Posts Tagged ‘agriculture and farming’

Write an ambiguous rule — then pounce

Government agencies can get an unfair edge in disputes with the regulated public if they can write ambiguity into their rules, develop interpretations that open up further ambiguities to suit their needs, and then when a dispute arises gain deference from courts on these doubtful interpretations-piled-upon-interpretations. In Foster v. Vilsack, the issue was whether a “prairie pothole” depression on a South Dakota farm should be deemed a federally protected wetland, denying the Fosters productive use of the land; the U.S. Department of Agriculture adopted what seemed a strained interpretation enabling it to so designate the land, and the Eighth Circuit deferred to it.

The decision actually afforded the agency “second-level” Auer deference, deferring to an interpretation of a vaguely written agency circular that interprets a vague regulation that in turn interprets a vague statute–all to get to a definition of “local area” that is nothing close to a natural and reasonable interpretation of that term.

Cato has filed an amicus brief on behalf of the farm family’s request for certiorari, urging the Supreme Court to revisit the Auer doctrine in administrative law at least to prevent its irrational extension:

Second-level Auer deference also undermines the rule of lenity — a traditional rule of interpretation stating that ambiguity in criminal statutes must be resolved in favor of the defendant — even more than first-level Auer deference already does. It effectively allows agencies to create new crimes (again without notice to the public) by doing as little as reinterpreting a footnote in a memo. Cato urges the Supreme Court take the case so that it may rein in the expansion of Auer deference and make it clear to administrative agencies that they cannot avoid judicial review by refusing to promulgate clear, unambiguous regulations.

[Trevor Burrus and David McDonald; more on Auer deference]

Environment roundup

  • Didn’t realize former Massachusetts Gov. Bill Weld had written a novel sympathetic to the persons displaced by one of the great eminent domain binges, the 1930s creation of Quabbin Reservoir (“Stillwater,” background) And down in Virginia: “Sixty years ago they were evicted from the Blue Ridge to make way for Shenandoah National Park. But the refugees haven’t forgotten their lost mountain homes.” [Eddie Dean, Washington City Paper]
  • Tokyo’s wide-open policy on development is one reason its house prices have not skyrocketed despite rising population [Alex Tabarrok, more, contrast with cities like Delhi and Mumbai]
  • “Chevron Paves The Way For Corporations To Fight ‘Shakedown Lawsuits'” [John Shu, Investors Business Daily, related editorial drawing FedEx and SEIU parallels] More: Roger Parloff and Michael Krauss on Canadian enforcement action in ongoing Ecuador dispute;
  • “The Environmental Lightning Rod Known as Fracking” [Ned Mamula, Cato]
  • Massachusetts voters in November will face ballot measure sharply restricting methods of handling a host of livestock animals [Baylen Linnekin]
  • Do woodpiles attract termites? Chamber backs Flower Mound, Tex. man facing billions in fines for storing wood [Dallas News, earlier]

Food and nanny state roundup

  • Has Obama administration endorsed anti-GMO campaign with new labeling law? Not really [Thomas Firey, Cato, earlier here, here, etc.]
  • United Nations anti-tobacco meeting seeks to exclude persons overly involved with tobacco production, ban list turns out to include many officials of member governments [Huffington Post UK]
  • Dumping Michigan tart cherries to comply with USDA marketing order? There must be a better way [Baylen Linnekin]
  • “I am the man, the very fat man, who waters the workers’ beer.” [Science Daily, prompting Christopher Snowdon’s recollection of that line of song]
  • Feds alone have spent $500 million chasing food-desert mirage, with “negligible” impact on health [Mac McCann, Dallas News, earlier]
  • “FDA Assigns Zero Value To Smokers Who Die Because Of Its E-Cigarette Regulations” [Jacob Sullum, more on vaping]

Labor roundup

  • Forget about event permits unless you hire union? Feds arrest Boston mayor’s tourism aide on extortion charges [Connor Wolf/Daily Caller, Boston Herald, indictment, WCVB (auto-plays)]
  • Georgia to feds: franchise law is state law, and you’re not free to tear up its terms to favor unions [International Franchise Association, Connor Wolf/Daily Caller]
  • Unique California farm-labor law binds growers to “contracts” they never signed. Is that even constitutional? [Ilya Shapiro, Cato] Upstate farmers furious over Gov. Cuomo’s move to unionize farm labor in New York [City and State]
  • NLRB strikes down innocuous handbook provision expecting employees to maintain “positive” workplace environment [Jon Hyman] “Is it time for a new NLRB rule on handbook policies?” [same]
  • “Funding Ideology, Not Research, at University of California ‘Labor Institutes'” [Steven Greenhut, Reason]
  • NLRB Philadelphia regional director, criticized over role in pro-union fund, suspended for 30 days [Law360, Labor Union Report]

NYC mulls tax dollars for farmland preservation

Even as absurd NYC policy ideas go, this one’s a doozy [Seth Barron, City Journal]:

To encourage a “sustainable, resilient food system,” New York’s city council has proposed a $5 million municipal farm-subsidy program, under which the city would buy development easements in the Hudson Valley. In this way, the council plans to help feed “3 million New Yorkers liv[ing] in neighborhoods without adequate supermarkets.” It’s alarming to consider that New York could suffer food shortages so acute that the city government must establish its own agricultural supply chain.

EDITED, see comments: Correspondent Carl Edman shares an anecdote on Twitter of a Soviet dignitary visiting London who asked about the bureau in charge of food supply to the city “and was shocked when told that there was no such thing and nobody in charge. At least that won’t happen in future NYC!”

Food roundup

  • Almond growing in California is not all that water-intensive compared with other crops. So why does it gets demonized in the name of social justice? [Victor Davis Hanson, Hoover]
  • Had unexpected findings of a study on dietary fat and health 40 years ago been fully aired, nutrition policy might have taken different turn [Peter Whoriskey, Washington Post] “Today’s scientific hypotheses may be wrong. Better, then, not to make them law.” [David Boaz, Cato]
  • Royal Crown Cola was on its way to becoming one of the great soda companies, then came the cyclamate scare compounded by the irrational Delaney Clause [Mental Floss]
  • Jayson Lusk on the economics of food waste;
  • “Menu Mandates and Obesity: A Futile Effort” [Aaron Yelowitz, new Cato Policy Analysis, earlier]
  • “When an industry demands that the government regulate it more strictly, you usually don’t have to look very far to find a barely-hidden agenda.” [Jesse Walker, Reason on catfish makers]

Government buys billboards urging more power for government

Billboards in Washington state urging tougher environmental regulations on farmers were funded by (if this still comes as any shock) the federal taxpayers, through a grant program of the U.S. Environmental Protection Agency. And that wasn’t disclosed, although by agency rule it was supposed to be. [Don Jenkins, Capital Press] A few months ago EPA got caught illegally expending tax money to stir up pressure on Congress to support a wider interpretation of its own powers on the “Waters of the United States” rule. More on advocacy funding here.

Related, from way back in 1999, “Smart Growth at the Federal Trough: EPA’s Financing of the Anti-Sprawl Movement” by Peter Samuel and Randal O’Toole, Cato Policy Analysis #361:

The federal government should not subsidize one side of a public policy debate; doing so undermines the very essence of democracy. Nor should government agencies fund nonprofit organizations that exist primarily to lobby other government agencies. Congress should shut down the federal government’s anti-sprawl lobbying activities and resist the temptation to engage in centralized social engineering.