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


ANNOUNCEMENT: Join us Wednesday, July 19, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “The Basics of Water Law and Its Relationship to Agriculture.” Details available here.


JUDICIAL: Includes pesticides, environmental, international trade, and labor issues.

CENTER FOR BIOLOGICAL DIVERSITY, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, E.I. du Pont De Nemours and Company, et al., Intervenors, No. 14-1036, 2017 WL 2818634 (D.C. June 30, 2017) involved environmental groups alleging that the Environmental Protection Agency’s (EPA) decision to permit use of cyantraniliprole (CTP) as active ingredient in pesticides violated Endangered Species Act (ESA), Administrative Procedure Act (APA), and Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Pesticide manufacturers intervened and district court dismissed the suit. The environmental groups appealed. Appellate court found that plaintiffs “possessed Article III associational standing to bring action,” and that “it was appropriate to remand action, without vacatur, to EPA.”

DEFENDERS OF WILDLIFE, and NATURAL RESOURCE DEFENSE COUNCIL Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS; UNITED STATES BUREAU OF RECLAMATION; and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants and LOWER YELLOWSTONE IRRIGATION PROJECT BOARD OF CONTROL, SAVAGE IRRIGATION DISTRICT, and INTAKE IRRIGATION DISTRICT Defendant-Intervenors, CV-15-14-GF-BMM, 2017 WL 2869415 (D. Mont. July 5, 2017) involved a dam project impacting the endangered pallid sturgeon. The United States Bureau of Reclamation and the United States Army Corps of Engineers want to replace a wood and rock weir at Intake Dam with a concrete weir to ensure continued irrigation water to 56,800 acres serviced by the dam. Plaintiff sought preliminary injunction to halt the construction, claiming damage to the pallid sturgeon population will occur. Court agreed with plaintiff, concluding that “Federal Defendants likely violated NEPA and the CWA by proceeding with this project without adequate analysis.”

AN GIANG FISHERIES IMPORT AND EXPORT JOINT STOCK COMPANY et al., Plaintiffs and Consolidated Plaintiffs, And Vietnam Association of Seafood Exporters and Producers et al., Plaintiff–Intervenor and Consolidated Plaintiff–Intervenors, v. UNITED STATES, Defendant, and Catfish Farmers of America et al., Defendant–Intervenor and Consolidated Defendant–Intervenors, No. 14–00109, Slip Op. 17–82, 2017 WL 2928784 (Ct. Intl. Trade July 10, 2017) involved trade issues wherein the Department of Commerce constructed a value for a fish oil byproduct based on a calculation of the company’s data for inputs used to produce its fish oil while also continuing to maintain that it is using Indonesian import data. Plaintiffs alleged Commerce’s decision to construct a value for fish oil was “unsupported by substantial evidence.” The court remanded Commerce’s determination because the agency failed to explain why its decision to “construct a value rather than choose the best available existing SV data source for fish oil is reasonable.”

HISPANIC AFFAIRS PROJECT, et al., Plaintiffs, v. Alexander ACOSTA, in his official capacity as Secretary of U.S. Department of Labor, et al.,1 Defendants, No. 15–cv–01562 (BAH), 2017 WL 2951881 (D.D.C. July 7, 2017) involved procedures and conditions under which American employers bring temporary foreign laborers into the United States to perform shepherding work. Plaintiffs sought judgment that the Department of Labor (DOL) violated the Administrative Procedure Act (APA) by “adhering to the permanent work-visa, the subminimum wage, and shepherd-as-ranch-hand policies.” Plaintiffs asked court to vacate portions of a 2015 Rule permitting these policies and enjoining DOL “from authorizing H–2A visas to shepherds.” Court noted that plaintiffs did not raise their specific argument concerning DOL’s alleged permanent work-visa policy during the rulemaking process. Court waived plaintiffs’ permanent work-visa argument and ruled “the APA claims predicated on it against DOL cannot proceed.”


REGULATORY: Includes USDA, APHIS, EPA, FWS, FNS, ITA, NIST, and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to Office of Management and Budget (OMB) for review. Title: RUS Form 87, Request for Mail List Data. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice APHIS prepared a draft environmental assessment relative to the control of swallow-worts. Details here.

Notice APHIS prepared a draft environmental assessment relative to the release of three parasitoids, Diaparsis jucunda, Lemophagus errabundus, and Tetrastichus setifer for the biological control of the lily leaf beetle. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule Louisiana has applied to the EPA for final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act. Info here.

Rule Oklahoma Department of Environmental Quality has applied to the Environmental Protection Agency for final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act. Details here.

Rule EPA is proposing to revise the Federal Implementation Plan that was published in the Federal Register on September 27, 2016, to address certain regional haze and visibility transport requirements under the Federal Clean Air Act for the State of Arkansas. Info here.

Rule EPA is proposing to approve for the Entergy R. S. Nelson facility (Nelson) (1) a portion of a revision to the Louisiana Regional Haze State Implementation Plan. Info here.

Rule EPA is proposing approval of State Implementation Plan (SIP) revisions submitted by Utah on January 28, 2013, and July 8, 2015. Details here.

Rule EPA is proposing to approve certain state implementation plan revisions submitted by Utah on January 4, 2016, and certain revisions submitted on January 19, 2017, for the coarse particulate matter (PM10) national ambient air quality standard (NAAQS) in the Salt Lake County and Utah County PM10 nonattainment areas. Info here.

Rule Washington has applied to EPA for final authorization of certain changes to its hazardous waste program under the Resource Conservation and Recovery Act, as amended. Details here.

Rule EPA is proposing to approve a request from the New Jersey Department of Environmental Protection for delegation of authority to implement and enforce the Federal plan for Sewage Sludge Incineration (SSI) units. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS invites the public to comment on applications to conduct certain activities with endangered species, marine mammals, or both. Details here.

FOOD AND NUTRITION SERVICE: Notice of a revision of a currently approved information collection for the WIC Farmers’ Market Nutrition Program (FMNP) Regulations for the reporting and recordkeeping burden associated with the WIC FMNP Program regulations. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice ITA determined that revocation of the antidumping duty order on certain in-shell (raw) pistachios (pistachios) from Iran would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States. Details here.

NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY: Notice the National Advisory Committee on Windstorm Impact Reduction will hold three upcoming meetings continuing the work of the Committee. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting retention of sablefish by non-CDQ vessels using trawl gear in the Bering Sea subarea of the Bering Sea and Aleutian Islands management area. Info here.

Notice NMFS publishes notification of a 1.57 percent fee for cost recovery under the Bering Sea and Aleutian Islands Crab Rationalization Program. Info here.

Notice that that Linnea Pearson, California Polytechnic State University, 1 Grand Ave, San Luis Obispo, CA 93407, has applied in due form for a permit to conduct research on Weddell seals. Info here.

Notice the Georgia Department of Natural Resources, 2070 U.S. Highway 278 Southeast, Social Circle, GA 30025, has applied in due form for a permit to conduct research on marine mammals. Details here.

Notice that Glacier Bay National Park and Preserve, P.O. Box 140, Gustavus, AK, has applied in due form for a permit to conduct research on humpback, killer, minke, and gray whales. Details here.