Friday, April 1, 2011

The Farm Lobby Flexes Its Muscle

The Wonk Room (here) is reporting that the House has voted to approve HR 872 (see here), by a veto-proof margin (which included 57 Democrats). That bill would, if enacted, prevent the EPA from regulating pesticide discharges into navigable water bodies under the Clean Water Act. Agribusiness and its congressional backers argue (see here) that any such regulations would be "redundant" because the distribution, use, and sale of agricultural pesticides is already thoroughly regulated. However, existing regulations simply do not apply to discharges into navigable water bodies.

The Wonk Room article cites an important 2007 Report by the U.S. Geological Survey (USGS), which found pesticide contamination in every single stream it sampled. In many cases, pesticide concentrations exceeded benchmarks for protecting human-health or aquatic life. In agricultural areas, pesticide concentrations in streams exceeded human-health benchmarks by up to 10%. Meanwhile, 57% of agricultural streams detected pesticide concentrations that exceeded aquatic-life benchmarks; the same was true for 83% of urban streams.

EPA's proposed regulation of agricultural pesticides under the Clean Water Act's National Pollution Discharge Elimination System (NPDES) grew of a court decision National Cotton Council v. EPA, 553 F.3d 927 (6th Cir. 2009) (see here). The court ruled that any pesticide disposed into, over, or near water bodies would require an NPDES permit, if the pesticide leaves any excess or residual particles behind after completing its intended purpose. In effect, the House bill is intended to reverse that court decision and to reinstate the traditional interpretation of the CWA, according to which farmers are exempt from NPDES permitting as non-point sources.

Whether the Senate will follow suit or not remains unclear. On the merits, the House majority is probably correct about the traditional understanding of the reach of the CWA's NPDES program. But it is dangerously  wrong to suggest that pesticide pollution of water bodies in this country is not a problem requiring some regulatory solution.

What If?

I'm attending a very interesting conference this morning organized by my esteemed colleague Gerard Magliocca, and sponsored by the Indiana Law Review, on "What If? Counterfactuals in Constitutional History."

I've long been a fan of counterfactual analysis in law. I've even written a couple of  related articles (one of which is available here) based, in part, on a constitutional counterfactual question: What if the Fifth Amendment to the US Constitution did not include the Taking Clause? Put differently, how much of a difference does constitutional/judicial protection of private property from government over-regulation and expropriation really make? By comparing constitutional protection of private property in the US with the system of almost purely political protection of private property in the UK, I concluded that the case for constitutional protection is not very strong.

Today's conference includes several interesting panels, featuring  papers by a wonderful group of panelists, including:

Amanda Tyler on "The Counterfactual that Came to Pass: What If the Founders Had Not Constitutionalized the Privilege of the Write of Habeas Corpus"

Ilya Somin, "What If Kelo Had Gone the Other Way?"

Alison LaCroix, "What If Madison Had Really Won? Legislative v. Judicial Supremacy"

Kim Roosevelt, "What If Slaughterhouse Had Been Decided Differently?"

Heidi Kitrosser, "What If Daniel Ellsberg Hadn't Bothered?"

Carlton Larson, "What If Chief Justice Fred Vinson Hadn't Died in 1953?"