California and Idaho might seem far away but pending court cases involving those states could have a profound effect on Hoosier farmers, according to two of Indiana Farm Bureau’s legal experts.

The U.S. Supreme Court has agreed to take up Sackett v. Environmental Protection Agency, which challenges some of EPA’s authority under the Clean Water Act. This will probably occur in the fall.

The court also has agreed to consider the case against California’s Proposition 12 filed by the American Farm Bureau Federation and the National Pork Producers Council. Proposition 12 establishes animal welfare requirements that producers must satisfy to have their product sold in the state of California. The case will most likely be heard this fall.

Sackett v. Environmental Protection Agency (Idaho)

Indiana Farm Bureau and the Indiana Agricultural Law Foundation (INAgLaw) are participating in the Sackett case by filing an amicus curiae brief, also known as a “friend of the court” brief.

“This is really about refining and clarifying which waters the federal government has jurisdiction over as Waters of the U.S.,” said Mark Thornburg, executive director of legal affairs for INFB. There will probably be 40 or 50 briefs filed in response to this case, Thornburg said, so to increase the chances of the justices actually reading the Farm Bureau brief, INAgLaw and INFB, along with other state Farm Bureaus, have hired an attorney with extensive Supreme Court experience to draft and submit it.

The Sackett case began in 2007, when Chantell and Michael Sackett purchased a residential lot and used gravel and sand to get the lot ready to build a home.

“From pictures of the property, it doesn’t look wet at all, and that’s kind of their argument,” Thornburg said. EPA, however, determined that the property does constitute a wetland and ordered the Sacketts to stop building and return the land to its original condition or face possible jail time and fines of $30,000 per day.

“This will be the most influential Waters of the U.S. decision since Rapanos in 2006,” he said, referring to a case that challenged federal jurisdiction to regulate isolated wetlands under the Clean Water Act.

“Rapanos tried to add some definition, but it just added confusion. And so while this isn't the perfect case, this could potentially be the most influential decision ever, and it offers a chance to finally clarify the law around Waters of the U.S.,” he said.

Proposition 12 (California)

The court also has agreed to hear the case against California’s Proposition 12 filed by the American Farm Bureau Federation and the National Pork Producers Council. Proposition 12 establishes animal welfare requirements that producers must satisfy to have their product sold in the state of California, explained John Shoup, director of INAgLaw, a nonprofit created by INFB in 2005. INFB and INAgLaw also will be filing an amicus curiae brief in this case, which the court will probably hear sometime next fall.

“It’s important to Indiana farmers because it involves a state dictating, through a ballot initiative, what production practices Indiana pork producers have to use, such as minimum pen space per animal,” Shoup said. “I think it’s particularly harmful to the pork industry,” he added.

The irony is that California itself has almost no pork production, though it consumes an estimated 15% of the nation’s pork production.

“They don't produce hardly any pigs and they're telling Iowa, Indiana, Illinois, North Carolina how they have to raise their pigs,” Shoup said.

In its amicus curiae brief, INFB’s argument will involve Article 1, Section 8, Clause 3 of the U.S. Constitution, which is known as the commerce clause and which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Specifically, INFB’s brief will center on what is known as the “dormant commerce clause,” which refers to the prohibition, implicit in the commerce clause, against states passing legislation that discriminates against or excessively burdens interstate commerce, Shoup explained.

“Federal, state and local laws, statutes and regulations present difficult challenges to Indiana agriculture,” Shoup said. “That's one of the reasons INFB established INAgLaw – to help Hoosier farmers even when the issues originate outside Indiana's borders.”

Find out more about INAgLaw or make a donation at www.inaglaw.org.