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

                                                                                                                                               

JUDICIARY: Includes FIFRA, pesticides, agency action, CWA

In Makhteshiam Agan of North America, Inc. v. Nat’l Marine Fisheries Serv., No. PWG-18-961 2019 WL 5964526 (D. Md. Oct. 18, 2019), the court considered a Biological Opinion (BiOp) issued by the National Marine Fisheries Service (NMFS) in 2017. The BiOp addressed the Environmental Protection Agency’s (EPA) registration of pesticides containing organophosphate active ingredients, specifically, chlorpyrifos, diazinon, and malathion, under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The plaintiffs are pesticide manufacturers that create the pesticides specified in the BiOp, and they argue that the BiOp presents an obstacle for getting their pesticides registered because it states that those particular pesticides “irreparably harm multiple endangered species.” The plaintiffs filed suit, asking the court to vacate NMFS’s BiOp. While the case was still pending, NMFS announced that it had reinitiated consultation with EPA under Section 7(a)(2) of the Endangered Species Act (ESA) concerning EPA’s registration review of the pesticides named in the BiOp. NMFS informed the court that after the consultation was complete, it planned it either issue a new or revised biological opinion, or a written explanation if it decides not to issue a new or revised biological opinion. Because NMFS is reconsidering the BiOp at the heart of this case, it has asked the court to remand the case back to the agency. The plaintiffs opposed this request. The court sided with NMFS, concluding that a remand to the agency would “be the most efficient and cost-effective path to resolving the issues presented in the case.” The court reasoned that because the BiOp underlying this case could be replaced, and that even if it was not, a new administrative record would be generated either way, the case had to be remanded back to NMFS until it reached its new decision.

In Envtl. Law & Policy Ctr. et al. v. U.S. EPA, et al., No. 3:19CV295 2019 WL5962802 (N.D. Ohio Nov. 13, 2019), the court considered a challenge to the Environmental Protection Agency’s (EPA) approval of the State of Ohio’s 2018 impaired waters list under the Clean Water Act (CWA). In that list, the State of Ohio designated Western Lake Erie as an impaired waterbody, which triggered its obligation under the CWA to create a Total Maximum Daily Load (TMDL) that would set a limit for the amount of phosphorous that can enter the lake. However, rather than create a TMDL, Ohio stated that it considered Lake Erie to be low priority for TMDL development, and that it would instead address Lake Erie’s impairment through alternative methods. In response, plaintiffs brought suit against EPA, alleging that the agency’s approval of the impaired waters list despite Ohio’s decision not to develop a TMDL for Lake Erie was a violation of the CWA. The plaintiffs argued that EPA’s decision was arbitrary and capricious under the Administrative Procedure Act (APA). EPA filed a motion to dismiss the case, and after consideration the court decided to deny the motion and let the case go forward because the court believed that the plaintiffs’ complaint plausibly alleges a violation of the APA.

Under the CWA, Ohio is required to establish a priority ranking for impaired waters, taking into account the uses that are made of such waters, and the degree to which the waters have been polluted. The plaintiffs contend that if Ohio had appropriately considered the severity of Lake Erie’s impairment and the uses that its waters are put to, it could not rationally have concluded that the lake was low priority for a TMDL, nor could EPA have found that Ohio’s priority ranking complied with the CWA. In deciding not to dismiss the plaintiffs’ claims, the court noted that the State of Ohio itself had noted that Western Lake Erie is a high priority for the state to address, and one of the waterbodies most in need of remediation. Yet, Ohio listed it as low priority for TMDL development. Additionally, the court pointed out that in seeking dismissal of the plaintiffs’ claims, EPA provided nothing to indicate a rational connection between Lake Erie’s ranking as a low priority for a TMDL and the severity of pollution found in the lake. Accordingly, the court reasoned that the plaintiffs had sufficiently alleged that there could have been a violation of the APA and the case was allowed to go forward.

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REGULATORY: Includes NOAA

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Proposed Rule implementing management measures described in Amendment 9 to the Fishery Management Plan for the Coral and Coral Reefs of the Gulf of Mexico. Info here.