The Agricultural Guestworker Act Gaining Ground

In October, the Agricultural Guestworker Act of 2017 (House Resolution 4092), introduced by U.S. Rep. John Goodlatte (R-Va.), was passed by the House Judiciary Committee and sent to the full House. Michigan’s lone representative on the committee, Rep. John Conyers (D), voted against it.

John Kran, national lobbyist with Michigan Farm Bureau, commented that “any farmer who’s dealt with this issue will tell you that the availability of domestic workers continues to decrease. This bill not only deals with the seasonal workforce, but the need for year-round ag workers.” The need for such legislation is clear, at least to farmers. Currently, the only way farmers can have the peace of mind about a legal workforce is to go through the H-2A program, which is so notorious for burdensome paperwork, long lead times and woefully complicated processes that Michigan Farm Bureau established the Great Lakes Agricultural Labor Services (GLALS) to help farmers successfully navigate the process.

Goodlatte’s legislation would create a new H program, called H-2C, under which a new guest-worker program would be established, allowing farmers to hire workers for up to 18 months for seasonal labor and 36 months for year-round labor, such as are needed on dairy farms, other livestock operations, and food processing, including meat packing. “Michigan dairies have a huge need for the longer visa, and poultry and hog operations have trouble finding people too,” Kran said. “The bill isn’t perfect, but it’s a good place to start.” Among the things Farm Bureau would like to see changed in the bill is a mandatory limit on the number of workers allowed in. The bill proposes that the number be capped at 450,000 per year, with an ‘escalator’ for additional need.

 

© 2017 Varnum LLP
This post was written by Aaron M. Phelps of Varnum LLP.
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Baker-Polito Administration Awards $3.7 Million in Grants for Clean Energy Technology

On November 1, the Baker-Polito Administration awarded $3.7 million in grants to increase the adoption of cost-saving clean energy technologies by Massachusetts low-income residents as part of the Commonwealth’s Affordable Clean Residential Energy Program (ACRE).

Launched in April of this year, the ACRE program evolved out of the Administration’s $15 million Affordable Access to Clean and Efficient Energy (AACEE) Initiative, which focuses on coordinating the agencies that serve the energy and housing needs of Massachusetts’ low- and moderate-income residents. The Initiative’s goal is to increase the number of renewable technologies employed by low-income, single-family homes throughout the Commonwealth. To that end, an AACEE working group published a report last year highlighting recommendations to address barriers to clean energy investment by the state’s low-income residents. These recommendations, which included maximizing clean energy market growth in the low-income housing community and structuring clean energy incentives to better serve low-income residents, have served as a guidepost for the Initiative and its suite of programs.

Through ACRE, the Massachusetts Clean Energy Center (MassCEC) is awarding $2 million to Action for Boston Community Development (ABCD), a non-profit human services organization helping low-income residents in the greater Boston region transition from poverty to stability. ABCD will assist in the installation of air-source heat pumps and solar photovoltaic systems, weatherization, and energy efficient lighting as well as appliance replacement for qualifying single-family homes with reported incomes below 60 percent of the State Median Income.

Energy Futures Group, an expert consulting services organization focused on the design and evaluation of energy efficiency and renewable energy programs, will receive the remaining $1.7 million of the Administration’s funding and will focus their efforts on Western Massachusetts residents living below 80 percent of the State Median Income.

The ACRE program will give low-income homeowners access to renewable technologies, allowing these households to reduce energy costs without out-of-pocket investment. In addition to helping mitigate greenhouse gas emissions, the expanded use of energy efficient appliances benefits all Massachusetts’ ratepayers. By increasing the affordability and accessibility of these technologies, Massachusetts continues to affirm its role as a leader in clean energy generation and the fight against climate change.

This post was written by Sahir Surmeli of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.,©1994-2017
For more Environmental & Energy legal analysis, go to The National Law Review 

Court Orders Monsanto Roundup Safety Documents to be Disclosed

Monsanto is catching a lot of heat now that a court has unsealed documents that cast the company in a negative light and suggest that it was responsible for providing false assertions to the government and public regarding the safety of Roundup. As the most popular herbicide in the world, Roundup and similar products produced by Monsanto are used across the globe for the elimination of pests from lawns, crops, gardens and nurseries. It has provided research that opposes the belief Roundup’s main active ingredient can cause cancer, but the documents unsealed by the court show that these accounts were misleading and, in some cases, false.

Ghostwritten Research

The research that was presented to defend the safety of its products was in fact, ghostwritten and attributed to academics. It also claimed that a senior EPA official attempted to dismiss a report from the United States Department of Health and Human Services that the product could in fact be linked to the deaths of numerous people who suffered from non-Hodgkin’s lymphoma. The evidence tells a story of arguments within the Environmental Protection Agency and conflicting beliefs over whether Roundup and similar products were safe to use.

