Ag groups react to Supreme Court decision to hear WOTUS appeal
Agricultural groups are praising Monday’s surprise announcement from the U.S. Supreme Court to hear an appeal in a Waters of the U.S. case.
Scott Yager with the National Cattlemen’s Beef Association says the Supreme Court announcing it will review the Sackett v. EPA case from the 9th Circuit Court is, “absolutely good news for producers.” He tells Brownfield, “When you look at a decision like this from the Supreme Court, there’s not a lot to look at, meaning there’s an order but you can read a lot in between the lines of that order and understanding what their thought process is in granting this case.”
Yager tells Brownfield with the EPA and the Army Corps of Engineers developing yet another WOTUS rule, it is unusual for the high court to get involved but, “That’s not what happened here. In this case, the Supreme Court really intervened during a rulemaking process. To me, that looks like they’re chomping at the bit to provide some clarity and put this issue to rest, so for that reason, we’re cautiously optimistic.”
Yager says the caution is because the WOTUS issues are complicated, spanning policy, science, and legal issues that split the high court before but he’s hopeful the court provides the guidance to keep this from ping ponging every time there’s a change in the administration.
And Yager is hoping the Supreme Court will take the case up very soon because of Monday’s announcement. “According to the Supreme Court rules, that starts the schedule where we could see briefing happen on the merits in March, potentially oral arguments in April or May, and that would set up the Supreme Court to issue a decision by the end of June, keeping it all this spring.”
But plaintiff’s attorney Charles Yates from Pacific Legal Foundation tells Brownfield he’s not sure the court will move that quickly. “Based on the ordinary process for briefing a case at the Supreme Court, that means that without some special treatment from the court, I’d guess shortening the briefing schedule, it couldn’t be heard this term. It’s more likely that it will be heard in October.”
Yager tells Brownfield with five new WOTUS rules in the past six years, producers are experiencing regulation fatigue and do not need Biden’s EPA to issue a new rule right now. “We have an EPA and an Army Corps (of Engineers) who are going through the process of issuing a new rule. It would really benefit everyone in the regulated community if we have the Supreme Court issue a decision before the Biden Administration issues their own rulemaking so that we don’t get whipsawed back and forth again.”
The American Farm Bureau Federation is echoing the calls for the Biden EPA to halt the rulemaking process for the Waters of the U.S. Courtney Briggs tells Brownfield. “This proposed rule is very troubling to farmers and ranchers. It brings back a very concerning test, the significant nexus test, so we hope that they will hit the pause button on that now that the Supreme Court has decided to take this case.” Briggs says the Supreme Court’s decision will provide the roadmap for whatever regulatory action comes next, so it makes no sense for the Biden administration to move forward with that rulemaking.
Yager says even though the existing rule is not in the producers’ best interest, farmers and ranchers are better off if EPA waits for the court’s guidance. And like NCBA, Briggs says Farm Bureau calls for no change in the existing WOTUS rules until the court weighs in.
Briggs tells Brownfield Farm Bureau was pleasantly surprised by the U.S. Supreme Court’s Monday announcement saying they would hear an appeal in the 9th Circuit Court WOTUS case. She says farmers and ranchers need the high court to get involved. “It’s very frustrating for the regulated community so it would be great to use this opportunity to provide that clarity, that certainty, that bright line of jurisdiction.”
Waiting for the court to act does not guarantee the outcome farmers and ranchers want. Yager says it’s possible the court makes a decision that “does not have a constructive ending.”