livestock care standards
The Supreme Court of the United States takes on a second important case for agriculture next week when it hears arguments in National Pork Producers v Ross. The Court opened its new term yesterday with a well-known case about the Clean Water Act and EPA authority over wetlands, Sackett v EPA. In National Pork Producers, the Court will hear challenges to California’s Proposition 12, a livestock housing standards law.
Proposition 12. Voters in California approved the Proposition 12 ballot measure in 2018, but the law’s impact spreads beyond California’s borders. The law sets living space standards for sows, egg-layers, and veal calves—sows must have 24 square feet or more of space, egg-laying hens require at least 144 square inches, and veal calves must have at least 43 square feet. Commonly used gestation crates for sows and battery cages for hens would not meet California’s space standards. And Proposition 12 also prohibits the sale of products from any animal whose housing does not comply with the living space requirements. That prohibition doesn’t apply just to products of animals raised in California, but to products of animals raised anywhere and sold in California. Selling pork, eggs, or veal from animals not raised according to the standards is a crime that could result in fines, jail sentences, and civil actions.
Challenges to Proposition 12. The out-of-state application of Proposition 12 immediately raised concerns across the United States. Several lawsuits followed, with the primary argument being that Proposition 12 violates the Commerce Clause of the U.S. Constitution, which grants Congress the authority “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The Supreme Court has long determined that implicit in the Commerce Clause is a restriction on the ability of states to pass legislation that discriminates against or excessively burdens interstate commerce, referred to as the “dormant Commerce Clause.” Opponents of Proposition 12 argue that California has burdened interstate commerce by prohibiting sales of products within the state from out-of-state livestock producers who do not comply with the California state law for animal housing.
Federal courts disagreed with the commerce clause argument in an earlier challenge to Proposition 12, North American Meat Institute v Becerra, for which the Supreme Court of the U.S. (SCOTUS) declined review. Another case, Iowa Pork Producers v Bonta, also alleged Commerce Clause violations along with several other constitutional challenges, and that case is now on appeal after being dismissed by a federal district court in California.
A federal district court also dismissed the current National Pork Producers case, presented again on a Commerce Clause claim. The Ninth Circuit Court of Appeals upheld that dismissal while agreeing that the law would “require pervasive changes to the pork production nationwide.” The court concluded, however, that National Pork Producers had not stated a constitutional claim by alleging that Proposition 12 discriminates against out-of-state interests. Absent a showing of discrimination, “a state law may require out-of-state producers to meet burdensome requirements in order to sell their products in the state without violating the dormant Commerce Clause.” As long as the only conduct regulated by the law is conduct within California, the court explained, significant upstream effects beyond California would not violate the Commerce Clause. Last April, the Supreme Court accepted the request to review the Ninth Circuit’s decision.
The SCOTUS review. National Pork Producers, joined by the American Farm Bureau Federation, raises two questions in the current case before SCOTUS. The first is whether the economic effects outside of California that require pervasive changes to an integrated nationwide industry state a violation of the dormant Commerce Clause. The second question is whether Proposition 12 states a Commerce Clause claim according to an earlier SCOTUS decision in Pike v. Bruce Church, which held that even when a law doesn’t discriminate on its face against interstate commerce, the law is not permissible if its burdens greatly exceed the benefits to local commerce.
The petitioners argue that Proposition 12 is “impermissibly extraterritorial” because 99.87% of all pork sold in California comes from producers outside of the state. They claim that the practical effect of Proposition 12 is to regulate out-of-state commerce and require significant and costly changes to sow housing across the country. Proposition 12 also fails the Pike v Bruce Church balancing test because its "false human health rationale and philosophical preferences about conduct outside of California are outweighed by the “wrenching effect” the law has on interstate commerce."
On the opposite side, California describes the law's impact as having only a “ripple effect” both within and outside of California rather than creating an impermissible extraterritorial effect. An upstream, practical effect, California argues, is not sufficient to render a state law invalid under the Commerce Clause. Claiming that the petitioners overstate the economic effects of the law, the State argues that it would not be impossible to segregate animals to meet California requirements while continuing housing requirements for other markets. California argues that “there is nothing illegitimate or insubstantial about the voters’ expressed purpose of addressing extreme methods of farm animal confinement and potential threats to the health and safety of California consumers.”
