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


ANNOUNCEMENT: Join us for the next Agricultural & Food Law Consortium webinar, Wednesday, September 19th, at 12 noon (ET): Understanding USDA’s New Dairy Revenue Insurance Program. Details here.


JUDICIAL: Includes environmental law, crop insurance, and food labeling issues.

AMERICAN FUEL & PETROCHEMICAL MANUFACTURERS; American Trucking Associations, Inc., a trade association; Consumer Energy Alliance, a trade association, Plaintiffs-Appellants, v. Jane O’KEEFFE; Ed Armstrong; Morgan Rider; Colleen Johnson; Melinda Eden; Dick Pedersen; Joni Hammond; Wendy Wiles; David Collier; Jeffrey Stocum; Cory-Ann Wind; Lydia Emer; Leah Feldon; Greg Aldrich; and Sue Langston, in their official capacities as officers and employees of the Oregon Department of Environmental Quality; Ellen F. Rosenblum, in her official capacity as Attorney General of the State of Oregon; Kate Brown, in her official capacity as Governor of the State of Oregon, Defendants-Appellees, California Air Resources Board; State of Washington; Oregon Environmental Council; Sierra Club; Natural Resources Defense Council; Environmental Defense Fund; Climate Solutions, Intervenor-Defendants-Appellees, No. 15-35834, 2018 WL 4263250 (9th Cir. September 7, 2018) involved whether an Oregon program regulating production and sale of transportation fuels based on greenhouse gas emissions violates the Commerce Clause. Lower court dismissed and on appeal, plaintiffs argued that “to compete in the Oregon market, producers of high carbon-intensity fuels must change the manner in which they produce and transport fuels to obtain lower carbon-intensity scores to avoid the commercial disadvantage placed on their higher carbon-intensity fuels.” Appellate court, however, observed that the Oregon program targeted “differences in production methods that affect greenhouse gas emissions ‘based on the real risks posed by different sources of generation.’” Court further concluded this did not present a dormant Commerce Clause violation, and affirmed.

In STEVE LANE, Plaintiff, v. UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF AGRICULTURE, and SONNY PERDUE, in his Official Capacity as Secretary of the United States Department of Agriculture, Defendants, CV 617-082, 2018 WL 4261076 (S.D. Ga. September 6, 2018), farmer challenged USDA Administrative Law Judge (ALJ) finding that farmer made a false claim for crop insurance on his 2009 tobacco crop and that he failed to report information per his crop insurance policy. Plaintiff was fined and “barred from participating in any federal aid program to farmers for five years.” On appeal, plaintiff maintained decision was “arbitrary and capricious.” The court methodically scrutinized the ALJ’s rationale for determining that plaintiff suffered no crop losses and concluded the ALJ ignored “the great weight of evidence put forth by Plaintiff demonstrating that he did suffer a loss.” The court also found the ALJ’s opinion is “inconsistent and based on distortions of the record.” Defendants’ motion for summary judgment denied in part.

In Shavonda HAWKINS, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. ADVANCEPIERRE FOODS, INC., Defendant-Appellee, No. 16-56697, 733 Fed.Appx. 906 (Mem) (9th Cir. August 10, 2018), plaintiff brought class action suit on behalf of consumers who purchased sandwiches containing partially hydrogenated oil (PHO) manufactured by defendant. Plaintiff claimed use of PHOs in human food violated California law. The district court dismissed and appellate court considered California’s Unfair Competition Law. Court observed that “federal law did not prohibit PHOs prior to June 18, 2018,” and plaintiff’s allegations did not establish the “requisite unlawful, unfair or fraudulent business act or practice.” Affirmed.


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

ENVIRONMENTAL PROTECTION AGENCY:

Rule that on March 26, 2018, the State of Florida, through the Florida Department of Environmental Protection, submitted a request for the Environmental Protection Agency (EPA) to redesignate the Hillsborough County lead Nonattainment Area to attainment for the 2008 lead National Ambient Air Quality Standards (NAAQS) and to approve an accompanying State Implementation Plan (SIP) revision containing a maintenance plan for the Area. Info here.

Rule EPA is approving the redesignation request and limited maintenance plan for the PM<INF>10</INF> National Ambient Air Quality Standard developed for the City of Pinehurst PM<INF>10</INF> Nonattainment Area and the Pinehurst PM<INF>10</INF> Expansion Nonattainment Area. Details here.

Rule EPA is approving changes to the North Carolina State Implementation Plan (SIP), submitted by the North Carolina Department of Environmental Quality (NC DEQ) through the Division of Air Quality, to EPA through a letter dated October 17, 2017. Info here.

Rule establishes tolerances for residues of the inert ingredient cloquintocet-mexyl in or on teff commodities when used in formulations with the active ingredients florasulam and fluroxypyr 1-methylhelptyl ester. Details here.

Rule establishes a tolerance for residues of spiromesifen in or on coffee. Bayer CropScience requested this tolerance under the Federal Food, Drug, and Cosmetic Act. Details here.

Rule establishes an exemption from the requirement of a tolerance for residues of 2-propenoic acid, 2-methyl-, 2- oxiranylmethyl ester, polymer with butyl 2-propenoate, ethenylbenzene and 2-ethylhexyl 2-propenoate; when used as an inert ingredient in a pesticide chemical formulation. Info here.

FOREST SERVICE: Notice FS Lake Tahoe Basin Management Unit (LTBMU) will prepare an Environmental Impact Statement (EIS) for the Meeks Bay Restoration Project. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces that the U.S. purse seine fishery on the high seas in the area of application of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean between the latitudes of 20[deg] N and 20[deg] S will close as a result of reaching the 2018 limit on purse seine fishing effort in that area. Details here.

Rule would establish quotas, opening dates, and retention limits for the 2019 fishing year for the Atlantic commercial shark fisheries. Quotas would be adjusted as required or allowable based on any over- and/or underharvests experienced during the 2018 fishing year. Details here.

Notice NOAA issued an incidental harassment authorization (IHA) to Washington State Department of Transportation (WSDOT) to take small numbers of marine mammals, by harassment, incidental to Bremerton and Edmonds ferry terminals dolphin relocation project in Washington State. Info here.