BurningbirdGovernment is not the enemy.
Last week, we established that Trump can’t abolish the EPA, or any other department or regulatory agency without Congressional support. Even if Congress and Trump do abolish an agency or department, the laws the organization enforces still must be enforced.
What about those laws? Can Trump abolish a law, or refuse to enforce it?
Donald Trump made a lot of promises during his run for the White House, and his transition team picks seem to support some of the most egregious. There’s a world of difference, though, between a promise and the capability to fulfill that promise—even for the holder of the highest office in the land.
update: 11/30/15
The EPA has responded to the lawsuit, asking the judge to refer the case for Alternative Dispute Resolution, rather than an extensive and costly litigation. As they note in the request:
Reasonable, and not the fire breathing over-reaching agency as portrayed by extremist libertarians, who believe everyone can do anything they want to the water and the air.
Much ado about nothing.
earlier
Last year I wrote about a Wyoming family and the big, bad EPA huffing and puffing at their door. Seemingly, the Andy Johnson family was being threatened with outrageous fines, just for putting in a simple stock pond. A little digging, though, showed that the story was far more nuanced. For one, the family had basically blown off any previous attempts at communication from both the Army Corps of Engineers and the EPA. It wasn’t until the EPA sent a notice of violation did they respond to the communications—by contacting the press and their congressional representatives.
In the story, I foretold of the likelihood of our friends at Pacific Legal Foundation (PLF) being on their way to the Andrew Johnson family’s side. This last week, my fortune telling skills were vindicated, when PLF filed suit in federal court on behalf of the Johnsons. And, as is typical for a PLF court case, the (primarily conservative) media has been inundated with videos and photos of family members, little children, and lots and lots of American flags. An example, complete with strategic American flag placement:
Now the refrain is that the Johnsons are being threatened with millions of dollars of fines, all because they put in a small dam, to create a little pond to water their livestock.
Not.
Let’s revisit the Johnson home, courtesy of Google Maps. The Johnson property boundaries are marked by lines in the satellite image, most likely fences. The first thing we’ll notice is that the satellite image of the area shows that the “little pond” is over an acre in size.
The dock is still there. That’s that white rectangle next to the pond.
It’s a curious thing, this dock. In the court documents, PLF provides a copy of the permit application the Johnson’s filed with the state of Wyoming. In it, the state declares that the permit is “…for stock watering purposes only.” So if the water is for stock watering purposes only, why a dock? Come to that, why does the pond, whose only purpose is to water livestock, need to be stocked with different kinds of trout, ducks, and geese?
As for the livestock, returning once again to Google maps, I checked for the herds of cow, horses, and/or pigs that would necessitate a stock pond over an acre in size.
And I found what looks to be a pen with five animals, either cows, horses, or some other animal about that size.
It is true that cows and horses are thirsty creatures; they need approximately 12 gallons of water a day. But a stock pond with over 5.07-acre feet of water? This is equivalent to 1,652,066.74 gallons. Via a Google search, I found an Army Corps of Engineers document that notes 50 head of cattle only need a stock pond of 3/4 acre. There is absolutely no way that Johnson will have 50 head of cattle on that small 8-acre plot of land.
In their complaint, the PLF lawyers stated the work was exempt as a “construction or maintenance of farm or stock ponds.” But what the lawyers left out is the line that proceeded the listed exemptions, ” Except as provided in paragraph (2) of this subsection, the discharge of dredged or fill material.” In paragraph 2, we find:
(2) Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section
In other words, if you’re maintaining an existing pond, no permit is necessary. If you’re building a new one, however, you need that permit. More importantly, the Army Corps of Engineers needs to ascertain whether the work being done is going to have an adverse effect on the water system.
Now, according to the folks at PLF, the Johnson pond isn’t having an adverse effect on the water system. In fact, according to their court documents (press releases, YouTube video, and so on), as well as an environmental assessment provided by Kagel Environmental LLC, the Johnsons have actually improved the area. But then, the Kagel report also mentions that, in their understanding, any stock pond is exempt from the CWA permit process. Well, we already know this isn’t true, and we’re not experts. But, let’s continue with the report.
