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The ESG is environmental, social and governance reporting. This is a concept adopted by large corporations to set standards for how they operate so their end consumers feel good about doing business with them.  This can take lots of different forms, from requiring its vendors to avoid excess printing of documents, adopting diversity and inclusion programs, to commitments to stated goals on energy reduction and consumption of more “green” sources.

The idea is to make great soundbites, build brand loyalties and build a better company. The concerns come in when those goals are not made. Were they even attempted? Or was it all a smoke show? Can a consumer sue for the company not living up to its stated ESG goals or policies? For traded companies, the SEC is going to make rules.

How does it impact ag? Ag provides carbon capture, renewable energy, biofuels and conservation practices that corporate America would love to latch on to and say they were involved with it. Farmers already use production data and soil regeneration techniques that can be quantified and laid in spreadsheets in boardrooms and in talking points. 

ESG might frame who these companies deal with.  The tell if you will.  The end purchase of your product or services telling your operation that we are not going to do business with you unless you have an aligned ESG program. Sounds a lot like quality assurance programs farmers are already doing.  Here is another example, at least one large ag lender has a policy regarding paper use reduction and waste.  That will prevent a large litigation firm who notoriously requires paper copies of all documents and pleadings (to increase litigation costs) from ever doing business together.   Pay is the other end from tell. Companies may pay producers who adopt ESG polices a premium to ensure a line of products that meet their ESG goals. Really it  is no different than a niche marketing premium like organic, waxy corn, or food grade soybeans.  

While I don’t think its coming in 2023, farm operations can plan now on the eventual ask or incentive from the companies where its end product lands. A forward-looking ag operation in northeast Iowa is going to pay attention to Quaker Oats, Tyson, Hormell Cargill and ADM adopt as ESG policies.  It probably wouldn’t hurt those same operations to look at the ESG policies of the companies that they do business with. Are green painted tractors made by a company that shares your views, Are blue planters governed by a corporate mission statement that you agree with?

The pet industry is big in the US. We buy cat and dog related retail items for ourselves and the animals. We purchase pet insurance. Vets who work on Fido and Fluffy charge premiums that the large animals would never have spent on them.

It is also, a jumping off platform to stop production. Animal law is broadly animal welfare rules. Rules to protect production animals are deeply rooted in America, by comparison, prior to 1860s nothing made a difference between your favorite dog and a wild one when it came to them being shot by your neighbor. By 1867, New York said starving, torturing, or killing living creatures was a crime. Other laws regulate puppy mills, dog and chicken fighting. Pretty soon, denial of food, water, shelter, and vet care were actionable offenses.

Animal rights is the idea that animals have more than a welfare interest. They can inherit an interest in a trust (which is a good idea if you own an animal that will outlive you like an elephant, certain breeds of birds etc). Wilder ideas that are being pushed are that animals have the right to own land and have humans owe them a duty of care and responsibility to not destroy their habitat. Some ways to get into court for animals are to indicate the human is harmed observing by what is happening to the animal, the animal itself is harmed by the action (like denial of habitat) so the humans bring action for the animals, or more directly, the animal can sue in its own name. The most famous was a case where PETA filed a case for a macaque monkey who hit a button on camera. PETA claimed the monkey owned the copy right to the image. At least under the copy right act of 1976, the monkey didn’t have the right to sue, but the photographer who did own the image had to settle and donate 25% of the revenue from the photo to a macaque protection agency.

Horses, killer whales, and chimpanzees have all been apparently trying to file lawsuits via human intervention in their own name. Why do you care? If they have standing to sue, then animal husbandry practices like artificial insemination are now sexual assault.

In addition to suing, the latest maneuver is to “rescue” (read steal) animals from production faculties and say they are getting care for the animal. They will live cast the act in order to get views and interaction. They try to say the stolen property has no value and that the actions were designed to establish a right to rescue animals in peril. The defendant actually wanted to be jailed and appealed getting suspended jail sentence.

These interests are getting “experts” who are willing to testify that fish can be happy or sad based on the type of environment they are in. That is amazing for the idea that not so much fish might have but that humans are qualified to interpret the display of those emotions through mere observation.

