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Agricultural hearings: NCBA chief counsel discusses Supreme Court cases

by Wyoming Livestock Roundup

National Cattlemen’s Beef Association (NCBA) Chief Counsel Mary-Thomas Hart discussed two major agricultural cases currently before the U.S. Supreme Court during a NCBA Beltway Beef podcast on Oct. 14.

Sackett v. Environmental Protection Agency (EPA) is considering the longstanding issue of Waters of the U.S. (WOTUS) and the federal government’s proper jurisdiction in regulating bodies of water, while National Pork Producer’s Council (NPPC) v. Ross is considering the Dormant Commerce Clause and its implications for livestock producers selling goods across state lines. 

NCBA has filed amicus briefs before the court in both cases to advocate for the needs of cattle producers.

WOTUS case and oral arguments

On Oct. 3, the Supreme Court herd oral arguments on Sackett v. EPA which is the fourth time the court has considered the definition of WOTUS under the Clean Water Act (CWA). Developing a regulatory definition of WOTUS has been an ongoing issue.

“We have gone back and forth from the Obama rule to the Trump rule to the Biden rule, and hopefully this case will allow the court to tell us once and for all which test should be used to determine jurisdiction under the CWA,” Hart says.

She notes, six relatively new justices considered WOTUS for the first time in their career during the deliberation.

“One clear take away from oral arguments was there is a desire, especially among these six newer justices, to look for a third option, and they even said that a number of times,” she says.

They asked, “Is there something else we should be looking for? Is there some middle ground that is going to adequately protect the nation’s waters while also providing landowners the certainty they need,” Hart adds.

WOTUS rulemaking process

The court’s ruling on the Sackett v. EPA case may influence the Biden administration’s WOTUS rulemaking process, says Hart. 

“Right now, it kind of feels like a race to the finish line,” she says.

The EPA plans to finalize their third version of a regulatory definition by the end of 2022, Hart mentions. 

“We know the Supreme Court has now heard oral arguments, and we’ll get an opinion from them likely before next summer,” she says. 

Hart acknowledges a Supreme Court opinion will require the EPA and U.S. Army Corps of Engineers to go back once again and rewrite the definition of WOTUS. 

“So, regardless of what order we get those opinions and rules in, I think there’s going to be a lot of work to do and probably some back and forth over the next couple years when it comes to the WOTUS definition,” she says.

WOTUS impact

The Sackett v. EPA case is just one example of how WOTUS impacts various different groups beyond ag, Hart says. It demonstrates a “perfect example” of how broad NCBA’s coalition of partners is when engaging in the WOTUS conversation.

“We work with the home builders, the mining association, the electric utilities, etc., because regardless of how you are using land in the U.S., there is a chance you are going to be subject to CWA regulations and permits, and the more expansive the definition of WOTUS is, the more everyday landowners will be impacted,” she says.

“Our coalition on this issue is incredibly broad,” Hart adds. “It includes ag groups and many other industries.” 

Dormant Commerce Clause 

The NPPC v. Ross case revolves around the Dormant Commerce Clause, which is used to prohibit state legislation discriminating against interstate or international commerce. 

In this particular case, the state of California enacted a policy which would require all pork sold in the state of California to comply with certain gestation crate requirements. 

“The issue is, there are no large-scale hog operations in California, so this policy almost wholly regulates activity occurring out of its own state,” Hart says. “California is such a large state that any hog producer wanting to engage in interstate commerce would likely have to follow these California mandates in order to ensure their products can be sold across state lines.”

The Supreme Court is asked to determine if this is constitutional under the Commerce Clause of the Constitution. The NPPC, NCBA and American Farm Bureau argue the policy is unconstitutional, and California argues it is constitutional. 

government position

Hart says the Biden administration submitted a brief in support of the NPPC.

“This case certainly has much broader implications beyond gestation crate sizes for hog production, so that is the key to the Biden administration’s engagement as well as their support of NPPC,” she says.

NCBA and cattle producers generally value states’ rights and allowing decisions and policies to be developed as closely to the local level as possible, but there are always exceptions, Hart notes.

“There is this balancing test about when states’ rights go too far and when does one state have the right to regulate activities happening across state lines,” she says.

Court considerations

As the Supreme Court determines the outcome of this case, they will more than likely utilize the Pike Balancing Test, says Hart.

“The test would require the court to balance the burden on one state being regulated (the burden on Iowa producers in this case) compared to the benefit to California consumers,” Hart says. 

Associate Justice of the U.S. Supreme Court Ketanji Brown Jackson brought to light an important consideration for the Supreme Court, notes Hart. 

“She seemed interested in whether there was a narrower option to achieve the same goal for the state of California,” she says. “If California’s goal is to ensure consumers are able to eat a ‘moral pork,’ then perhaps there is some other option that is not so restrictive on all pork producers across the country which would allow consumers to be aware and make a more informed purchasing decision while also potentially putting money back into the pocket of the producer.”

“I wouldn’t be surprised if we see something related to a narrower option in the court’s opinion,” she adds.

Next steps

Hart says the timeline on decisions with these cases depends on what order the court wants to issue decisions in, what other cases the court is considering and how busy the court is this season. 

“Now we wait – it’s a waiting game,” she says. 

She predicts the Supreme Court will take at least three months to nine months at most to release their opinion in these two cases.

“We will get opinions on both of these cases within the next year, and it will have significant effect on national policy and will significantly impact how state legislatures operate their ability to pass new state laws impacting out of state activity,” she says.

Kaitlyn Root is an editor for the Wyoming Livestock Roundup. Send comments on this article to

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