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


JUDICIAL: Includes CWA, environmental, land use, food labeling, National Organic Program, and food safety issues.

In CONSTITUTION PIPELINE COMPANY, LLC, Petitioner, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION; Basil Seggos, Acting Commissioner, New York State Department of Environmental Conservation; John Ferguson, Chief Permit Administrator, New York State Department of Environmental Conservation, Respondents, Stop the Pipeline, Catskill Mountainkeeper, Inc., Sierra Club, Riverkeeper, Inc., Intervenors. No. 16-1568, 2017 WL 3568086 (2d Cir. Aug. 18, 2017), petitioner sought review of a ruling by the New York State Department of Environmental Conservation (NYSDEC) denying their application for certification under the Clean Water Act (CWA), that petitioner’s proposed interstate natural gas pipeline would comply with New York State water quality standards. NYSDEC claimed petitioners did not provide enough information and denied the application. On appeal, petitioner argued NYSDEC “exceeded the time limitations for the State’s review of the application . . .  thereby allowing the US Army Corps of Engineers (USACE) to issue a permit.” Appellate court dismissed petition for lack of jurisdiction and ruled NYSDEC’s actions “were within its statutory authority and that its decision was not arbitrary or capricious.” Plaintiff’s petition denied.

EMHART INDUSTRIES, INC., Plaintiff and Counterclaim Defendant, v. NEW ENGLAND CONTAINER COMPANY, INC.; et al., Defendants and Counterclaim Plaintiffs. Emhart Industries, Inc., Plaintiff and Counterclaim Defendant, v. United States Department of the Air Force; et al., Defendants, Counterclaim Plaintiffs, and Third–Party Plaintiffs, v. Black & Decker, Inc.; et al., Third–Party Defendants, No. 06–218 S, C.A. No. 11–023 S, 2017 WL 3535003 (D.R.I. Aug. 17, 2017) involved ongoing litigation regarding toxic pollution at a superfund site. At issue for the court was whether the Environmental Protection Agency’s (EPA) “remedy-selection process” was arbitrary and whether plaintiff “had sufficient cause to refuse to comply with” EPA’s Administrative Order. Court found plaintiff established that a number of EPA decisions were arbitrary, including “labelling Source Area groundwater as a potential source of drinking water,” and “using fourteen grams as the reasonable maximum consumption rate for anglers fishing at the Site.” Court found EPA’s remedial decisions arbitrary and in violation CERCLA.

In John Kennedy LAYLE, Trustee of the John Kennedy Layle Jr. Revocable Trust, U/T/D 8/26/97, et al., Appellants, v. CITY OF MISSION HILLS, Kansas, et al., Appellees, No. 116,095, 2017 WL 3568551 (Kan. Ct. App. Aug. 18, 2017), plaintiffs sought administrative approval to remove pickets and rails on their residential fence and install new ones. City claimed the proposed work could not be approved because “it was not merely a repair but was instead a replacement for which the zoning regulations required variances before a building permit could be issued.” The city claimed that “any minor cosmetic change to any surface visible to others could constitute a change to an exterior surface, disqualifying it as a “repair” . . . and requiring a building permit or variance.” Court found city’s interpretation “unreasonable” and ruled the proposed work was a repair, not requiring a variance. Reversed for plaintiff.

In KATHLEEN GIBSON, et al., Plaintiffs, v. THE QUAKER OATS COMPANY Defendant, No. 16 CV 4853, 2017 WL 3508724 (N.D. Ill.  August 14, 2017), plaintiff filed class action suit seeking damages over the presence of glyphosate in defendant’s products. Plaintiff argued presence of glyphosate in Quaker Oats products labeled “natural” creates an “omission of a material fact or was meant to mislead the average consumer.” Defendant filed motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. Court agreed with defendant, reasoning that, “Because Congress has preempted the field of food labeling and because the presence of pesticides and chemical residues is governed by federal statute, Plaintiff’s cannot challenge Quaker Oats labeling under state or common law.” Defendant’s motion granted as plaintiff failed state a claim for relief.

In THE CORNUCOPIA INSTITUTE, Plaintiff, v. AGRICULTURAL MARKETING SERVICE, Defendant, No. 16-0654 (RMC), 2017 WL 3535209 (D.D.C. August 16, 2017), plaintiff, a public interest farm policy organization, filed a Freedom of Information Act (FOIA) request seeking records from the Agricultural Marketing Service (AMS) concerning investigations conducted by the National Organic Program. Plaintiff challenged both the “adequacy of the search for records and the propriety of the exemptions cited by the Service for its redactions and withholdings.” Court observed that “FOIA does not require an agency to submit an affidavit that ‘set[s] forth with meticulous documentation of the details of an epic search for the requested records.’” The court also concluded that AMS “acted appropriately in separating and releasing such information as was not exempt from disclosure under a FOIA exemption.”

