Volume 26, Number 1, Summer 2011


Agriculture, Food, and Environmental Policy

What, where, and how we grow our food transcends more than nutrition and safety. With a global population increase of approximately 2 billion people expected by mid-century and changing demographics worldwide (with the majority of the population now living in urban centers), how to produce food for the children of the twenty-first century is becoming a dominant global question. This article briefly reviews how agricultural policy has become increasingly linked to environmental policy.
Sam Kalen

Where Is “Agronanotechnology” Heading in the United States and European Union?
Adoption of nanotechnologies can enable and transform modern agricultural practices in many broad areas. The regulation of engineered nanomaterials in food, food contact substances, and pesticides has many elements that have been commonly approached internationally; however, there are many aspects—both international and regional—where lack of regulatory harmonization and empirical data are impeding global strategies for products commercializing nanotechnologies.
Sara Beth Watson, Anna Gergely, and Erik R. Janus

Impacts of Agricultural GMOs on Wildlands: A New Frontier of Biotech Litigation
The variety and application of genetically modified (GM) organisms in agriculture continues to expand at a rapid rate. With continued introductions and ever-greater diversity of GM plants, animals, and microbes, the possibility of inadvertent release of transgenes into wildlands will similarly increase. Genetically modified plants, animals, or microbes have the potential to impact the environment through invasiveness of the GMO or of organisms with which it hybridizes, loss of biodiversity, and adverse effects on non-target organisms.
Guy R. Knudsen

FIFRA v. the Courts: Redefining Federal Pesticide Policy, One Case at a Time
Over the past ten years, federal courts have issued a series of significant decisions subjecting federal pesticide regulatory policy under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) to the procedural and substantive requirements of other federal environmental laws and state common-law principles. Courts have interpreted the Clean Water Act to mandate additional controls and permitting requirements on pesticides previously approved by EPA for used in or near water. Courts have interpreted the Endangered Species Act as imposing broad-sweeping and cumbersome ESA consultation obligations between EPA and other federal agencies for FIFRA pesticide registration decisions. Courts have also allowed plaintiffs to use state common-law tort theories to challenge the adequacy of federally-approved pesticide labels.
Charles Franklin

Expanding Regulation of Pesticide Applications under the Clean Water Act
For years, pesticide applicators were not required to apply for NPDES permits when making pesticide applications, which EPA attempted to memorialize in a 2006 rulemaking. The recent 6th Circuit decision in National Cotton Council overturned this rule, opening the door for CWA regulation of pesticide applications. Since that time, EPA has promulgated a draft general NPDES permit, which in many ways asks more questions than it answers.
Brandon Neuschafer

Regulation of Nonpoint Source Agricultural Discharge in California
Regulation of non-point waste water discharge from agriculture in California has evolved from statutes not initially intended for that type of control. Production agriculture as well as Concentrated Animal Feeding (CAFO) operations are the main targets for these regulations. Under the state’s Porter-Cologne Act, Regional Water Quality Control Boards, responsible for implementing federal and state water pollution law, have developed differing approaches to such regulation. In addition, salinity problems of the Central Valley resulting from past irrigation practices are being addressed in an as-yet voluntary program, CV-SALTS. California’s experience may have implications for agriculture in other parts of the country.
Lee N. Smith and Loren J. Harlow

No Free Pass: Putting the “Bio” in Biomass
Ambitious mandates in the United States and Europe for bioenergy, and GHG regulation of mobile and stationary sources, have lead to fears that emphasis on biomass feedstocks for fuel and electricity actually may increase net GHG emissions from uncontrolled direct and indirect land use change–contrary to the notion of “bio” energy. Further, industrialized energy biomass production, like any other commoditized agricultural system, may impact negatively other environmental and socio-economic values. Competition for land for cropping also incites long-standing societal debates surrounding land tenure and food security in developing and underdeveloped countries. In response to these trends, regulations and voluntary standards rapidly are emerging on multiple fronts to address the “sustainability” of crop and forest biomass energy feedstocks. This article will examine these efforts, and identify key issues on the horizon confronting biomass-based energy.
Jody Endres