Emails between Monsanto executives and Jess Rowland of the EPA discuss an effort to disrupt the efforts of the Department of Health and Human Services to make its own determination and review of the product. Rowland states in the emails that he should receive a medal if he is able to succeed in his interference.

World Health Organization Classifies Products as Carcinogenic

The growing litigation over Roundup was sparked off by the classification of Roundup as a carcinogen, due to the discovery of a link between glyphosate and cancer in animals and the destruction of DNA and chromosomes in human cells. Despite the research provided by the WHO, Monsanto went to great lengths to continue the defense of its product and to assert that it was as safe to consume as salt.

While Monsanto claims that glyphosate is safe, those who have come forward with claims against the company allege that Monsanto has repeatedly falsified research and information in order to fool the government and the public. In its defense, Monsanto has claimed that the unsealed documents are being presented out of context and that they provide isolated information. Numerous health agencies around the world have presented conflicting arguments over the safety of these products, so the science has not been settled just yet.

This post was written by Jonathan Rosenfeld of Rosenfeld Injury Lawyers, Copyright © 2017
For more legal analysis go to The National Law Review

President Trump Signs the “Securing our Agriculture and Food Act”

President Trump recently signed the “Securing our Agriculture and Food Act” (H.R. 1238). The bill amends the Homeland Security Act of 2002 to direct the Assistant Secretary for Health Affairs for the Department of Homeland Security (DHS) to carry out a program to coordinate DHS efforts related to defending the food, agriculture and veterinary systems of the United States against terrorism and other high-consequence events that pose a high risk to homeland security.

According to Michigan Farm News, the law will:

  • Provide oversight and management of DHS’s responsibilities pursuant to Homeland Security Presidential Directive 9 – Defense of United States Agriculture and Food;
  • Provide oversight and integration of DHS activities related to veterinary public health, food defense and agricultural security;
  • Lead DHS policy initiatives related to food, animal and agricultural incidents and to overall domestic preparedness for, and collective response to, agricultural terrorism;
  • Coordinate with other DHS components on activities related to food and agriculture security and screening procedures for domestic and imported products; and
  • Coordinate with appropriate federal departments and agencies.
This post was written by Aaron M. Phelps of  Varnum LLP© 2017
For more legal analysis go to The National Law Review

RICO Madness: Marijuana Operations Face RICO Challenges in Federal Courts

Don’t look now cannabis businesses, but your neighbors may be raising a racket. A June decision by the 10th Circuit Court of Appeals in Denver may have opened the doors to new legal challenges to marijuana operations: civil suits under the Racketeer Influenced and Corrupt Organizations Act (RICO).

RICO was originally intended to go after the mafia and other organized crime, but its broad language means it can be applied in other settings. RICO allows a private citizen to sue “racketeers” for damage to business or property due to the racketeer’s illegal activities or activities that were conducted under his guidance. Since marijuana remains illegal under federal law, the production or distribution of marijuana is considered racketeering.

In this case, a Colorado couple claimed a neighboring marijuana operation was creating “noxious odors” that drifted onto their land allegedly causing the value of their property to drop. The Reillys contended that the odors coming from the marijuana facility adjacent to their land were a nuisance because it “interfered with their present use and enjoyment of the land” and caused a “diminution in its market value.” The Reillys (aided by Safe Streets Alliance, an anti-marijuana organization that was also party to the case) argued that any business engaged in the commercial cultivation and sale of recreational marijuana is a criminal enterprise for purposes of RICO, so they were entitled to relief under federal law.

The District Court in Colorado dismissed the suit for failure to state a claim under RICO.  The District Court stated that Reillys’ injury (the noxious odors and reduced market value) was “speculative” and that they failed to provide any concrete evidence that they had provided harm. The District Court ruled that a “clear and definite” showing of damages were necessary under RICO.

On appeal, the 10th Circuit’s three-judge panel reversed the District Court’s conclusion that the Reilly’s claim of damages was merely “speculative” and thus must be dismissed. Instead, the 10thCircuit held that by alleging that the Reillys’ property has been directly injured by their neighbors’ “odorous and publicly-operating criminal enterprise,” the Reillys properly stated a claim and the case can proceed.

The 10th Circuit ruling also went out of its way to explain that the defendants’ growing marijuana as alleged would meet the elements of a RICO claim. As alleged, defendants were (a) racketeering by growing marijuana, which remains illegal under federal law; (b) were an “association-in-fact enterprise”; (c) the defendants conducted the enterprise’s affairs; and (d) that this activity constituted a “pattern” of illegal acts that is the direct cause of the Reilly’s alleged damages. By providing such analysis, it may have provided a roadmap to future plaintiffs for RICO.

