A Win, a Loss, and a Push for Agriculture

The last ten days were busy ones for agricultural issues in courts across the country. We’ve been discussing several of the ag cases potentially pending before the Supreme Court, and of the big three; Clean Water Act, California’s Proposition 12, and year-round E15 sales, the court has started making decisions.

It was announced two weeks ago that SCOTUS will not hear the challenge to the revocation of year-round E15 sales. Growth Energy had appealed a decision from a lower court and they were hoping to have the Supremes overturn the lower court’s ruling that EPA was not permitted to issue the waiver required for the sale of E15 in the summer months. With the lower court ruling standing, there is no regulatory path forward to the sale of E15 for 12 months of the year; so additional legislation would be required through Congress. I spoke with Emily Skor, CEO of Growth Energy, at the Iowa Renewable Fuels Summit last week and she was optimistic that a bipartisan bill allowing year round sales had been introduced to Congress; but cautioned that gathering support in an election year might be an uphill battle.

There was better news for landowners, however, as the Supreme Court did agree to hear the challenge to the “significant nexus” interpretation of the Clean Water Act. This is a case brought by the Sackett family of Priest Lake, Idaho after an EPA analysis of their .63 acre lot determined that it was a wetland and connected to Priest Lake through underground waterflows. As it stands now, thanks to a Supreme Court ruling in 2004 that was divided 4-4 amongst the justices, the EPA has two options for regulating a body of water: they could see if it was connected to a ‘navigable water’ by surface flows; or, they could asses whether the water in question was a ‘significant nexus’ to a navigable water. EPA has used the ‘significant nexus’ test ever since, which frustrates landowners since there is no clear determination what constitutes a ‘water of the United States’. The court will hear this challenge, likely in October. On the Thursday, January 27th episode of AOA, I spoke with Paige Gilliard, an attorney at the Pacific Legal Foundation and one of the lawyers who will be presenting this case to the Supreme Court. You can find the episode on our website.

And on Proposition 12, the American Farm Bureau Federation/National Pork Producers appeal to the Supreme Court to roll back that California law has not yet been addressed. The next update from SCOTUS will come the first Friday in February, and many pork market participants will be watching closely to see if the Court does decide to look at that case.

In the meanwhile, however, some temporary relief has been granted by the California court system. A suit brought by several parties in California had appealed to the judge to delay the enforcement of Proposition 12, which went in effect on January 1, 2022. They argued that the State has not finalized the rules, and in fact, in December it stretched out the rulemaking process again; which meant that there was no way for these businesses to be in compliance. The judge agreed, and has ruled that no enforcement of Proposition 12 can begin until 180 days after the final rules have been published.

This ruling will allow grocers and restaurants throughout California the opportunity to continue to provide more affordable pork entrees until the final rules are issued. Plenty of twists and turns ahead, in California, but this ruling should provide some time for more supply chain kinks to be ironed out and for a consistent supply of pork to be established.

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