Understanding and Interpreting Right to Farm Laws
As Americans become less familiar with production agriculture, and urban sprawl continues, controversies between producers and their neighbors will only continue to increase in number. Since the 1970s, states have utilized right to farm laws to help protect agricultural producers from nuisance-type lawsuits, essentially codifying the common-law defense of "coming to the nuisance." Each state's right to farm law, although aimed at the same goal, is formulated differently, and these differences must be considered and understood when litigating a case where a right to farm defense may arise. Further, right to farm defenses have been subject to challenges, with regard to their constitutionality, effectiveness, and interplay with state and federal regulatory schemes.
Tiffany Dowell

Climate Change: Impacts on Food Safety
Despite uncertainties in the rate and geographic impacts of global climate change, several independent governmental studies report that warming of the climate system is occurring and will continue. This article examines current climate predictions and how climate shifts in various regions may impact global agricultural production and food security. It concludes that agricultural practices will need to be modified or adapted to correlate with anticipated shifts in weather patterns if food security is to be maintained into the future. The article closes by discussing various adaptation efforts that could help to maintain global food security in the face of evolving climate conditions.
Susan Charles


Liability as Regulator under CERCLA
This article analyzes a 2011 District Court of Idaho decision holding that the federal government’s permitting and oversight of the mining waste disposal made it liable as arranger and operator under CERCLA for contamination resulting from the waste disposal. The court rejected the government’s argument that it could not be liable as an arranger or operator because it was acting in a merely “regulatory” capacity. As a result of this decision, parties involved with hazardous waste cleanups arising from activities that were permitted and overseen by a governmental entity may be able to shift some of the expense back to the government.
Patrick G. Rowe

New Guidance on Clean Water Act Jurisdiction
Since the Supreme Court issued two confused and fractured rulings in 2001 (SWANCC) and 2006 (Rapanos)over the scope of waters protected by the federal Clean Water Act, the implementation and enforcement of basic federal water pollution provisions have been hampered by uncertainty. Guidance issued in 2003 and 2008 did little to clear this uncertainty or provide adequate levels of water quality protection. Moreover, efforts at a congressional fix have stalled. EPA and the Corps have recently issued proposed new guidance that promises to give more clarity on the scope of waters the CWA protects. The proposed guidance states that it will precede formal rulemaking that should provide even greater protection and predictability for CWA implementation and enforcement.
Jim Murphy

West Virginia’s Land Stewardship Program
West Virginia has taken a leadership role in ensuring the long-term viability of risk-based cleanups. In 2009, the West Virginia Department of Environmental Protection launched an initiative to establish a program for the long-term safeguarding of remediated sites using institutional controls and engineering controls.
Gale Lea Rubrecht

Responding to an OSHA Enforcement Action
This article provides a nuts and bolts overview of settling OSHA environmental enforcement actions, including helpful hints to achieving a settlement most favorable to your client, as well as discusses certain essential elements to any settlement agreement reached in an OSHA environmental enforcement action.
Shawna M. Bligh

Mining No Longer a Preferred Land Use in Michigan
Despite zoning being a solely legislative function, the Michigan courts have long judicially reviewed zoning ordinances that regulate mining. The courts viewed mining as a special land use problem because a particular piece of land is where a particular mineral is. Mining cannot occur where the mineral is not. The courts used a more rigorous reasonableness standard that reviewed the impact on the community, instead of the reasonableness of the ordinance. In July 2010, the Michigan Supreme Court overturned this body of case law.
Barry D. Malone

Environmental Justice is Alive and Well
The concept of Environmental Justice (EJ) has been around for at least the past 40 years, but has never received public attention like more well known environmental issues such as global warming. Nevertheless, EJ advocates have continued to work at making EJ an interwoven part of the decision-making process at all levels of government. This article offers a brief history of EJ in the United States and reminds the reader that environmental justice is still important and still a concept that exists at nearly every level of government.
Cole M. Young



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