Implications: who should control farm animal welfare standards? National Pork Producers and California’s Proposition 12 raise a critical question about the future of farm animal welfare standards. Should such standards be determined on a state-by-state basis, or should there be a uniform federal standard? While the federal Animal Welfare Act does establish animal care standards, it does not apply to farm animal care. In the absence of a federal law for farm animals, eight states have joined California in addressing farm animal housing standards. Ohio is one of them. Ohio’s Livestock Care Standards for swine housing will prohibit the use of sow gestation crates after December 31, 2025, except in special circumstances. Unlike California, however, Ohio’s law does not prohibit retail sales from animals that aren’t housed according to the state standards. Only California and Massachusetts tie housing standards compliance to retail product sales and criminal penalties, raising the issue of controlling producers beyond the state’s borders. A federal law, on the other hand, would equally affect all producers across the country and could preempt restrictions on sales such as in Proposition 12, but would place control over farm animal care practices in the hands of the federal government. Perhaps we’ll more carefully analyze the federal-state question after SCOTUS issues its decision in National Pork Producers, expected early next year.
The Supreme Court will hear the oral arguments in National Pork Producers v Ross at 10:00 a.m. on Thursday, October 11. Live audio will be available at https://www.supremecourt.gov/oral_arguments/.
Written by: Evin Bachelor, Law Fellow
Welcome to 2019 from all of us at the OSU Extension Agricultural and Resource Law Program! With a new Congress, a new Ohio General Assembly, and a new slate of leaders atop Ohio’s executive offices, we are expecting a flurry of activity in the new year. Our resolution this year is to keep you in the know about agricultural law news, and maybe find some time to exercise.
Here’s our latest gathering of agricultural law news that you may want to know:
U.S. Supreme Court declines to hear state livestock standard lawsuits. In a previous blog post, we noted that California and Massachusetts had adopted laws that would require sellers of certain meats and eggs to follow heightened animal care standards in order to sell those products within California or Massachusetts. Thirteen states, led by Indiana, quickly sued Massachusetts to stop its law from taking effect. Missouri led another group of thirteen states in suing California.
Indiana and Missouri had attempted to have their cases brought directly before the U.S. Supreme Court, arguing that the U.S. Supreme Court has “original jurisdiction” over claims between states. After the states filed their arguments with the Supreme Court, the justices asked the U.S. Solicitor General whether he believed these cases were appropriate for the Court’s original jurisdiction. The Solicitor General filed briefs in the Indiana v. Massachusetts and Missouri v. California maters, and suggested that the Supreme Court should not exercise original jurisdiction because, among other things, the states lack the proper standing to sue. Here, this argument essentially means that the resulting harm from enforcement of the statutes would not harm the states as states, but only some of their citizens, and that those citizens may still sue California or Massachusetts for their individualized harm.
The Supreme Court took the position of the Solicitor General and denied the requests of Indiana and Missouri to have the cases brought before the Court. Any further action will have to be taken through the lower courts. For more information about the Missouri v. California matter as argued to the Supreme Court, click here. For more information about the Indiana v. Massachusetts matter as argued to the Supreme Court, click here.
USDA not required to adopt Obama-era “Farmer Fair Practice Rules,” according to federal appeals court. In December 2016, the USDA published the Farmer Fair Practices Rules as an interim final rule, and published two amendments to its rules that deal with the Packers and Stockyards Act. The amendments addressed the ease of bringing a lawsuit for unfair and uncompetitive business practices under the Packers and Stockyards Act. The rule was set to take effect at the end of February 2017, although the amendments were only proposals that had not fully gone through the required notice and comment process. In early February 2017, citing the President’s regulatory freeze, and arguing that the rule would cause more litigation and confusion, the USDA postponed, and ultimately withdrew, the rule. The USDA also did not take action on the two proposed amendments. The Organization for Competitive Markets sued to stop the USDA from withdrawing the interim final rule, and to compel the USDA to promulgate the two amendments, arguing that the 2008 Farm Bill requires action by the USDA.
On December 21, 2018, the United States Court of Appeals for the Eighth Circuit denied the Organization for Competitive Markets’ request for review. The court explained that the USDA did not fail to fulfill its mandate, describing Congress’s language as ambiguous. Further, the court said that the USDA’s withdrawal of the interim final rule followed the proper notice and comment procedures. Ultimately the court believed that Congress has been monitoring this issue and if Congress wishes for a more specific action, then Congress should act. The court’s opinion in Organization for Competitive Markets v. USDA, No. 17-3723 (8th Cir. 2018) is available here.
