SCOTUS, Agriculture and a Call to Remain Vigilant and Nimble
The Supreme Court of the United States (SCOTUS) has shaped countless aspects of public policy and debate throughout the history of the United States. The importance of this branch of government cannot be overstated in terms of its impact.
For several months the agriculture industry has been anxiously awaiting Supreme Court Rulings on several key cases that will have a long-term impact on agriculture production and drive policy decisions for years to come. The decisions in these cases will also certainly drive strategy decisions for Arizona Farm Bureau as an organization.
The waiting is over and now that we have those opinions in hand, I have some observations and predictions to share.
Clarity on States’ Rights vs. Interstate Commerce Still Alludes Us
In the NPPC vs Ross case, the National Pork Producers’ Council challenged the constitutionality of Proposition 12 in California. Essentially, they argued that the law violates a doctrine known as the dormant commerce clause. The dormant commerce clause is the idea that the Constitution’s delegation of power over interstate commerce to Congress precludes states from passing laws that discriminate against that commerce. In particular, the lawsuit challenges the ability of states like California to require out-of-state businesses to operate in a particular way to sell their products in California.
This case is particularly important because this type of regulatory framework continues to proliferate across states. This tactic is favored by animal activist groups as a policy win in one state, like California, can have a reverberating effect across multiple states where products sold in those states are produced. A similar law in Massachusetts may wind up impacting the pork supply across all of New England.
The Supreme Court’s decision, in this case, was interesting in that the Justices were deeply splintered on the ruling and did not break along ideological lines. This decision opens the door for more states that attempt to regulate the actions of another state by mandating their own preferences to get access to consumers in their state. While it has started with agriculture products, it is sure to move to other regulatory actions.
In response, the American Farm Bureau, in addition to other national ag groups, is rallying around the Ending Agriculture Trade Suppression (EATS) Act. The act would prohibit state and local governments from interfering with the production or manufacture of agricultural products in other states. Closer to home, AZFB is working on efforts to reform our ballot initiative process to ensure ballot initiatives are simple, understandable, and only cover one subject (Prop 129 in 2022). In 2024, we are leading the charge, along with several other groups, to ensure all legislative districts are given a voice when ballot initiative petitions are being circulated.
Turns out the EPA Really CAN Go Too Far….Who Knew??
In a rare case of unity, the Supreme Court Justices unanimously agreed that the EPA went too far in enforcing the Clean Water Act, albeit for different reasons. In Sackett vs. EPA, the Sackett family challenged EPA’s authority to enforce provisions of the Clean Water Act in the development of their private land. The Sackett Family began excavation on a parcel of private property in Idaho with plans to build a home on the lot. The EPA claimed that they had a protected wetland on their property and ordered them to cease all activities and remove the gravel they had brought in for the project. Keep in mind that this “protected wetland” had no physical connection to any body of water and was completely contained on their own private land.
The Supreme Court ruled 9-0 that the EPA had overstepped its authority in enforcing the Clean Water Act. The Court held the Clean Water Act extends only to wetlands that have a continuous surface connection with “waters” of the United States — i.e., with a relatively permanent body of water connected to traditional interstate navigable waters.
In the aftermath of the decision, the Army Corps of Engineers has halted all Jurisdictional Determinations (AJDs) delaying important projects that may or may not now require permitting until they can confer with EPA. We are now awaiting a ministerial change to the WOTUS rule that will express the agencies’ interpretation of Sackett which is set to be released on September 1. This interpretation will no doubt be the subject of an additional legal challenge.
Sackett was a huge win in the battle to rein in the overreach of the EPA through the Clean Water Act and a clear admonishment of regulatory agencies for taking their authority too far. While the legal battles may not be over, this is certainly a huge win for the agriculture community.
The Bottom Line
Congressional gridlock and more aggressive agency actions will increase the importance of these Supreme Court Decisions moving forward. In the years to come, American agriculture will need to remain vigilant and remain active in engaging with our partners in litigation as we have in these two cases.
Lastly, farm bureaus and our grassroots members across the nation will need to stay nimble and find ways to adjust our strategy when the paradigm shifts and we are called to action.
Editor's Note: This article originally appeared in the August 2023 issue of Arizona Agriculture. We share this editorial here to help wider audiences understand the challenges facing American and Arizona agriculture.