Jan 01 2020

WOTUS headed for SCOTUS?

by Caren Cowan, Executive Director, New Mexico Cattle Grower’s Association
Read this article & more in New Mexico Stockman Magazine

You may remember that the New Mexico Cattle Growers’ Association (NMCGA), with the help of the Pacific Legal Foundation, sued the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) on October 22, 2019 over the rollback of the onerous 2015 Waters of the United States (WOTUS) regulations. Earlier that same day the EPA and the Corps finalized the rolled back 2015 regs to the 1986 regs which were only slightly less onerous than the 2015 ones.

Critics of WOTUS argue that the 2015 rule requires grand efforts from farmers and others to protect relatively small bodies of water that run through their property, ultimately subjecting more land to federal oversight.

Although some criticized the swift action on the part of NMCGA and Pacific Legal, including the National Beef Cattlemen’s Association (NCBA), the rush to the Federal District Court in New Mexico was based on the knowledge that environmental groups and their supporters would soon be on the doorstep of other courts.

Sure enough, environmentalists took their first legal shot at the Trump administration’s repeal of a landmark Obama-era water regulation the next day, on October 23. The National Wildlife Federation, Natural Resources Defense Council, and nine other groups sued in the U.S. District Court for the District of South Carolina, accusing the federal government of breaking the law in its rollback of the 2015 Clean Water Rule. The Southern Environmental Law Center represents the coalition of 11 groups including the South Carolina Coastal Conservation League, Charleston Waterkeeper, American Rivers, Chattahoochee Riverkeeper, Clean Water Action, Defenders of Wildlife, Friends of the Rappahannock, North Carolina Coastal Federation, and North Carolina Wildlife Federation.

Not wanting to be left off the environmental bandwagon, a coalition of 14 states, sued the Environmental Protection Agency (EPA) on in late December over its rollback of a landmark Obama-era rule stipulating which waterways are regulated by the federal government, according to a The Hill story by Rebecca Beitsch.

The coalition of states argue that returning the U.S. to the narrower 1986 standard ignores studies showing how small bodies of water, even seasonal ones following snowmelt, connect with and impact larger bodies of water more typically

The suit argues the rule is illegal because it fails to meet the requirements of the Clean Water Act since it does not meet its objectives to restore and maintain water quality. Much of the suit also hangs on procedural grounds, arguing it does not meet the requirements of the Administrative Procedure Act.

Former President Obama’s WOTUS rule faced plenty of legal challenges. Shortly after the rule took effect, a total of 27 states, including New Mexico, sued to block its implementation.

The EPA and the Corps are working on a replacement rule to establish new definitions for the waterways and wetlands covered by the Clean Water Act, but it’s not expected out until 2020.

At press time the court, the cities and states was unknown. The more courts the suits are filed in the more likely the issue could reach the U.S. Supreme Court.

Comparison of the New Mexico case and the environmentalist’s case

NMCGA asks the court to enjoin, or stop the enforcement of the repeal rule, claiming that the rule violates the CWA, the Congressional Review Act, the Commerce Clause, the Due Process Clause, the Non-delegation Doctrine, and the Tenth Amendment. The NMCGA’s argument hinges on the definition of “navigable waters.” Under the CWA, “navigable waters” are the same as WOTUS. Like the environmental groups in South Carolina, NMCGA interprets the Rapanos decision as invalidating provisions of the 1986/1988 WOTUS rule. NMCGA, however, reads Rapanos as limiting “navigable waters” to only the waters that are actually navigable, or “navigable-in-fact.” Thus, unlike the environmental groups, NMCGA believes that both the 1986/1988 rule and the 2015 rule result in more waters being regulated than is allowed under the CWA and Supreme Court decisions.

Western Caucus Action

The U.S. House of Representatives Western Caucus, chaired by Arizona’s Congressman Paul Gosar, has announced an ambitious package of bills for 2020 aimed at modernizing the federal Endangered Species Act (ESA).

There 18 measures proposed by Representatives from Alaska, Arizona, Arkansas, California, Colorado, Louisiana, Montana, Missouri, South Carolina, Texas, Utah, Washington, and Wyoming. The range of these states indicates the breath of the problems the entire nation is suffering at the hands of the ESA.

The bills address issues from delisting to improving consultation between federal and state governments to allowing for the determination of the totality of conservation measures will take place for taking federal actions that impact the species.

The package of bills was put together after the Western Caucus called natural resource users from across the nation to a roundtable in Washington, D.C. in late September to bring forth issues. The New Mexico Cattle Growers’ Association was a part of that roundtable.

To see full details on all the measures please visit Cuts from the Edit Room Floor at www.aaalivestock.com .

New Agricultural Champion?

U.S. Senator and 2020 presidential candidate Cory Booker (D-NJ) has introduced the Farm System Reform Act of 2019, which would:

Place an immediate moratorium on new and expanding large CAFOs, and phase out by 2040 the largest CAFOs as defined by the Environmental Protection Agency

Hold corporate integrators responsible for pollution and other harm caused by CAFOs

Provide a voluntary buyout for farmers who want to transition out of operating a CAFO

Strengthen the Packers and Stockyards Act to protect family farmers and ranchers, including:

  • Prohibit the use of unfair tournament or ranking systems for paying contract growers
  • Protect livestock and poultry farmers from retaliation
  • Create market transparency and protect farmers and ranchers from predatory purchasing practices

Restore mandatory country-of-origin labeling requirements for beef and pork and expand to dairy products

Prohibit the United States Department of Agriculture (USDA) from labeling foreign imported meat products as “Product of USA”

Some of this language may look familiar — but do the benefits outweigh the cost?