Colorado’s proposed legislation would have also limited slaughter to only after 25% of natural life span had lapsed (for cattle that would be a chewy steak). In Oregon, they attempted to outlaw hunting and slaughter livestock full stop as well as criminalizing the breeding practices of AI. Don’t worry, in Iowa, a file was introduced to ban new confined feeding operations. A similar bill has been proposed on the federal level by Senator Cory Booker. Sen Booker had presidential aspirations at one time.

What about what did pass.   Eight states (Nevada, Massachusetts, California, Colorado, Michigan, Oregon, Utah and Washington) require all eggs sold to be from cage-free facilities. Restrictions on housing types are also on the books. Largely in states that don’t actually produce the regulated egg or chicken.

I wish I was making this stuff up. I wish this wasn’t a funded effort. This article didn’t even cover California’s efforts to tell producers in other states how to raise livestock.

Back to the drawing board: Peeping Tom law help torpedo anti Trespass and record law. Okay, its more than that.

For the third time, the Federal courts have found Iowa farm trespass law to be unconstitutional. Iowa Code § 727.8A made trespassers who and “knowingly places or uses a camera or electronic surveillance device that transmits or records images or data while the device is on the trespassed property” an aggravated misdemeanor. That’s up to 2 years in prison. Simple trespass is more like a fine.

The objecting party was the Animal Legal Defense Fund. They admitted in their court filing that they haven’t recorded yet, but this would prevent them from trespassing and recording in the future. Weird way to say we plan on breaking the law later, but we don’t want to be in more trouble that we would have been under the old law. The federal court said that was enough to give them a “chip and chair” to proceed. (For the law students in the room, standing was the issue).

It’s private property so no first amendment applies was the defense. However, because the state of Iowa waded in and made it a criminal issue, the court said the first amendment applies. So that issue did not save the day for the defense.

Also, it’s a not a free speech issue said the producer groups because the recordings only become protected speech once they are edited or distributed. The federal court found the recording was also part of free speech (in line with some earlier holdings) so this defense fell flat.

With those barriers broke, the last line of inquiry is, can the government do this anyway? The parties did agree that “intermediate scrutiny” is the standard. That means that government wins if it shows that it thought about and couldn’t use less restrictive ways to achieve its specific governmental interest. The court found that the other Iowa laws on peeping toms and invasion of privacy already criminalize recordings and this law was too broad to achieve the government’s desire.

This is not the first rodeo on this topic. The State started in 2012 with penalties for lying about why somebody was on a farm as an employee (deceptive practices to gain access Iowa Code 717.3A).

Since 2012, the Iowa Legislature has enacted several agricultural fraud and trespass laws. The laws, sometimes referred to as “ag-gag” laws, make it a crime to use fraud or deception to gain access to or employment at an agricultural facility. The Ag gag law was partially dismantled by the federal court.

So, Iowa tried again, and criminalized those who trespass on ag facilities intending to do harm or lying to gain access via employment for non-employment reasons. The federal district court said no, again. That issue is on appeal.

Then Iowa tried a new trespass take, calling it “food operation trespass”. That has survived the first test in Federal district court and is still standing. In 2021, they made it criminal to interfere with livestock transport, unauthorized sampling, and another camera law.

Iowa is not in a vacuum doing all this alone. North Carolina, Idaho, Wyoming, Utah, Arkansas and Kansas have all promoted similar laws to provide producers protections. What is a livestock producer to do? First, make sure your operation and your employees are following proper husbandry and animal practices that promote animal wellbeing. Employees should be encouraged and rewarded for reporting variations from the standard. Unless your operation enjoys unannounced visitors, maintain a locks, video surveillance, signs restricting access, and monitor operations sights. Part of this fight is people getting access to facilities to either document problems or create them. You can control the first one, the second one is only controllable to the extent of who you invite into your operation.

So, three pipelines are proposed in Iowa to move carbon dioxide from ethanol plants to a storage facility. The idea is that captured CO2 is better than released CO2, making ethanol more environmentally friendly and a “greener” product. Good idea until you realize you have to build a giant pipe to move it to a captured facility. Instead of treating the CO2 on site with scrubbers or buying land from willing owners to put the pipeline in, the pipeline company is invoking the state’s power to take private property for public good. The pipeline company is selling itself as a “bus route” for other private companies to pay to move its CO2 from location a to b. They will just charge a “fare” to enter and exit the pipeline, like a toll way really. The problem is, the majority of the route is through Iowa farm ground that is owned by folks who remember the hollow promises of cooperation and compensation from prior pipeline projects. From a policy point, if you were told a private road was being built over your property and the private road company got to charge what ever it wanted to now and in the future, would you rather own part of that company or just get a one time payment for putting the road in ? The proposed easement is a one-time payment.

