanasia as a disease control measure. Widespread cow-to-cow transmission has not materialized. Hopefully, that does not change in the future, or the consequences will be unprecedented and catastrophic. 
    • A dairy herd, its housing, and the land occupied for dairy production is much more difficult to “lock down” from a bio-security standpoint than the precedent established for controlling this disease in poultry.  Dairy production involves a complex daily routine of feeding, multiple milkings, milk storage, and truck transport for processing no less frequent than every 72 hours (a requirement of the PMO). Through this daily process, in order to achieve the immediate and effective disease transmission prevention aspired to in the poultry context would likely require immediate removal from the herd and culling of cows testing positive. Current conditions and pasteurization support a determination that the removal of objectively sick cows from the milking herd is sufficient. The removal and quarantine of sick cows on an individual basis from milk production if detected (or for example those treated with antibiotics) is a common occurrence and required by the PMO.
    • However, if sick cow numbers increase drastically, the logistics of withdrawing from the herd and retaining sick cows under quarantine conditions on-site for ultimate return to production simply may not be within the capabilities of many dairy operations. 

    All of these circumstances mean that quarantine processes, procedures, and movement restrictions on and off the farm are vastly different and comparatively reduced, as compared to poultry. Most important is that thus far, beyond interstate movement testing and restrictions, USDA APHIS federal quarantine orders have been used sparingly in comparison to poultry. Individual states’ animal health officials are presently filling in any void they feel necessary by imposing their own quarantine orders to serve their own perceived needs. However, this 50-state patchwork is not likely sustainable on a long-term basis should this outbreak in this species become more virulent or protracted.  

    Only time will tell if the current approach to disease control is effective in this species and with this commodity’s production methods. The ability to sustain these practices will depend entirely upon the number of HPAI detections.  

    However, one development has thrown a monkey wrench in the second statement in the two-pronged public health advisory noted above (“. . . diversion or destruction of milk from sick cows.”)  The assumption that such a measure is being reliably taken depends upon every individual dairy herd operator’s 100% accurate determination of which cows may be “sick” with HPAI. We have learned in recent weeks that HPAI in this species is not necessarily able to be routinely or accurately diagnosed.  

    We learned on May 10, 2024, that FDA has engaged in testing of 297 retail dairy products for HPAI virus detection, ostensibly to confirm that the pasteurization “kill step” was 100% effective. 

    “While the FDA collected the 297 samples at retail locations in 17 states, these retail samples represent products produced at 132 processing locations in 38 states.”

    Pasteurization scored a perfect 100% – no active HPAI virus.  However, 59 of the 297 samples tested showed evidence of “dead” HPAI virus components (essentially “killed” by pasteurization). That means 20% of the retail dairy products tested showed evidence that milk from one or more cows carrying HPAI was not diverted from the milk supply. This finding evidences the problems with routinely and accurately diagnosing infected dairy cattle. This result may be through absolutely no shortcoming of dairy operators’ diligence and more likely is caused by the inability to detect this disease’s presence in this species in any way that should be relied upon. The PMO requirement to exclude “sick” cows from the milking herd remains an essential regulatory policy. However, in a crisis of this magnitude, the observational tools of dairy operators for individual cow illness in the herd have proven at least 20% ineffective. Without pasteurization as the tried-and-true backstop, that would be wholly unacceptable and is misplaced if cited as the second most important reason the U.S. milk supply remains safe. 

    These findings illustrate the need for a more robust testing regime of dairy cattle and on-farm milk storage (“bulk tank units”) during this outbreak. Ideally, this should occur at a stage where further contamination can be stopped at the farm gate and before transport for processing as co-mingled milk from multiple premises.  

    Lastly, to boost public confidence, more focus should be on coupling pasteurization with a concentration on the evidence, or lack thereof, that milk can be a transmission medium of HPAI from cows to humans.[1]

    The perceived safety of consumer dairy products[2] is equally a matter of public health as well as economic survival of many in the dairy industry.    

