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


ANNOUNCEMENT: Join us this 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 renewable energy, food labeling, environmental, and urb & ag issues.

In Benjamin RIGGS; Laurence Ehrhardt; and Rhode Island Manufacturers Association, Plaintiffs, Appellants, v. Margaret CURRAN, Paul Roberti, and Herbert Desimone, Jr., in their official capacity as members of the Rhode Island Public Utilities Commission; Narragansett Electric Company, Inc., d/b/a National Grid; and Deepwater Wind Block Island, LLC, Defendants, Appellees, No. 16-2083, 2017 WL 2928123 (1st Cir. July 10, 2017), utility ratepayers sued public utility commission claiming commission’s order approving power purchase agreement related to a wind farm violated the Federal Power Act (FPA) and the Public Utility Regulatory Policies Act (PURPA) because “agreement had above-market cost and would result in significant increase in their electric bills.” District court dismissed and on appeal, court held that ratepayers’ claims were “subject to state’s three-year limitations period for personal injury actions, rather than five-year general federal statute of limitations period,” and that their claims accrued, for limitations purposes, “on date that commission’s order approving wind farm project became final.” Affirmed.

In IN RE: GENERAL MILLS GLYPHOSATE LITIGATION, No. 16-2869 (MJD/BRT), 2017 WL 2983877 (D. Minn. July 12, 2017), plaintiffs filed class action claiming defendant breached its promise that its products would contain “100% Natural Whole Grain Oats,” because the products contained trace amounts of glyphosate. Court found plaintiffs failed to “plausibly allege that the statement ‘Made with 100% Natural Whole Grain Oats’ means, or could be interpreted by a reasonable consumer to mean, that there is no trace glyphosate in Nature Valley Products.” Court found plaintiffs failed to state a plausible claim and dismissed case with prejudice.

Daniel BARBOSA, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants, No. 1:16–cv–01843 (APM), 2017 WL 2958606 (D.C. July 11, 2017) involved individuals whose homes were damaged during storms and applied to FEMA for home repair assistance under the Individuals and Households Program (IHP). Their applications were denied and plaintiffs claim FEMA violated federal law when it “chose to disclose neither the legal standards it used to evaluate their applications nor the reasons for denying them full relief.” Defendants argued Stafford Act’s “discretionary function exception,” bars federal courts from reviewing FEMA’s discretionary decisions. Defendants contend that the agency’s decisions concerning its regulations “are discretionary and, therefore, cannot be the subject of judicial review.” Court granted defendants’ motion to dismiss.

