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.”


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