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


ANNOUNCEMENT: Join us TOMORROW at 12 noon (ET) for the next Agricultural & Food Law Consortium webinar:  Water Wars in the United States Supreme Court: Why Should Agriculture Care? Details available here.


JUDICIAL: Includes environmental and taxation issues.

CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, Plaintiff–Appellant, v. WESTSIDE DELIVERY, LLC; and Does 1 through 10, inclusive, Defendants–Appellees, No. 16-56558, 2018 WL 1973715 (9th Cir. April 27, 2018) concerned third-party defense claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Plaintiff conducted cleanup efforts at a toxic site and sued defendant under CERCLA for cleanup costs.  Defendant claimed it was not liable because the release of hazardous substances at the site was caused “solely by third parties with whom it lacked a “contractual relationship.” District court sided with defendant and issue on appeal was whether a purchaser of real property at a tax sale has a “’contractual relationship’ with the previous private owner of the property within the meaning of CERCLA.” Court concluded that the previous owner caused contamination “in connection with” its contractual relationship with defendant and as a result, the court found defendant is “not entitled to CERCLA’s third-party defense.” Lower court reversed.

SHAAREI TFILOH CONGREGATION v. MAYOR AND CITY COUNCIL OF BALTIMORE, No. 2572, Sept. Term, 2016, 2018 WL 1989534 (Md. Ct. Spec. App., April 27, 2018) concerned a law imposing stormwater remediation fees enacted to reduce pollutants entering Chesapeake Bay. City assessed a “stormwater fee” on all non-exempt properties within City and plaintiff, a religious congregation, sought to void the fee as an “unconstitutional property tax in violation of the Congregation’s rights under state and federal laws protecting the free exercise of religion.” Circuit court found the fee was an “excise tax rather than a fee,” but concluded the tax was authorized by Maryland’s enabling law. Congregation appealed and appellate court agreed with Congregation the fee is a tax “because its primary purpose is to raise revenue and because property owners’ only obligation under the statute is to pay the charge.” Ultimately, court ruled the law did not violate the Free Exercise Clause of the Maryland Declaration of Rights and did not “implicate the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).”


LEGISLATIVE:

H.R. 4: FAA Reauthorization Act of 2018. Bill reauthorizes the Federal Aviation Administration for five years.

H.R. 3144: To provide for operations of the Federal Columbia River Power System pursuant to a certain operation plan for a specified period of time. Bill requires federally owned hydropower facilities within the Federal Columbia River Power System (FCRPS) in the Pacific Northwest to be operated according to the salmon management plan adopted by the National Oceanic and Atmospheric Administration in 2014.


REGULATORY: Includes EPA, FWS, FNS, and NOAA rules and notices. 

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is proposing to revise the regulatory definition of volatile organic compounds (VOC) under the Clean Air Act. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS received an application from Ron Clements for a 3-year incidental take permit under the Endangered Species Act. Info here.

FOOD AND NUTRITION SERVICE:

Rule revises and clarifies requirements for the processing of donated foods in order to: Incorporate successful processing options tested in demonstration projects into the regulations, ensure accountability for donated foods provided for processing, increase program efficiency and integrity, and support vendor and State operability. Info here.

Notice invites the general public and other public agencies to comment on this proposed information collection. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule provides allocations to 17 of 19 groundfish sectors for the 2018 fishing year and also approves a new regulatory exemption for sector vessels. Details here.

Rule adjusts recreational management measures for Georges Bank cod and maintains status quo measures for Gulf of Maine cod and haddock for the 2018 fishing year. Info here.

Rule closes the Gulf of Maine Cod Trimester Total Allowable Catch Area to Northeast multispecies common pool vessels fishing with trawl gear, sink gillnet gear, and longline/hook gear. Info here.

Rule establishes fishery management measures for the 2018 ocean salmon fisheries off Washington, Oregon, and California and the 2019 salmon seasons opening earlier than May 1, 2019. Info here.

Rule approves and implements Framework Adjustment 57 to the Northeast Multispecies Fishery Management Plan, as recommended by the New England Fishery Management Council. Details here.

Notice the Secretary of Commerce has determined that the renewal of the Advisory Committee on Commercial Remote Sensing is in the public interest in connection with the performance of duties imposed on the Department by law. ACCRES was renewed on March 8, 2018. Info here.