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


JUDICIAL: Includes climate change, EPA, renewable energy, and CWA issues. 

In re People of the State of New York, etc., Petitioner–Respondent, v. PriceWaterhouseCoopers, LLP, Respondent, Exxon Mobil Corporation, Respondent–Appellant, 3685N, 2017 WL 2231158 (N.Y. App. Div. May 23, 2017) involved an investigation by the New York Attorney General into alleged fraud by Exxon concerning its published climate change information. Court observed that New York does not recognize an accountant-client privilege and concluded New York case law “requires that when we are deciding privilege issues, we apply the law of the place where the evidence will be introduced at trial, or the place where the discovery proceeding is located.” Court granted petition of Attorney General compelling Exxon and its auditor, PriceWaterhouseCoopers, to comply with a subpoena duces tecum.

IN RE: VOLKSWAGEN “CLEAN DIESEL” MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION This Order Relates To: United States v. Volkswagen AG, et al., California v. Volkswagen AG, et al., MDL No. 2672 CRB (JSC), No. 16-cv-00295 (N.D. Cal.), Case No. 16-cv-3620 (N.D. Cal.) 2017 WL 2214655 (N.D. Cal. May 17, 2017) involved a suit on behalf of the Environmental Protection Agency (EPA) against Volkswagen for violations of the Clean Air Act related to faulty emissions tests. EPA sought entry of a consent decree addressing Volkswagen’s liability under the Clean Air Act for civil penalties and injunctive relief. Court noted, “The proposed Consent Decree requires Defendants to take action to mitigate all past and future excess NOx pollution caused by their 3.0-liter diesel engine vehicles. The actions required by the Decree are reasonable and advance the goals of the Clean Air Act.” EPA’s motion granted.

In Gregory SWECKER, et al., Plaintiffs, v. MIDLAND POWER COOPERATIVE, et al., Defendant, No. 16–1434 (CRC), 2017 WL 2189496 (D.D.C. May 17, 2017), plaintiffs operate a wind turbine on their Iowa farm and sued two state electric utilities and the Federal Energy Regulatory Commission (FERC) under the Public Utility Regulatory Policies Act (PURPA). Plaintiffs alleged the utilities violated FERC regulations relating to the “calculation of avoided cost,” and that FERC failed to enforce those regulations. Court observed that, “Under PURPA, FERC must promulgate rules requiring electric utilities to purchase electricity from small generation facilities like Plaintiffs’ wind turbine. The statute limits the price that these utilities must pay for the electricity, such that it cannot exceed the utility’s ‘avoided cost.’” Case dismissed because court lacked personal jurisdiction over Iowa-based utilities and subject matter jurisdiction over plaintiffs’ claims against FERC.

In THE OLD ORCHARD CONSERVANCY, Plaintiff and Appellant, v. CITY OF SANTA ANA, Defendant and Respondent; CIVIC PROPERTY GROUP, INC., Real Party in Interest and Respondent, G053003, 2017 WL 1908320 (Cal. Ct. App. May 10, 2017), defendant (City) approved development of a five-acre parcel of land that included remains of an orange grove and farmhouse. Plantiff sought writ of mandate contesting City’s action and trial court denied writ. Plaintiff’s appeal raised a host of issues, including charges that defendant violated the California Environmental Quality Act (CEQA) because City’s plan was adopted without CEQA findings and “not supported by substantial evidence.” Court found City did not initially make CEQA findings as required by law, but corrected the error. Appellate court also found City’s findings “were supported by substantial evidence, and supported the determination that the environmental impacts associated with the Historic Preservation Alternative are less than significant and do not require mitigation.” Ruling for defendant affirmed.


REGULATORY: Includes AMS, APHIS, EPA, FWS, FDA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule USDA adopts rule that updated reporting and notification requirements associated with, and made clarifying changes to, the fruit, vegetable, and specialty crop import regulations for certain commodities regulated under section 608(e) of the Agricultural Marketing Agreement Act of 1937. Info here.

Rule implements a recommendation from the Far West Spearmint Oil Administrative Committee to establish the quantity of spearmint oil produced in the Far West, by class, that handlers may purchase from, or handle on behalf of, producers during the 2017-2018 marketing year. Info here.

Rule would implement a recommendation from the Peanut Standards Board (Board) to revise the minimum quality and handling standards for domestic and imported peanuts marketed in the United States. Details here.

Rule would implement a recommendation from the Tart Cherry Industry Administrative Board to increase the portion of assessments allocated to research and promotion activities from $0.005 to $0.006 per pound of tart cherries and decrease the portion allocated to administrative expenses from $0.0025 to $0.0015 per pound of tart cherries handled under the marketing order. Info here.

Notice AMS is revising the United States Standards for Grades of Cauliflower. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Rule that APHIS adopts an interim rule that amended the Asian longhorned beetle regulations by removing plants of the genus Celtis. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving several different State Implementation Plan revisions submitted to EPA by the New Hampshire Department of Environmental Services. Info here.

Rule establishes tolerances for residues of fenazaquin in or on hop, dried cones; nuts, tree, group 14-12; pineapple; and tea, dried. Details here.

Rule establishes tolerances for residues of flazasulfuron in or on olives. Details here.

Rule establishes tolerances for residues of isopyrazam in or on pepper, bell; tomato; and vegetable, cucurbit, subgroup 9A. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS will ask OMB to approve an information collection. Title: Federal Fish and Wildlife Permit Applications and Reports—Management Authority. Details here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA is publishing a list of information collections that have been approved by OMB. Details here and here

Notice solicits comments on the information collection provisions of FDA’s guidance for industry entitled “Channels of Trade Policy for Commodities With Residues of Pesticide Chemicals, for Which Tolerances Have Been Revoked, Suspended, or Modified by the Environmental Protection Agency Pursuant to Dietary Risk Considerations.” Info here.

Notice The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 added section 801(m) of the Federal Food, Drug, and Cosmetic Act requiring that FDA receives prior notice for food imported or offered for import into the United States. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS issues revised final 2017 and projected 2018 specifications, and removes a previously implemented commercial fishery accountability measure for the 2017 black sea bass fishery. Info here.

Rule NMFS proposes to modify recreational management measures for Gulf of Maine cod and haddock for the 2017 fishing year. Details here.

Rule NMFS proposes to specify an annual catch limit of 306,000 lb for Deep 7 bottomfish in the main Hawaiian Islands for the 2017-18 fishing year. Details here.