In the report, the Kagels noted in their observation that Six Mile Creek terminates in an irrigation channel, and hence does not connect with any water system that would be considered covered under Section 404 permitting. What’s interesting, though, is when you read the permit application the Johnsons made to the state, it does note that Six Mile Creek is a tributary to Black’s Fork River, which is, in turn, a tributary to Green River—a river that transcends state borders and is most definitely under Section 404 permitting.
The Kagels also note that the pond captures the water, but then releases the same volume of water through a spillway. Therefore, they conclude, the pond doesn’t restrict the flow of the water. But artificially inserting spillways and dams into a water can have an extreme impact on the vitality of the water system, as well as an impact on the wild life dependent on it. And it doesn’t change the facts of the case: the Johnsons did dump 12 cubic yards of fill and concrete into the Six Mile Creek without first having such actions vetted by the Army Corps of Engineers.
That 12 cubic yards of material was the amount estimated by the Army Corps of Engineers/EPA. It doesn’t match the 10 cubic yards the Kagels noted in their report. By coincidence, the Kagel estimate places the Johnson discharge just under the limits for Nationwide Permit #18, which allows minor discharges of 25 cubic yards or less, but does require that a pre-construction notification be given to the Army Corps of Engineers for any discharge over 10 cubic yards of material.
The Kagels also claim that the Johnson pond improved the health and vitality of the water system. Returning again to Google Earth, the following are satellite images taken in 2002, 2006, and 2009. Seems to me that creek has always a viable ecosystem that’s natural for the area. No trout, true; but natural.
One other bit in the Kagel report, was a rather odd paragraph in the cover letter for the report:
Before summarizing our site inspection, findings, and conclusions, etc., we’d like to clarify that despite the contention by EPA that they believe the alleged violation site is located in Utah, Mr. Johnson has assured us his farm is located in the state of Wyoming. In a “Letter of Potential Violation” dated May 22, 2013 addressed to Mr. Johnson and signed by James H. Eppers, Supervisory Attorney and Arturo Palomarers, Director, EPA’s Office of Enforcement, Compliance, and Environmental Justice, EPA stated that the alleged violation site is in the state of Utah. It’s therefore reasonable to assume that there may be another alleged Clean Water Act violation in Utah by someone with the same name, or in the alternative, that the EPA simply was unable to accurately identify or determine in which state Mr. Johnson’s farm is located.
This writing is both petty and unnecessarily snarky. That a simple typo would draw forth this paragraph leads one to suspect that there is a degree of personal animosity between Ray and Susan Kagel and either the EPA/the Army Corps of Engineers, or both. A simple Google search proves this to be true: Ron Kagel had sued the Corps, his former boss, related to its actions regarding what it perceived to be conflicts of interest, and what he claims is whistleblower retaliation. In addition, Kagel also claims that the Corps is targeting him in retaliation because of his work with another PLF court case, Sackett v EPA. We don’t know, though, the impact of his work on the case, because it was put on hold for a time. The case was only recently re-opened, and without the same fanfare as the Johnson Pond.
Nothing is ever as simple, or as black and white, as portrayed in press releases and media stories. PLF portrays the EPA as a bully, and Andy Johnson, an innocent farmer. Yet Johnson is a welder, by trade, who stated the pond was for the purpose of livestock watering but then builds a dock and stocks the pond with trout. In addition, in all of the press releases, PLF doesn’t once mention the fact that the EPA and the Army Corps of Engineers actually reached out to Johnson, several times, trying to open a dialog about his dam, and what he could do to mitigate any violation of the CWA.
The EPA has already remarked that it rarely issues the fines mentioned in its violations. It has to mention the applicable fines, though, as part of the legal document process. I’ve followed several EPA cases and even with large corporations, the EPA rarely issues the maximum fines it could assess. Most of the time with smaller cases, it just wants corrective action. But saying things like fines of $37,000 a day, or Johnson is facing millions in fines from the federal government, plays well to those who do little more than skim headlines before getting ready to pull out the pitchforks.
A simple pond is less so if you consider the ramifications to the rest of society. If everyone who had a creek, stream, or river flowing through their property decided to dam it up, what would be the overall impact? Rather than majestic rivers, and crystal clear creeks and streams we can all benefit from, we’d have a succession of stock ponds, geared specifically to each owner’s use, regardless of the impact on others. We’d have court fights, and gun fights, and a great deal of animosity between neighbors.
