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Legal Update and Emerging Issues

Legal Update and Emerging Issues. Mark Anstoetter | Partner | Shook, Hardy & Bacon L.L.P. 2014 Missouri Governor’s Conference on Agriculture. Laws Prohibiting Surreptitious Video Recording in Animal Production Facilities (Ag-Gag Laws).

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Legal Update and Emerging Issues

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  1. Legal Update and Emerging Issues Mark Anstoetter| Partner| Shook, Hardy & Bacon L.L.P. 2014 Missouri Governor’s Conference on Agriculture

  2. Laws Prohibiting Surreptitious Video Recording in Animal Production Facilities (Ag-Gag Laws) Many states, including Kansas and Missouri, have enacted various versions of “ag-gag laws” in recent years. Designed to prevent entry into animal production facility for the purpose of photography/recording without the owner’s consent. R.S.Mo. 578.013-enacted in 2012 K.S.A. 47-1827-enacted in 1990

  3. Ag-Gag Laws (cont.) • Animal Legal Defense Fund, et al. v. Herbert, et al., No. 2:13-cv-00679-RJS (D. Utah) • Defendants have filed a motion to dismiss that is currently pending before the court. • U.C.A. 76-6-112 was enacted in 2012 and similar to Kansas law. • Prohibits “agriculture operation interference.”

  4. Overview of Potential Areas of New or Expanding Litigation Hydraulic Fracturing Cannabis Public Nuisance Other Areas Facing Expansion

  5. Hydraulic Fracturing

  6. Hydraulic Fracturing Significant spike in litigation related to hydraulic fracturing beginning in late 2009 that claim harm ranging from groundwater contamination to air pollution to property damage from earthquakes. Result of increased media and regulatory attention, primarily to water usage/water quality issues.

  7. Hydraulic Fracturing • Property Damage Claims • Lawsuits testing fracking wastewater link to earthquakes-e.g., Arkansas, Oklahoma • Lipsky v. Range Resources, et al. (Parker County, Tex. 2011) • Class Actions • Tucker v. Southwestern Energy Co. et al. (E.D. Ark. 2011) • Regulatory Violations • Clean Water Action v. Municipal Authority of McKeesport (W.D. Pa., settled May 1, 2012)

  8. Hydraulic Fracturing • Regulatory Issues • Safe Drinking Water Act/Underground Injection Control • Clean Air Act • Some states have passed laws requiring oil and gas operators to test water wells near hydraulic fracturing sites before and after drilling • OSHA is currently focusing increased attention on occupational exposures • Obstacles for plaintiffs to overcome

  9. Overview of Potential Areas of New or Expanding Litigation • Cannabis • Legalized marijuana are generating issues that may lead to future litigation. • Efforts are underway in some states to legalize marijuana for adult use. • Big Marijuana could become an international industry in the near future.

  10. Overview of Potential Areas of New or Expanding Litigation • Public Nuisance (in a Lead Based Paint Case) • A recent $1.1 billion plaintiff’s verdict in California could revive public nuisance litigation by states.

  11. Industries Facing Expanding Litigation Food Industry Beverage Industry Cosmetics, Personal Care Industry

  12. Food and Beverage Industry Trends More than 100 class actions filed against food makers in 2012, five times the number filed four years earlier, primarily relating to food products labeling. Most food litigation centered in California. So far, aside from a few settlements, these suits have not succeeded.

  13. California Hen Law and Farm Bill • Voter approved Proposition 2 in California requires that egg-laying hens be able to spread their wings. • California legislature applied this standard to all eggs sold in the state, even if produced out of state. • Current Farm Bill discussions in Congress include a provision that would ban states from imposing stricter regulations for any farm product sold in interstate commerce beyond what other states require.

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