SCOTUS probes Calif. pork fight’s ‘far-reaching consequences’

Source: By Pamela King, Marc Heller, E&E News • Posted: Wednesday, October 12, 2022

Pigs, Supreme Court and Wind turbines

The Supreme Court is weighing in on a dispute over a California pork production requirement that could affect state energy and climate rules. Marc Heller/E&E News (pigs); Francis Chung/E&E News (Supreme Court and Turbine)

The Supreme Court considered claims by pork producers and farmers Tuesday that a California animal welfare law illegally disrupts interstate commerce — a fight that could potentially ripple through similar disputes over state climate and energy rules.

During oral argument in National Pork Producers Council v. Ross, the justices appeared prepared to let challengers pursue a dormant commerce clause claim against California’s spacing requirements for pork-producing sows after a lower court tossed out their argument.

Such a ruling would send the heart of the pork producers’ arguments to a lower bench — but the justices questioned whether a win for the farmers could eventually upend a raft of other state rules on issues like climate.

Justice Amy Coney Barrett asked Timothy Bishop, the attorney for the National Pork Producers Council, how many rules would fall if his client were to prevail. She cited California’s rules setting stricter vehicle emissions standards than the federal government.

“Does that fall?” she asked.

Bishop, a partner with the firm Mayer Brown LLP, answered that California’s car rules would stand because the state has a long-standing waiver under the Clean Air Act to set tougher standards.

“What if they didn’t?” Barrett asked, citing a hypothetical that Justice Elena Kagan had posed earlier in the argument about New York banning sales of firewood that had been treated with certain pesticides.

“Would this have far-reaching consequences?” she asked.

Bishop repeated his answer, citing other examples like a Colorado requirement that a percentage of electricity from investor-owned utilities must be derived from renewable sources.

“Those rules are not going to fall,” he said.

At the heart of the pork producers’ arguments is the dormant commerce clause, or the implicit prohibition in the Constitution of states passing legislation that discriminates against interstate trade.

Challengers of California’s Proposition 12 say the Golden State, which consumes about 13 percent of the nation’s pork and imports nearly all of that meat, cannot pass a law with such an outsize effect on producers in Iowa and other states.

Dormant commerce clause disputes have traditionally divided the court along nonideological lines and have at times been seen as a path to persuade conservative justices to uphold state authority to create strong environmental rules (Energywire, Oct. 7).

Justice Neil Gorsuch, one of the Supreme Court’s conservative members, expressed disinterest in allowing California’s law to be struck down.

“In what way have you plausibly alleged harm to interstate commerce and consumers, rather than to your member firms?” Gorsuch asked Bishop.

The U.S. government, which argued alongside the National Pork Producers Council in the case, urged the Supreme Court to at least let the case move forward.

Deputy Solicitor General Edwin Kneedler suggested in a line of questioning from Justice Brett Kavanaugh that while California’s law might place unusual requirements on industry in other states, a ruling that upholds the requirement could invite other states to impose similar standards.

Barrett again posed a question about the broader impact of the case if the pork producers win: “Would we have to worry about calling into question a lot of laws that are pretty common?”

Kneedler said the court should not be concerned about wider disruptions because it has established in its case law methods for considering how far states can go to protect their own interests.

While the justices spent a lot of time parsing the specifics of California’s law, the exact question before the court is the more limited question of whether pork producers and farmers should be permitted to pursue their dormant commerce clause claims before a lower bench.

Justice Ketanji Brown Jackson raised that issue with California Solicitor General Michael Mongan, who appeared before the court to defend Proposition 12.

“The problem I’m having a little bit with your side of this case is we’re only at the motion to dismiss stage,” Jackson said. She later added: “Why isn’t it plausible to believe that the changes that are going to be made are going to be a burden to the industry?”

Jackson raised similar questions to Jeffrey Lamken of the firm MoloLamken LLP, who represented the Humane Society of the United States and argued alongside California in the case.

She asked Lamken why California couldn’t express its disapproval of animal confinement “through less burdensome means.”

A solution from Congress?

At least twice justices asked challengers of California’s law whether their arguments could be circumvented by action from Congress.

The answer from pork producers and the government: yes.

Sen. Chuck Grassley (R-Iowa), whose state leads the country in pork production, told reporters today he believes the court will share his view that California’s law interferes with interstate commerce, in particular by authorizing the state to send inspectors to Iowa and elsewhere to enforce the animal-housing requirements.

“I believe we’ve got a good chance that the court would throw it out,” Grassley said in a conference call with agriculture reporters.

If the Supreme Court rules in favor of Proposition 12, Grassley said, he and other lawmakers would likely seek legislation to counter such a finding.

Some Democratic lawmakers, including Senate Agriculture Chair Debbie Stabenow of Michigan, have taken California’s position and urged the Biden administration not to challenge it.

While the case before the high court focuses on hog farming, legal experts say the implications go well beyond pork or even the food industry — an aspect illustrated by justices’ questions regarding lumber or other goods, theoretically.

Other potential challenges could arise dealing with California and other states’ low carbon fuel standards, or Alaska and Hawaii’s laws requiring biodegradable plastic on beverage can holders to protect wildlife, among other state regulations, according to an August paper by the Harvard Law School’s Animal Law Policy Program.

“There are hundreds, if not thousands, more local regulations of food safety, packaging, labeling, and production,” the paper said. “To the extent any requires out-of-state food sellers, packagers, or manufacturers to comply with the regulating state’s standards, it could be vulnerable to invalidation if the Supreme Court endorses the arguments NPPC is advancing.

Grassley said the constitutional issues zero in on interstate commerce rather that states’ police powers, for instance, and he elaborated on the case’s potentially broader effects in a statement after the call.

“California’s ‘war on breakfast’ targeting bacon and eggs has much broader implications for not just the ag industry but nearly all interstate commerce when a state attempts to dictate how producers in other states grow or manufacture their products,” Grassley said. “Ag producers have a direct interest in the health and wellbeing of their livestock, so it’s absurd for a state to close its doors to ag products based on their misinformed and arbitrary preferences for how that livestock is raised.”

Some backers of California’s law say it wouldn’t be necessary if the country had a national standard that could be applied equally everywhere, an issue that’s arisen in past food policy issues such as labeling of products derived from genetic engineering.

“We have no national-level animal welfare rules,” said Ben Lilliston, director of rural strategies and climate change for the Institute for Agriculture and Trade Policy, a nonprofit group based in Minneapolis, and which filed a brief defending Proposition 12. “When there’s a vacuum like this, states are going to step up.”

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