SCOTUS Rules As Litigation And Regulation Of Farms Increases
JONESBORO, ARK.
The United States Supreme Court (SCOTUS) has ruled unanimously that landowners have the power to challenge U.S. Army Corps of Engineers wetland determinations in court.
The Corps had long argued that landowners did not have the right to go to court. They could “either discharge fill material without a permit, risking an EPA enforcement action during which they can argue that no permit was required, or apply for a permit and seek judicial review if dissatisfied with the results.”
SCOTUS ruled that neither of these alternatives is acceptable.
In this specific case (U.S. Army Corps of Engineers v. Hawkes Co.), the Corps claimed jurisdiction over possible discharge from wetlands that were over 100 miles from the nearest navigable waterway.
Even though the Corps and the Environmental Protection Agency’s (EPA) “Waters of the U.S.” (WOTUS) rule was beaten back by the Supreme Court in this case, challenges to landowners and agricultural operations continue to mount.
According to Harrison Pittman, Director of the National Agricultural Law Center, “Regulation and litigation aimed at agriculture is increasing, not decreasing.”
While addressing the Arkansas Agricultural Council recently, Pittman said that 4 U.S. Circuit Courts are already involved in WOTUS litigation, and he believes a 5th will soon follow. These suits are also based on Corps and EPA jurisdiction over Water Quality Standards, and Pittman believes they will end up in front of SCOTUS.
Other areas that may soon be affected by litigation include neonicotinoid application and the possible destruction of monarch butterfly habitat. Pittman said that the real focus of these attacks is genetically modified (GM) crops. Neonicotinoids are currently used as a seed treatment against insects with GM crops while glyphosate is used for weed control. Opponents of these products claim that “neonics” contribute to honey bee hive collapse and glyphosate kills milkweed which is a main food source for monarch butterflies.
Pittman said that advocates and opponents of production agriculture should be viewed as opposing armies on the battlefield, and both sides have broad support and are well funded. ∆