Concern over ethanol rules sparked King’s controversial amendment

Source: Amanda Peterka, E&E reporter • Posted: Friday, November 15, 2013

A contentious farm bill amendment that would limit states’ ability to set restrictions on the way agricultural goods are produced arose out of concern over California ethanol regulations, the provision’s author said yesterday.

The amendment is in direct response to California’s requirement that all eggs sold in the state must be from cage-free hens. But Rep. Steve King (R-Iowa) said yesterday that the idea for the provision arose earlier with the Golden State’s ethanol requirements, which he felt unfairly targeted corn ethanol coming into the state from Iowa.

“I thought, can they tell the difference between a gallon of ethanol — and why does California care if it’s made from corn — versus a gallon of ethanol from sugar? And the answer is no,” King said at a Politico event in Washington, D.C. “They are the same product. So how is California regulating the means of production of ethanol?”

While the dispute over the ethanol requirements has been resolved by a federal court, King shifted his target to the egg law. His amendment included in the House farm bill is one of the major differences between the House and Senate versions currently in conference committee negotiations. It bars states from setting regulations requiring that agricultural goods sold in the state be produced in a certain way.

King and his backers in the agriculture and livestock industries say it’s vital to uphold the interstate commerce clause in the Constitution. But detractors warn that it would potentially nullify more than 150 state food, environmental and animal welfare laws and regulations. Opponents in Congress have gone so far as to call it a “poison pill” that would force them to vote against the entire farm bill.

King began considering the measure in response to California Air Resources Board regulations under the 2007 Low Carbon Fuel Standard, which calls for a 10 percent reduction in the carbon intensity of transportation fuels by 2020. King said he believed the regulations unfairly restricted corn-based ethanol through their estimations of life-cycle emissions.

“They had concluded that global warming was caused by corn-based ethanol, and they concluded if you take an acre of corn in Iowa and turn it into ethanol, somebody would start bulldozing in Brazil and clear a few acres of trees,” he said.

King, who is one of ethanol’s main champions in Congress, said he drafted a bill in response that would bar states from using trade protectionism in violation of the commerce clause. But before the bill went anywhere, he said, he became aware of other efforts in the state to regulate the way livestock and food are produced.

In 2008, Californians voted for a referendum requiring that all eggs produced within the state come from free-range hens. Two years later, then-Gov. Arnold Schwarzenegger (R) signed into law a measure that toughened the requirement to apply to all eggs sold in the state, regardless of where they are produced.

The law sets a negative precedent that allows states to set up barriers to protect their producers to the disadvantage of other states, King said.

“We can’t just sit back and wait for it to be litigated,” King said. “We have to get this in the farm bill now.”

As for the California Low Carbon Fuel Standard, a federal court upheld the regulations in September, finding that the state did not violate the interstate commerce clause.

“California can do whatever they want to do with ethanol in California. That’s been litigated,” King said. “So that issue is resolved.”

But the egg law remains, and King’s amendment passed on a voice vote both last year and this year in the House Agriculture Committee’s markup of the farm bill.

The Humane Society of the United States has led a coalition of food safety and animal welfare groups in opposition to the amendment. Groups of House members and senators have also publicly opposed the provision.

Opponents say they’ve identified more than 160 state regulations that could be nixed if the amendment makes it into law. A coalition of senators in August warned, for example, that it could affect 13 states’ restrictions on imported firewood that were put in place to protect forests from invasive pests like the Asian long-horned beetle.

“This amendment is an infringement of state regulatory powers, and it threatens our long-standing tradition of addressing regional agricultural issues with regional solutions,” the coalition wrote to Senate agriculture leaders.

And at the farm bill conference committee’s first meeting last month, some members called the amendment a “poison pill.”

“States have the rights to develop their own laws,” said Rep. Jeff Denham (R-Calif.)

But King said he had vetted the provision thoroughly and that it would potentially affect only two state regulations: the egg law in California and a similar one in Michigan. He put the amendment’s chances at “about even.”