WASHINGTON, Feb. 17, 2016 - Late last week, the nation learned of the
death of Supreme Court Justice Antonin Scalia, which sent Capitol Hill
leadership into an almost immediate verbal sparring match over whether
President Obama, or the next president, should be the one to nominate Scalia’s
successor.
While there’s a good chance that Scalia’s successor will make a ruling
at some point that will impact agriculture and food policy – perhaps on
something like pending litigation challenging EPA’s Waters of the U.S. rule –
his passing will have an almost immediate impact on what lies ahead for
approval of the Trans-Pacific Partnership.
Speaking to Agri-Pulse at
the U.S. Grains Council Annual
Meeting in Sarasota, Florida, USGC President and CEO Tom Sleight said when he
learned of Scalia’s passing, he realized that if TPP were to be addressed in
2016, it would probably have to be during the end-of-year lame duck session. Chances of TPP
passage this year were already slim before Scalia’s death, but the nomination
controversy could make an already testy environment in the Senate even more
cantankerous. With a limited schedule of legislative days in 2016, Senate
infighting over the nomination could make it even more difficult to get TPP to
the floor of the upper chamber.
Ted Cruz, a Texas
Republican and presidential candidate, has pledged to filibuster any nominee
from Obama, and Democrat mainstays Elizabeth Warren of Massachusetts and Chuck
Schumer of New York have sharply criticized the GOP’s call to leave the
nomination to the next president.
“I really didn’t want to say (it will have to wait until the lame
duck), but all signs have been pointing to that for months,” Sleight said.
“There’s a slight glimmer of hope in July, but I can’t see it happening.”
Even Darci Vetter, the chief agricultural negotiator for the Office of
the U.S. Trade Representative, is starting to talk like approval might have to
wait until the lame duck session.
“This is an election year, there is obviously a lot of political
wrangling going on,” she said via FaceTime to attendees of the USGC annual
meeting. “Trade is a sensitive issue, so clearly this plays into those
politics. But if you just think about the calendar, in order to consider this
bill, even in a lame duck period, we need to start changing hearts and minds
now.”
Vetter said that once the administration submits a bill to Congress,
it starts a 90-day legislative clock for the agreement to work its way through
the House and Senate. Delaying approval of TPP could cost U.S.
agriculture dearly, according to a new report from the think tank Third Way.
“The Trans-Pacific
Partnership is a critical tool to ensure that U.S. goods and services can
compete overseas. We are in a global race for market share, and as we have seen
with countries such as Australia, our delay is their gain,” said the report.
Under a trade
agreement that Australia reached with Japan, which has been in effect for about
a year, Australian wines will eventually not be subject to any tax. Without the
TPP, U.S. wines face a tax of up to 15 percent; with it, U.S. wine will face no
tax, the report noted.
The beef industry is
cited frequently as a prime beneficiary of the TPP. Currently, beef faces a
tariff of 38.5 percent, but under the TPP, that will be reduced gradually to 9
percent.
Cheese is another
product that would likely see increased exports, the report said, citing a
larger trade accord – the ASEAN-Australia-New Zealand Free Trade Agreement,
which involves 12 countries and which became effective in 2010. Under that
agreement, Australian cheese faces no tax when it is exported to Vietnam,
whereas U.S. cheese is taxed at 10 percent. That tax would disappear with the
TPP, the report said.
Scalia’s passing
could also have an impact on several major court cases affecting agriculture.
One involves attempts to limit the regulatory reach of the Clean Water Act, now
and in the future.
The court is
scheduled to meet Friday to decide whether to grant a petition seeking review of the Chesapeake Bay Total
Maximum Daily Load, which limits the amount of pollutants allowed into the
estuary. The Third Circuit Court of Appeals upheld EPA’s authority last year,
but the American Farm Bureau Federation – joined by 22 states and 92 members of
Congress – are seeking Supreme Court review. The petitioners need to get four
justices on their side to have their petition granted. Scalia’s loss is surely
a blow to those chances, but not a fatal one: Chief Justice John Roberts and
Justices Anthony Kennedy, Samuel Alito and Clarence Thomas remain as a
conservative bloc.
Scalia’s absence
could also have a more profound impact on another case the court is slated to
hear next month. In U.S. Army Corps of Engineers v.
Hawkes Co., the issue is whether landowners can seek judicial
review of Corps wetlands determinations. The Eighth Circuit said yes, but the
government filed a petition, which was granted in December. Since a 4-4 split
keeps the appeals court ruling in place, that means that if the court is evenly
divided, the Eighth Circuit decision would remain, and landowners could take
their disputes over jurisdictional determinations to federal court.
In the long run, the
new makeup of the court – with or without a new justice – will surely influence
the biggest issue for agriculture: the definition of “waters of the U.S.”
The EPA/Corps rule
is currently stayed nationwide while the 6th Circuit Court of Appeals decides
whether the case belongs in the appeals court or in the district courts. Those
challenging the rule want it heard in the district courts, so if the 6th
Circuit holds onto the case, a petition over jurisdiction could follow. By the
time a decision on the substance of the matter is ready for the Supreme Court,
however, Scalia’s replacement could already be seated on the court.
Scalia’s death could
also impact the outcome of the Obama Administration’s Clean Power Plan. Just
days before his passing, the Court halted implementation of the CPP in a 5-4
decision, with Scalia among the five. The stay remains in place while the D.C.
Circuit Court of Appeals has a chance to again review it and until the high
court decides whether or not to once again review the case. If the Supreme
Court decides to review, the stay remains until a final ruling is determined.
Despite so much
being at stake for U.S. agriculture, the American Farm Bureau Federation is
staying out of the nomination fray, for now. In a written statement, AFBF Chief
Counsel Ellen Steen noted the “tremendous power” federal agencies wield and the
“dramatic impacts” the regulations they issue can have on ordinary Americans.
She went on: “The
next nominee to the Supreme Court should have a track record in the area of
administrative law, and that track record should show a tendency to hold
federal agencies accountable to operate within the boundaries set by Congress,
including respect for those regulatory powers reserved for the states.”
#30
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