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


ANNOUNCEMENT: 

Mark your calendar for the next Agricultural & Food Law Consortium webinar, Wednesday, August 15th: Commercial Shellfish Aquaculture Permitting under Nationwide Permit 48. Details available here.

REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.


JUDICIAL: Includes environmental, CAA, and urb & ag issues.

In CITY OF TAUNTON, MASSACHUSETTS, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, No. 16-2280, 895 F.3d 120 (1st Cir. July 9, 2018), City objected to the Environmental Protection Agency’s (EPA) decision to limit the amount of nitrogen discharged from one of City’s wastewater treatment plants. EPA based its decision per National Pollutant Discharge Elimination System (NPDES) permit guidelines. EPA maintained limitation was needed after concluding “the City’s nitrogen discharges had the ‘reasonable potential’ to cause or contribute to that overenrichment.” City argued EPA’s factsheet, used as basis for the decision, contained “only generalized supporting information for stringent nutrient limitations,” and “failed to provide adequate support for draft permit’s nitrogen limitation.” Court affirmed EPA’s decision after concluding the agency “did not act arbitrarily or capriciously.”

In KENETH BAKER AND JENNIFER BAKER Plaintiffs, v. BAKER HUGES OILFIELD OPERATIONS, INC., Defendant, 3:16-cv-00038 JWS, 2018 WL 3625834 (D. Alaska July 20, 2018), plaintiffs, homeowners near defendant’s cement blending plant, sued for trespass, nuisance, and strict liability under Alaska’s pollution statute, “stemming from the discharge of the storage silos. Defendant moved for summary judgment, claiming that plaintiff could not demonstrate “actual damages.” Court considered “the potential migration of material across a property line,” and per the facts, “Defendant’s employees discharged several hundred tons of blended dry cement.” Court concluded the evidence would “allow a reasonable jury to draw an inference that some amount of several hundred tons of blended dry cement drifted by air when blasted out on the back of Defendant’s property.” Defendant’s motion for summary judgment denied.

In DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, No. 16-1230, 895 F.3d 90 (D.C. July 10, 2018), the Environmental Protection Agency (EPA) granted an extension for a multistate region to comply with national ozone standards under the Clean Air Act (CAA). Delaware petitioned for review of the agency’s decision and argued that per statute, the EPA “can grant an extension of an attainment date for a multi-state area only when every state in that area asks for it.” The court recognized that per statute, “[a]n attainment-date extension may be granted by EPA ‘[u]pon application by any State.’” Delaware argued “any State” means “every state in a multistate area.” Court denied Delaware’s petition after concluding that the EPA “could consider attainment-date extension for multistate area even when not all states in area asked for it.”

In MINNESOTA SANDS, LLC, Appellant, v. COUNTY OF WINONA, Minnesota, Respondent, A18-0090, 2018 WL 3614333 (Minn. Ct. App. July 30, 2018), plaintiff challenged a land-use ordinance “prohibiting all mining of industrial minerals” and argued the ordinance violated the dormant Commerce Clause. Lower court dismissed plaintiff’s suit and on appeal, plaintiff maintained the ordinance “is facially discriminatory against out-of-state interests and is a ban on the exportation of industrial minerals mined in the county.” Appellate court considered the language of the ordinance at issue and found “it does not favor in-state interests over out-of-state interests,” and that it “even-handedly bans all industrial-mineral mining, which includes silica-sand mining, within the county.” Affirmed.


REGULATORY: Includes EPA, FWS, FDA, FS, NOAA and RBCS rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule is EPA’s erratum to the final rule titled Addition of a Subsurface Intrusion Component to the Hazard Ranking System, published January 9, 2017 (82 FR 2760). Details here.

Rule EPA is approving Missouri’s request to redesignate the Missouri portion of the St. Louis MO-IL nonattainment area to attainment for the 1997 Annual PM2.5 NAAQS as the monitoring values demonstrate the area attains the standard. Info here.

Rule EPA is proposing approval of State Implementation Plan (SIP) revisions submitted by Connecticut which relate to the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS). Info here.

Rule EPA is proposing to approve a state implementation plan (SIP) revision submitted by the State of Maryland. Info here.

Rule EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of New Hampshire. Details here.

Rule EPA is proposing to approve a state implementation plan (SIP) revision submitted by the state of West Virginia. Info here.

FISH AND WILDLIFE SERVICE:

Notice FWS announces the availability of our draft revised recovery plan for Texas snowbells, listed as endangered under the Endangered Species Act. Details here.

Notice FWS received an application for a permit to conduct activities intended to enhance the propagation or survival of an endangered species under the Endangered Species Act of 1973, as amended. Info here.

FOOD AND DRUG ADMINISTRATION:

Notice solicits comments on the information collection provisions of our regulations regarding Food Additive Petitions and Investigational Food Additive Exemptions. Info 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: Survey on the Occurrence of Foodborne Illness Risk Factors in Selected Institutional Foodservice and Retail Food Stores Facility Types. Info here.

FOREST SERVICE:

Notice FS is seeking comments from all interested individuals and organizations on the revision of a currently approved information collection, Helicopter Pilot Qualifications and Approval Record. Info here.

Notice FS has accepted a master development plan from Snow King Mountain Resort. Details here.

Notice FS is revising the Inyo National Forest’s Land and Resource Management Plan (forest plan). Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces ten inseason actions in the ocean salmon fisheries. Details here.

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Application and Reports for Scientific Research and Enhancement Permits under the Endangered Species Act. Details here.

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Pacific Islands Logbook Family of Forms. Info here.

RURAL BUSINESS-COOPERATIVE SERVICENotice announces the solicitation of applications for funds available under the Biorefinery, Renewable Chemical, and Biobased Product Manufacturing Assistance Program (the Program) to provide guaranteed loans to fund the development, construction, and retrofitting of commercial scale biorefineries using eligible technology and of Biobased product manufacturing facilities that use technologically new commercial scale processing and manufacturing equipment to convert renewable chemicals. Info here.