The Business Standard reported on a new method to purify water using sunlight.

Reuters reported on a Supreme Court decision on the Endangered Species Act.

The Minneapolis Star Tribune discussed soybean storage issues as a result of Chinese trade disputes.

Nation’s Restaurant News reported on the FDA and CDC update on romaine lettuce contamination.

The Miami Herald discussed the status of the farm bill.

 

On June 29, 2018 and October 8, 2018, we blogged about the dusky gopher frog, an endangered species currently confined to a small area of Mississippi. The U.S. Fish & Wildlife Service designated land in Louisiana as part of the frog’s critical habitat under the Endangered Species Act, even though the frog does not currently occupy that property and could not survive there without substantial modifications to the land.  The landowner has no obligation to make such changes and Fish & Wildlife has no power to compel it to do so.  The Fifth Circuit upheld the agency’s decision.

On November 27, 2018, the Court reversed. Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, 2018 WL 6174253 (2018).  Based on the oral argument, we had assumed the Court would split on the usual ideological lines.  In fact, the opinion was 8-0.  The likely reason is that the Court did not finally resolve either of the issues raised by the landowner.

The Fifth Circuit had held that land did not have to qualify as “habitat” in order to be designated as “critical habitat.” The Supreme Court reversed that holding based on the common-sense notion that “critical habitat” must necessarily be a subset of “habitat.”  The Court did not, however, determine whether land could qualify as habitat if the endangered species did not occupy it and could not do so without substantial modification.  It left that issue for remand.

The Act allows Fish & Wildlife to exempt land from critical habitat if it concludes that the benefits of such exclusion, including economic benefits, outweigh the benefits of designating it. The landowner argued that Fish & Wildlife’s decision was arbitrary, in part because it discussed the benefits of inclusion with respect to all of the designated areas, not just the land in Louisiana; in part because it did not consider the cost of the necessary modifications.

The Fifth Circuit held that this decision was immune from judicial review under the Administrative Procedure Act. The Supreme Court also reversed that holding.  But it did not itself decide whether the decision was arbitrary and capricious, leaving that task for the Fifth Circuit on remand.

This kind of narrow ruling, avoiding any holding on the merits of a controversial issue, is something that the Chief Justice attempts to issue.

Time discussed an ongoing lawsuit between Pabst and MillerCoors.

Food Dive reported on large company start-up incubators.

The Minneapolis Star Tribune discussed the growth of Uber Eats.

The Washington Times discussed the slowing of the craft beer market.

The Minneapolis Star Tribune reported on the impact of a warming ocean on shellfish in the Northeast U.S.

 

We have blogged on several occasions, most recently on June 7, 2018, about the varied fate of so-called “ag-gag” laws. These laws seek to prevent, in one way or another, undercover investigations of the quality of producers’ facilities, usually involving care of animals or poultry.  On September 15, 2017, we blogged about the Tenth Circuit’s partial reversal of an order dismissing a complaint against the Wyoming version of an ag-gag statute.

The statute made it a civil and criminal offense to trespass on private property en route to public property, if the objective was to gather information about producer operations. The issue on remand was whether this statute violated the First Amendment.

On cross-motions for summary judgment, the District Court held that the statute was unconstitutional. It is clear that the First Amendment protects the gathering of information for ultimate use in speech; otherwise, it would be entirely too easy to shut down speech before it ever took place.  The statute was content-based because it only applied to collection of data about land and land use, and not to other purposes.  Thus, it was subject to strict scrutiny.

The statute failed strict scrutiny. The asserted governmental interest was in protecting the property rights of private citizens.  But it made no effort to do so for anyone not collecting data about producer operations.  The Court found this to be especially problematic given that producers deposed in the case had equal or greater problems with trespassing hunters and campers.  Moreover, the statute was not narrowly tailored to that interest.

The Court held that the State could criminalize trespass without any requirement of subsequent engagement with speech. This suggests that the State could accomplish its objective of shutting down speech about producers’ operations merely by strengthening a facially neutral trespass statute.  That in turn raises the prospect of an as-applied challenge to an amended statute.

Farms.com discussed a proposed EPA rule exempting farms from emission reporting.

USAgNet discussed EU restrictions on use of antibiotics on healthy farm animals.

The Conversation reported on current efforts to develop compostable food packaging.

The Environmental Leader reported on the rise of packaging-free grocery stores.

Agweb reported on FDA approval of drug to reduce manure gas emissions.

 

The state and federal governments tax a wide variety of growers of agricultural products to fund generic advertising – e.g., beef producers to fund “Beef: It’s What’s For Dinner” or pork producers to fund “Pork: The Other White Meat.” Many growers would prefer not to fund these programs, but the Supreme Court has generally upheld them as long as the content was dictated or approved by a government agency.

These kinds of marketing efforts date to the 1930’s at the state level and the mid-1960’s at the federal level. They can cost large growers several hundred thousand dollars a year. The rationale is that all growers benefit from the increased demand supposedly generated by generic advertising, so the program must be compulsory to avoid free riders from benefiting from the advertising without sharing its costs. Not all growers agree with this proposition. Some of them argue that generic advertising is harmful to their interests, because they market their product on the basis that they are different from, and better quality than, generic products.

In 1976, the Supreme Court decided Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. 425 U.S. 748 (1976). Virginia Citizens held that the First Amendment protects commercial speech such as advertising, at least so long as the advertising is truthful and not deceptive. And the Court has long held that the First Amendment also largely protects people from compelled speech – being forced to support speech with which they disagree.

In 1988, a California fruit grower challenged the marketing tax on First Amendment grounds. In Glickman v. Wileman Bros. & Elliott, 531 U.S. 457 (1997), by a 5-4 vote, the Supreme Court upheld the program. The majority held that the program did not compel Wileman to engage in speech, merely to contribute money to fund it. Because the end product contained no ideological or political message, it did not run afoul of the First Amendment. Continue Reading Compelled Speech

Digital Journal discussed the impact of climate change on barley crops and beer production.

Food Dive discussed a new website aimed at helping consumers understand the environmental impact of the food they eat.

Western Farm Press reported on a USDA, EPA and FDA partnership to reduce food waste.

The East Bay Times discussed California ballot issues on cage free eggs and animal welfare.

The High Plains Journal discussed low-interest USDA loan for victims of natural disasters.