Ruling that dilutes regulatory power could ripple through farm and ranch country for years

The U.S. Supreme Court in Washington, D.C. (Laura Olson/States Newsroom)

A recent ruling from the U.S. Supreme Court limiting the deference to regulators in courtroom disputes is likely to have widespread implications for farmers and ranchers in South Dakota.

The 6-3 decision in Loper Bright Enterprises vs. Raimondo overturned a 40-year precedent known as the Chevron doctrine. That doctrine directed courts to defer to federal agency expertise when the laws an agency is enforcing are ambiguous. 

In practice, the doctrine created a high bar for individuals or companies who sought to challenge rules enacted by agencies like the U.S. Department of Agriculture (USDA), Environmental Protection Agency (EPA), Department of Labor and others.

The case stemmed from a dispute over who ought to pay for the on-vessel monitoring required under a rule from the National Marine Fisheries Service. The rule sought to force commercial fishing operations to pay the person doing the monitoring; a group of commercial fishermen sued.

Chief Justice John Roberts wrote that the Chevron doctrine was misguided in its deference to agencies over courts.

“Congress expects courts to handle technical statutory questions,” he wrote.

The ruling will be of particular interest to farmers, said South Dakota Farm Bureau President Scott VanderWal. Farmers frequently clash with federal agencies over rules that impact their land and operations.

“It’s going to give people better standing to challenge these agencies when they don’t agree with what they’re doing,” VanderWal said.

The case has already led to the reopening of a federal dispute over a wetlands determination between Hanson County farmer Arlen Foster and the USDA’s Natural Resource Conservation Service.

Foster had asked the Supreme Court to review the case as Loper Bright was under discussion, and Foster’s was among the cases sent back for review as a result.

A statement from South Dakota Attorney General Marty Jackley issued after the ruling’s release praised the justices.

“For years, federal agencies and bureaucrats went too far in wielding authority over the states and citizens as Congress sat by and did nothing,” said Jackley. “It is time to give that authority back to the courts, the states and our citizens.”

Other officials and organizations decried the ruling as a step backward for public health, safety and welfare. In a dissent, Justice Elena Kagan said the decision struck a blow against “judicial humility” in favor of “judicial hubris” by establishing a standard that expects judges to second-guess the federal subject matter experts who spend years crafting rules based on the authority delegated to them by Congress.

Connecticut Attorney General William Tong told CT Mirror that the ruling touches “all aspects of life … everything that we touch and use in our lives that needs to be safe.” 

He cited examples such as the Food and Drug Administration’s rules around the ingredients in baby food, the Federal Aviation Administration’s regulation of safety on airplanes and the EPA’s limitations on toxic chemicals known as PFAS.

Broader implications for South Dakota

The Loper Bright ruling is significant for agricultural areas, according to Jeffrey McCoy of the Pacific Legal Foundation. The foundation took up Foster’s case after 2020.

The Chevron rule meant that agencies would often rewrite or reinterpret regulatory policy based on which political party occupied the White House, McCoy said. 

“One thing that overturning Chevron’s going to do is that there will be more consistency in regulations,” McCoy said. 

McCoy anticipates an uptick in lawsuits over federal regulations as a result of the decision, but he also expects that farmers will feel less whiplash every four to eight years from the agencies that regulate them.

The Waters of the U.S. (WOTUS) rule from the EPA has been a particular concern for South Dakota farmers. It’s meant to protect ephemeral wetlands important to wildlife and the wider environment, but farm groups have called it overreach.

The rulemaking process began under former EPA Director Gina McCarthy, who served in the Obama administration. The Trump administration overturned the rule; the Biden administration moved to bring it back, though legal challenges have altered its scope.

The South Dakota Farmers Union and South Dakota Farm Bureau often find themselves on opposite sides of agriculture issues, but Farmers Union President Doug Sombke and VanderWal both had issues with WOTUS.

“That truly was an overreach by Gina McCarthy,” Sombke said.

That said, Sombke is concerned about the broader implications of Loper Bright. Specifically, he’s concerned about how it might play out in the context of Citizens United, a Supreme Court case that gave corporations the legal rights of individuals.

Fighting a federal regulation in court can be an expensive proposition, and Sombke suspects corporate interests and lobbyists will have far more success knocking down or reshaping regulations than workaday farmers.

 “We are so influenced by our government, and our agencies are so influenced by lobbyists anymore,” Sombke said. “The question is, ‘How far do we want this to go?’”

That’s a point echoed by Jillian Linster, policy director for the nonprofit Center for Rural Affairs.

The center has long worked to connect rural Americans to the local arms of regulatory agencies to make sure they have a voice in rulemaking, she said. That’s because farmers rely so heavily on government programs to guard against the ravages of mother nature or to block off cropland for conservation without fear of financial insolvency. 

“For us, it’s been really important to maintain those conversations,” Linster said.

A case like Arlen Foster’s – where the NRCS declined to give him another chance to make his case that a patch of his farm ground is not a wetland – or the Loper Bright case might seem egregious to the general public, Linster said. But the decision would grant the same right to challenge rules to large corporations and special interest groups that might seek to challenge rules the public – or even farmers, in the case of some conservation easement programs – might support.

The widespread impact of federal rulemaking, Linster said, can be obscured by individual disputes. 

“People do tend to get caught up in the cases that they know about and think less about the broader implications.”

Rulemaking remains

Regulations do not creep up on the public, however, according to Michael B. Thompson, a law professor at the University of Sioux Falls. 

Thompson said it’s important to keep in mind that administrative rulemaking will remain an open and lengthy process that involves gathering public input and making adjustments to initial proposals.

One of the biggest changes, he expects, will take the form of longer timelines for regulations in situations where rules are challenged in court. 

“If we’re going to be in federal court arguing about a rule interpretation, federal courts move really, really slowly,” Thompson said. 

Todd Wilkinson, a lawyer, rancher and immediate past president of the National Cattlemen’s Beef Association, agreed with that assessment. But he also reiterated the difficulties ranchers have had with regulatory whiplash. 

In the past, he said, the rulemaking process seemed to pay little more than lip service to the concerns of those affected by any given rule. Wilkinson attributes that to politics.

“Depending on what the administration is, they’d be using the rulemaking process to build that administration’s record,” Wilkinson said.

Rulemakers might need to pay more attention to public comments in light of a decision that strengthens the right to challenge regulations, said Thompson. 

“On the front end, an agency is going to be really careful in their drafting so they don’t leave so many ambiguities that a court would have the opportunity to fill in,” Thompson said.

Wilkinson would prefer that Congress pass laws that don’t leave so much open to interpretation.

“Making Congress actually do their job and legislate and understand what they’re passing, rather than giving all of this authority to a bunch of bureaucrats, to me, is a good thing,” he said.

Linster, with the Center for Rural Affairs, has a more favorable view of those working for federal agencies, particularly the local representatives who interact with stakeholders.

She’s concerned that agencies may be gun shy about using their authority to regulate for fear of lawsuits, and that a slowdown to the rulemaking process to address issues on individual farms or for specific interest groups could be detrimental to those who don’t oppose the rules or might benefit from them.

But, she said, the only thing certain about Loper Bright is that its implications will play out for years to come.

“It’s clear that overturning the Chevron doctrine is going to have a major impact on farm and ranch country,” she said. “No one knows exactly what it’s going to be.”

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