Whew… what a year.
If you closely follow ag doings, you know there’s plenty to talk about. If not, well let me get you caught up.
First, three stories that fall just a wee bit short of the most impactful agricultural story of 2022.
Waters of the United States
The question of what waters the Environmental Protection Agency can regulate under the authority of the Clean Water Act has been an issue for years. The U.S. Supreme Court in Rapanos v. United States tried to define what exactly in the blue blazes constitutes navigable waters — lakes, bays, rivers, and other relatively large bodies of water. The opinion was a colossal failure. In all there were five — yeah, five can you believe that? — opinions. None captured a majority of the court.
So the Obama EPA looked to change the narrative, writing a new rule that replaced navigable waters with WOTUS. The new rule was a corker, giving EPA oversight of just about any water anywhere in the U.S. — including farmland drainage ditches, seasonal streams, tributaries and even puddle-like depressions. As you might imagine just about everyone that has even a passing interest in agriculture believed the EPA was out of its mind.
And lawsuits came flying in from everywhere. At least 71 plaintiffs. At least 31 states. Nine separate district court challenges. The results were anything but definitive. The U.S. Sixth District Court of Appeals tried to make a play for consolidating the lawsuits but its 1-1-1 ruling further muddied the waters (no pun intended). Meanwhile, court wrangling continued all over the country.
In January of 2017, the U.S. Supreme Court entered the fray. The Supremes decided they would rule on whether the U.S. Sixth District could solely determine WOTUS’ fate. A year later, justices sent the whole mess back to federal district courts.
Writing for the court, Sonia Sotomayor ruled: “Congress has made clear that rules like the WOTUS Rule must be reviewed first in federal district courts.” Uh yeah, a year for that.
Meanwhile in 2020 the Trump EPA tried to redefine WOTUS to something more appealing to agricultural interests.
More than six years after the Obama EPA started the WOTUS debate, this October the Supreme Court heard arguments that hopefully will fix the gosh-awful, steaming-pile-of-spaghetti ruling in Rapanos. And in case you were wondering, the Biden EPA is right now in the process of issuing a revised definition of WOTUS. It’s a very important issue for agriculture. But I don’t think it will be solved anytime soon.
In any given year I’m inclined to write several columns on issues surrounding climate change; some years I’ve deemed it either the top agricultural story of the year or potential top issue of a new year. See here and here. Climate change also got plenty of attention in 2020 columns — here, here, here and here. Another column in 2021 and two more this year — here and here.
I once wrote it might be possible to justify writing about climate change 24/7, and on the merits of the issue I still feel that way, but I’ve also come to learn that while there’s been plenty of talk all around the world regarding the need to fix the atmosphere, and pinky-swear promises to do what it takes … well, all those world climate change get-togethers are not getting it done. The latest United Nations report issued in October laid out the unvarnished truth that holding average world temperatures 1.5 degrees Celsius above pre-industrial levels by 2100 is a pipe dream. Heck, there’s a chance it could happen in the next five years.
Whoa, wait there, cowboy. What about the recently passed Inflation Reduction Act? I’ll concede it is the most significant attempt to date by the U.S. to do something about climate change. The act contains $369 billion in new spending to cut greenhouse gas emissions and invest in new energy technologies. That ain’t peanuts. It’s also not enough. We are deluding ourselves if we expect that Russia, China, Saudi Arabia, and India are going to meet their promised carbon-dioxide emission targets. Truly.
We should not be of the opinion that all is lost. A lot can happen with new technologies between now and the end of the century. But finding optimism in 2022 has been hard to come by.
California’s Proposition 12
This October, the U.S. Supreme Court heard oral arguments on Proposition 12, which seeks to require any entity wishing to sell pork in the Golden State to give each sow 24 square feet of living space. Note that means anywhere sows are kept. Like Iowa and North Carolina.
The high court likely will dive deep into the weeds of the U.S. Commerce Clause, which is supposed to fairly regulate interstate trade. A ruling either way could add new interpretative layers that could have real world impact on consumer pocketbooks.
Most impactful ag story of 2022: West Virginia v. EPA
And now for the big enchilada. It came from the Supreme Court and probably was somewhat lost in all the other huge social and individual liberty decisions. I’m talking about West Virginia v. EPA. See here and here.
Narrowly, the decision struck down an obsolete and never enacted Environmental Protection Agency plan to curb greenhouse gas emissions through generation shifting. But the opinion cripples federal regulators’ ability to protect the public. Chief Justice John G. Roberts’ majority decision ruled EPA could not regulate the energy grid through generation shifting because the Clean Air Act enacted by Congress did not specifically give the agency specific authority to do so:
Agencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency [may] add pages and change the plot line.’ We presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies.’ Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to ‘clear congressional authorization’ for the power it claims.”
For the newly minted conservative court that, let’s be frank, is highly suspicious of the workings of the administrative branch, the case served as the perfect vehicle to elevate the major questions doctrine.
The Supremes’ 1984 ruling in Chevron U.S.A. Incorporated v. National Resources Defense Council established a rule of judicial deference to federal agencies to broadly interpret Congressional intent in crafting rules and regulations unless such rules were not “reasonable” or “permissible.”
The Supreme Court 2000 decision FDA v. Brown & Williamson Tobacco Corporation articulated how the major questions doctrine should operate. The Supreme Court ruled that statutes should be examined in context to see whether “Congress has directly spoken to the precise question at issue.” Justices could consider subsequent legislation on the issue at hand. But it went even further, ruling that in “extraordinary cases” the court should hesitate and be guided by common sense of the likelihood that Congress would “delegate a policy decision of such economic and political magnitude to an administrative agency.”
The high court concluded FDA v. Brown and Williamson indeed was “extraordinary” and that Congress did not explicitly give the Food and Drug Administration the authority to regulate nicotine products. Unfortunately, nowhere in the ruling did justices specifically articulate what constitutes “extraordinary.” Since then, the major questions doctrine has played an increasing role in Supreme Court rulings.
Prior to West Virginia v. EPA, the current high court used the major questions doctrine to limit the Biden administration’s response to COVID-19 — first blocking a Centers for Disease Control Prevention moratorium on residential evictions and then stopping a vaccine or test mandate on large employers.
The Supreme Court more fully forms the major questions doctrine in West Virginia v. EPA, however, giving justices and judges far too much power to essentially legislate from the bench. And the risk going forward is that federal courts will gradually lower the bar for what constitutes extraordinary circumstances to take up major doctrine issues. Given the current political climate (is it even possible to claw back democracy to the model prior to 2016?) it’s entirely possible the Supreme Court’s philosophical bent will do real harm to the public because Congress is incapable of response.
It’s easy to imagine maverick judges ruling any number of agricultural disputes — food safety and security, air/water pollution, and immigration immediately come to mind — as “extraordinary” and ripe for judgment when, in fact, neutral analysis might suggest otherwise. And it goes without saying that the major question doctrine will be a go to argue for both plaintiffs and defendants in a staggering number of lawsuits going forward, and not just in agricultural cases.
The huge can of worms the high court unleashed on the nation, however, with West Virginia v. EPA makes it the most impactful agricultural story of 2022.
Veteran journalist Dave Dickey writes a regular column for Investigate Midwest, an independent, nonprofit newsroom, which first published this essay. Its mission is to serve the public interest by exposing dangerous and costly practices of influential agricultural corporations and institutions through in-depth and data-driven investigative journalism. Visit online at www.investigatemidwest.org. The essay is republished from the Missouri Independent.