A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu
JUDICIAL: Includes EPA, CWA, and RICO issues.
In Murray Energy Corporation, Murray American Energy, Inc., The American Coal Company, American Energy Corporation, The Harrison County Coal Company, KenAmerican Resources, Inc., The Marion County Coal Company, The Marshall County Coal Company, The Monongalia County Coal Company, OhioAmerican Energy Inc., The Ohio County Coal Company, and UtahAmerican Energy, Inc., Plaintiffs, v. Gina McCarthy, Administrator, United States Environmental Protection Agency, in her official capacity, Defendant. Civil Action No. 5:14–CV–39, 2017 WL 150511 (N.D.W. Va. Jan. 11, 2017), coal companies sued EPA for alleged violations of the Clean Air Act (CAA). The District Court ordered EPA to provide a plan and schedule for compliance with CAA provisions requiring investigation into loss of employment and mine closures. EPA argued time that the frame set by the court was “too short to provide a full response to the Order” and that it would take EPA “two years to come up with a methodology to use in an effort to begin to comply with § 321(a).” Appellate court ordered administrator to address EPA’s “continuing failure to evaluate the loss and shifts in employment in the coal industry” and to “submit a § 321(a) evaluation of the coal industry and other entities affected by the rules and regulations affecting the coal mining and power generating industries.”
In Catskill Mountains Chapter of Trout Unlimited, Inc., Theodore Gordon Flyfishers, Inc., Catskill-Delaware Natural Water Alliance, Inc., Federated Sportsmen’s Clubs of Ulster County, Inc., Riverkeeper, Inc., Waterkeeper Alliance, Inc., Trout Unlimited, Inc., National Wildlife Federation, Environment America, Environment New Hampshire, Environment Rhode Island, Environment Florida, State of New York, Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, Washington, Plaintiffs-Appellees, Government of the Province of Manitoba, Canada, Consolidated Plaintiff-Appellee, Miccosukee Tribe of Indians of Florida, Friends of the Everglades, Florida Wildlife Federation, Sierra Club, Intervenor Plaintiffs-Appellees, v. United States Environmental Protection Agency, Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency, Defendants-Appellants-Cross Appellees, State of Colorado, State of New Mexico, State of Alaska, Arizona Department of Water Resources, State of Idaho, State of Nebraska, State of North Dakota, State of Nevada, State of Texas, State of Utah, State of Wyoming, Central Arizona Water Conservation District, Central Utah Water Conservancy District, City and County of Denver, by and through its Board of Water Commissioners, City and County of San Francisco Public Utilities Commission, City of Boulder [Colorado], City of Aurora [Colorado], El Dorado Irrigation District, Idaho Water Users Association, Imperial Irrigation District, Kane County [Utah] Water Conservancy District, Las Vegas Valley Water District, Lower Arkansas Valley Water Conservancy District, Metropolitan Water District of Southern California, National Water Resources Association, Salt Lake & Sandy [Utah] Metropolitan Water District, Salt River Project, San Diego County Water Authority, Southeastern Colorado Water Conservancy District, The City of Colorado Springs, acting by and through its enterprise Colorado Springs Utilities, Washington County [Utah] Water District, Western Urban Water Coalition, [California] State Water Contractors, City of New York, Intervenor Defendants-Appellants-Cross Appellees, Northern Colorado Water Conservancy District, Intervenor Defendant, v. South Florida Water Management District, Intervenor Defendant-Appellant-Cross Appellant. Docket Nos. 14-1823, 14-1909, 14-1991, 14-1997, 14-2003, 2017 WL 192707 (2nd Cir. Jan. 18, 2017), court considered EPA’s “Water Transfers Rule,” which provides that “water transfers are not subject to regulation under the National Pollutant Discharge Elimination System permitting program established . . . by the Clean Water Act.” Plaintiffs sued EPA, challenging Water Transfers Rule and district court granted summary judgment for plaintiffs, reasoning that “the Water Transfers Rule, although entitled to deferential review under the two-step framework established by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., could not survive judicial scrutiny because it was based on an unreasonable interpretation of the Clean Water Act.” District court vacated the Water Transfers Rule. Appellate court reversed district court and ruled that the Water Transfers Rule is based on a “reasonable interpretation of the Clean Water Act and therefore entitled to Chevron deference.”
In Committee to Protect our Agricultural Water, et al., Plaintiffs, v. Occidental Oil and Gas Corporation, et al, Defendants, No. 1:15-cv-01323-DAD-JLT, 2017 WL 272215 (E.D. Cal. Jan. 20, 2017), plaintiffs alleged defendants conducted “racketeering activity” by forming an “enterprise” to illegally increase oil production and maximize profits and tax revenue by “allowing oil companies to inject salt water into fresh water in violation of the Safe Drinking Water Act (SDWA).” Plaintiffs asserted claims under the Racketeer Influence and Corrupt Organizations Act (RICO) and sought monetary damages. Defendants argued plaintiffs did not “adequately plead a RICO predicate offense or a pattern of such offenses.” In a lengthy opinion, the court found monetary damages against some defendants were barred by “qualified immunity” and with respect to RICO claims, determined that, “Because plaintiffs have failed to sufficiently allege an instance of racketeering activity under RICO, plaintiffs have necessarily failed to sufficiently allege a pattern of such activity.”
REGULATORY: Includes ARS, USDA, EDA, FWS, and NOAA notices.
AGRICULTURAL RESEARCH SERVICE: Notice ARS will grant to Huvepharma, Inc. of Peachtree City, Georgia, an exclusive license to U.S. Patent Application Serial No. 15/ 108,725, “MUTATED SALMONELLA ENTERIACA”, filed on June 28, 2016. Info here.
AGRICULTURE DEPARTMENT: Notice USDA announces a Visioning of U.S. Agriculture Systems for Sustainable Production Listening Session for those interested in the long-term health and viability of U.S. Agriculture. Info here.
ECONOMIC DEVELOPMENT ADMINISTRATION: Notice EDA received petitions for certification of eligibility to apply for Trade Adjustment Assistance from Northstar Attachments, LLC. The firm manufactures hay rakes, bucket forks, pallet forks, and implements. Info here.
FISH AND WILDLIFE SERVICE: Notice FWS announces availability of a draft Comprehensive Conservation Plan and the draft Environmental Assessment for Little Sandy National Wildlife Refuge. Details here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Notice the Gulf of Mexico Fishery Management Council will hold a Post Council Meeting Briefing for the public via webinar. Info here.
Notice the New England Fishery Management Council is scheduling a public meeting of its Herring Committee to consider actions affecting New England fisheries in the exclusive economic zone. Details here.
Notice the Pacific Fishery Management Council will convene a work session via webinar for the Scientific and Statistical Committee’s Economics Subcommittee. Info here.