Carbon Credits…

Colorado U.S. Senator Michael Bennet has released a discussion draft of legislation to establish a new tax credit for farmers and ranchers, state and local governments, and tribes, to sequester carbon in agriculture, forestry, rangelands, and wetlands.

The tax credit in Bennet’s proposal has two parts:

Quantification Credit: Establishes a 30 percent tax credit for the cost of quantifying baseline and annual carbon sequestration levels for agriculture, rangeland, forest, and wetlands.

Outcomes Credit: Creates a dollar per ton tax credit based on the amount of carbon sequestered. The amount of the credit is tied to the funding levels for carbon capture and storage in the 45Q tax credit for carbon sequestration and utilization from industrial sources.

The discussion draft also includes       provisions to:

  • Require the U.S. Department of Agriculture (USDA) to establish a reporting and verification accreditation system
  • Outline a process to transfer the tax credit to other tax payers to account for businesses that do not have tax liability
  • Promote long-term investments in carbon sequestration in the land sector

Bennet’s draft legislation is the result of conversations with producers and rural communities from all four corners of Colorado over the past two years. It builds on the existing 45Q tax credit for carbon sequestration from industrial emissions, which was created through a bipartisan initiative

A Step Toward Fixing Our Forest Roads

Amid tense partisan drama in Washington, DC, two California U.S. Representatives have crossed the aisle to address our crumbling forest road infrastructure on National Forest System (NFS) lands.

Forest roads are an essential component of active forest management. They enable millions of Americans to enjoy our public lands, and facilitate firefighting and search and rescue operations. Yet many of these roads are no longer usable, and we often see failing culverts and bridges that need fixing.

Currently the National Park Service receives $292 million to maintain over 13,000 miles of road, yet the Forest Service receives only $18 million to maintain 370,000 miles of road. Forest roads are big part of the Forest Service’s $5.2 billion deferred maintenance backlog and the agency hasn’t been able to keep up.

Representative Salud Carbajal (D-CA) and Representative Doug LaMalfa (R-CA) have introduced the “Funding Our Roads and Ecosystems Sustainably Together (FOREST) Act.” The bill would begin to reverse years of congressional disinvestment by directing more than $200 million a year, or $1.3 billion over five years to forest road maintenance spending. The FOREST Act, H.R. 5334, would work to ensure NFS roads are well-funded and operable for the communities that need them. It’s a step toward fixing our broken system of forest roads.

Meanwhile back in New Mexico…

We are just weeks away from the 2020 New Mexico Legislature, which commences on January 21. Pre-filing started in mid-December. There already 159 bills introduced along with 23 memorials and resolutions.

The Governor has dropped some hints about what might be on her Call and legislative leadership is making the rounds to discuss what they see coming in the 30-day Session.

Issues that can be expected are methane regulation (including the livestock community), legalization of marijuana, revision of gross receipts taxes and exemptions, and much more. If you have a spare day between January 27 and February 20, please plan on spending it in Santa Fe with the NMCGA Legislative Team.

If you would like to join us, please call the NMCGA office at 505/247-0584. Dates to remember are Ag Fest on February 4, NMCGA Board Meeting February 10 and 11, and the Roundhouse Feed on February 18.

Better Grab Your Cat! (Or dog)

The animal rights movement wants to ban human ownership of any and all animals — including your beloved pets — according to Wesley J. Smith in his article “Give Up Pets to Save the Planet!” appearing in the National Review. Although that is rarely advertised since it would cost AR groups donations from misguided pet lovers who conflate animal welfare organizations with those supporting “liberation.”

Now, environmental radicals are beginning to plow the same ground. An article in New Scientist takes aim at keeping pets, inspired by a scientific paper that excoriates cats, Smith explained.

Why, did you know they kill mice?! They also eat meat and then poop, emitting greenhouse gases! They are, we are told sternly, an unsustainable “environmental vice that we must confront!” From, “Why You Should Worry About Your Pet’s Ecological Footprint,” by staff writer Graham Lawton:

Pet ownership also imposes wider environmental costs. Added together, all the cats and dogs in the US consume the same amount of energy as 60 million people, effectively increasing the population by a fifth.

Ingredients in pet food are often leftovers from the human food chain, but this isn’t always the case. Even if they are, they still have to be processed, packaged and transported. What comes out the other end is an even stinkier problem, equivalent to the feces of 90 million people, generating 64 million tons of greenhouse gases.

Being an animal lover and caring about the environment often go hand in hand says Smith. But they aren’t compatible. I hate to say it, but pet ownership is another unsustainable aspect of modern consumer lifestyles that we are going to have to confront. It isn’t the biggest, but it isn’t negligible. Like almost every other environmental vice, the problem is getting worse as pet ownership rises around the world.

Lawton writes that he was heartbroken by the recent loss of the younger of his two cats, but is consoled because it was “the planet’s gain.” When his older feline also goes the way of all flesh, he plans to do his part to save us from environmental destruction by giving up pets — just as he has given up meat. His hysteria, his loss.

Lawton’s earnest proselytizing illustrates the decline of an environmental movement that has shriveled from greats like John Muir to petty scolds who want to desiccate contemporary life of all joy and comfort. On the positive side, that’s not a battle flag most people will follow.      

Source: New Mexico Stockman, January 2020