The Kagels map of the pond shows it stopping at the border of Johnson’s property:
Returning to the Google satellite view of the property, taken in 2014, we can see for ourselves that the water is backing up on to the neighbor’s property. And one thing the satellite images can’t show is how much the creek’s ecosystem has been impacted by having the dam in its path. Or what exactly happens to that flow of water in a dryer year.
I’m not a lawyer, but in my opinion, the court case will be a slam dunk. The Johnsons dumped 12 cubic yards of material into a creek, which ultimately feeds into a river that crosses state borders. They did so without a permit. Rather than work with the EPA or Corps, they turned to the Tea Party Press and exclaimed about the little guy and the big bad federal government. As it is, their pond seems to also be a violation of Wyoming state law, since the Johnson’s are, in my opinion, using it for purposes other than watering their stock. I imagine, though, that Wyoming would just as soon be left out of this bramble broth.
We need to take a moment to remember exactly what the Clean Water Act is for, and why the EPA is enforcing it: both exist to ensure clear, clean water and healthy ecosystems that benefit all of us, not just a few. We can’t continue to get caught up in this David vs Goliath romance, manufactured by libertarian interests who would like nothing more than to see our rivers reduced to a series of privately owned, barb-wire fenced ponds, each with their Stars and Stripes flag, flying high.
Second update
House just can’t wait to pass this bill. It goes to the Floor on Thursday. Note: there is no comparable bill in the Senate.
Update
In the ultimate of ironies, the Senate passed an amendment to their appropriation bill, that would require genetically modified salmon be given a GMO label. How to explain the inconsistencies?
Sen. Lisa Murkowski (R., Alaska)…downplayed concerns that salmon labeling would set a precedent for labeling biotech crops saying, “Corn doesn’t swim from one field to another and propagate with corn in another state. Fish move. Fish escape,” she said.
No, no. No one has ever heard of pollen floating on the breeze and contaminating organic crops.
earlier
How can you tell if Vermont will prevail in the lawsuit filed against its new GMO labeling law, Act 120? Easy: Congress decides to create a national anti-GMO labeling law. More on this in a moment. First, though, a recap on the court challenge.
In April, Judge Christina Reiss issued a decision denying in part and granting in part Vermont’s motion for dismissal, and denying, outright, the *plaintiff’s motion for preliminary injunction. The latter means that when you consider how speedy civil cases of this nature proceed through the court system, Vermont’s GMO label law will be able to go into effect in 2016.
The Judge quickly dismissed the dormant Commerce Clause challenge to the GMO labeling. After all, the basis for this challenge is that a state law must discriminate against out of state interests, and Vermont’s law applies to in-state as well as out-of-state interests. The decision also reflects a growing push-back against the application of the dormant Commerce Clause, possibly reflecting the Supreme Court’s own ambivalence about its application. I particularly liked the Judge noting that Vermont’s GMO labeling law won’t lead to a “patchwork of state laws”, because no other state has implemented a GMO labeling law, and hence, no inconsistency is introduced with Vermont’s law.
The Judge did feel that the plaintiff’s claim about the law’s reference to the use of “natural” on labels was strong enough to warrant denying Vermont’s request to dismiss the Commerce Clause challenge related to it. Yeah, that was one Vermont would have been best to just leave out of the GMO law.
In my original writing on the law, and the legal pushback from Lauren Handel, we felt the strongest challenge to the Vermont law was the Supremacy Clause, and whether the law was expressly preempted by the labeling requirements in the FMIA (Federal Meat Inspections Act) and PPIA (Poultry Products Inspection Act). The FDA’s FDCA and NLEA are both quite amenable to state labeling requirements, so aren’t really a challenge. The FMIA and PPIA, however, do have strict label requirements, and do assume federal authority of said labels.
Vermont was aware of this, and built into Act 120 exemptions related to meat and meat products, which should encompass those products that would be covered under the FMIA and PPIA. Where we felt there was the possibility of conflict was a product like soup. Soup is a manufactured product and, we assume, would be covered by Vermont’s Act 120. Soup can either contain meat products, or not. If the meat content exceeds 3% raw, or 2% cooked meat, then it would be managed by the USDA; otherwise, it’s managed by the FDA. This soup conundrum reflects the truly mish-mash nature of food safety handling in the US.
