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

JUDICIAL: Includes NEPA, FSA loans

In Food & Water Watch v. United States Dep’t of Agric., No. 20-5100, 2021 WL 254667 (D.C. Cir. June 22, 2021) the D.C. Circuit Court of Appeals concluded that the plaintiffs did not have standing to bring their case and therefore sent the lawsuit back to the district court with instructions to dismiss. This lawsuit began in 2017, when the plaintiffs filed a complaint against the defendant over a Farm Service Agency (“FSA”) guaranteed loan that was granted to a chicken farm in 2015. The National Environmental Policy Act (“NEPA”) requires all federal agencies to examine the environmental impacts of their actions – including issuing guarantee loans – by going through a NEPA analysis. One of the outcomes of the NEPA analysis is a finding of no significant impact (“FONSI”) which means that the agency has determined its proposed action will not significantly impact the environment, and that the agency does not have to draft any further NEPA documents examining the impacts of the project. Here, FSA conducted a NEPA analysis prior to granting the guaranteed loan in 2015. FSA concluded that granting the guaranteed loan would not significantly impact the environment and therefore issued a FONSI. Two years later, the plaintiffs filed suit arguing that FSA had failed to undergo a more rigorous NEPA analysis.

In order to bring a case into court, a plaintiff must have standing. Typically, a plaintiff will have standing if it can show that it has suffered an actual injury, that the injury was the result of the defendant’s action, and that the court has the ability to redress that injury. Here, FSA argued that the plaintiffs lacked standing because the court was unable to redress their injury. In response, the plaintiffs argued that they had standing because they were injured by the presence of the poultry farm, that the farm was present because of FSA’s deficient NEPA analysis which allowed it to grant the loan, and that the injury could by redressed by vacating the NEPA analysis because doing so would vacate the loan thus requiring the owner of the poultry farm to seek a new FSA guaranteed loan which would prompt FSA to undergo a more thorough NEPA analysis. The court disagreed with the plaintiffs’ argument. According to the court, there was no evidence that vacating the loan would redress the plaintiffs’ injury because there was no evidence to suggest that the owner of the poultry farm would not seek a new loan elsewhere. If the FSA guaranteed loan was vacated, and the poultry farmer received a new loan from a private organization, then no new NEPA analysis would occur. Therefore, the court determined that it did not have the power to redress the plaintiffs’ injury, and accordingly sent the lawsuit back to the lower court for dismissal.

REGULATORY: AMS, EPA, FWS, NOAA

Agricultural Marketing Service

Final rule implementing a recommendation from the California Walnut Board to decrease the assessment rate established for the 2020-21 and subsequent marketing years. Info here.

Environmental Protection Agency

Notice of receipt of requests by the registrants to voluntarily cancel their registrations of certain products containing the pesticides atrazine and simazine, and/or to amend their atrazine, simazine, or malathion product registrations to terminate or delete one or more uses. Info here.

Notice that the Office of Pesticide Programs is inviting nominations from a diverse range of qualified candidates to be considered for appointment to the Pesticide Program Dialogue Committee. Info here.

Notice that EPA has received applications to register new uses for pesticide products containing currently registered active ingredients. Info here.

Fish and Wildlife Service

Proposed rule to reclassify the Hawaiian stilt (Himantopus mexicanus knudseni) from an endangered species to a threatened species with a rule issued under section 4(d) of the Endangered Species Act. Info here.

Proposed rule to revise the regulations governing the annual Migratory Bird Hunting and Conservation Stamp Contest. Info here.

Proposed rule to reclassify the Fender’s blue butterfly (Icaricia icarioides fenderi) from endangered to threatened under the Endangered Species Act. Info here.

National Oceanic and Atmospheric Administration

Final rule establishing the 2021 harvest specifications and management measures for Pacific whiting caught in the U.S. Exclusive Economic Zone off the coasts of Washington, Oregon, and California consistent with the Magnuson-Stevens Fishery Conservation and Management Act, the Pacific Whiting Act of 2006, and other applicable laws. Info here.