Editorial: Two close calls

Within a week’s span the U.S. Supreme Court heard arguments on two cases followed closely in Iowa: one involving California’s space requirements for hogs, and another involving regulation of wetlands and streams. The court appears to be closely divided on each case, going by the questions posed by justices. Observers are not confident in predicting which way either case will go.

The first is a case involving Proposition 12, in which over 60% of California voters in a 2018 referendum approved minimum space requirements for confined hogs. The Farm Bureau and National Pork Producers objected, saying the greater space demands would disrupt the pork industry since California is such a large market for Iowa pork. They argued that one state should not be able to impose itself on others or on national markets.

Justice Amy Comey Barrett was especially skeptical of the argument. She asked repeatedly if striking down Prop 12 would cause a cascade of other state laws to fail (such as California’s imposition of ethanol blending standards). Attorneys for agribusiness assured her that was not to be feared, but she sounded skeptical. She was joined by conservative Justice Neil Gorsuch, who was having a hard time grasping widespread irreparable harm.

That was enough for Sen. Chuck Grassley of the Justice Committee to step out and say that Congress will upend Prop 12 if the Supreme Court doesn’t. That presumes he is in the majority after the November elections.

Likewise, the high court was not especially enthusiastic about a challenge to the Environmental Protection Agency’s authority to regulate wetlands. Justice Brett Kavanaugh took the lead in questioning the plaintiff attorneys representing an Idaho couple trying to develop property near a wetland. It sounded like the court was not eager to strip EPA of its regulatory authority over dry stream beds or land contagious not not connected by water to a wetland. The so-called WOTUS rule has been argued and argued while state and federal courts rule consistently that, as a practical matter, you cannot regulate agriculture much. If the court rules against the Idaho couple the status quo remains in effect, which appears comfortable enough for the justices.

Of course, we don’t know how the court will rule on either case. The court has been talking a lot lately about its independence from politics. The justices appear to be toeing lines that defy conventional expectation.