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

ANNOUNCEMENT: Join us TOMORROW for a free webinar: 2018 Farm Bill Outlook. Details available here.

JUDICIAL: Includes environmental law, CAA, food labeling, and landowner liability issues.

In Don’t Waste Arizona Incorporated, Plaintiff, v. Hickman’s Egg Ranch Incorporated, Defendant, No. CV-16-03319-PHX-GMS, 2018 WL 1318874 (D. Ariz. March 14, 2018), plaintiff sued defendant (egg ranch) for failure to “report ammonia emissions in violation of the Emergency Planning and Community Right-to-Know Act (EPCRA).” Defendant maintained the reporting obligation “does not apply to any release which results in exposure to persons solely within the site or sites on which the facility is located.” Issue for court was whether the ammonia produced results in exposure to persons “solely within the site or sites on which the facility is located.” Court observed that the release of ammonia “must elicit the need to either inform the public about the presence of hazardous and toxic chemicals, or provide for [an] emergency response.” Defendant provided evidence of air sampling showing no ammonia emissions and court denied plaintiff’s motion for partial summary judgment.

In SIERRA CLUB, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY and E. Scott Pruitt, Administrator, U.S. Environmental Protection Agency, Respondents, American Chemistry Council, et al., Intervenors, No. 16-1021, 2018 WL 1353089 (D.C. March 16, 2018), environmental groups challenged EPA regulations under the Clean Air Act regarding industrial boilers used to generate steam. Plaintiffs objected to EPA’s increased carbon monoxide limits and to the agency’s “work practice” standards with respect to “how boilers operate while starting up and shutting down.” Plaintiff argued the agency’s work practice standards “give boiler operators unlawful leeway to pollute.” Court found the EPA’s work practice standards permissible, but agreed with plaintiff that the agency failed to “adequately justify its change of direction on the carbon monoxide limits because it failed to explain how the revised limits would minimize the targeted pollutants to the extent the Clean Air Act requires.”

DEBBIE KROMMENHOCK, et al., Plaintiffs, v. POST FOODS, LLC, Defendant, No. 16-cv-04958-WHO, 2018 WL 1335867 (N.D. Cal. March 15, 2018) involved food labeling issues wherein plaintiff alleged defendant “falsely and misleadingly labels its high-sugar cereals with health and wellness statements that ‘suggest its cereals are healthy food choices’ when in fact these cereals contain high amounts of added sugar.” Defendant moved to dismiss and argued, among other claims, that plaintiffs are “attempting to regulate Post’s commercial speech in violation of the First Amendment.” Defendant also claimed the statements at issue are “mere puffery” and not actionable. Court concluded that “[b]ecause plaintiffs have cited significant evidence linking consumption of excessive sugar to significant health problems, they survive the motion to dismiss.”

In H&R PROPERTY SERVICE, LLC, an Indiana Limited Liability Company, Plaintiff-Appellee, v. BRADLEY P. CONINE and KATRINA L. CONINE, Defendants-Appellants, NO. 4-17-0602, 2018 IL App (4th) 170602-U (Ill. Ct. App. March 14, 2018), plaintiff sued seeking declaration of a prescriptive easement on a grass lane running across defendants’ property and connecting plaintiff’s property to a nearby road. Lower court found the lane, which was frequently used by farmers to transport heavy machinery, was a prescriptive easement. Defendants appealed, arguing the lane was no longer a prescriptive easement because “the use of the easement changed,” as plaintiff could no longer use the property for farming and instead, used the property to access hunting grounds. Court affirmed lower court decision for plaintiff, reasoning that the hunting “equipment” at issue posed a “far less substantial and burdensome to defendants’ property than farm machinery.”

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

AGRICULTURE DEPARTMENT:

Notice USDA submitted information collection requirement(s) to OMB for review Title: Equal Employment Opportunity Formal Complaint Form. Details here.

Notice USDA submitted information collection requirement(s) to OMB for review. Title: Food Safety Behaviors and Consumer Education Focus Group Research. Info here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is publishing editorial and technical revisions to the EPA’s Method 301 “Field Validation of Pollutant Measurement Methods from Various Waste Media” to correct and update the method. Info here.

FISH AND WILDLIFE SERVICE:

Notice FWS seeks comment on a federally listed American burying-beetle incidental take permit (ITP) application. The applicant anticipates American burying-beetle take as a result of impacts to habitat the species uses for breeding, feeding, and sheltering in Oklahoma. Info here.

Notice FWS announces receiving Arizona Electric Power Cooperative’s survival enhancement permit application, under the Endangered Species Act. Details here.

FOOD AND DRUG ADMINISTRATION:

Rule FDA announces a draft guidance for industry describing the Agency’s current thinking on how to determine the number of employees for purposes of the “small business’” definition in the Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for human and animal food rules. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS closes the southern area Angling category fishery for large medium and giant (“trophy”) Atlantic bluefin tuna (BFT). Details here.

Rule NMFS is implementing this interim final rule to establish regulations for 2018 Pacific halibut catch limits in the following International Pacific Halibut Commission (IPHC) Regulatory Areas: Area 2C, Area 3A, and Area 4. Details here.

Notice NMFS announces the receipt of five applications for exempted fishing permits (EFPs) from the Florida Fish and Wildlife Conservation Commission (FWC), Alabama Department of Conservation and Natural Resources (ADCNR), Mississippi Department of Marine Resources (MDMR), Louisiana Department of Wildlife and Fisheries (LDWF), and Texas Parks & Wildlife Department (TPWD). Info here.

Notice NMFS has received a request from the Alaska Department of Transportations and Public Facilities for authorization to take marine mammals incidental to conducting improvements at the Tenakee Springs city dock and ferry terminal, in Tenakee Springs, Alaska. Details here.