Friday, December 25, 2020
CapitalPress.com 9
Lawsuits: ‘It’s shaping up to be Obama’s third term’
Continued from Page 1
Time out?
Glitzenstein said he anticipates
the new administration will ask
judges to pause lawsuits, while
agencies reconsider policies.
”You can see a lot of judges
being open to that,” he said.
“Judges are very eager when they
have the opportunity to not waste
their time.”
The Justice Department, how-
ever, will have to be more artful
than merely renouncing previ-
ously argued positions, Glitzen-
stein said.
“Judges don’t like people com-
ing in and saying, ‘We’re doing
different things because we’re dif-
ferent people,’” he said. “Process
does matter.”
‘Obama’s third term’
So do elections, said Scott
Yager, chief environmental coun-
sel for the National Cattlemen’s
Beef Association. “It’s shaping up
to be Obama’s third term,” he said.
“The same people we had then are
back now.”
The Obama administration pro-
duced the 2015 Clean Water Rule,
redefining the Waters of the United
States. The rule brought ditches
and ponds thousands of feet from
navigable waterways under the
Clean Water Act.
Trump dumped the rule in favor
of the “Navigable Waters Protec-
tion Rule,” reducing how far the
federal rule reaches into fields and
pastures.
Blue states and environmental
groups are suing to overturn the
Trump rule. They also are suing to
kill Trump’s reforms to the Endan-
gered Species Act and National
Environmental Policy Act.
The cattlemen’s association,
American Farm Bureau Federation
and other agriculture groups have
formally intervened in the suits,
positioning themselves to defend
Trump’s environmental policies,
even if the Justice Department
under Biden changes course.
“It makes intervening way
more important for agriculture,”
said Eastern Washington attorney
Toni Meacham, who represents
the Washington Cattlemen’s Asso-
ciation, intervenors in a lawsuit to
defend Trump’s ESA reforms.
“These lawsuits don’t just
stop,” she said. “Now more than
ever it’s going to be important for
agriculture to retain the small gains
it’s made.”
The ESA, NEPA and WOTUS
lawsuits are in districts courts, the
bottom rung of the federal judi-
ciary. The cases are a long way
from the U.S. Supreme Court.
Yager said he anticipates fight-
ing in court to uphold the Trump
rules for as long as possible, while
also working with the Biden
administration on writing new
rules.
“We want to make sure Trump
policies are in place until there is
an official change,” he said.
Ever-flowing WOTUS
Biden will inherit the WOTUS
controversy under circumstances
similar to those Trump faced when
he took office.
The Obama EPA finalized its
definition in 2015, immediately
igniting lawsuits from red states,
U.S. Fish and Wildlife Service
The dusky gopher frog in Louisiana was at the center of one of the major environmental lawsuits ar-
gued during the Trump administration.
Matthew Weaver/Capital Press
Washington attorney Toni Mea-
cham says the upcoming change
in White House administrations
makes farm and ranch groups’
intervention in lawsuits more
important.
and farm and industry groups.
The Justice Department was fight-
ing those suits when Trump took
office.
Six weeks into his presidency,
Trump directed the Environmen-
tal Protection Agency to review
the 2015 rule. With respect to the
ongoing lawsuits, Trump told the
EPA to promptly notify the U.S.
attorney general of the pending
review and for him to do what “he
deems appropriate.”
Significantly, Trump also told
the EPA to be guided by Justice
Antonin Scalia’s 2006 opinion in
Rapanos v. United States.
The Rapanos case stemmed
from landowners in Michigan fill-
ing wetlands for a shopping mall
and condominiums without a
Clean Water Act permit. The Army
Corp of Engineers sued the prop-
erty owners.
The landowners lost in district
court and the court of appeals. The
U.S. Supreme Court produced an
usual 4-1-4 ruling, an indecisive
outcome that Chief Justice John
Roberts lamented as “unfortunate.”
In Scalia’s view, the Michi-
gan case was just an example of a
Corps that was out of control. The
Corps’ application of the Clean
Water Act was so broad it extended
to “dry washes in immense arid
deserts,” he wrote.
The act, according to Scalia,
had a narrower definition of Waters
of the United States. “They include
streams, rivers, lakes, oceans — in
short, relatively permanent, con-
tinuously standing or flowing bod-
ies of water.”
Four justices
signed the opin-
ion. And four jus-
tices signed a
sharply different
opinion by Justice
John Paul Sevens.
Scott Yager He said the court
should defer to
the Corps’ expertise in preventing
water pollution.
The justice in the middle of
the ruling was Anthony Kennedy,
who’s opinion has been the most
consequential, even though no
other justice signed it.
Kennedy said he agreed more
with Stevens than Scalia, but
agreed with Scalia that the case
should be sent back to the court of
appeals. His reasoning was much
different than Scalia’s, however.
Borrowing a phrase from an
earlier court opinion in a Clean
Water Act case, Kennedy said the
Corps should determine whether
the filled-in wetlands had a “signif-
icant nexus” to navigable waters.