COLUMBIA GAS TRANSMISSION, LLC, Plaintiff – Appellant, v. 76 ACRES, MORE OR LESS, IN BALTIMORE AND HARFORD COUNTIES, MARYLAND; LAMBERT G. BOYCE, JR.; LEDLEY BYRD BOYCE; ROBERT E. BOYER, JR.; MARGARET H. KENNEY, Defendants – Appellees, and CHARLES DAVID CAYCE, IV; BETTY JANE CAYCE; WILLIAM R. COLE; EDUARDO GONZALEZ; LILIANA GONZALEZ; LINDA A. GUCKERT; CHRISTOPHER GUCKERT; JOHN HERBERT HAGAN, IV; ROBERT HERBERT HAGAN; JAMES A. QUICK; SUSAN W. QUICK; JOHN THOMAS REED; KATHERINE GAYLE REED; DONALD J. ROCKER; MARITAL TRUST UNDER WILL OF GERALD J. STAUTBERG, c/o Larry Silverstein and James A. Stautberg; FRANK A. TEDESCHI; SUSAN M. TEDESCHI; MARCO ZAMORA; MARIA GUADALUPE ZIZELMAN, f/k/a Maria G. Zamora; JOSEPH VINCENT ZITO; KLARA ZITO; CONSERVATION EASEMENT HOLDER, The Manor Conservancy, Inc; ROBERT K. DE GRAW; DEBORAH DE GRAW; WILFRED L. TURK; NANCY A. TURK, Defendants. COLUMBIA GAS TRANSMISSION, LLC, Plaintiff – Appellee, v. 76 ACRES, MORE OR LESS, IN BALTIMORE AND HARFORD COUNTIES, MARYLAND; LAMBERT G. BOYCE, JR.; LEDLEY BYRD BOYCE; ROBERT E. BOYER, JR.; MARGARET H. KENNEY, Defendants – Appellants, And CHARLES DAVID CAYCE, IV; BETTY JANE CAYCE; WILLIAM R. COLE; EDUARDO GONZALEZ; LILIANA GONZALEZ; LINDA A. GUCKERT; CHRISTOPHER GUCKERT; JOHN HERBERT HAGAN, IV; ROBERT HERBERT HAGAN; JAMES A. QUICK; SUSAN W. QUICK; JOHN THOMAS REED; KATHERINE GAYLE REED; DONALD J. ROCKER; MARITAL TRUST UNDER WILL OF GERALD J. STAUTBERG, c/o Larry Silverstein and James A. Stautberg; FRANK A. TEDESCHI; SUSAN M. TEDESCHI; MARCO ZAMORA; MARIA GUADALUPE ZIZELMAN, f/k/a Maria G. Zamora; JOSEPH VINCENT ZITO; KLARA ZITO; CONSERVATION EASEMENT HOLDER, The Manor Conservancy, Inc; ROBERT K. DE GRAW; DEBORAH DE GRAW; WILFRED L. TURK; NANCY A. TURK, Defendants. COLUMBIA GAS TRANSMISSION, LLC, Plaintiff – Appellee, v. 76 ACRES, MORE OR LESS, IN BALTIMORE AND HARFORD COUNTIES, MARYLAND; MARGARET H. KENNEY, Defendants – Appellants, and LAMBERT G. BOYCE, JR.; LEDLEY BYRD BOYCE; ROBERT E. BOYER, JR.; CHARLES DAVID CAYCE, IV; BETTY JANE CAYCE; WILLIAM R. COLE; EDUARDO GONZALEZ; LILIANA GONZALEZ; LINDA A. GUCKERT; CHRISTOPHER GUCKERT; JOHN HERBERT HAGAN, IV; ROBERT HERBERT HAGAN; JAMES A. QUICK; SUSAN W. QUICK; JOHN THOMAS REED; KATHERINE GAYLE REED; DONALD J. ROCKER; MARITAL TRUST UNDER WILL OF GERALD J. STAUTBERG, c/o Larry Silverstein and James A. Stautberg; FRANK A. TEDESCHI; SUSAN M. TEDESCHI; MARCO ZAMORA; MARIA GUADALUPE ZIZELMAN, f/k/a Maria G. Zamora; JOSEPH VINCENT ZITO; KLARA ZITO; CONSERVATION EASEMENT HOLDER, The Manor Conservancy, Inc; DEBORAH DE GRAW; ROBERT K. DE GRAW, Defendants, No. 15-2547, No. 15-2569, No. 16-1017, 2017 WL 2983908 (4th Cir. July 13, 2017) involved an appeal from a condemnation proceeding commenced by plaintiff (Columbia) after the company took some easements by eminent domain over the properties of some landowners. After a jury trial, landowners were awarded compensation for plaintiff’s taking. Plaintiff appealed, arguing district court “erroneously permitted the jury to modify the size of the taking that Columbia sought.” Landowners cross-appealed a decision granting Columbia “immediate possession of the easements.” Appellate court ruled district court erred by allowing defendant (Boyces) “to contest the size of the temporary easement on their property, which resulted in a disproportionate damages award for the temporary easement.” Court vacated jury award of a temporary easement on defendants’ property.


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

AGRICULTURE DEPARTMENT: Notice USDA requests ideas from the public on how the agency can provide better customer service and remove unintended barriers to participation in its programs. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS has prepared a supplemental environmental assessment relative to an oral rabies vaccination field trial in New Hampshire, New York, Ohio, Vermont, and West Virginia. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is correcting the addresses and agencies names for EPA Region 4 State and local agencies in EPA regulations. Details here.

Rule EPA is approving a July 7, 2016 state implementation plan (SIP) revision submitted by the State of Maryland. Info here.

Rule Region 7 announces the deletion of the Callahan property, Operable Unit 3(OU3) of the Ellisville Superfund Site located in Wildwood, Missouri, from the National Priorities List. Details here.

Rule EPA is proposing to approve changes to Kentucky’s air quality standards for carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter and sulfur dioxide to reflect the historical and current National Ambient Air Quality Standards. Details here.

Rule EPA is proposing to approve a May 26, 2016, State Implementation Plan (SIP) submission from Minnesota that is intended to demonstrate that the Minnesota SIP meets certain interstate transport requirements of the Clean Air Act (CAA) for the 2008 ozone National Ambient Air Quality Standards. Details here.

Rule EPA is proposing to approve a state implementation plan submission from Minnesota addressing the state board requirements of the Clean Air Act. Info here.

FISH AND WILDLIFE SERVICE: Notice received an application from Laguna County Sanitation District, for an incidental take permit under the Endangered Species Act. Info here.

GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATION: Notice of a correction made in the Federal Register concerning United States Standards for lentils. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice requesting extension of a current information collection regarding exempted fishing permits (EFPs), scientific research permits (SRPs), display permits, letters of acknowledgment (LOAs), and shark research fishery permits. Info here.

Notice NMFS made a preliminary determination that an application for an exempted fishing permit (EFP) warrants further consideration and an opportunity for public comment. Info here.