    [1] In terms of disease transmission in mammals by consuming milk containing the live virus, there has been a late-breaking development. On May 24, 2024, the New England Journal of Medicine published a report from research primarily conducted at the University of Wisconsin-Madison concluding that the HPAI virus can infect mice through consumption of milk containing the live virus. At press time, further expert, USDA, or FDA input on the impact of this research was not available. 

     

    [2] As written, this article is strictly limited to the impact of HPAI as a pathogen in milk. However, transmission through the consumption of beef has also been the subject of another very recent development. To date in this outbreak, no HPAI has been confirmed in beef cattle but culled dairy cattle and beef from dairy cattle species increasingly contribute to the U.S. consumer beef supply. On May 1, 2024, USDA-APHIS reported that retail ground beef samples collected in the same states as confirmed HPAI-positive dairy cattle all tested negative for the presence of HPAI. However, on May 24, 2024, USDA’s Food Safety and Inspection Service (FSIS) announced that testing of beef tissue from 96 culled dairy cows sent to FSIS-inspected meat processing plants (but diverted by FSIS staff due to signs of illness) confirmed  the presence of HPAI “viral particles” in beef tissue from one cow. Further information may be forthcoming on the broader implications of this one finding.  Nevertheless, like pasteurization, cooking beef tissue appears to be the reliable “kill step.” On May 16, 2024, USDA’s Agricultural Research Service (ARS) published test results from cooking ground beef heavily inoculated with the HPAI virus.  No active virus was detectable after cooking temperatures of 140 – 160° F.

    Duer, Brook, and Paul Goeringer. “HPAI in Dairy Cattle: Is Pasteurization Dairy’s Only Reliable Protection?” Southern Ag Today 4(22.5). May 31, 2024. Permalink

  • A Thirst for Change: The Rise of Reclaimed Water Regulations in the U.S.

    A Thirst for Change: The Rise of Reclaimed Water Regulations in the U.S.

    The University of Maryland recently completed a study, “Reclaimed Water Use Regulations in the U.S.: Evaluating Changes and Regional Patterns in  Patchwork State Policies from 2004–2023,” offering a comprehensive overview of the changing legal landscape of reclaimed water use across the U.S. (Thilmany, Newton, Goeringer, Rosenberg Goldstein, 2024).  Reclaimed water is treated municipal wastewater that can be used again, often known as water reuse. As states contend with drought pressures and growing populations, reclaimed water can often be a valuable source of irrigation water for agricultural operations (Bastian & Murray, 2012).  With no federal regulations, only federal guidelines provided by the Environmental Protection Agency (EPA), states have adopted various approaches for reusing water as a potential irrigation source (Bastian & Murray, 2012).  As a part of this work, resources were developed to enable stakeholders and policymakers to clarify state water reuse regulations and highlight areas adopting direct reclaimed water regulations which can improve agricultural resilience.

    Reclaimed water is increasingly vital for U.S. agriculture, which consumes 42% of surface and groundwater (Dieter et al., 2018). Between 2012 and 2023, the number of states allowing food crop irrigation rose from 16 to 23, signaling wider acceptance and integration into agricultural practices (Thilmany et al., 2024).  Additionally, as of November 2023, 37 states (74%) enacted direct, statewide reclaimed water use regulations, 4 states (8%) established only guidelines, and 9 states (18%) had no regulations or guidelines concerning reclaimed water use, reflecting a diverse regulatory environment (Figure 1). 

    Figure 1 – Distribution of states with reclaimed water guidelines or regulations, 2004-2023

    In looking at the regulatory landscape for reclaimed water based on geographic location, interesting results arise (Figure 2).  For instance, potentially due to trends in water scarcity and increases in freshwater demand, New Mexico and Texas have directly regulated the use of reclaimed water (USDA-NASS, 2018). In contrast, states like Arkansas and Mississippi do not have direct regulations of reclaimed water as of 2023 (Figure 2).  The spatio-temporal variability among states adopting reclaimed water regulations highlights the need for policies tailored to each region’s unique environmental and agricultural conditions, as demonstrated by the diverse approaches in the southern U.S.

    Figure 2 – State reclaimed water regulations for agricultural uses in 2023.