Scalia criticized Kennedy’s
opinion for relying on a phrase
not in the law. Nevertheless, fed-
eral courts have held up Kennedy
as the controlling opinion.
As the Trump administration
worked on remodeling WOTUS
based on Scalia’s opinion, it was
simultaneously defending in court
an Obama rule that aligned more
with Stevens’ opinion.
The Justice Department didn’t
completely abandon the Obama
rule, but it turned into sort of
a neutral party, telling federal
judges in various jurisdictions
that a review was underway and
asking them to sit tight and not
make any rulings.
Some judges, however, didn’t
wait. Federal district judges in
Texas and Georgia in 2019 struck
down the 2015 rule.
The most thorough dismantling
of the Obama rule was by Dis-
trict Judge Lisa Godbey Wood in
Southern Georgia.
The rule went beyond Kenne-
dy’s “significant nexus” test, Wood
wrote. “The court is bound by Jus-
tice Kennedy’s opinion.”
Ten months after Wood’s rul-
Fine: Farm was also fined $7,200 for
not reporting the first worker’s death
Continued from Page 1
In September, Health
Secretary John Wiesman
ordered more than 3,000
Gebbers employees to be
tested for COVID-19. Less
than 1% of the workforce
tested positive, a low rate
compared to the general
population of Okanogan
County.
The farm cited the low
rate to buttress its argu-
ment that it sought to pro-
tect workers by consulting
with an infectious dis-
ease specialist. The farm’s
safety plan relied on iso-
lating workers in groups
of 42, rather than the state
standard of 15.
“The number (15) is not
some magical number,”
Philpott said.
Gebbers’
alternative
plan ran afoul of state reg-
ulators as early as May. An
H-2A worker complained
that he was quarantined
without access to water to
drink or wash with.
L&I initiated an inves-
tigation May 28 and fined
the farm $13,200 for vio-
lations related to the use
of bunk beds and not hav-
ing barriers in kitchens and
lavatories.
L&I started another
investigation in July after
anonymous calls from
workers. The first caller
said someone had died of
COVID-19 and that work-
ers he lived with were not
tested and sent to differ-
ent cabins, according to an
L&I.
A second caller said he
feared hundreds of work-
ers were infected, includ-
ing himself, and that he was
worried he would die. The
caller said the sick were not
being treated, according to
L&I.
L&I ordered Gebbers on
July 22 to come into com-
pliance with state stan-
dards. Agency investiga-
tors returned unannounced
daily to see whether the
farm complied.
Gebbers racked up its
large fine over a 12-day
period, July 16-27.
On each day, a bus with
a capacity of 42 passengers
took 42 farmworkers to and
from orchards. The work-
ers were not 6 feet apart,
according to L&I. The farm
incurred an $84,000 fine for
every day.
Over the same 12 days,
the farm violated rules by
housing workers in bunk
beds, according to L&I.
The penalty for the housing
violation was also $84,000
a day.
Lesser
violations
rounded out the fine. L&I
said the company didn’t
keep toilet paper or have
hand-washing
stations
in every field bathroom,
and didn’t have physical
barriers in a community
kitchen.
The farm also was fined
$7,200 for not reporting the
first worker’s death to L&I
within eight hours. The
worker died at a hospital,
and the farm didn’t know of
his death until several days
later, Philpott said.
ing, the Trump EPA finalized its
WOTUS definition, prompting
lawsuits across the country.
Two days before the Trump
rule went into effect, Judge Wil-
liam Martinez in Denver on June
19, 2020, stayed the rule in Colo-
rado. The rule is now in effect in
the other 49 states.
In his stay order, Martinez
said that five Supreme Court jus-
tices rejected Scalia’s opinion,
but Trump took it, fleshed it out
and made it the law of the land.
“Rapanos forecloses this interpre-
tation of the (Clean Water Act),”
Martinez wrote.
Future of WOTUS
Yager, the lawyer for the cattle-
men’s association, said he doubts
the Biden administration can resus-
citate Obama’s Clean Water Rule,
not after the rulings against it.
Yager said Obama veterans will
have a chance to show they’ve
learned from their mistakes and
write a rule that “threads the nee-
dle” between the Trump rule and
the Obama rule.
“I think we have a good shot at
getting a resolution people can live
with,” he said.
Endangered species
In Northern California federal
court, 21 blue states are suing to
overturn Trump’s ESA reforms.
Twelve red states have intervened
to defend the changes.
Environmental groups filed a
separate lawsuit in the same court.
Farm and industry groups have
joined in as intervenors.
The Trump administration’s han-
dling of the ESA case Weyerhae-
user v. U.S. Fish and Wildlife Ser-
vice illustrates how a White House
can shift positions without repudiat-
ing previous court arguments.
During the Obama administra-
tion, USFWS designated 1,544
acres owned or leased by the Wey-
erhaeuser timber company near
New Orleans as “critical habitat”
for the dusky gopher frog.
