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


ANNOUNCEMENT: Join us Wednesday, September 6, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Water Law Update.” Details available here.


JUDICIAL: Includes CWA, environmental, urb & ag, biosecurity, and food safety issues.

MICHAEL KLEINMAN, Plaintiff, v. CITY OF AUSTIN, Defendant, 1:15-cv-497-RP, 2017 WL 3585792 (W.D. Tex. August 18, 2017) concerned alleged violations of the Clean Water Act (CWA), stemming from a construction project completed by the City of Austin. Plaintiff sought an injunction requiring City to “take remedial measures to remove a sediment bar and to prevent further discharge of construction material into the Colorado River.” Plaintiff argued City conceded liability under the CWA and City argued plaintiff “lacks standing to sue under Article III and the CWA, and that it is immune from liability under the CWA because of permits it held at the relevant time.” Court found plaintiff has standing and noted evidence suggested City’s “construction material is likely to continue washing into the river.” Summary judgment for defendant denied.

In SIERRA CLUB, et al., Petitioners v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Duke Energy Florida, LLC, et al., Intervenors, No. 16–1329, 2017 WL 3597014 (D.C. August 22, 2017), environmental groups challenged ruling of the Federal Energy Regulatory Commission (FERC) approving “construction and operation of three new interstate natural-gas pipelines in the southeastern United States.” Plaintiffs argued the agency’s assessment of the environmental impact of the pipelines was “inadequate.” Court found FERC’s environmental impact statement “did not contain enough information on the greenhouse-gas emissions that will result from burning the gas that the pipelines will carry.” Court granted plaintiff’s petition for review and remanded for “preparation of a conforming environmental impact statement.”

In LYNN COOKE ANDREWS, et al., Plaintiffs, v. TOWN OF WALLINGFORD, et al., Defendants, No. 3:16-cv-01232 (JAM), 2017 WL 3588571 (D. Conn. August 21, 2017), plaintiffs built a pond on their farm without first applying for a wetlands permit and town officials issued cease-and-desist orders. Plaintiffs sued, arguing town violated their “constitutional right to farm the land.” Issue for court was whether plaintiffs “waited too long to come to federal court.” Plaintiffs argued statute of limitations had not expired because “they continue to be subject to the ongoing effects of the town’s enforcement orders that prevent them every day until now from using their farm pond as they wish.” Court noted plaintiffs “were aware of their injury more than three years” before filing their suit and found their claims were barred by statute of limitations. Case dismissed.

In COMMONWEALTH of Pennsylvania, Appellee v. Frederick W. KARASH, Appellant, No. 1440 WDA 2016, 2017 WL 3587046 (Pa. Super. Ct. August 21, 2017), a water conservation officer stopped and boarded appellant’s boat to conduct a license check and was issued a citation for not having enough personal flotation devices. Appellant filed a motion to suppress evidence arguing the officer “did not have reasonable suspicion or probable cause to conduct a stop.” Trial court ruled the officer had the “power to stop and board any boat without probable cause for the purpose of inspection for compliance with safety rules and regulations.” Issue on appeal was “whether the stop of a boat without reasonable suspicion or probable cause on a Pennsylvania waterway violates the Fourth Amendment.” Court noted the Commonwealth “has not demonstrated that it is unable to set up a system of inspection similar to what is done on roadways, and consistent with other states,” and concluded the stop violated the Fourth Amendment. Reversed.

