Agriculture faces week in a row as SCOTUS reviews multiple cases

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In a brief filed with the Supreme Court on Dec. 8, the EPA asked the court to dismiss the ethanol industry’s petition. The industry said in a Dec. 21 response brief that the appeals court’s “incorrect conclusion” that Congress intended the Clean Air Act waiver to apply only to the E10 “will have serious negative consequences”.

Sales of E15 throughout the year were limited as the fuel was not eligible for the Reid vapor pressure exemption of 1 psi which allows the sale of certain ethanol fuel blends at 10 psi during the summer ozone season. The Reid vapor pressure exemption is a measure of the volatility of gasoline.

As a result, the E15 was subject to a tighter summer volatility limit of 9 psi than the E10, which qualifies for the waiver and can be sold at 10 psi.

CLEAN WATER ACT

Idaho landowners Michael and Chantell Sackett have asked the Supreme Court to consider whether wetlands with a continuous connection to surface waters should be considered navigable waters under federal jurisdiction or whether the EPA and the US Army Corps of Engineers need only prove a so-called “significant connection” to connect wetlands to navigable waters.

The Biden administration is currently working on a rewrite of the Waters of American Rule and intends to return to the important link test to determine jurisdiction.

This is a case with potentially wide ramifications for farmers, ranchers and other landowners across the country.

For decades, farmers and ranchers had to determine for themselves which waters on their land fell under federal jurisdiction.

The Sackett’s battle over EPA’s wetland determination began when they purchased a small piece of land in 2005 with the intention of building a house in Priest Lake, Idaho.

They got a building permit from the county, but the EPA claimed the property contained wetlands and ordered the couple to return the land to its original state or pay penalties – all without being able to challenge the property. EPA decision on wetlands.

In their petition to the Supreme Court, the Sackett’s asked the court to reconsider a 2006 decision in Rapanos v. United States. In Rapanos, the Supreme Court ruled that the Clean Water Act does not regulate all wetlands. However, the court gave no opinion as to why.

A pluralistic opinion written by the late Judge Antonin Scalia and joined by three other judges argued that only wetlands with a continuous connection between surface waters and regulated waters can be regulated.

A concurring opinion from Judge Anthony Kennedy, however, allowed the regulation of wetlands independent of any surface connection as long as the wetlands have a so-called “significant connection” to traditional navigable waters.

GATHERING PETITION

In August, Bayer AG asked the Supreme Court to review a landmark Roundup case arguing in a petition that a federal appeals court had erred in the case brought by lymphoma victim Edwin Hardeman not Hodgkin’s.

Bayer said in its petition, Monsanto Company v Edwin Hardeman, that the United States Court of Appeals for the Ninth Circuit in San Francisco made two errors worth considering.

The company said the allegations of non-warning of state law at the center of the case were preempted by federal law and the admission of expert testimony deviated from federal standards, which has led to what Bayer called “unsubstantiated testimony” about Roundup’s safety profile.

In 2019, a jury awarded Hardeman $ 80 million in damages after ruling that his non-Hodgkin lymphoma was caused by his use of Roundup. The damage was then reduced to $ 25 million. Bayer has faced thousands of similar lawsuits related to the glyphosate product.

In May 2021, the Ninth Circuit upheld the Hardeman judgment. Bayer officials have maintained that the Hardeman case could shape how future cases are argued. Also that month, a California federal court dismissed Bayer’s $ 2 billion Roundup settlement, ruling that it would not adequately address the concerns of families who may later be diagnosed with non-Hodgkin lymphoma.

Learn more about DTN:

“Roundup Settlement scuttled”, https://www.dtnpf.com/…

“Landowners turn to SCOTUS”, https://www.dtnpf.com/…

“EPA opposes review of SCOTUS E15 decision”, https://www.dtnpf.com/…

“Farm groups appeal to SCOTUS on proposal 12”, https://www.dtnpf.com/…

Todd Neeley can be contacted at [email protected]

Follow him on Twitter @DTNeeley

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