Eye on the Outside | Rulings

Positive Rulings

The beef industry recently enjoyed some very positive results that will be responsible for positive impacts to America’s farmers and ranchers and some indirect benefits from court decisions which have been pending for quite some time.

In late June, the US Supreme Court denied R-Calf’s lawsuit against the Beef Checkoff. This ruling confirms the Checkoff and the contractors use of producer money to fund the Checkoff programs are following the law. As one of the contractors using Checkoff dollars NCBA was very involved in defending the Beef Checkoff against attacks from R- Calf and its lawyers from a group called Public Justice. In fact, NCBA was the only contractor spending significant amounts of non-checkoff money to defend the Checkoff. You might logically ask what resources did R-Calf use in the years long fight to declare the Checkoff unconstitutional? An organization called Public Justice provided the lawyers for the R-Calf attack on the Beef Checkoff. Public Justice lawyers are closely aligned with groups like People for the Ethical Treatment of Animals and the Humane Society of the United States. As most of you know, these organizations would like to ultimately forbid animal agriculture from helping to provide the world a balanced food supply. Another obvious question is why would a cattle industry group such as R-Calf align itself with antianimal agricultural groups? This is a question I cannot answer but one which should be asked of R-Calf. Speaking of the Beef Checkoff, close to 80% of producers still support this vital program, but it faces challenges. For instance, the dollar we paid when we sold a beef animal in 1989 only equals about $.40 today. Thus, the Beef Checkoff contractors must make the money they receive from the Beef Promotion Operating Committee to fund their projects stretch even further. Moreover, there are more media platforms the Checkoff must occupy nowadays to stay competitive against other protein sources. The good news of course is the Checkoff has survived to continue its important work to maintain and increase demand for beef on the plate here and abroad. Another important recent Supreme Court decision, West Virginia v. Environmental Protection Agency (EPA), will have precedential implications for anyone who must deal with a regulatory agency of the Federal Government. The question decided by the Court was whether the Clean Air Act gave the EPA the authority to limit greenhouse gas emissions from power plants. It was argued that the EPA exceeded its statutory authority by enforcing a rule to shut down coal-fired plants and allow renewable energy generators to replace coal. The Supreme Court ruled “[a] decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to clear delegation from that representative body.” What this means in the larger legal universe is an agency cannot create the policy and then promulgate rules they think are necessary if there is no enabling legislation giving the agency that authority. In other words, a Congressional mandate fully debated and passed by a majority giving an agency clear direction is required for the agency to act constitutionally. This holding should be helpful for any entity to analyze whether an action by an agency is authorized by the policies passed by Congress. Many of you might have heard the term “agency creep.” My understanding of what this means is career employees of a government making decisions based upon what they think the law is, or ought to be, rather than the dictates of the legislative branch creating a policy to be conducted by the Executive Branch. Of course, this means that people and organizations who want to implement a new policy favoring their agenda will have to work with Congress and pass a law instead of lobbying an agency to create a new onerous rule. For too long agency creep has taken over much of the regulation and implementation of new agency created policies without a lot of Legislative Branch oversight. This Supreme Court decision sends a signal to the Executive Branch to be careful and not wander outside of a law’s boundaries. The system of laws this nation has created using the Constitution as the bedrock rarely sees things in black and white. We inherited the common law from our English ancestry. This means the law evolves through cases settled by judges and juries. Every case is different and although prior rulings create precedents in their rulings for future courts to follow, most times these cases are all different in small or large ways. Executive branch agencies are created by statute and given guidelines by those statutes on what they can and cannot regulate. An agency is not the jury and judge of what can be properly regulated. That is why we have courts with the job of telling an agency when it has overstepped its bounds or followed the law. And, this is what the US Supreme Court did in both cases. The United States Department of Agriculture (USDA) has followed the law relative to the Beef Checkoff and EPA has not followed the law. If the facts proved opposite in these two cases and the rulings were reversed, we would still have to respect the decision of the Court. I’ll see you soon.