    As a result of this study, the University of Maryland created the “CONSERVE Map Regulation Projects Reclaimed Wastewater Database” [go.umd.edu/CONSERVE_map]. This database includes detailed classifications and regulations essential for analyzing reclaimed water regulation trends and informing policy-making.  At the same time, producers can utilize the database to understand better if water reuse is allowed in their state. This database can be paired with additional data sources on water demand, food production, and drought conditions to provide policymakers with valuable insights to optimize reclaimed water use in the future. 

    Funding statement: This work was supported by the United States Department of Agriculture-National Institute of Food and Agriculture, Grant number 2016-68007-25064, awarded to the University of Maryland School of Public Health that established CONSERVE: A Center of Excellence at the Nexus of Sustainable Reclaimed water use, Food and Health. The University of Maryland also supports this work: MPowering the State, a strategic alliance between UMB and UMCP created in 2012 to significantly expand research, business development, and student opportunities at both universities.

    References:

    Bastian, R.; Murray, D. Guidelines for Reclaimed Water Use; U.S. EPA Office of Research and Development: Washington, DC, USA, 2012; EPA/600/R-12/618.

    Dieter, C.A.; Maupin, M.A.; Caldwell, R.R.; Harris, M.A.; Ivahnenko, T.I.; Lovelace, J.K.; Barber, N.L.; Linsey, K.S.Estimated Use of Water in the United States in 2015; U.S. Geological Survey Circular; U.S. Geological Survey: Reston, VA, USA, 2018; p. 1441, [Supersedes USGS Open-File Report 2017–1131].

    Thilmany EA, Newton S, Goeringer P, Rosenberg Goldstein RE. Reclaimed Water Use Regulations in the U.S.: Evaluating Changes and Regional Patterns in Patchwork State Policies from 2004–2023. Water. 2024; 16(2):334. https://doi.org/10.3390/w16020334

    USDA National Agricultural Statistics Service (USDA-NASS). 2018 Irrigation and Water Management Survey. 2019. Available online: https://www.nass.usda.gov/Publications/AgCensus/2017/Online_Resources/Farm_and_Ranch_Irrigation_Survey/index.php (accessed on 20 June 2023).

    Thilmany, Elizabeth, and Paul Goeringer. “A Thirst for Change: The Rise of Reclaimed Water Regulations in the U.S.” Southern Ag Today 4(18.5). May 3, 2024. Permalink

  • US Supreme Court Finds Texas Landowners Can Pursue Takings Claim

    US Supreme Court Finds Texas Landowners Can Pursue Takings Claim

    The United States Supreme Court issued a unanimous decision in Devillier v. Texas, allowing Texas landowners’ takings claims to proceed against the State of Texas under an amended complaint.  [Read Opinion here.]

    Background

    A group of Texas farmers, ranchers, and rural landowners filed an inverse condemnation action against the State of Texas, claiming that the Texas Department of Transportation’s (DOT) widening of I-10 intentionally caused widespread flooding on their property, resulting in a taking for which they were due just compensation.

    The Plaintiffs brought takings lawsuits under both the Texas and United States Constitutions in Texas state court.  Texas removed the cases to federal court where they were consolidated into one case. Texas then filed a motion to dismiss claiming that the Plaintiffs were not entitled to sue directly under the Fifth Amendment.  

    The district court denied the Motion to Dismiss. Texas sought an immediate appeal of that order and the question of whether property owners may sue under the Fifth Amendment without invoking Section 1983.

    The United States Court of Appeals for the Fifth Circuit reversed in a one paragraph opinion, holding that the Fifth Amendment does not provide a right of action for takings claims against a state. See 53 F.4th 904.  

    The Plaintiffs sought review by the United States Supreme Court

    US Supreme Court Opinion

    Justice Clarence Thomas authored the unanimous opinion of the Court.  [Read Opinion here.] 

    The Court noted that this case raised only a question regarding the procedural vehicle by which a landowner may seek redress for a taking.  Typically, a lawsuit to invoke or assert a constitutional right is brought under the authority of another statute, such as 42 U.S.C. Section 1983.  The landowner argued that claims under the Fifth Amendment are an exception to this, meaning that the landowner believes the Fifth Amendment is “self-executing” and a claim can be brought based solely upon the Fifth Amendment.  Texas, conversely, argues that a claim under the Fifth Amendment must be based on a statutory basis.

