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


ANNOUNCEMENT: Register today for our Fifth Annual Mid-South Agricultural and Environmental Law Conference in Memphis, TN / June 7-8. CLE credit available! Additional information available here.


JUDICIAL: Includes SNAP, pesticides, CWA and environmental issues.

In Shonice G. GARNETT et al., Plaintiffs, v. Laura ZEILINGER, Defendant, No. 17–cv–1757 (CRC), 2018 WL 2451226 (D.D.C. May 31, 2018), residents of the District of Columbia sued director of the District’s Supplemental Nutrition Assistance Program (SNAP) program for alleged “noncompliance with . . . statutory deadlines for processing benefit applications and periodically recertifying benefit eligibility.” Plaintiffs sought preliminary injunction compelling District to “adhere to the statutory timelines for processing both initial and periodic recertification applications,” and to “timely notify eligible households that their benefits will expire absent recertification.” Court issued injunction requiring District to process (“SNAP”) SNAP recertification applications “within the statutory deadlines.”

In IN RE: DICAMBA HERBICIDES LITIGATION, Main Case 1:18-md-2820-SNLJ, Indiv. Case 1:18-cv-21-SNLJ, 2018 WL 2447792 (E.D. Mo. May 31, 2018), plaintiffs sued in state court, alleging strict liability and negligence regarding defendant’s dicamba herbicide and issue for court was whether “any one of plaintiffs’ claims arise under federal law?” Defendant [Monsanto] removed and argued plaintiffs “must prove Monsanto violated federal pesticide labeling requirements to succeed on their negligence-based state-law labeling claims.” Court disagreed and determined plaintiffs will have to show a violation of FIFRA “only if Monsanto raises the preemption defense.” The court further noted that “[t]his is not a case in which plaintiffs must show that a federal standard was violated to satisfy an element of their claim.” Court concluded none of plaintiffs’ claims arise under federal law and their claims are not preempted. Plaintiffs’ motion to remand granted.

ATTORNEY GENERAL and DEPARTMENT OF ENVIRONMENTAL QUALITY, Plaintiffs-Appellants, v. POLYONE CORPORATION, successor to M. A. HANNA COMPANY, Defendant-Appellee, No. 339754, 2018 WL 2448640 (Mich. Ct. App. May 31, 2018) concerned a consent decree requiring defendant to renew an NPDES permit and operate a water treatment system at a mine. Defendant sent a Notice of Completion to plaintiff and plaintiff issued defendant a Certificate of Completion, but stated that defendant “would still be required to operate and maintain the NPDES permit and maintain the water treatment system” at issue. Defendant argued that per the consent decree, he had no obligation to do so, and lower court agreed. Court examined the language of the consent decree and observed that “[b]ecause the consent decree refers to ‘a’ final NPDES permit, it does not refer to a singular and specific permit.” Appellate Court concluded “defendant’s obligations to perform ongoing maintenance activities . . . terminated when plaintiffs issued a Certificate of Completion.” Affirmed.

James Jefferson JOWERS Sr., Andrew J. Anastos, Ben Williamson, Melanie Ruhlman, and Anthony Ruhlman, Appellants, v. SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Respondent, Appellate Case No. 2016-000428, 2018 WL 2449220 (S.C. May 30, 2018) concerned a challenge to registration provisions in the Surface Water Withdrawal Act by property owners along a river. Plaintiffs argued the provisions are “an unconstitutional taking, a violation of due process, and a violation of the public trust doctrine.” Lower court dismissed after determining plaintiffs lacked standing and case was not ripe. Affirmed.


LEGISLATIVE:

H.R. 5655: Camp Nelson Heritage National Monument Act. Bill added to the House’s schedule for the coming week.

H.R. 5956: To incentivize the hiring of United States workers in the Commonwealth of the Northern Mariana Islands. Bill added to the House’s schedule for the coming week.


REGULATORY: Includes EPA, FS, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving the State Implementation Plan (SIP) revision that the State of New Hampshire submitted to EPA on January 31, 2017, for attaining the 1- hour sulfur dioxide (SO<INF>2</INF>) primary national ambient air quality standard (NAAQS) for the Central New Hampshire Nonattainment Area. Info here.

Rule EPA is approving elements of the Texas Infrastructure State Implementation Plan (i-SIP) submittal addressing how the existing SIP provides for implementation, maintenance and enforcement of the 2012 fine particulate matter (PM<INF>2.5</INF>) National Ambient Air Quality Standard (NAAQS). Info here.

Rule amends existing tolerances for residues of alpha-cypermethrin in or on fruit, citrus group 10-10 and hog fat. EPA is modifying these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA) to correct an error in a previous rulemaking that established these tolerances at an unintended level. Details here.

Rule establishes an exemption from the requirement of a tolerance for residues of poly(oxy-1,2-ethanediyl), [alpha]-(1- oxoalkyl)-[omega]-methoxy-, where the alkyl chain contains a minimum of 6 and a maximum of 18 carbons and the oxyethylene content is 3-13 moles, when used as an inert ingredient (stabilizer and solubilizing agent) in pesticide formulations applied to growing crops or raw agricultural commodities after harvest. Info here.

Rule EPA is proposing to approve elements of a State Implementation Plan (SIP) submission from the State of Missouri for the 2012 Annual Fine Particulate Matter (PM<INF>2.5</INF>) National Ambient Air Quality Standard (NAAQS). Info here.

Rule EPA is proposing to approve revisions to the State Implementation Plan (SIP) submitted on July 14, 2014, by the State of Nebraska. Info here.

Rule EPA is proposing to approve revisions to the State Implementation Plan (SIP) submitted by the State of Nebraska on August 28, 2014. Details here.

Rule EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Rhode Island. Info here.

FOREST SERVICE: Notice the Sabine-Angelina Resource Advisory Committee (RAC) will meet in Hemphill, Texas. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Fishery Capacity Reduction Program Buyback Requests. Info here.

Notice NMFS is extending the public comment period for the Notice of Intent (NOI) to Prepare an Environmental Impact Statement (EIS) to inform its decision of whether to determine that a resource management plan (RMP) jointly developed by the Washington Department of Fish and Wildlife (WDFW) and the Puget Sound Tribes (Tribes), collectively the co-managers, meets requirements under Limit 6 of the Endangered Species Act (ESA) 4(d) rule for the ESA-listed Puget Sound Chinook salmon Evolutionarily Significant Unit (ESU), which is listed as threatened under the ESA. Details here.

Notice is hereby given that NMFS Northeast Fisheries Science Center, Woods Hole, MA (Responsible Party: John Hare), has applied in due form for a permit to conduct research on four species of pinnipeds. Info here.

Notice NMFS has issued an incidental harassment authorization (IHA) to the California Department of Transportation (Caltrans) to incidentally harass, by Level B harassment only, marine mammals during the dismantling and reuse of the original East Span of the San Francisco-Oakland Bay Bridge (SFOBB) in the San Francisco Bay (SFB). Details here.