Washington Insider-- Thursday

Supreme Court Decision on Farm Access

Here's a quick monitor of Washington farm and trade policy issues from DTN's well-placed observer.

Biden, Vilsack Going To Wisconsin Next Week

President Joe Biden and USDA Secretary Tom Vilsack will be in Wisconsin on Tuesday June 29 to discuss agriculture and rural economies, according to the White House.

Dairy is likely to figure high on the list of issues that will be focused on with the administration having announced additional aid will be coming to the sector over the next 60 days.

But there has been little detail on the aid plans as of yet. However, the expectation is that as Biden and Vilsack visit the nation's key dairy state, there will be some kind of policy announcement forthcoming as Wisconsin is viewed as a potential battleground state in the 2022 midterm elections.

Biofuel Supporters Keep on Message in Senate Hearing

A Senate Agriculture subcommittee Tuesday examined issues on renewable energy and the U.S. rural economy, with the panel hearing a consistent message from supporters of biofuels -- using biofuels can contribute to the Biden administration's goal of net-zero emissions by 2050.

Emily Skor of Growth Energy stressed that accurate modeling on ethanol's lifecycle greenhouse gas (GHG) emissions was a key need so that the fuel gets proper credit for its benefits over straight gasoline. “Important for us is that you have a modeling that reflects the most current science and reflects all of the innovation that's taking place, not only at the plant, but also on the field,” she stated. She also said that a low carbon fuel standard (LCFS) is something the ethanol industry supports, but said it has to be technology neutral and be science-based.

As for refiner contentions that compliance costs relative to their Renewable Fuel Standard (RFS) obligations have risen so high that their survivability is in question, Skor said, “There is no correlation to the price of complying with the RFS and refinery profits. This is something that has been affirmed by many experts, including the EPA several times.”

Washington Insider: Supreme Court Decision on Farm Access

The U.S. Supreme Court has ruled that a California regulation that allows union organizers to enter ag properties without the employer's consent violated their property rights. The nation's top court issued the decision with a 6-3 vote, the conservative judges voting in the affirmative while the three liberal judges dissented.

Cedar Point Nursery and Fowler Packing Company brought the suit against the decades-old California regulation, the California Agricultural Labor Relations Board regulation that has been in place since 1975. That regulation allowed union organizers with notice to the regulators and employer, to enter agricultural premises to talk to workers for three non-working hours per day during four 30-day periods each year.

The reg does not require the organizers to get the approval from the employer, only that they have to notify the employer.

The court ruled that the regulation is essentially equivalent to the government taking private property for public use without justification, in violation with the Constitution's Fifth Amendment.

"The access regulation grants labor organizations a right to invade the growers' property. It therefore constitutes a per se physical taking," Chief Justice John Roberts said in the majority opinion.

But those on the minority argued differently, with Justice Stephen Breyer stating that the union activity was only temporary in nature. "The regulation does not appropriate anything. It does not take from the owners a right to invade (whatever that might mean)," Breyer wrote. "Most such temporary-entry regulations do not go 'too far.' And it is impractical to compensate every property owner for any brief use of their land.”

The case was elevated to the Supreme Court after the Ninth U.S. Circuit Court of Appeals threw out the challenge brought by the companies after organizers at Cedar's property had disrupted work with bullhorns while Fowler had denied access to the property by union organizers. The Ninth Circuit ruled that the rule did not rise to the level of being an unconstitutional taking because of the temporary nature of the action.

The California Supreme Court upheld the rules on a 4-to-3 vote in 1976, and the provisions have gone unchallenged until now.

Breyer also said that on remand to lower courts, California at least should have the chance to compensate the growers as that would then allow the union organizers to maintain access. However, the growers want the regulation to end.

Those seeking to keep the regulation in place argued that the matter was not a taking and that ending the regulation could allow landowners to bar access to their property by federal food inspectors and potentially others, even law enforcement.

But Ilya Somin, a law professor at George Mason University, pointed out in an op-ed item in The Hill that the court ruling “does not mean all government-mandated entry on private property qualifies as a taking. The court lists several exceptions to its general rule, including most 'health and safety' inspections, and enforcement of regulations that bar owners from violating common law rights of others (as by creating a nuisance).” He noted the health and safety inspections are “conditions for the conferral of various government benefits.”

But the scope of those exceptions, Simon said, “isn't entirely clear and will likely be a subject of future litigation.”

But what the Supreme Court has done is upheld the rights of property owners. And that is something that agricultural property owners have fought to keep intact. Those arguments have prevailed in other cases and now again this time around.

So we will see. As Somin points out, there will likely be other challenges ahead, and that means these potential cases in the futures bear watching closely by agriculture, Washington Insider believes.

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