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

ANNOUNCEMENT: Join us Wednesday, November 1st, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “From Farm Fields to the Courthouse: Legal Issues Surrounding Pesticide Use.” Details available here.

JUDICIAL: Includes CWA, environmental, crop insurance, pesticides, and National Organic Program issues.

In STATE OF OHIO ex rel. MICHAEL DEWINE, OHIO ATTORNEY GENERAL, Plaintiff-Appellee, v. OSBORNE CO., LTD., et al., Defendants-Appellants, NO. 2016-L-091, 2017 WL 4779213 (Ohio Ct. App. October 23, 2017), defendant’s employee dredged part of a river with a track hoe and the Ohio EPA “concluded the site was severely impacted by substrate removal and reworking and by placement of removed material in the floodplain and bankfull area.” U.S. Army Corps of Engineers noted the work was done “without authorization and in violation of the Clean Water Act.” Defendants argued trial court should not have considered the “depositing of dredged materials on the river banks,” but only the “discharge of dredged materials into the water of the river.” Court considered definition of “water of the state” in its analysis and concluded that “[i]t defies all sense to conclude that the discharge of pollutants into a portion of a river that is fortuitously dry at the time of such discharge, but is at other times filled with water, falls outside the rubric of Ohio’s Water Pollution Control Act.” Affirmed in part.

NATIONAL PARKS CONSERVATION ASSOCIATION Plaintiff, v. Todd T. SEMONITE, Lieutenant General, U.S Army Corps of Engineers and Robert M. Speer, Acting Secretary of the Army Defendants, Virginia Electric and Power Company, Defendant–Intervenor. National Trust for Historic Preservation in the United States and Association for the Preservation of the Virginia Antiquities Plaintiff, v. Todd T. Semonite, Lieutenant General, U.S Army Corps of Engineers and Robert M. Speer, Acting Secretary of the Army Defendants, Virginia Electric and Power Company, Defendant–Intervenor, No. 17–CV–01361–RCL, Civil No. 17–CV–01574–RCL, 2017 WL 4776985 (D.D.C. October 20, 2017) concerned an electrical infrastructure project involving building a new overhead transmission line across a river, allegedly impacting a number of “historically significant sites.” Plaintiffs sued, alleging violations of NEPA, the NHPA, the CWA, and the Rivers and Harbors Act (RHA) and wanted to enjoin the “river crossing component” of the project. Court considered the potential “irreparable harm” of the project and concluded “plaintiffs have not established irreparable aesthetic injuries.” The court also noted that “even if the Court were to assume a NEPA violation, that procedural harm standing alone is insufficient to constitute irreparable harm.” Motion for preliminary injunction denied.

In POCO, LLC, a Washington Limited Liability Company, Plaintiff-Appellant, v. FARMERS CROP INSURANCE ALLIANCE, INC., a corporation registered to do business in Washington, Defendant-Appellee, No. 16-35310, 2017 WL 4772559 (9^th Cir. October 23, 2017), plaintiff sought to recover under a 2003 crop insurance policy issued by defendant (FCIA) and sued for breach of contract. At issue was the language of a “mutual release” clause. Per the language of a “mutual release,” plaintiff argued the the term “its insurance companies” includes the Federal Crop Insurance Company and therefore the federal government. Court noted that the release clause “cannot be reasonably read to encompass the criminal charges filed against [plaintiff], which dealt with inflating crop baseline prices to increase eventual payouts on numerous insurance policies. Court observed that the State of Washington follows the “objective manifestation” theory of contract interpretation and concluded that “[t]he words ‘its insurance companies’ cannot reasonably be interpreted to bind the federal government and prevent the Department of Justice from pursing a criminal prosecution against POCO for events related to the 2003 policies.” Summary judgment for defendant affirmed.