Funding for National Weather Service and National Algal Bloom Program receives President’s signature. On Monday, January 7th, President Trump signed Senate Bill 2200, which passed during the previous Congress. The bill increases funding for the National Weather Service’s agriculture related weather monitoring and forecasting from $26.5 million in 2019 to $28.5 million by 2023. The Office of Oceanic and Atmospheric Research, the research arm of the National Oceanic and Atmospheric Administration (NOAA), will see an increase in funding from $136.5 million in 2019 to $154 million by 2023. The bill also instructs NOAA to “plan the procurement of future data sources and satellite architectures,” essentially instructing NOAA to think about cost-effective ways to upgrade weather monitoring systems both on the ground and in space. The National Integrated Drought Information System will also see an increase in funding from $13.5 million this year to $14.5 million by 2023. The program is to use some of the funding to “develop a strategy for a national coordinated soil moisture monitoring network” within the next year. Finally, the bill also reauthorizes $20.5 million each year through 2023 for relief from hypoxia or harmful algal blooms “of national significance,” which the bill defines as “a hypoxia or harmful algal bloom event that has had or will likely have a significant detrimental environmental, economic, subsistence use, or public health impact on an affected state.” For the text of the act, visit Congress’s webpage here.
Ohio Case Law Update
- Ohio Power Citing Board cannot extend construction certificate for wind farm by simple motion, but must follow amendment process, according to the Ohio Supreme Court. Black Fork Wind Energy filed an application with the Ohio Power Citing Board (“the board”) to construct a wind farm in Crawford and Richland Counties in 2011, and the board approved the application in January 2012. Black Fork had five years, until January 2017, to begin construction on the project. The project was delayed due to a lawsuit challenging the project, and Black Fork sought an additional two years to begin construction. The board granted Black Fork’s motion without a full application to amend and investigation. The board argued that it regularly grants such extensions and that extensions do not amount to an “amendment” that would require an application because an extension is not “a proposed change to the facility.” The majority of the Ohio Supreme Court disagreed, and held that the board acted improperly. Because the commencement of construction was a term in the certificate, granting an extension amounts to an amendment in the certificate. As such, the board should not have acted on the request without requiring an application for amendment and investigation. The Court reversed the order and remanded the issue back for further proceedings. Justices Fischer and O’Donnell dissented, arguing that the Court should defer to the board in how it reads “amendment” under Ohio Revised Code § 4906.07(B). For the Ohio Supreme Court’s opinion from In re application of Black Ford Wind Energy, Slip Opinion No. 2018-Ohio-5206, click here.
- Creditors must first seek payment of unpaid bills from estate of deceased spouse before attempting to collect from a surviving spouse, according to the Ohio Supreme Court. In Embassy Healthcare v. Bell, Mr. Robert Bell received care at a nursing home operated by Embassy Healthcare. Embassy sent a letter for collection to his wife, Mrs. Bell, six months and three days after he had passed away, but no estate for Mr. Bell had been opened. In Ohio, creditors have six months to request an estate administrator be appointed in order to collect a debt from an estate, but Embassy did not make such a request. Since it missed the six month statute of limitations, Embassy tried to seek collection from Mrs. Bell under Ohio’s “necessaries” law, as provided in Ohio Revised Code § 3103.03. This law requires spouses to support their spouse with money, property, or labor if their spouse cannot do so on their own; however, the Ohio Supreme Court has said that a person is responsible for their own debts first, and that under this statute their spouse will only be liable if that person cannot pay for their debts. In this case, the Ohio Supreme Court said that Embassy had to seek payment from Mr. Bell’s estate before it could require payment from his spouse. Since the statute of limitations had run to bring a claim against Mr. Bell’s estate, Embassy would be unable to demonstrate that Mr. Bell’s estate could not cover his personal debts. Therefore, Embassy would not be able to prove an essential requirement of Ohio’s necessaries law, and cannot recover from his spouse. For the Ohio Supreme Court’s opinion in Embassy Healthcare v. Bell, Slip Opinion No. 2018-Ohio-4912, click here.
- Trial court may determine width of easement as a question of fact, and will not be reversed by appellate court unless the evidence shows it clearly lost its way, according to Ohio Court of Appeals for the 7th District. A property owner signed an express easement to a neighbor so that the neighbor could cross the property owner’s land to access the public road. The written easement did not specify the width of the easement, but the neighbor cleared a path approximately 10 feet wide. The property owner eventually sold the property, and the new owner laid gravel on the path from the public road to their garage, and the neighbor extended the gravel all the way to his own property. Disputes later arose regarding the easement, and the neighbor sued the new property owners for breach of easement, and sought a declaration that the easement was thirty feet wide. Ohio case law allows trial courts to establish the dimensions of an easement if the writing does not specify any dimensions if the trial court examines: 1) the language of the granting document, 2) the context of the transaction, and 3) the purpose of the easement. The trial court found the easement to be ten feet wide. The neighbor appealed, but the Seventh District found the trial court’s decision to be reasonable given the evidence and Ohio law. Since the width of an easement is a question of fact, an appellate court will not reverse the trial court absent evidence that the trial court clearly lost its way given the weight of the evidence. For the Seventh Districts’ opinion in Cliffs and Creek, LLC v. Swallie, 2018-Ohio-5410 (7th Dist.), click here.