Without a doubt, the pipeline install will disturb soil, make it less productive and impair the value of the property now and into the future. The question is can the landowner get enough out of the company in hard concrete terms to compensate them. The free-flowing federal money for “green” projects makes it hard for states to stand in the way. While the state appears to not be concerned, it would appear local county and city governments and private citizens are concerned about the end result. Also, in the end, nobody will see the pipeline once it’s punched in and a few election cycles later it will be only those directly impacted that remember exactly where the pipe was shoved into the ground anyway. The Federal precedent is on the side of the pipeline, as a public good is not that difficult of a showing. While we have seen other long standing legal precedent overturned recently (Roe, Planned Parenthood vs. Casey), I don’t see the Kelo decision (which sets the bar for public use to allow the taking) going away anytime soon. The best course of action is likely to spend your time and effort ensuring that whatever the easement deal that is presented and agreed to is clear, easily implemented, leaves little decision making in the hands of the pipeline company and when or how to pay, and has provisions to ensure that the pay scale keeps up with the economy.

No King, No Crown

A popular joke is running around the internet where it starts with Tell these two images apart. The first is the phrase Most Farm Succession Plans in Action and the second is a picture of the Queen of England with the phrase 96-year-old dies, leaves 73-year-old in charge.

The response is, they are the same. The other joke is that the dad tells the kid he did a nice job planting and selecting the seed last year so this year he gets to combine, and the kid responds, sounds good, but I have an appointment to sign up for social security we will need to work around.

In both cases, it’s funny because it is all too often it’s true, painful as it is. Many ag operations, because of timing or control or lack of trust, deal with this scenario. Now is a great time to examine your operation and see if you are holding back your prince or princess from ascending to the throne. Do 80-year-olds need to be the sole combine operator? Can the next generation market the production? Why don’t we find out before the elder generation is carried away by six at the church? Better a warm hand to guide someone into prosperity than a cold hand from the grave.

Congress doing Congress things

In legislative news, some ag requests for funding are getting slid into the Continuing resolutions for spending by Congress. This includes disaster relief; child nutrition reimbursement rate increases and WRDA (Water Resources Development ACT) funding that helps waterway flood control and coastal flooding controls. Reduction of tariffs on developing countries imports are also being kicked around. Interestingly, it looks like our complicated relationship with China will continue to be complicated as Congress considers excluding some Chinese products from the punishment tariffs they enacted. Meanwhile, China roots against the US interests in Ukraine but fails to overtly come out and say it.

Owww… My eyes…. Prospectively

A member of an environmental nonprofit was found to have standing to object to a hotel’s plan to fill a half-acre wetland and build a new building. Despite the fact the member HAD NEVER BEEN TO THE HOTEL, she claimed she suffered an aesthetic injury. Such an injury occurs when a person who uses the affected area will experience diminished aesthetic value due to the proposed drainage. Even if the individual member never visited the wetland, the court found that she nevertheless experienced an injury in fact because she could no longer enjoy viewing the wetland. The court found that to require them to see the site before claiming the injury would result in a situation where “must “step on the Old Faithful geyser at Yellowstone National Park to challenge its destruction.” Further, the court found that the fact that it was private property didn’t matter, because the complaining person could see it. This is not a great case for private land use advocates.

Saturday, January 28, 2023
  • Patrick B. Dillon
  • Jill Dillon
Dillon Law PC
Patrick B. Dillon enjoys finding solutions to legal issues and catching problems for clients. Pat practices in the Sumner office regularly represents clients in district, associate district and magistrate courts for agricultural, real estate, criminal and collection issues. He drafts wills and trusts, creates estate plans and helps clients through the probate process.
Dillon Law PC
Jill is a University of Northern Iowa undergraduate (Political Science Cum Laude) and a Drake University Law School graduate. Jill is a firm owner but not currently accepting private pay clients. Jill still has ties to her family farm operation which includes a dairy herd.

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