In a blow to the ethanol industry, the Supreme Court has denied a petition seeing review of a decision that found EPA doesn't have authority to allow year-round use of E15.

The court didn't announce decisions in two other ag-related cases, including one involving California's Proposition 12. The National Pork Producers Council said it was their understanding that consideration of the Prop 12 case had been carried over to the justices' conference this Friday, with a decision on whether to hear the case coming next week.

Prop 12 sets minimum housing requirements for sows throughout the U.S. that produce pork sold in California. The petition was filed by NPPC and American Farm Bureau Federation seeking review of a 9th U.S. Circuit Court of Appeals decision upholding the law, which went into effect Saturday. Producer groups have asked for the state for a two-year extension.

The petition rejected by the court sought review of a decision by the U.S. Court of Appeals for the D.C. Circuit that found EPA could not authorize year-round sales of E15. Growth Energy filed the petition in October, contending the Clean Air Act slows the flexibility for use of “fuel blends whose concentration of ethanol exceeds 10 percent.”

The appeals court, however, cited the CAA, which specifies a limit of 10% ethanol. In its response, EPA said the petition should be denied and that the appeals court’s holding “does not conflict with any decision of this court or any other court, and it has limited legal and practical consequences.”

The Supreme Court typically looks closely at whether there is a conflict in the circuit courts of appeals when evaluating petitions.

In the Prop 12 matter, 20 states have filed a brief supporting NPPC and AFBF, in addition to the National Association of Manufacturers and National Cattlemen’s Beef Association. Iowa and Minnesota pork producers, the state farm bureaus in those states and the Minnesota AgriGrowth Council backed the NPPC/AFBF petition.

On the other side is the state of California, supported by the Humane Society of the U.S., Animal Legal Defense Fund, Animal Equality, The Humane League, Farm Sanctuary, Compassion in World Farming USA, and Animal Outlook.

The petitioners and their supporters argue the law violates the “dormant Commerce Clause” by imposing requirements on operators outside of California. Nearly all — 99.87% — of the pork consumed by Californians comes from outside the state, where compliance with Prop 12 will cause an “excessive burden,” NPPC and AFBF said in their petition.

The 9th U.S. Circuit Court of Appeals ruled 3-0 for the state and against NPPC and AFBF in July, finding that “for dormant Commerce Clause purposes, laws that increase compliance costs, without more, do not constitute a significant burden on interstate commerce.” 

The law also imposes requirements for egg-laying hens, but egg producers have not backed legal efforts to overturn Prop 12.

In June, the Supreme Court denied a similar petition filed by the North American Meat Institute challenging Prop 12.

The court also did not issue an order on a petition involving a longstanding dispute between two Idaho landowners and EPA over an area of their property EPA has deemed wetlands. 

In 2012, the Supreme Court ruled that Chantell and Michael Sackett could challenge EPA’s compliance order requiring restoration of the purported wetlands.

EPA withdrew the compliance order, but the 9th Circuit ruled anyway, affirming EPA’s wetlands determination. The Sacketts, saying the compliance order could be reissued at any time, filed a new petition that also asked for review of the Supreme Court’s fractured Rapanos decision in 2006, which lower courts have interpreted as adopting a “significant nexus” test outlined by former Justice Anthony Kennedy to determine whether waters can be regulated under the Clean Water Act.

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They had the support of 21 states, the U.S. Chamber of Commerce, the National Association of Home Builders and a handful of conservative legal foundations, including the Pacific Legal Foundation in California, which is representing them. 

No agricultural groups, however, filed amicus briefs backing the Sacketts, who contend Rapanos should be read as requiring a “continuous surface water connection” to demonstrate jurisdiction.

EPA urged the court to deny the petition, again citing the lack of a conflict in the circuit courts. The agency also disputes the Sacketts’ reading of Rapanos, noting that in Kennedy’s “significant nexus” test, he “concluded that wetlands have such a nexus when they, ‘either alone or in combination with other similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters.’”

The Sacketts’ wetlands meet that test, EPA said. “The court of appeals found ample evidence that the wetlands on petitioners’ property are similarly situated to the Kalispell Bay Fen across the road and that, together, those wetlands ‘significantly affect the integrity of Priest Lake.’”

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