Since Campbells is part of the group suing Vermont, I fully expected soup to raise it’s head at some point. If it did, though, it quickly ducked. According to Judge Reiss’ decision:
In opposing dismissal and seeking preliminary injunctive relief, Plaintiffs narrow their FMIA and PPIA preemption claims to argue that some GE food products that contain meat, poultry, and eggs which do not fall within Act 120’s exemption for products “consisting entirely of or derived entirely from an animal,” 9 V.S.A. § 3044(1), are regulated for labeling purposes by the FMIA or the PPIA. They identify canned meat and poultry products and pre-made frozen meals containing meat or poultry as examples of products that fall within both statutory frameworks. In their Amended Complaint and declarations, however, Plaintiffs fail to identify even one of their members who produces a non-exempt GE food product that is covered by the FMIA or PPIA.
In other words, something like chicken noodle soup would either be exempt under the Vermont law, or isn’t a food product covered by the FMIA or PPIA. According to the FSIS guidelines:
Although FSIS has jurisdictional authority over food labeling for products containing meat and poultry, the FMIA and the PPIA explicitly authorize USDA (through FSIS) to exempt from its regulatory coverage food products which contain meat or poultry “only in relatively small portion or historically have not been considered by consumers as products of the meat food industry …
Soup is, typically, not considered a product of the meat industry, no matter how much meat it contains. And let’s face it: most canned soups really aren’t brimming with meat.
If there are no products not exempt under Vermont Act 120, but governed by the FMIA and PPIA, the plaintiffs can’t establish standing for this particular challenge. The only reason the Judge did not dismiss the preemption challenge outright is because the plaintiffs argued there may be small food producers who are making such a product who haven’t been identified yet.
We can only imagine food producers all over the country are working late into the night, trying to create and market some product that falls between the infinitely tiny crack that may exist between the Act 120 exemptions, and FMIA and PPIA governance.
Judge Reiss than took on the First Amendment challenge to Act 120. The plaintiffs claimed Act 120 violates corporate freedom of speech because Act 120 is “a politically motivated speech regulation”—it compels political speech. Well, this is just plain rubbish. The Judge agreed, though more tactfully:
A manufacturer who is required to disclose whether its products contain certain ingredients is not compelled to make a political statement even if such a statement “links a product to a current public debate” because “many, if not most, products may be tied to public concerns with the environment, energy, economic policy, or individual health and safety.”
The more compelling challenge related to freedom of speech was whether Act 120’s disclosure requirement is nothing more than just a satisfaction of consumer curiosity. This is what torpedoed Vermont’s statute related to labeling milk that contains recombinant Bovine Somatotropin (“rBST”) or recombinant Bovine Growth Hormone (“rBGH”). However, unlike that statute, Act 120 did raise the debate about the safety of GMO products, in addition to other factors:
Act 120’s “Findings” and “Purpose” extend beyond the mere appeasement of consumer curiosity, and the State emphasizes that it is not making the concessions it made in IDFA. It cites to what it characterizes as an ample legislative record documenting the scientific debate about the safety of GE ingredients and the studies that have produced positive, negative, and neutral results. This record includes studies about the safety of consuming GE plant-based foods, as well as studies about the environmental impacts of GE and GE crops. The State also points to its interest in accommodating religious beliefs about GE, as well as its interest in providing factual information for purposes of informed consumer decision-making.
The Judge did feel the intermediate scrutiny of Act 120 as it relates to the First Amendment was a question of law, and should be debated during the court hearing related to the case. Therefore, Vermont’s motion to dismiss was denied. However, the Judge also felt that the plaintiffs were unlikely to prevail in this challenge in the court, and their request for a preliminary injunction was denied.
Judge Reiss wrote a long, thoughtful, and careful decision. Though the plaintiffs case was not dismissed outright, many of its challenges were dismissed, or had doubt cast on them as to their viability. And that leads us to HR 1559, the so-called Safe and Affordable Food Act, which just advanced from committee to the House floor. How can you tell if Vermont will prevail in the lawsuit filed against its new GMO labeling law, Act 120? Easy: Congress decides to create a national anti-GMO labeling law.
