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The Senate returns to work this week with key elements of President Joe Biden’s climate agenda in peril, while the Supreme Court decides whether to hear several cases important to agriculture, including the latest challenge to California’s Proposition 12 standards for hog and poultry production.
The justices will meet Friday of this week to discuss whether to review decisions affecting animal housing standards, year-round use of E15, and wetlands regulation. The court customarily announces the following Monday whether it has granted the petitions. The votes of four justices are needed to advance a case to full briefing and arguments before the court.
The cases include a challenge by the National Pork Producers Council and American Farm Bureau Federation to Proposition 12, which went into full effect on Saturday and imposes minimum space requirements for sows producing pork consumed in the state, wherever it is raised. Producer groups have asked the state to delay the effective date of the regulations for two years.
The law also imposes requirements for egg-laying hens, but egg producers have not backed legal efforts to overturn Prop 12.
Twenty states have filed a brief supporting NPPC and AFBF, as have the National Association of Manufacturers and National Cattlemen’s Beef Association. Iowa and Minnesota pork producers, the state farm bureaus in those states and the Minnesota AgriGrowth Council also are backing the NPPC/AFBF petition.
On the other side is the state of California, which is backed by the Humane Society of the U.S., Animal Legal Defense Fund, Animal Equality, The Humane League, Farm Sanctuary, Compassion in World Farming USA, and Animal Outlook.
The petitioners and their supporters argue that the law violates the “dormant Commerce Clause” by imposing requirements on operators outside of California. Nearly all — 99.87% — of the pork consumed by Californians comes from outside the state, where compliance with Prop 12 will cause an “excessive burden,” NPPC and AFBF said in their petition.
The 9th U.S. Circuit Court of Appeals ruled 3-0 for the state and against NPPC and AFBF in July, finding that “for dormant Commerce Clause purposes, laws that increase compliance costs, without more, do not constitute a significant burden on interstate commerce.”
The court could delay the outcome of its decision on the petition by seeking the views of the U.S., which during the Trump administration filed an amicus brief in the 9th Circuit supporting the pork producers. The Biden Justice Department has not taken a position.
In June, the Supreme Court denied a similar petition filed by the North American Meat Institute challenging Prop 12.
Another matter on the agenda for the Supreme Court’s Friday conference involves a decision by the U.S. Court of Appeals for the District of Columbia Circuit that found EPA could not authorize year-round sales of E15. Growth Energy filed a petition in October, arguing the Clean Air Act provides the flexibility to allow “fuel blends whose concentration of ethanol exceeds 10 percent.”
The appeals court said no, citing the CAA’s “plain text,” which only allows up to 10% ethanol. In its response to the petition, EPA said the petition should be denied and that the D.C. Circuit’s holding “does not conflict with any decision of this court or any other court, and it has limited legal and practical consequences.”
The Supreme Court looks closely at whether there is a conflict in the Circuit Courts of Appeals when deciding on petitions.
The final environmental case the Supreme Court is considering involves a long-running dispute between two Idaho landowners and EPA over an area of their property deemed wetlands by the agency. Chantell and Michael Sackett were victorious in 2012 when the high court ruled that they could challenge EPA’s compliance order requiring restoration of the purported wetlands.
EPA withdrew the compliance order, but the 9th Circuit went ahead and issued a decision in August affirming EPA’s wetlands determination. The Sacketts, saying the order could be reissued at any time, have filed a new petition that seeks review of the Supreme Court’s fractured Rapanos decision in 2006, which lower courts have interpreted as adopting a “significant nexus” test outlined by former Justice Anthony Kennedy to determine whether waters can be regulated under the Clean Water Act.
They have the support of 21 states, the U.S. Chamber of Commerce, the National Association of Home Builders and a handful of conservative legal foundations, including the Pacific Legal Foundation in California, which is representing them. No agricultural groups, however, have filed amicus briefs backing the Sacketts, who contend that Rapanos should be read as requiring a “continuous surface water connection” to demonstrate jurisdiction.
EPA has urged the court to deny the petition, again citing the lack of a conflict in the Circuit Courts of Appeals. The agency also disputes the Sacketts’ reading of Rapanos, noting that in Kennedy’s “significant nexus” test, he “concluded that wetlands have such a nexus when they, ‘either alone or in combination with other similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters.’”
The Sacketts’ wetlands meet that test, EPA said. “The court of appeals found ample evidence that the wetlands on petitioners’ property are similarly situated to the Kalispell Bay Fen across the road and that, together, those wetlands ‘significantly affect the integrity of Priest Lake.’”
The Senate is back in action Monday for the first time since Sen. Joe Manchin, D-W.Va., announced that he couldn’t support Biden’s Build Back Better bill in its current form.
Senate Majority Leader Charles Schumer, D-N.Y., subsequently assured colleagues that Democrats weren’t giving up passing some version of the bill, which includes about $90 billion in agriculture, forestry and nutrition provisions as well as a variety of biofuel and clean energy tax incentives
In a Dear Colleague letter on Dec. 20, Schumer said the Senate would “vote on a revised version of the House-passed Build Back Better Act — and we will keep voting on it until we get something done.”
Also this week, the Senate Health, Education, Labor and Pensions Committee will vote on the nomination of Robert Califf to head the Food and Drug Administration. Califf, a cardiologist, served as FDA commissioner in the final year of the Obama administration.
Califf’s nomination is relatively noncontroversial, although he won’t get the vote of HELP member Bernie Sanders, who contends he is too close to the pharmaceutical industry.
During Califf’s confirmation hearing last month, Sen. Tammy Baldwin, D-Wis., pushed him to commit to tightening enforcement of standards of identity for dairy products to prevent their use for plant-based alternatives. In response, Califf would only say that he was “committed to making this (issue) a priority.”
Here is a list of agriculture- or rural-related events scheduled for this week in Washington and elsewhere (all times EDT):
Monday, Jan. 3
Tuesday, Jan. 4
Wednesday, Jan. 5
10 a.m. — Senate Health, Education, Labor and Pensions Committee meeting to consider the nomination of Robert Califf to be commissioner of the Food and Drug Administration.
Thursday, Jan. 6
8:30 a.m. — USDA releases Weekly Export Sales report.
Friday, Jan. 7
American Farm Bureau Federation annual meeting begins, Atlanta.
For more news, go to: www.Agri-Pulse.com.
Steve Davies
Associate Editor
Philip Brasher
Executive Editor
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This week’s Open Mic guest is American Soybean Association President Brad Doyle, who says the availability of crop protection products and fertilizer is providing a challenging start to the 2022 crop year. The Arkansas farmer is encouraged to see discussion on a new farm bill beginning in Washington and is mindful of the political will to develop climate-smart policy. Doyle says soybean farmers have voluntarily adopted conservation practices on millions of acres and are counting on Congress to keep risk management as a top priority in new legislation. Doyle says soybean growers want to maintain global market access and are ready to step up production for next-generation renewable fuels.
1. Saving the planet by saving the soil: Can cover crops fulfill their promise?
2. Making cover crops pay off: what it takes to cover the cost
3. Cover crops as cash crops: Farmers angle to profit off the practice
4. Direct checks could ignite cover crop surge; crop insurance may play a role, too
Senate Democrats were unable to pass a major legislative priority this week as the Build Back Better reconciliation package awaits further action. South Dakota Republican Sen. John Thune discusses where he thinks the bill goes from here, what it might mean for farm policy, and how he’d like an ongoing debate over cattle politics to unfold.
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