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


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


JUDICIAL: Includes climate change, hemp, and agritourism issues.

EXXON MOBIL CORPORATION v. ATTORNEY GENERAL, SJC–12376, 479 Mass. 312 (Mass. April 13, 2018) involved Massachusetts Attorney General’s demand for information relating to Exxon’s knowledge and activities regarding climate change. The demand arose from Exxon’s “in-state network of fuel stations,” and was necessary to satisfy the “transacting any business” clause of the state’s long-arm statute. Exxon sought to set aside Attorney General’s demand for documents relating to Exxon’s “knowledge and activities related to climate change.” Attorney General cross-moved to compel compliance with the demand and superior court allowed Attorney General’s motion. Case was transferred to Supreme Court, which found Attorney General’s demand satisfied “transacting any business” clause of long-arm statute, and found :no good cause to set aside demand.”

In HEMP INDUSTRIES ASSOCIATION, et al., Petitioners, v. U.S. DRUG ENFORCEMENT ADMINISTRATION and ROBERT W. PATTERSON, as Acting Administrator, Drug Enforcement Administration, Respondents, No. 17-70162, 2018 WL 2000087 (9th Cir. April 30, 2018), petitioners challenged a final Drug Enforcement Agency (DEA) rule (The Controlled Substances Act) regulating the possession and sale of marijuana. In 2011, the DEA issued a notice of proposed rulemaking (NPRM) establishing a new drug code specifically for marijuana extract, and the Final Rule was published in 2016. Petitioners argued the Final Rule conflicts with the Agricultural Act of 2014. Court observed the Agricultural Act provides that “[n]otwithstanding the Controlled Substances Act … or any other Federal law, an institution of higher education … or a State department of agriculture may grow or cultivate industrial hemp, provided . . . those activities are licit under the relevant State’s laws.” Court concluded the Agricultural Act “contemplates potential conflict between the Controlled Substances Act and preempts it.” Petition denied.

In Heather ENOS–GROFF and Brian Groff, Plaintiffs–Appellants, v. Laura M. SCHUMACHER, Daniel Schumacher, John Schumacher, Schum–Acres & Assoc., Inc., Defendants–Respondents, et al., Defendants, 384, CA 17–01827, 2018 WL 1995165 (N.Y. App. Div. April 27, 2018), plaintiff sued after being injured during a horseback riding lesson conducted by defendant. Lower court granted summary judgment to defendant “on the ground that plaintiff assumed the risk of horseback riding.” Appellate court noted affidavit of expert witness, which contended defendant “unreasonably increased the risks of horseback riding by numerous acts and omissions, including selecting an inappropriate horse for a novice rider such as plaintiff.” Court concluded plaintiffs raised issue whether defendants “unreasonably increased the risks of horseback riding.” Reversed.


REGULATORY: Includes EPA, NIFA, NOAA, AND NTIA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is providing notice of and is codifying its prior approval of requests submitted by the North Carolina Department of Environmental Quality (NCDEQ), through its Division of Air Quality, and the Western North Carolina Regional Air Quality Agency (WNCRAQA) for delegation of authority to implement and enforce the Federal plan for existing affected Sewage Sludge Incineration (SSI) units. Info here.

Rule the Clean Air Act (CAA) requires each State Implementation Plan (SIP) to contain adequate provisions prohibiting emissions that will have certain adverse air quality effects in other states. On March 10, 2016, the State of Alaska made a submission to the Environmental Protection Agency (EPA) to address these requirements. Details here.

Rule EPA is proposing to approve a September 7, 2017, request by the Indiana Department of Environmental Management (IDEM) to revise the Indiana state implementation plan (SIP) for ozone. IDEM revised its ozone standard in order to be consistent with EPA’s 2015 revisions to the 8-hour national ambient air quality standards. Details here.

Rule EPA proposes to approve the Clean Air Act (CAA) section 111(d)/129 negative declaration for the United States Virgin Islands, for Commercial and Industrial Solid Waste Incineration (CISWI) units. Details here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURENotice NIFA will request approval for an extension of the currently approved information collection for the NIFA proposal review process. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice NMFS has issued an incidental harassment authorization to the City of Astoria, Oregon. Details here.

Notice NMFS has issued an incidental harassment authorization to Harvest Alaska, LLC (Harvest). Info here.

Notice NMFS has issued an incidental harassment authorization to the St. George Reef Lighthouse Preservation. Details here.

Notice NMFS has issued an incidental harassment authorization (IHA) to the U.S. Fish and Wildlife Service (USFWS). Details here.

NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION: Notice NITA will host a symposium on June 12, 2018, focusing on the development and implementation of national spectrum policies to support continuing U.S. leadership and innovation in wireless telecommunications and other spectrum-dependent technologies. Info here.