CENTER FOR FOOD SAFETY; CENTER FOR BIOLOGICAL DIVERSITY; SIERRA CLUB; HUMANE SOCIETY OF THE UNITED STATES; ANIMAL LEGAL DEFENSE FUND; UNITED FARM WORKERS OF AMERICA, Plaintiffs-Appellants, v. MARGARET A. HAMBURG, Commissioner, United States Food and Drug Administration; U.S. FOOD & DRUG ADMINISTRATION, Defendants-Appellees, ELANCO US INC., Intervenor-Defendant-Appellee. No. 15-17510, 2017 WL 3601726 (9th Cir. August 22, 2017) concerned allegations that Food and Drug Administration (FDA) approval of the use of animal drugs violated the National Environmental Policy Act (NEPA). District court dismissed the case after finding that plaintiff failed to satisfy the Administrative Procedure Act’s (APA) exhaustion requirements. Appellate court agreed with lower court finding that the FDA “should be afforded an opportunity to apply its expertise to assess plaintiff’s claims in the first instance ‘prior to possible judicial intervention.’” Appellate court directed the district court “to stay further proceedings to allow [plaintiff] to comply with the FDA’s citizen petition requirement.” Vacated and remanded.


REGULATORY: Includes USDA, APHIS, EPA, GIPSA, and NOAA rules and notices.

AGRICULTURE DEPARTMENT:

Rule provides summary descriptions of significant and not significant regulations being developed in agencies of the U.S. Department of Agriculture (USDA) in conformance with Executive Orders (EO) 13771 “Enforcing the Regulatory Reform Agenda,” 12866 “Regulatory Planning and Review,” and 13563 “Improving Regulation and Regulatory Review.” Details here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: National Visitor Use Monitoring, and Customer and Use Survey Techniques for Operations, Management, Evaluation and Research. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Rule APHIS seeks comment on potential revisions to the licensing requirements under our Animal Welfare Act regulations to promote compliance with the Act, reduce licensing fees, and strengthen existing safeguards that prevent any individual whose license has been suspended or revoked, or who has a history of noncompliance, from obtaining a license or working with regulated animals. Info here.

Notice APHIS will request approval of an information collection associated with the requirements for the interstate movement of regulated articles to prevent the spread of citrus black spot. Info here.

Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the importation of certain fruits and vegetables into the United States. Info here.

Notice APHIS will request approval of an information collection associated with the requirements for the interstate movement of fresh, mature Kaffir lime, curry, and bael leaves for consumption from areas quarantined for citrus greening and Asian citrus psyllid. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a portion of Alabama’s State Implementation Plan (SIP) revision submitted by the State of Alabama, through the Alabama Department of Environmental Management. Info here.

Rule EPA is proposing to approve the State Implementation Plan revision, which the State of Iowa (the state) submitted to the EPA on May 26, 2016, for attaining the 1-hour sulfur dioxide (SO2) primary National Ambient Air Quality Standard (NAAQS) for the Muscatine nonattainment area. Info here.

Rule EPA is proposing to revise the MACT standard for back-end CPVs at existing affected sources based on hazardous air pollutant (HAP) emissions test data for back-end CPVs at existing sources for this source category submitted by petitioners. Info here.

GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATION: Notice GIPSA will request that the Office of Management and Budget (OMB) approve a 3-year extension of a currently approved information collection for the “Reporting and Recordkeeping Requirements under the United States Grain Standards Act (USGSA) and under the Agricultural Marketing Act of 1946 (AMA).” Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS published a final rule on July 25, 2017, to implement management measures described in Amendment 37 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region. Info here.

Rule NMFS implements accountability measures (AMs) for the recreational and commercial sectors for the Florida Keys/East Florida hogfish stock in the exclusive economic zone (EEZ) for the 2017 fishing year through this temporary rule. Info here.

Notice of Approval for the South Slough, Oregon National Estuarine Research Reserve Management Plan revision. Details here.

Notice that the British Broadcasting Corporation Worldwide Americas, Inc., has applied in due form for a permit to conduct commercial or educational photography on Weddell Seals in Antarctica. Details here.

Notice NMFS has received a request from the United States Air Force, Eglin Air Force Base (AFB) 96th Test Wing (AFMC) for authorization to take marine mammals incidental to conducting testing and training activities in the Eglin Gulf Test and Training Range in the Gulf of Mexico over the course of five years. Info here.