Fighting ag’s legal battles
December 16, 2013
"In 2013 we had 21 active cases and 12 decisions, which is huge," began American Farm Bureau Federation Senior Counsel for Public Policy Danielle Quist at the Wyoming Farm Bureau Federation (WyFB) Annual Meeting in Laramie on Nov. 15. She spoke of national issues that will impact western producers.
Quist went on to highlight many of AFBF's current legal cases and issues – those resolved that they were a key player in, and the issues they will continue to watch and work on in 2014.
"On the topic of private property rights, there have been a couple cases of interest involving the EPA (Environmental Protection Agency). One is that EPA released information of farmers and ranchers in 29 states they had collected regarding CAFO's (Confined Animal Feeding Operations), and how they did that is by telling all 50 states, 'you better give us this information, or else.' Twenty-nine states did, not just about CAFO's but regarding row crops as well. The EPA put all that information, including some home addresses, personal emails, staff notes, spouses names and so on, into database form and sent it to the environmental groups," began Quist of one major suit regarding protection of private property that began in 2013.
The basis for the suit was the fact that the AFBF believes the EPA conducted no review as to whether the Freedom of the Information Act required that data.
"We reviewed about 30 years of Supreme Court case law defining what is personal and what is public. Based on what EPA did, if you're a farmer or rancher and have incorporated yourself into a legal entity, for example a corporation, you have just lost your privacy protection, and all information you submit to the federal government is public. Your home address and name are also public information based on what the EPA did. They took a very broad view of what is public, and based on our research what they did is flatly against what the Supreme Court says is public information," explained Quist.
AFBF filed a lawsuit against the EPA, who Quist said knew they had done something wrong. The case is currently going through litigation, with AFBF among those wanting to clarify what not only the EPA's, but also the federal government's obligations are when it comes to protection of privacy.
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"The Endangered Species Act (ESA) is another area we do a lot of work in. The Center for Biological Diversity filed this lawsuit several years ago saying the EPA is going to have to severely restrict or ban all major ag pesticides until they have consulted with the ESA and wildlife agencies. Basically, they were creating a log jam with the long term goal of stopping pesticide use as much as they are based on the idea that they might have affected listed a species," explained Quist of another major national legal issue.
In the end the court stated the groups did not follow the proper legal process, didn't file in the right court, and wished to change agency policy created 20 years ago, for which the time frame to submit comments and cases had passed.
"EPA licensing the use of pesticides doesn't give the right to an ESA consultation; it has to be a federal agency consultation. But, following the court decision they did file a 437-page complaint that does not cure any flaw, and we are currently working to get that kicked out of court as well," noted Quist, adding that about 10 other groups have joined AFBF in intervening on behalf of the pesticide manufacturing industry as well as all growers who utilize pesticides.
Winning a case in the 9th Circuit Court on Roundup Ready Alfalfa was considered a highlight of the year for AFBF, and agriculture in general.
"We have been litigating this issue for more than two years. It was a NEPA (National Environmental Policy Act) case regarding Roundup Ready Alfalfa that the Center for Food Safety alleged needed an EPA and ESA review. USDA and our view has always been that the law regulates GMO's, and that the Plant Protection Act is mandatory. Once Monsanto owns this, that's the end of it," began Quist.
She added that while the court did not want to issue their decision because they knew it would limit the applicability for NEPA and the ESA, there was no wiggle room for them in the case.
"They have not appealed the court's decision and we are hoping we're done with this issue, which is rarely the case. We want to make sure that if you want to use GMO's, you have access and it is your choice. This case was a huge win to that point," explained Quist.
Looking into next year, Quist stated the Supreme Court has agreed to review whether the EPA has the authority to regulate greenhouse gas emission standards for stationary sources, industrial plants and potentially certain farms.
"Were also very happy that someone leaked the waters of the U.S. final proposed rule and that a nice press reported it. They have about 300 pages of what they're proposing, and big thing for ag is the way they classify ditches. This rule would increase the federal footprint on land and water resources in the states, and we will be asking for input from the public challenging it when the time for public comment occurs," concluded Quist of one key issue the agriculture sector should prepare to assist within the upcoming year.