    The Court noted that “our precedents do not cleanly answer the question whether a plaintiff has a cause of action arising directly under the Takings Clause.”  However, the Court continued, “this case does not require us to resolve that question.”  The Court held that the Texas state law inverse-condemnation cause of action provides the vehicle for a takings claim based on both the Texas Constitution and the Fifth Amendment of the US Constitution.  The Court held that because the landowners do have a state cause of action under which to litigate their federal Fifth Amendment claims, the Court need not address whether the Fifth Amendment is self-executing if no such statutory claim exists.

    In order for the landowners to rely upon the Texas inverse condemnation action, they will need to amend their Complaint, but Texas assured the Court it would not oppose such an amendment.

    Thus, the Court noted that the landowners should be permitted to pursue their Fifth Amendment claims under the Texas cause of action and can amend their Complaint to do so.  

    The judgment of the US Court of Appeals for the Fifth Circuit was vacated, and remanded the case.

  • Texas Farmers Sue USDA for Alleged Discrimination

    Texas Farmers Sue USDA for Alleged Discrimination

    A group of Texas farmers recently filed suit against the United States Department of Agriculture claiming that the USDA improperly discriminated against them in administering various disaster and pandemic relief programs. Plaintiffs in Strickland v. USDA challenge the USDA’s disparate treatment for certain producers based upon race and sex. The Plaintiffs assert that the USDA violated both the Equal Protection Clause of the US Constitution and the Administrative Procedures Act.

    Background

    The Plaintiffs note that over the past four years, Congress appropriated $13.7 billion to USDA to implement crop and livestock disaster assistance and nearly $11.2 billion to implement disaster assistance programs for coronavirus-related relief.  The USDA took these appropriated funds and implemented a number of programs to aid farmers and ranchers who lost income, crops, or livestock due to natural disasters or the pandemic.

    Complaint

    The Plaintiffs begin their Complaint with the following sentence summarizing their arguments:  “Natural disasters do not discriminate, and neither should the USDA.”  The Plaintiffs claim that the USDA based the amount of financial assistance provided by programs on race and sex despite a lack of Congressional authorization to do so. Plaintiffs note that the appropriations bills passed by Congress never mention race or sex.  The USDA, Plaintiffs claim, factored it in anyway.

    Plaintiffs assert that USDA used two different methods for calculating the amount and type of financial assistance for farmers and ranchers.  One method was used for producers falling within the following four categories:  (1) veteran farmers, distinguished by having served in the armed forces; (2) beginning farmers, distinguished by being new to the profession; (3) limited-resource farmers, distinguished by having low incomes, and (4) socially disadvantaged farmers, distinguished by being of a particular race or sex.  “Socially disadvantaged” farmers include American Indians or Alaskan Natives Asians or Asian-Americans, blacks or African-Americans, Hispanics or Hispanic-Americans, Native Hawaiians or other Pacific Islanders, and women.  The Plaintiffs claim producers falling within these categories were paid “significant additional benefits” such as refunds of insurance premiums, refunds of fees, automatic enrollment in certain programs to cover non-insured crops, or additional financial assistance.  For other farmers, the Plaintiffs claim, a second method of payment calculation was utilized.

    These actions, the Plaintiffs allege, are unlawful and unconstitutional.  The lawsuit claims that the USDA violated the Administrative Procedure Act by acting beyond the scope of authority granted by Congress.  Additionally, the USDA allegedly violated the Equal Protection Clause of the United States Constitution by discriminating and treating similarly situated farmers differently based on race and by discriminating and treating similarly situated farmers differently based on sex. Finally, the Plaintiffs claim the USDA violated the Administrative Procedure Act by shifting its policy on processing insurance refunds to a “progressive factoring” system.  By doing so, Plaintiffs claim, the USDA stopped providing refunds of federal crop insurance and NAP insurance premiums and fees to all farmers, without offering a reasoned explanation for this action as required by the APA. The Plaintiffs ask the court to hold these programs unlawful and to enter various declaratory judgments and injunctions preventing the USDA from implementing programs based on race or sex absent clear Congressional authorization. 

