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

Judicial: ESA, labor

In BUFFALO FIELD CAMPAIGN v. MARTHA WILLIAMS, No. 20-798 (RDM), 2022 WL 111246 (D.D.C. Jan. 12, 2022), considered whether the U.S. Fish and Wildlife Service (“FWS”) most recent decision, regarding the Yellowstone bison was arbitrary and capricious in violation of the Administrative Procedure Act (“APA”). In 2014, Plaintiffs Buffalo Field Campaign and Western Watersheds Project petitioned the FWS to list the Yellowstone bison as endangered or threatened, pursuant to the Endangered Species Act (“ESA”). The following year, the FWS denied that petition and another from a third party, concluding that neither petition presented substantial scientific or commercial information indicating that listing may be warranted. Plaintiffs challenged that determination in a lawsuit arguing, among other things, that the FWS applied the wrong evidentiary standard. The court in that case agreed and remanded the matter to the Service for further proceedings. In 2019, the FWS for a second time denied the petitions, as well as a third petition submitted following the remand. Plaintiffs have again brought suit, arguing that the FWS’s most recent decision, like its earlier decision, is arbitrary and capricious in violation of the APA.

First, the FWS once again favored one study over another which is at odds with the governing evidentiary standard. Second, even putting that dispositive error aside, the FWS ignored “an important aspect of the problem” at issue and failed to “articulate … a ‘rational connection between the facts found and the choice made.’” Third, the court is unpersuaded by the FWS’s argument that it did, in fact, address the Halbert study and that it reasonably disregarded the study on the ground that it is “outdated [] and thus irrelevant on the issue of distinct populations.” Fourth, nothing else contained in the 2019 finding supports the FWS’s contention that the 2019 finding—at least implicitly—rejected the Halbert study on the ground that it failed to account for recent mixing between the herds. Fifth, for similar reasons, the FWS’s reliance on the combination of the Forgacs study and other studies documenting “recent” mixing of the central and norther herds does not overcome the difficulties with these contentions when considered separately. Finally, the court is unpersuaded by the FWS’s plea for deference based on its scientific expertise. The court, accordingly, concludes that the FWS’s 2019 finding fails to comport with the governing evidentiary standard at the 90-day stage and disregards an important aspect of the issue that was before it. The court remanded the decision to the FWS for further review.

In WESTERN GROWERS ASSOCIATION et al. v. OCCUPATIONAL SAFETY AND HEALTH STANDARDS BOARD et al., No. A162343, 2021 WL 6426429 (Cal. Ct. App. Dec. 21, 2021), Western Growers Association, California Farm Bureau Federation, California Business Roundtable, Grower-Shipper Association of Central California, California Association of Winegrape Growers, and Ventura County Agricultural Association (appellants) challenged the emergency temporary standards (ETS) promulgated by the California Occupational Safety and Health Standards Board (Board) in response to the COVID-19 pandemic. After filing suit, appellants sought a preliminary injunction suspending enforcement of the ETS. The trial court denied the request, concluding appellants had not shown a likelihood of prevailing on the merits and finding the public interest in curbing the spread of COVID-19 weighed “heavily” in favor of ongoing enforcement of the ETS.

On appeal, appellants contend the trial court erroneously applied a deferential standard of review, the findings of emergency (FOE) lacked necessary findings, and the ETS exceeded the Board’s statutory authority. The court first analyzed whether the FOE had sufficient support. The FOE sets forth specific facts indicating a serious risk of harm posed by COVID-19. Both the federal Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control (CDC) found the need to issue guidance specifically aimed at workers residing in communal living arrangements and traveling in shared motor vehicles. The FOE also set forth facts stating the need for immediate action in response to the ongoing threat posed by COVID-19. Considering the record as a whole, substantial evidence supports the Board’s determination that existing Title 8 regulations were insufficient to fully protect workers from COVID-19. And those findings provide sufficient support to justify the FOE.

Next, the court considered whether the ETS exceeded the Board’s statutory authority. The administrative record demonstrates the Board did not abuse its discretion in adopting prescriptive standards in the ETS. The Board also did not abuse its discretion in establishing regulations excluding workers exposed to COVID-19 cases from the workplace and mandating a continuation of pay, benefits, and seniority during such periods of exclusion.

The court of appeals affirmed.

REGULATORY: EPA, NOAA, USDA

ENVIRONMENTAL PROTECTION AGENCY

Notice announcing EPA’s findings after its review of certain Toxic Substances Control Act notices that they are not likely to present an unreasonable risk of injury to health or the environment. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Temporary rule reallocating the projected unused amount of Pacific cod from vessels using jig gear to catcher vessels less than 60 feet length overall using hook-and-line or pot gear in the Bering Sea and Aleutian Islands management area. Info here.

Notice announcing that NOAA’s Office for Coastal Management has designated certain Connecticut state-owned lands and portions of public trust waters of the Long Island Sound, Fishers Island Sound, Connecticut River, and Thames River as the Connecticut National Estuarine Research Reserve. Info here.

Proposed rule proposing to implement Amendment 10 to the Fishery Management Plan for the Dolphin and Wahoo Fishery of the Atlantic, as prepared and submitted by the South Atlantic Fishery Management Council. Info here.

UNITED STATES DEPARTMENT OF AGRICULTURE

Notice announcing USDA is solicitating nominations to fill vacancies on the National Agricultural Research, Extension, Education, and Economics (NAREEE) Advisory Board and its committees and subcommittees for Fiscal Year 2023 and any vacancies that may occur in the current fiscal year. Info here.