Anti-legalization advocates such as the Safe Streets Alliance are likely on the lookout for more RICO cases to bring against marijuana operators. They likely believe they have found a profitable way to improve litigation risks on marijuana companies even in the event of federal inaction on marijuana and state expansion. Not only are the RICO charges relatively easy to bring, but if successful, RICO plaintiffs can receive treble damages. Treble is lawyer-speak for triple, meaning that plaintiffs can receive up to three times the actual damages. Plaintiffs, if successful, are also eligible to have their attorney’s fees covered by the defendant and have the courts shut down the marijuana operation.

For marijuana operators around the country, now is the time to assess your liability and reduce litigation risk:

  • Review leases and other documents that may contain limitations as to what you can do on your property
  • Review local ordinances on noxious odors and other nuisance rules, as they could be the basis for a dispute
  • Be in strict compliance with any and all state laws related to cannabis
  • Avoid any public disputes that could raise attention to your company
  • Moreover, perhaps above all else, determine if you have any frustrated neighbors that anti-legalization advocates could target. If you have an ongoing dispute with a neighbor, attempt to resolve it amicably before it can rise to this level

RICO charges are challenging, but a prepared company can avoid the trouble before it starts.

Proposed Bill Would Create Safeguards Against Agricultural Worker Deportation

In early May, Senators Dianne Feinstein (D-Calif.), Kamala Harris (D-Calif.), Michael Bennet (D-Colo.), Mazie Hirono (D-Hawaii), and Patrick Leahy (D-Vt.) introduced the Agricultural Worker Program Act (AWPA), a piece of legislation that will provide undocumented workers with heightened protection from deportation and aid them in obtaining legal status and citizenship. Specifically, the AWPA allows farmworkers who have worked in agriculture for at least one hundred (100) days of the past two years to earn lawful “blue card” status. Farmworkers who maintain this “blue card” status for five years may then become eligible to adjust to permanent residency or to a “green card” status. In a press release, Feinstein stated, “By protecting farmworkers from deportation, our bill achieves two goals – ensuring that hardworking immigrants don’t live in fear and California’s agriculture industry has the workforce it needs to thrive.” Bennet remarked that, “The failure to fix our broken immigration system has had real economic consequences for our farmers and ranchers. This bill serves as a necessary step until we can enact a long-term solution by passing comprehensive immigration reform.”

Advocates for the bill include Arturo Rodriguez, United Farm Workers (UFW) President, stating that “the United Farm Workers strongly supports and cheers Senator Feinstein’s introduction of the Agricultural Worker Program Act of 2017 because the act recognizes that the people who feed our nation should be able to earn the opportunity to gain legal status.” Nonetheless, others remain less optimistic for the Act, and project that the Act is unlikely to be passed under the Trump administration. The Colorado Springs Gazette remarked that the bill “has virtually no chance of becoming law, however, with President Trump in the White House and his fellow Republicans in charge of the House and Senate.” The complete text of the bill is available on Feinstein’s website.

This post was written by Aaron M. Phelps of Varnum Law.

NAFTA Renegotiation Would Intend to Benefit Farmers, Ranchers

In recent weeks, the Trump administration took the first step toward renegotiating the North American Free Trade Agreement (NAFTA). Robert Lighthizer, United States Trade Representative (USTR), sent a letter to Congress placing Congress on official notice of the Administration’s intention to renegotiate the Agreement with an eye toward advancing the interests of U.S. farmers, ranchers, workers, and businesses. The USTR’s notice to Congress created a ninety-day window before formal negotiations could begin. According to Michigan Farm Bureau (MFB) Associate National Legislative Counsel, John Kran, “This is the opportunity for the country to react to the President’s notice, and for feedback from voters and members of Congress to get surfaced and shared with the Administration before the formal negotiation process can begin.” The Administration hopes to renegotiate a new NAFTA within the next six months.

In a formal statement, Zippy Duvall, American Farm Bureau Federation (AFBF) President, said the American Farm Bureau will work with the Administration, Congress, other agricultural groups as well as with officials in Canada and Mexico to rectify issues with NAFTA which have limited the trade potential of U.S. farmers, ranchers, workers and businesses. Sonny Perdue, U.S. Secretary of Agriculture, issued the following statement: “While NAFTA has been an overall positive for American agriculture, any trade deal can always be improved. As President Trump moves forward with renegotiating with Canada and Mexico, I am confident this will result in a better deal for our farmers, ranchers, foresters, and producers.” Sonny Perdue acknowledged that while NAFTA has been good for farmers, the same cannot be said for other U.S. industries, such as manufacturing.

To stay informed on the progress of NAFTA modernization, visit the Michigan Farm Bureau’s new Trade page.

Thist post was written by Aaron M. Phelps of Varnum LLP.