A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
JUDICIAL: Includes APA, ESA, climate change, urb & ag, and environmental law issues.
In ANIMAL LEGAL DEFENSE FUND, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants, No. 17-cv-00949-WHO, 2017 WL 3478848 (N.D. Cal. August 14, 2017), plaintiff sought to compel USDA to publicly post documents online related to enforcement activities of the Animal Plant Health Inspection Service (APHIS). Court had denied preliminary injunction (PI Order) because plaintiffs failed to show they were likely to succeed on their Freedom of Information Act (FOIA) and Administrative Procedures Act (APA) claims. Court concluded plaintiffs’ claims would fail because “courts cannot issue injunctions to enforce FOIA’s reading room provision,” and “plaintiffs’ APA claims were barred because FOIA provides an adequate, alternative remedy.” USDA moved to dismiss the complaint based on findings from PI Order. Court agreed with defendant and granted motion to dismiss.
CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Tom VILSACK, et al., Defendants, No. 2:13-cv-01785-RFB-GWH, 2017 WL 3131970 (D. Nev. July 24, 2017) involved a biological-control program initiated by USDA through Agricultural Research Services (ARS) and Animal and Plant Health Inspection Services (APHIS). Plaintiffs contended the USDA violated the Endangered Species Act (ESA) “by failing to ensure that the program’s termination would not jeopardize a bird . . . and by failing to take appropriate action to mitigate the adverse effects resulting from the program’s termination.” Plaintiffs also argued USDA and the United States Department of the Interior (USDI) violated the National Environmental Policy Act (NEPA) “by failing to pursue formal consultation before terminating the program.” The court noted that, “The USDA has not identified a separate USDA conservation program subsequent to the termination of the beetle release program which serves to conserve the habitat of the flycatcher,” and granted plaintiff’s motion for summary judgment regarding violation of section 7(a)(1) of the ESA.
In MONTANA ENVIRONMENTAL INFORMATION CENTER, Plaintiff, v. U.S. OFFICE OF SURFACE MINING, an agency within the U.S. Department of the Interior, et al., Defendants, and Signal Peak Energy, LLC, Defendant–Intervenor, CV 15–106–M–DWM, 2017 WL 3480262 (D. Mont. August 14, 2017), plaintiffs challenged Office of Surface Mining and Enforcement’s decision to approve energy company’s application for a federal mining plan modification. Enforcement Office (EO) concluded a modification would not have a significant impact on the environment. Plaintiff argued Enforcement Office’s decision not to prepare an Environmental Impact Statement (EIS) violated the National Environmental Policy Act (NEPA). Defendants countered the Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) were adequate. Appellate court found Enforcement Office “did not violate NEPA by ignoring its internal guidance, took a hard look at the potential impacts of mine dewatering on springs and wetlands, and relied on an adequate ‘purpose and need’ statement.” However, court also ruled EO failed to “take a hard look at the indirect and cumulative effects of coal transportation and coal combustion and failed to take a hard look at foreseeable greenhouse gas emissions.”
BC RANCH II, L.P., also known as Bosque Canyon Ranch II, L.P.; BC Ranch I, Incorporated, Tax Matters Partner, Petitioners-Appellants v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee, Bosque Canyon Ranch, L.P.; BC Ranch, Incorporated, Tax Matters Partner, Petitioners-Appellants v. Commissioner of Internal Revenue, Respondent-Appellee, No. 16-60068, 2017 WL 3446583 (5th Cir. August 11, 2017) concerned some ranch developers working with North American Land Trust (NALT”) to determine if their ranch would qualify for a tax-deductible “conservation easement.” A group of limited partnerships (LPs) petitioned for review of a final partnership administrative adjustment (FPAA) that “disallowed charitable contribution deductions for conservation easements, determined that sales of limited partnership interests were actually disguised sales of partnership property, and imposed gross valuation misstatement penalty.” Tax Court ruled for IRS and plaintiffs appealed. Appellate court found the easements’ “homesite adjustment provision” did not prevent grants of easements from being deemed made “in perpetuity.” Court also found the limited partners’ “entire contributions to LPs were not receipts from disguised sales, as opposed to tax-free capital contributions.” Vacated and remanded.
In SIERRA CLUB, Petitioner v. UNITED STATES DEPARTMENT OF ENERGY, Respondent, FLNG Liquefaction 2, LLC, et al., Intervenors, No. 15-1489, 2017 WL 3480702 (D.C. August 15, 2017), environmental group sought review of Department of Energy’s grant of an application to export liquefied natural gas from a terminal. Plaintiffs argued that DOE “did not “sufficiently examine the indirect effects of LNG exports, such as the effects related to the likely increase in natural gas production.” Exporters intervened and appellate court found that DOE did not violate NEPA “when it failed to quantify indirect impacts of export-induced natural gas production in United States or to tailor them to specific levels of exports or export-induced gas production.” The court also ruled that NEPA does not require DOE “to consider potential for United States’ electric power sector to switch from gas to coal.”
REGULATORY: Includes AMS, USDA, EPA, FNS, FS, and NOAA rules and notices.
AGRICULTURAL MARKETING SERVICE:
Rule would implement a recommendation from the Hazelnut Marketing Board (Board) to increase the assessment rate established for the 2017-2018 and subsequent marketing years from $0.005 to $0.006 per pound of hazelnuts. Info here.
AGRICULTURE DEPARTMENT: Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Scanner Capability Assessment of SNAP-Authorized Small Retailers (SCANR) Study. Info here.
ENVIRONMENTAL PROTECTION AGENCY:
Rule EPA is proposing approval of a portion of the State Implementation Plan (SIP) revisions submitted by the State of Colorado on February 25, 2015. Details here.
Rule EPA is proposing a correction pertaining to the “200 ppb (parts per billion) level” described in the antimicrobial pesticides data requirements regulation to clarify that the 200 ppb level is based on total estimated daily dietary intake for an individual and not on the amount of residue present on a single food. Info here.
FOOD AND NUTRITION SERVICE: Notice FNS will request approval to collect information via an online form. Info here.
Notice the Davy Crockett-Sam Houston Resource Advisory Committee (RAC) will meet in Ratcliff, Texas. Info here.
Notice the Fresno and Madera Counties Resource Advisory Committee (RAC) will meet in Clovis, California. Details here.
Notice the Nevada and Placer Counties Resource Advisory Committee (RAC) will meet in Truckee, California. Details here.
Notice the Olympic Peninsula Resource Advisory Committee (RAC) will meet in Forks, Washington. Details here.
Notice the West Virginia Resource Advisory Committee (RAC) will meet in Elkins, West Virginia. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS is reallocating projected unused amounts of Bering Sea subarea (BS) pollock from the incidental catch allowance to the directed fisheries. Info here.
Rule NMFS approves a change to a regulatory exemption for sector vessels in the Northeast multispecies fishery for fishing years 2017 and 2018. Details here.
Notice requesting extension of a currently approved information collection. Title: Billfish Certificate of Eligibility. Info here.