In SCOTTSDALE INSURANCE CO v. TL SPREADER, LLC, ET AL, NO. 6:15CV2664, 2017 WL 4779575 (W.D. La. October 20, 2017), a third party made a claim against defendant alleging crop damage “incurred because of the misapplication of chemicals.” Defendant sought reimbursement from plaintiff (insurance company) after defendant paid two settlements regarding the damage. Plaintiff argued its insurance policy “affords no coverage . . . for the cost of the settlements paid.” Court observed that “[t]he insured bears the burden of proving a policy of insurance affords coverage for an incident.” Plaintiff argued that the primary coverage provision of the policy “affords no coverage . . . because there was no ‘property damage’ to ‘tangible property.’” Defendants provided court with an “issue of material fact” regarding damage resulting from the misapplication of the chemicals at issue and court denied plaintiff’s motion for summary judgement.

In The CORNUCOPIA INSTITUTE, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant, Civil Action No. 16–215 (RMC), 2017 WL 4685541 (D.D.C. October 17, 2017), plaintiff, a public interest farm policy organization, filed a Freedom of Information Act (FOIA) request seeking records from the Agricultural Marketing Service (AMS) concerning investigations conducted by the National Organic Program. Plaintiff challenged both the “adequacy of the search for records and the propriety of the exemptions cited by the Service for its redactions and withholdings.” Both parties moved for summary judgment and plaintiff sought “in camera review of 34 records to determine the adequacy of the redactions.” Court found that plaintiff did not meet its burden of “demonstrating how disclosure of personal identifying information would allow the public to ‘learn more about how the investigation was conducted.’” USDA’s motion granted.

LEGISLATIVE:

S. 1998: A bill to amend the Agricultural Act of 2014 to reduce county yield disparities for agriculture risk coverage. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S. 2000: A bill to amend the Safe Drinking Water Act to improve transparency under the national primary drinking water regulations for lead and copper. Bill referred to the Senate Committee on Environment and Public Works which will consider it before sending it to the Senate floor for consideration.

S. 1996: A bill to require Federal agencies to address environmental justice, to require consideration of cumulative impacts in certain permitting decisions. Bill referred to the Senate Committee on Environment and Public Works.

H.R. 2600: To provide for the conveyance to the State of Iowa of the reversionary interest held by the United States in certain land in Pottawattamie County, Iowa. Bill’s text for status Reported by House Committee (Oct 24, 2017) is now available.

H.R. 4114: To require Federal agencies to address environmental justice, to require consideration of cumulative impacts in certain permitting decisions. Bill referred to the House Committee on Energy and Commerce, House Committee on Natural Resources, and 2 other committees.

H.R. 4103: To require the Secretary of the Interior to submit an annual report to Congress on certain statistics related to applications for a permit to drill an oil or gas well. Bill referred to the House Committee on Natural Resources.

MEETING: Senate Committee on Energy and Natural Resources. Hearings to examine new efficiency opportunities provided by advanced building management and control systems. Oct. 31 at 10 a.m. (Location: SD-366).

REGULATORY: Includes AMS, EPA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule establishes a de minimis quantity exemption threshold under the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) regulations regarding a national research and promotion program for softwood lumber. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking direct final action to notify the public that it has received a negative declaration for sewage sludge incineration (SSI) units within the City of Philadelphia. Info here.

Rule EPA is granting a petition submitted by ExxonMobil Oil Corporation Beaumont Refinery (ExxonMobil) to exclude from hazardous waste control (or delist) a certain solid waste. Info here.

Rule finalizing the residual risk and technology review (RTR) conducted for the Publicly Owned Treatment Works (POTW) source category regulated under national emission standards for hazardous air pollutants (NESHAP). Details here.

Rule EPA is proposing reporting requirements for applicable persons to provide information to assist in the preparation of an “inventory of mercury supply, use, and trade in the United States.” Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is exchanging unused flathead sole and rock sole Community Development Quota (CDQ) for yellowfin sole CDQ acceptable biological catch (ABC) reserves in the Bering Sea and Aleutian Islands management area. Details here.

Notice NMFS announces its intent to issue exempted fishing permits (EFPs), scientific research permits (SRPs), display permits, letters of acknowledgment (LOAs), and shark research fishery permits for Atlantic highly migratory species (HMS) in 2018. Info here.