The frog, listed as endangered
under the ESA, hasn’t been on
the tree farm since 1965. Evenly
spaced rows of trees block too
much sun, so it’s no longer frog
“habitat.”
But if Weyerhaeuser burned
some clearings, frogs could live
there, so it was “critical habitat”
— as in critical for recovery, the
USFWS said.
By the time Trump took office,
Weyerhaeuser had lost in fed-
eral district court and the court of
appeals. While the case was wait-
ing to be heard by the Supreme
Court, the Trump administration
proposed new rules for designat-
ing critical habitat.
Justice Ruth Bader Ginsburg
asked the government lawyer argu-
ing the case against Weyerhaeuser
whether the company’s land would
be critical habitat under the pending
Trump rules.
The lawyer said he thought that
even under Trump’s proposal the
tree farm would be critical habi-
tat because the land held such great
promise for frog conservation.
In an 8-0 ruling, the Supreme
Court vacated the lower court rul-
ings, but not because of the pending
Trump rule.
Chief Justice Roberts wrote that
for land to be “critical” habitat, it
has to be habitat.
“Adjectives modify nouns,” he
wrote.
The high court sent the case back
to the appeals court. The Trump
administration asked the appeals
court to let USFWS reconsider its
decision to designate Weyerhaeus-
er’s tree farm as critical habitat.
“Potential policy changes may
influence the service’s analysis,”
the Justice Department wrote.
The appeals court sent the case
back to where it started, in 2013,
the District Court for Eastern
Louisiana.
All the parties, including Wey-
erhaeuser, the Center for Biological
Diversity and USFWS, soon agreed
to settle the case. USFWS with-
drew the “critical habitat” designa-
tion from the tree farm, and every-
one agreed the settlement didn’t set
any precedent.
NEPA revisions
Seven months into his term,
Trump signed an executive order
calling for “discipline and account-
ability” in federal environmental
reviews.
He was three years into his
term before his administration
announced NEPA reforms. The
rule went into effect Sept. 14.
Federal lawsuits to overturn the
rule are pending in Virginia, New
York and California.
The lawsuit farthest along is
before Judge James Jones in Vir-
ginia. On Sept. 11, he denied a
motion by environmental groups
to issue a preliminary injunction
to block the reforms from taking
effect.
Jones, a Clinton appointee, said
he may need to hear expert testi-
mony before deciding the rule’s
legality.
The American Farm Bureau
Federation and the National Cat-
tlemen’s Beef Association are
among the groups that have inter-
vened in the lawsuit.
Yager said an early deci-
sion in Virginia favorable to the
Trump rule could at least delay its
replacement.
“It might slow down the Biden
administration a bit,” Yager said.
Chlorpyrifos: Buffer zones have been increased
around sensitive sites and bodies of water
Continued from Page 1
handle chlorpyrifos. In the past, unlicensed
employees could spray if they were super-
vised by someone who is licensed.
Buffer zones have been increased
around sensitive sites and bodies of water.
For aerial applications or non-targeted
air-blast sprayers, the buffer is 300 feet.
For targeted air-blast sprayers, the buf-
fer is 150 feet, and for other ground-based
equipment, it is 60 feet.
Sensitive sites include farmworker
housing units, though not farm residences
or non-residential agricultural buildings
such as barns and livestock facilities. That
is based on feedback from farm groups,
Kachadoorian said.
“There was some concern that they
have control over their own properties,
and that to actually put a buffer there
would take away a lot of land when they
could just basically leave,” she said. “So
we allowed that particular option.”
Farm residences are already covered
by protections in the federal Application
Exclusion Zone, part of the U.S. Agri-
cultural Worker Protection Standard.
Mixing and loading chlorpyrifos can
only be done by licensed applicators
or by those who successfully complete
an ODA-approved training course after
March 1, 2021.
Farms will be required to keep and
maintain records for three years after
each application.
Finally, after Dec. 31, 2023, it will
become illegal to use or sell chlorpyrifos
in the state except for cattle ear tags, seed
treatment and granular formulations.
“We believe that with our (protec-
tive) measures, the phaseout of Decem-
ber 2023 is appropriate,” Kachadoorian
said.
Jenny Dresler, a lobbyist for the Ore-
gon Farm Bureau and Oregonians for
Food and Shelter, said the groups are
still reviewing the final rule, though it
does not appear to identify proposed
alternatives or provide public funding
for research.
“These are very significant restric-
tions,” Dresler said. “We are going to
be looking for an investment so grow-
ers aren’t left without any tools down
the road.”
Kachadoorian said it is unlikely the
state will dedicate any assistance from
the general fund, especially when the
legislature is dealing with the coronavi-
rus pandemic and 2020 fire season.
However, Oregon State Univer-
sity did receive a $162,794 spe-
cialty crop block grant from ODA ear-
lier this year to study alternatives to
chlorpyrifos.
“We really intend to be meeting with
other industries and find out what we
can do to help them be able to grow their
crops effectively,” Kachadoorian said.