In Sue Shin v. Campbell Soup Company, No. CV 17-1082-DMG (JCx) 2017 WL 3534991 (C.D. Cal. August, 9, 2017), plaintiff alleged defendant claimed their soup products are healthy by including the terms “25% Less Sodium” and  “98% Fat Free” on their labels, and further claimed she would not have purchased the soups if she “had she known that the sodium content exceeds the disqualifying level.” Court found the statements by Campbell’s are “factually true” and more importantly, “would not cause a reasonable consumer to believe that the Products are ‘healthy.’” Court granted defendant’s motion to dismiss plaintiff’s false advertising and unfair competition claims.


REGULATORY: Includes AMS, USDA, EPA, FWS, FDA, FNS, FSIS, FS, ITA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule AMS is establishing voluntary United States Standards for Grades of Frozen Onions. Info here.

Rule revises the U.S. Standards for Grades of Shelled Walnuts and the U.S. Standards for Grades of Walnuts in the Shell issued under the Agricultural Marketing Agreement Act of 1946. Details here.

AGRICULTURE DEPARTMENT: Notice USDA submitted information collection requirement(s) to OMB for review. Title: USDA Race, Ethnicity and Gender Data Collection. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is withdrawing the June 29, 2017, direct final rule that would have approved a revision to the Georgia State Implementation Plan (SIP) concerning changes to existing minor source permitting exemptions and a definition related to minor source permitting exemptions. Info here.

Rule removes the provisions that were added in the June 23, 2017, direct final rule published in the Federal Register on June 23, 2017 titled National Emission Standards for Hazardous Air Pollutants (NESHAP) From the Portland Cement Manufacturing Industry: Alternative Monitoring Method. Info here.

Rule EPA is proposing to amend the National Emission Standards for Hazardous Air Pollutants From the Portland Cement Manufacturing Industry. Details here.

FISH AND WILDLIFE SERVICE:

Rule FWS proposes special migratory bird hunting regulations for certain Tribes on Federal Indian reservations, off-reservation trust lands, and ceded lands for the 2017-18 migratory bird hunting season. Details here.

Notice FWS seeks comment on the following applications for a permit to conduct activities intended to recover and enhance the survival of endangered species. Info here.

FOOD AND DRUG ADMINISTRATION:

Rule FDA is correcting a notice that appeared in the Federal Register of Wednesday, July 26, 2017 (82 FR 34615). Details here.

Notice FDA is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review. Title: Food Additive, Color Additive (Including Labeling), Submission of Information to a Master File in Support of Petitions. Details here.

FOOD AND NUTRITION SERVICE:

Notice seeks comment on a proposed information collection. Title: Summer Meals Study. Info here.

Notice FNS will request approval to collect information via online forms. Details here.

FOOD SAFETY AND INSPECTION SERVICE:

Rule FSIS announces an educational meeting to discuss the enforcement and implementation of the Final Rule, “Mandatory Inspection of Fish of the Order Siluriformes and Products Derived from Such Fish.” Info here.

FOREST SERVICE: Notice the Huron-Manistee Resource Advisory Committee (RAC) will meet in Mio, Michigan. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice that on August 8, 2017, the Court of International Trade (CIT) issued its final judgment, sustaining the Department of Commerce’s (the Department’s) remand results pertaining to the eighth administrative review of the antidumping duty order on certain frozen warmwater shrimp from Vietnam. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is issuing regulations under the Marine Mammal Protection Act for the taking of marine mammals incidental to Long Range Strike Weapons System Evaluation Program exercises on the Barking Sands Underwater Range Expansion of the Pacific Missile Range Facility off Kauai, Hawaii. Details here.

Rule would establish quotas, opening dates, and retention limits for the 2018 fishing season for the Atlantic commercial shark fisheries. Info here.

Rule Gulf of Mexico Fishery Management Council has submitted Amendment 17B to the Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico U.S. Waters (FMP), for review, approval, and implementation by NMFS. Info here.

Rule NMFS issues a proposed rule to implement Amendment 48 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs and a regulatory amendment to revise regulations implementing the American Fisheries Act Program and the Crab Rationalization Program. Details here.

Rule NMFS announces receipt of a petition for emergency rulemaking under the Administrative Procedure Act. Info here.

Notice NMFS is publishing its draft List of Foreign Fisheries for 2017, as required by the regulations implementing the Fish and Fish Product Import Provisions of the Marine Mammal Protection Act. Info here.

Notice that permits or permit amendments have been issued to entities under the Marine Mammal Protection Act and the Endangered Species Act. Details here.