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


JUDICIAL: Includes renewable energy, biotechnology, environmental, pesticides, and urb & ag issues.

In PORTLAND GENERAL ELECTRIC COMPANY, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Northwest & Intermountain Power Producers Coalition, et al., Intervenors, No. 15-1237, Consolidated with 15-1275, 854 F.3d 692 (D.C.C. April 25, 2017), a wind farm and utility sought review of a Federal Energy Regulatory Commission (FERC) order declaring that the utility was required to purchase all of the wind farm’s power without utilizing dynamic scheduling. Court of Appeals ruled that it “lacked jurisdiction under Public Utility Regulatory Policies Act’s (PURPA) judicial review and enforcement provisions to review utility’s petition for review of order.” The court also determined that the utility “did not violate FERC’s Federal Power Act anti-discrimination regulation governing providers of transmission of electric energy by denying wind farm’s dynamic transfer services while providing those same services to utility’s own generation resources.” Wind farmer’s petition denied.

IN RE SYNGENTA MASS TORT ACTIONS: Tweet et al. v. Syngenta AG et al, No. 3:16-cv-00255-DRH, 3:16-cv-00255-DRH, 2017 WL 2117728 (S.D. Ill. May 15, 2017) concerned the mass tort action against Syngenta regarding the company’s Viptera brand corn seed containing genetically modified traits. Here, plaintiffs argued Syngenta “owed a tort duty—not a contract duty—to act reasonably in the timing, manner, and scope of its commercialization of VIPTERA to prevent the type of harm that befell plaintiffs.” Syngenta countered plaintiffs’ allegations are barred by a “discrete, extended form of the economic loss doctrine, the ‘stranger’ economic loss doctrine (SELD),” applicable when “parties have no direct or contractual relationship with one another.” Court noted that the “policy rationales behind the economic loss doctrine . . . would not be furthered by application here.” Syngenta’s motion to dismiss denied.

In CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. Ryan ZINKE, in his official capacity as Secretary, U.S. Department of the Interior, et al., Defendants, No. 16-cv-738 (KBJ), 2017 WL 1755947 (D.D.C. May 4, 2017), plaintiff sought to compel Interior to complete its NEPA review and announce whether revisions to its NEPA policies are necessary. Plaintiff argued defendant’s failure to finish its review and reveal the results constitutes “agency action … ‘unreasonably delayed’ ” within the meaning of the scope-of-review provision of the Administrative Procedure Act (APA).” Defendant moved to dismiss complaint. Court concluded regulations “do not mandate that an agency complete its ongoing review . . . much less demand that an agency publicly announce its decision to decline to revise its existing rules.” Court persuaded by defendant’s argument that suit “must be dismissed because it fails to state a claim upon which relief can be granted.”

In JERRY E. VAN ES, APPELLANT, v. DAVID J. SHULKIN, M.D., SECRETARY OF VETERANS AFFAIRS, APPELLEE, No. 16-0943, 2017 WL 2200749 (Vet. App. May 19, 2017), plaintiff appealed ruling denying entitlement to VA disability compensation benefits for colon cancer and skin cancer resulting from exposure to Agent Orange in 1966 in Vietnam. Court noted defendant “offered its own unsubstantiated medical conclusions that [plaintiff’s] skin cancer is likely the result of his exposure to the sun and that his colon cancer is the result of his age, obesity, and use of tobacco.” Court vacated Board’s decision and concluded it was “not free to make its own inferences from the medical evidence, even if the examiners’ implications seem plain.”

CLEAR CREEK COMMUNITY SERVICES DISTRICT, Plaintiff, v. The UNITED STATES, Defendant, No. 10–420C, 2017 WL 2180546 (Fed. Cl.  May 17, 2017) involved an inverse condemnation claim by a government agency (plaintiff) that provides water services to a local watershed. Plaintiff argued that defendant has “effected a taking of its contractual right to receive up to 15,300 feet of water annually without just compensation.” Defendant countered plaintiff has no “independent property right to receive specific water allotments because the water that it seeks is ‘Project Water’ from the [CVP], rather than any natural flow water.” Court reasoned that, “Because any claim plaintiff may have to CVP water necessarily implicates the federal contract through which plaintiff receives that water, plaintiff must seek relief through a breach-of-contract action.” Court concluded plaintiff’s best option for relief is a breach-of-contract suit and granted defendant’s motion for summary judgment per plaintiff’s condemnation claim.


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

AGRICULTURAL MARKETING SERVICE: Notice AMS will request approval for an extension of and revision to the currently approved information collection for the Child Nutrition Labeling Program. Details here.

AGRICULTURE DEPARTMENT: Notice USDA submitted the following information collection requirement(s) to OMB for review. Title: Non-Timber Forest Products Generic for Surveys, Interviews, and Focus Groups. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice APHIS will request a revision to an information collection associated with the regulations for the importation of female squash flowers from Israel into the continental United States. Info here.

Notice APHIS will request a revision to an information collection associated with the regulations for the importation of French beans and runner beans from Kenya into the United States. Details here.

Notice APHIS will request a revision to an information collection associated with the regulations for the interstate movement of regulated articles to prevent the spread of South American cactus moth. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA solicited public comments regarding revisions to the Certification of Pesticide Applicators rule. With this action, EPA is making an interim extension of the effective date until June 5, 2017 in order to consider and respond to public comments. Details here.

Rule EPA is withdrawing a direct final rule published on March 23, 2017 because relevant adverse comments were received. Details here.

Rule EPA is withdrawing a direct final rule pertaining to approval of the required second carbon monoxide maintenance plan for the El Paso, Texas CO maintenance area as a revision to the Texas State Implementation Plan. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS seeks comment on federally listed American burying beetle incidental take permit applications. Info here.

GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATION:

Notice GIPSA is announcing the designation of Farwell Commodity and Grain Services, Inc., to provide official services under the United States Grain Standards Act. Info here.

Notice GIPSA seeks comments on the quality of services provided by the following designated agency: Missouri Department of Agriculture. Details here.

Notice GIPSA seeks comments on the quality of services provided by the following designated agency: South Carolina Department of Agriculture. Info here.

INTERNATIONAL TRADE ADMINISTRAITON: Notice Commerce is amending its final results of the administrative review of the antidumping duty order on fresh garlic from the People’s Republic of China (PRC) for the period of review is November 1, 2010, through October 31, 2011. Info here.

NATIONAL OCEANIC AND ATMOSPERHIC ADMINISTRATION:

Rule NMFS implements an accountability measure (AM) for commercial king mackerel in the western zone of the Gulf of Mexico (Gulf) exclusive economic zone (EEZ) through this temporary rule. Info here.

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Greater Atlantic Region, Atlantic Sea Scallop Fishery Management Plan Data Collection. Details here.

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Foreign Fishing Vessel Permits, Vessel, and Gear Identification, and Reporting Requirements. Info here.

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: NOAA Fisheries Greater Atlantic Region Gear Identification Requirements. Info here.

RURAL BUSINESS-COOPERATIVE SERVICENotice RBCS is accepting fiscal year 2017 applications for the Delta Health Care Services grant program. Info here.