A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.


ANNOUNCEMENT: Join us this Wednesday, April 18th, at 12 noon (ET) for a FREE webinar: Examining the Landscape of Agricultural Certainty Programs in the United States. Details available here.


JUDICIAL: Includes CWA, National Organic Program, environmental law, and urb & ag issues.

In UPSTATE FOREVER; Savannah Riverkeeper, Plaintiffs-Appellants, v. KINDER MORGAN ENERGY PARTNERS, L.P.; Plantation Pipe Line Company, Inc., Defendants-Appellees, Anderson County, South Carolina; Pipeline Safety Trust, Amici Supporting Appellant, American Petroleum Institute; Association of Oil Pipe Lines; GPA Midstream Association; Texas Pipeline Association; National Association of Counties; National League of Cities; National Association of Clean Water Agencies; American Forest and Paper Association; American Iron and Steel Institute; Edison Electric Institute; National Mining Association; Utility Water Act Group; State of West Virginia; State of South Carolina; State of Alabama; State of Arkansas; State of Indiana; State of Kansas; State of Louisiana; State of Missouri; State of Oklahoma; State of Utah; State of Wisconsin; Governor Phil Bryant, Amici Supporting Appellee, No. 17-1640, 2018 WL 1748154 (4th Cir. April 12, 2018), after a ruptured pipeline spilled gasoline into waterways, conservation groups brought a “citizen suit” under the Clean Water Act (CWA) alleging defendant “polluted navigable waters without a permit.” Issue was whether citizens may bring suit alleging a violation of the CWA “when the source of the pollution, the pipeline, is no longer releasing the pollutant, but the pollutant allegedly is passing a short distance through the earth via ground water and is being discharged into surface waterways.” Lower court held it lacked subject matter jurisdiction under CWA because “the pipeline has been repaired and the pollutants currently pass through ground water to reach navigable waters.” Appellate court reversed, concluding that “because citizens may bring suit for discharges of pollutants that derive from a “point source” and continue to be “added” to navigable waters.”

Sara MARENTETTE, Matthew O’Neil Nighswander, Ellen Steinlien, on behalf of themselves and all others similarly situated, Plaintiffs–Appellants, v. ABBOTT LABORATORIES, INC., Defendant–Appellee, No. 17-62-cv, 886 F.3d 112 (2nd Cir. March 23, 2018) involved a class action suit wherein consumers sued an infant formula manufacturer, claiming it sold formula “branded as organic and bearing the United States Department of Agriculture (USDA) ‘organic’ seal when the formula contained ingredients not permitted by the Organic Foods Production Act (OFPA).” District court dismissed, reasoning plaintiffs’ state law claims were preempted by OFPA. Appellate court agreed the state law claims were preempted under OFPA and affirmed.

DUKE ENERGY FLORIDA, LLC, fka Florida Power Corporation, Plaintiff-Appellant Counter-Defendant, v. FIRSTENERGY CORP., Defendant-Appellee Counter-Claimant, No. 17-3024, 2018 WL 1730168 (6th Cir. April 10, 2018) concerned hazardous waste released by two gas plants in Florida between 1929 and 1943 and the issue was who is liable for hazardous waste cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Court considered whether the “corporate successor” to the local companies that operated the original gas plants “must bear that liability on its own or may force contribution from the successor to the former corporate parent.” Court concluded a “corporate parent” may be held liable under CERCLA “only if the corporate veil separating parent and subsidiary may be pierced under the corporate law of the relevant state.” In this case, Florida law did not permit piercing the veil and appellate court affirmed grant of summary judgment for defendant.

In William A. DABBS, Jr., et al. v. ANNE ARUNDEL COUNTY, No. 23, Sept. Term, 2017, 2018 WL 1724642 (Md. Ct. Spec. App. April 10, 2018), property owners sued county to recover development impact fees. Lower court ruled for county and property owners appealed. Appellate court found that impact fees “are not subject to the rational nexus/rough proportionality test for a government taking.” The court also concluded that the county’s emendment to the ordinance at issue “did not interfere with property owners’ vested rights.” Affirmed.


LEGISLATIVE:

H.R. 5462: Dairy Risk Management Act of 2018. Text is now available.

H.R. 2615: Gulf Islands National Seashore Land Exchange Act of 2017. Text for status Reported by Senate Committee (Apr 11, 2018) is now available.

S. 1260: Gulf Islands National Seashore Land Exchange Act. Text for status Reported by Senate Committee (Apr 11, 2018) is now available.

S. 1602: Finger Lakes National Heritage Area Study Act. Text for status Reported by Senate Committee (Apr 11, 2018) is now available.

H.R. 5319: To transfer Coast Guard property in the Town of Jupiter Island, Florida, for inclusion in Hobe Sound National Wildlife Refuge. Ordered to be Reported by Voice Vote.

S. 2655: A bill to amend the Federal Power Act to promote hydropower development at existing nonpowered dams. Referred to the Senate Committee on Energy and Natural Resources.

S. 2663: A bill to modify and improve provisions relating to environmental requirements for agriculture and agricultural producers. Referred to the Senate Committee on Environment and Public Works.

H.R. 5491: To provide loans and grants to qualified agricultural associations to assist in the establishment of agricultural association health plans. Text is now available.

H.R. 3961: Kissimmee River Wild and Scenic River Study Act of 2017. Added to the House’s schedule for the coming week.

H.R. 801: Route 66 National Historic Trail Designation Act. Text for status Reported by House Committee (Apr 13, 2018) is now available.

H.R. 4: To reauthorize programs of the Federal Aviation Administration. Referred to the House Committee on Financial Services, House Committee on Natural Resources, and 3 other committees.

H.R. 5519: To amend the Plant Protection Act for purposes of mitigating the threat of invasive species. Referred to the House Committee on Agriculture.

H.R. 5513: To provide for an exchange of lands with San Bernardino County, California, to enhance management of lands within the San Bernardino National Forest. Referred to the House Committee on Natural Resources.


REGULATORY: Includes EPA, FWs, FDA and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes tolerances for residues of tetraconazole in or on multiple commodities. Isagro S.p.A requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Info here.

Rule EPA is proposing to approve changes to the Georgia State Implementation Plan submitted by the State of Georgia. Details here.

Rule EPA is proposing to approve a State Implementation Plan revision submitted by the State of Tennessee through the Tennessee Department of Environment and Conservation on November 11, 2017. Details here.

FISH AND WILDLIFE SERVICE: Rule FWS will remove the black-capped vireo from the Federal List of Endangered and Threatened Wildlife due to recovery. Info here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is announcing the availability of a guidance for industry, ‘Highly Concentrated Caffeine in Dietary Supplements.’ Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule the South Atlantic Fishery Management Council submitted Amendment 43 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP) for review, approval, and implementation by NMFS. Details here.

Notice NMFS made a preliminary determination that Exempted Fishing Permits to facilitate the use of fishing year 2018 monkfish research set-aside. Info here.

Notice NOAA, Office for Coastal Management will hold a public meeting to solicit comments on the performance evaluation of the Minnesota Coastal Management Program. Details here.

Notice that Robert Garrott, Ph.D., Montana State University, 310 Lewis Hall, Bozeman, MT 59717, has applied for an amendment to Scientific Research Permit No. 21158-01. Details here.

Notice NMFS has received a request from Washington State Department of Transportation for authorization to take marine mammals incidental to dolphin relocation. Info here.