Sep 19, 2014
Home| Tools| Blogs| Discussions| Sign UpLogin

March 2013 Archive for Ag in the Courtroom

RSS By: John Dillard,

John Dillard grew up on a beef cattle farm and now works as an agricultural and environmental litigation attorney with OFW Law. His blog analyzes legal issues and court decisions that affect America’s farmers and ranchers.




Engine Groups Request Supreme Court to Hear E15 Case

Mar 29, 2013

The Engine Products Group (EPG), a consortium of trade associations representing engine manufacturers, has fired the latest salvo in the fight over renewable fuels.  EPG is asking the Supreme Court to review a D.C. Circuit Court of Appeals decision that dismissed EPG’s petition challenging EPA’s decision to grant a partial waiver allowing E15 fuel (gasoline containing 15% ethanol) to be sold for use in vehicles manufactured after 2001.  Should the Supreme Court decide to take up the case, it will be faced with ruling on the procedural matter of "standing," not the merits of whether EPA should have allowed a waiver for E15 fuel.

The controversy started in 2009 when the Renewable Fuel’s Association (RFA) petitioned EPA for a waiver for its members to begin marketing E15 as transportation fuel.  Under the Clean Air Act, fuel manufacturers must receive approval before selling a new type fuel to the general public.  EPA granted RFA’s petition on the condition that the fuel be used only in vehicles manufactured after 2001.  Several trade associations, ranging from engine manufacturers to ag groups filed suit challenging EPA’s decision to grant RFA’s petition.  The D.C. Circuit Court of Appeals ultimately dismissed the industry group’s challenge to the petition on the procedural grounds, namely standing. 

Standing to sue is a constitutionally-enshrined requirement that must be established before a federal court can hear a case.  To achieve standing, a plaintiff must prove that (1) it has suffered an injury, (2) the injury can be reasonably traced back to the actions of the defendant, and (3) the injuries suffered will be redressed if the plaintiff prevails in the suit.  In other words, a plaintiff has to have some skin in the game.  For instance, a mechanic in Maine cannot sue a restaurant in California for playing Taylor Swift songs too loudly just because he read a news article discussing this restaurant’s penchant for Taylor Swift songs – he must actually hear the Taylor Swift songs himself.

Federal courts allow trade associations to sue on behalf of their members, but these groups are also subject to standing requirements.  For a trade association to have standing, (1) it must have at least one member that could sue in his own right, (2) the suit must be related to the interests of the association, and (3) the particular claim asserted in the suit does not require a member to participate as an individual.

In the underlying suit, Grocery Manufacturer’s Ass’n v. EPA, the case was dismissed when a 2-1 panel held that none of the petitioners could establish that at least one of its members could sue EPA over the E15 waiver in their own right.  The court held that any injury alleged by engine and fuel groups was too speculative and relied on too many "what-ifs."  The court also dismissed the ag and food groups’ petitions on the basis that their concerns about rising food costs were not relevant to the decision over whether to approve a new fuel type.

The Grocery Manufacturer’s Ass’n decision obviously frustrated anti-ethanol groups because the case was decided on procedural matters and did not get to the heart of the issue.  I am not sure that anti-ethanol groups will get much satisfaction out of the Supreme Court either.  First, the Supreme Court grants only a fraction of the petitions that it receives.  Second, the issue in question, trade association standing, has already received much attention in the Supreme Court.  Finally, even if the Supreme Court decides in favor of EPG, EPG would still have to go back to the D.C. Circuit and prevail on the merits.

I will follow up on any developments in this case.

John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA.  John focuses his practice on agricultural and environmental law.  He occasionally tweets at @DCAgLawyer

Are State GM Food Labeling Laws Constitutional?

Mar 22, 2013

Opponents of genetically modified foods have tried for years to compel FDA to mandate labels on all foods that contain genetically modified ingredients.  FDA has turned down these requests on the basis that GM foods are safe and are not materially different from conventional crops.  Recognizing that there is more than one way to skin a cat, anti-GM groups have turned to state houses to seek state-level legislation that would require labeling of GM foods sold within that particular state.

Although a 2012 California ballot initiative failed, GM-labeling proponents may succeed in passing legislation in Vermont and Hawaii and a ballot initiative in Washington State.  Ultimately, the desire of the anti-GM crowd is to spin a web of state labeling laws that is so cumbersome that the federal government steps in to establish a uniform national labeling requirement.  With a labeling requirement, the anti-GM crowd believes that consumers will demand food free of GM ingredients.

One potential roadblock for these state GM-labeling laws is the United States Constitution and the "Dormant" Commerce Clause.  Article I, Section 8 of the Constitution provides Congress the authority to regulate commerce "between the several states."  Although not explicitly stated in the Constitution, courts have interpreted this grant of federal authority to regulate interstate commerce to also mean that states cannot take actions that unreasonably hinder interstate commerce.

The Dormant Commerce Clause is generally used as a defense against protectionist efforts by states.  For example, localities cannot pass laws requiring grocery stores to only sell milk sourced and pasteurized within 5 miles of the city limits (tsk, tsk Wisconsin).  The Dormant Commerce Clause can also serve as a defense against state laws that are not necessarily protective, but still place a burden on interstate commerce.  These laws are struck down if they place a burden on interstate commerce that outweighs whatever local benefits are provided by the law.  For instance, South Dakota cannot pass a law limiting the length of trains that pass through its borders to 80 cars.

There is, however, one exception to the Dormant Commerce Clause – state regulation of health and safety.  Federal courts will allow a state law that burdens interstate commerce to stand if the law is intended to protect the health and safety of state residents.  For example, a Minnesota law that outlawed the sale of milk in plastic nonreturnable, nonrefillable containers was allowed to stand on the basis that Minnesota had a valid interest in promoting conservation within its borders.

The proposed GM-labeling laws are written with the health and safety exception in mind.  Vermont’s GM-labeling bill includes a litany of "legislative findings" that assert why GM-labeling is necessary for the health of Vermont’s residents.  Although these assertions are not necessarily based on actual scientific findings, the findings may be sufficient to satisfy the requirements of the health and safety exception.

Vermont and Washington State will likely burden interstate commerce if they require labeling of GM foods.  Food companies will be required to separately package and label food based on its destination.  This goes against the Founder’s desire for national markets for goods.  Nonetheless, GM-labeling supporters may be able to withstand a Dormant Commerce Clause challenge based on the law’s alleged basis in health and safety concerns.  This, in turn, will force us that much closer to a national labeling requirement.

[UPDATE 3/22/2013: Yesterday, a Hawaii state senate committee voted to table the bill that would have required GM labeling]

John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA.  John focuses his practice on agricultural and environmental law.  He occasionally tweets at @DCAgLawyer

Log In or Sign Up to comment


Receive the latest news, information and commentary customized for you. Sign up to receive Top Producer's eNewsletter today!

The Home Page of Agriculture
© 2014 Farm Journal, Inc. All Rights Reserved|Web site design and development by|Site Map|Privacy Policy|Terms & Conditions