This bill seeks to preemptively undercut Vermont’s Act 120, before it has a chance to take effect. Many of its proponents are people who consider themselves tried and true “states rights” advocates…well, up and until a northern state, like Vermont, passes a bill that goes counter to select interests in their state. Can’t have them uppity Northerners telling nice southern and midwestern corporate boys what to do, no sirree.
Regardless of your stance on GMO and labeling, the bill should give you pause because it seeks to use Congress to bypass state statutes that reflect the interest of the people of the state and that have withstood a constitutional challenge.
That latter is important. Vermont’s Act 120 isn’t seeking to prevent gays from marrying or women from having access to abortion. It’s a statute impacting on commerce that ensures additional information is provided to consumers. More importantly, it’s a statute that has not failed in the courts—has not proven to be unconstitutional.
It has long been the right of states to impose stricter restrictions on commerce, particularly commerce related to food production, as long as such a restriction doesn’t unfairly impact out-of-state interests. Revoking this right because corporate agricultural interests aren’t happy about disclosing certain information is the proverbial slippery step to undermining other state laws related to food production and safety.
Want to drink raw milk? You can in states that allow it, but not in states that don’t, but this could easily change if the raw milk dairies had enough influence in Congress. Want to allow cottage industries to sell meat products or other food items long restricted? Again, no problem…if the industries have enough influence.
Of course, that’s the real key, isn’t it? These other industries don’t have the power to bring about change at the Congressional level, and that’s not a bad thing. But the GMO labeling law impacts on the very powerful, very wealthy, and very influential chemical, biotech, and food manufacturing interests, and therefore, this particular state law triggers Congressional action. And it does so not in the interests of the consumer—it is a deliberate attempt to withhold information from the consumer. Only the powerful benefit from this bill.
Regardless of your views on GMO labeling, you must deplore such an obvious act of buying Congress.
The biotech, chemical, food manufacturing et al interests have their chances in the court. Our Constitution is giving them their chance. They have the ability to bring their best arguments to the table and defeat Act 120…in the court. With this House bill, they chose not to do so. Instead, they’re putting pressure on Congress, and Congress is allowing them to. It’s a dirty move that is no less dirty because you may not agree with GMO labeling.
* The plaintiffs have filed an appeal related to the denial of a preliminary injunction, and asked for expedited handling of the appeal. This request has been granted, with back and forth filings due by September 8th.
My senior psychology research project was about “learned helplessness”, based on the work by Martin E. P. Seligman. He saw it as the underlying basis for depression, while I was interested in its effect on workers.
I have written about learned helplessness in the past. Oddly enough, one of the writings is titled, Learned Terrorism, posted in 2002. Others are The Value of Anger, and What’s the Use?
I would never have dreamed that this theory would become the foundation for a system of torture used by the CIA against US prisoners. All I can say is the practitioners most likely discovered what I did, years ago: you can’t artificially engineer “learned helplessness” directly. Not to the extent these interrogators wanted. You can in dogs, but you can’t in humans. If anything, attempting to do so can have an opposite effect than the one intended. Rather than generate the helplessness that would, somehow, make the prisoners compliant, it could make them even more determined not to cooperate.
For learned helplessness to occur, circumstances have to meet a specific set of criteria. They would have to get the prisoners to internalize the current events; to see themselves as the cause for the negative circumstances. Yet individuals differ in how they internalize negative events–there is no one size fits all technique you can use to create the same effect with everyone. The person would also have to feel nothing they can do will change their circumstances. This runs counter to the seeming desired effect of the interrogators. After all, if you want a person to respond with information in order to prevent negative events, you don’t engineer in them a feeling that no matter what they do, or say, nothing will ever change.
So if they did, somehow, engineer “learned helplessness” in the prisoners, in the hope of showing that the effects can be mitigated by providing data, the prisoners would not have been able to make this association. The whole basis of the theory is that the sufferer would have been unable to see the solution offered. Either the engineering would fail, and the prisoner would dig in, even harder, against cooperating, or the engineering would succeed, and the prisoner would become completely apathetic. In both cases, the prisoner would either say nothing (because of anger or apathy), or they’d say everything—they’d blather along until their captors seemed satisfied with their blather, completely indifferent to any possible negative consequences for giving incorrect information, because no matter what they did, nothing would change.
Unbelievable. Not only was the psychology abused and twisted, it wasn’t even accurately applied.