Agricultural producers looking to Washington, D.C., have been waiting for Congress to begin deliberations on the farm bill due later this year. While formal action was yet to begin as of early July, Congress essentially started the debate with a focus on food assistance program spending in both the debt ceiling legislation passed in June and the annual appropriations bills under current consideration.

While attention to Congress remains a continual priority for ag producers and organizations, attention to ag policy developments happening off Capitol Hill also is important. Recent news from the Supreme Court and in the executive branch agencies will have significant implications for agriculture as well, and will help frame the legal and regulatory environment under which agriculture operates going forward.

Prop 12 upheld

In May, the Supreme Court upheld California regulations that set housing requirements for egg-laying hens, gestating sows and veal calves, but not just in California. The rules, known as Proposition 12, were passed by California voters in 2018 to extend rules originally included in Proposition 2 in 2008 for California producers to producers everywhere who sell into the California market.

While many agricultural interests argued against the rules as a violation of the Constitution’s Interstate Commerce Clause, the Supreme Court upheld California’s right to set the rules, and producers are now faced with compliance in the months ahead as California phases in enforcement.

It is yet to be seen how producers and processors will respond in terms of segregation of supply chains or widespread adoption of new animal housing requirements. Further adoption of requirements in other states could put more pressure on widespread housing changes, but a past farm bill effort to preempt state-level rules could be reconsidered in Congress as well.

WOTUS limited

In another May ruling, the Supreme Court narrowed the limits of federal Waters of the United States jurisdiction. The issue of federal regulation over WOTUS and surrounding areas dates back decades to the Clean Water Act of 1972, and the adoption of a definition of WOTUS by the Environmental Protection Agency and the U.S. Army Corps of Engineers in the 1980s.

A Supreme Court ruling in 2006 restricted the interpretation of WOTUS but left a debate between waters that have a “continuous surface connection” versus a “significant nexus” to covered waters.

That definitional debate has played out in the regulatory arena over the past decade as the Obama administration adopted a WOTUS rule that extended jurisdiction before it was challenged in court. The Trump administration similarly put forward a rule to pull back jurisdiction that was also challenged in court.

The Biden administration has proposed a rule that is technically still pending, although it was stalled in many states while waiting for the Supreme Court outcome. The Supreme Court ruling struck down the “significant nexus” test for a definition more adjacent or essentially indistinguishable from covered waters.

The court ruling is not the end of the issue, however, as the administration must start over or at least substantially revise its proposed rule, something it has promised to do by Sept. 1. While producers and landowners will need to prepare to comply with the new rule when it is published, the history of debate over WOTUS suggests the new rule will likely face another court test as well.

Renewable fuels standard

Another regulatory issue high on the list of priorities for agriculture is the fate of the renewable fuels standard and the required volume obligations set by EPA. The renewable fuels standard dates to energy legislation adopted in Congress in 2005 and 2007 and set minimum volume targets for biofuels (primarily corn-based ethanol), advanced biofuels (including biodiesel) and cellulosic biofuels.

There have been numerous controversial issues with annual rulemaking to set volume requirements, waivers of some requirements such as the cellulosic category, and the allowance of numerous small refinery exemptions over time.

A more significant issue now is that the targets set in legislation only ran through 2022, and it is up to EPA to propose and adopt annual volume requirements that are consistent with the intent of the legislation and the growth of the industry.

EPA published proposed volume requirements for 2023-25 late last year and drew rebuke from several ag sectors, particularly from the soybean industry, with concerns over proposed advanced biofuel levels.

While there has been much speculation and industry fervor over potential growth in demand for renewable diesel for aviation fuel and growth in the soybean processing sector to provide it, the proposed requirements did not pencil in much of the anticipated growth.

When EPA published final requirements in late June, there were modest increases in the advanced biofuel requirements, but at the expense of conventional biofuels as overall levels were reduced for 2024 and 2025.

Headline issues

While these issues have been in the headlines over the past few weeks, there is a seemingly steady flow of other policy issues working their way through the rulemaking and implementation process, or through the courts, that all merit the attention of agricultural producers.

That is one of the reasons that agricultural organizations exist, both to keep producers informed and to represent their interests in the policy process. The fact that producers and organizations need to track not only congressional activities, but also executive branch and judicial branch developments provides a good reminder of just how complex the public policy process can be for agriculture.

Lubben is the Extension policy specialist at the University of Nebraska-Lincoln.