    Motion for Preliminary Injunction 

    A week after the Complaint was filed, the Plaintiffs filed a Motion for Preliminary Injunction seeking an injunction or stay against USDA to prevent the USDA from relying on discriminatory criteria as it issues disaster relief.  

  • Chasing the Benefits of Agrivoltaics

    Chasing the Benefits of Agrivoltaics

    The emerging conflict between utility-scale solar development and farmland loss has generated growing interest in proving the economic viability of continued agricultural production on landscapes leased for solar use, introducing the neologism agrivoltaics. Rural community resistance to solar development is expressed at the focal point of county zoning approval, with citizen testimony raising concerns over negative environmental and property value impacts on the surrounding community. Though such protestations without supporting research often fail to rebut a case for rezoning (depending on state law standards), the friction with agricultural producers remains of greater economic concern due to perceived loss of output and farmland “loss.” The reduced costs of solar development on working farmland – no tree removal, existing drainage infrastructure, road access – are well understood, and the numerous efforts by state and local governments to deter such development vary in success. 

    The body of research on the projected aggregate agricultural economic impact of state renewable energy targets is in its infancy. However, the immediate impact to individual producers losing leased fields to solar development is easily measured in lost production acres, and such individuals often retain significant voice and goodwill in the community. The growing body of policy work on decommissioning of solar facilities – i.e. the promise that one day the land may be farmed – fails to address short term concerns.

    One principal area of addressing such friction is the exploration of a compromise in farmland loss and resulting economic impact. Given the present economic limitations between prevalent low-to-ground technology and panel spacing, continued agricultural production options – and ag economic output – remain limited. According to the National Renewable Energy Laboratory’s OpenEI Agrivoltaics Map, there are 517 dual-use solar facilities covering 61,477 acres and generating 9844 megawatts of electricity. (The author is aware of dual use facilities not appearing on the map.) The vast majority of these sites are devoted to pollinator habitat production – with its tenuous economic impact – with the next predominant agricultural use of sheep grazing. Some sites support active research, including blueberry production (Maine). Limited U.S. markets for sheep meat and wool may serve as a bottleneck to wider implementation of agrivoltaic grazing regimes. Site opportunities for grazing contracts may be misaligned with available grazing services, local producers and processing. The national leader in solar grazing efforts – American Solar Grazing Association – maintains its own map of agrivoltaic grazing sites.

    The US Department of Energy has stepped up research funding into this area, and there are numerous active research projects underway across the country. One recent agrivoltaic grazing research grant application by NC State University illustrates possible research approaches: 1) incorporating diversified livestock grazing into vegetation management regimes – that would otherwise rely on equipment and chemical applications – to measure the impact of grazing on soil health, water quality and carbon sequestration; 2) an enhanced understanding of resource and site design requirements (e.g. panel spacing, height); and 3) exploration of socio-economic impacts in the local community to better understand long-term acceptance of agrivoltaic systems, economic viability to producer, landowner and producer, and scalability of such systems. 

    The exploration of the third item may have a direct impact on reducing zoning hearing friction. At least one study[1] finds that “81.8% of respondents [to a survey] would more likely support solar development in their community if it integrated agricultural production” and other social responses are revealed on the figure below.  As noted, academic research into statewide and community agricultural economic impacts is needed, and as are the likely economic compromises and policy incentives required for scalable and high-value agricultural output to address concerns over farmland loss. 

    Image reproduced from article Pascaris, A.S. et al, Do agrivoltaics improve public support for solar? A survey on perceptions, preferences, and priorities, Department of Social Sciences, Michigan Technological University, 1400 Townsend Drive, Houghton, MI 49931, USA

    [1]  Pascaris, A.S., Schelly, C., Rouleau, M. et al. Do agrivoltaics improve public support for solar? A survey on perceptions, preferences, and priorities. GRN TECH RES SUSTAIN 2, 8 (2022)