There was a great deal of noise about the State Department’s release of Hillary Clinton emails yesterday, including the fact that 22 were kept back because they’re now deemed “Top Secret”.The timing couldn’t be worse because of the Iowa caucus on Monday, but in defense of the State Department, much of that is because of a schedule demanded by the Judge presiding over the FOIA request.
I find it unlikely this will have an impact on Clinton’s chances. One day later, the story has dropped from the headlines, probably because there’s been so many email releases, so many exclamations about “confidential information”, yet most of the “confidential” information has been so much ado about nothing.
As an example of that faux confidentiality, the Daily Caller posted an article yesterday about four emails that, rather than undermining Clinton’s credibility, actually provides some of the best evidence supporting Clinton’s claims that she never divulged classified or secret information. In its article, Four Sid Blumenthal Emails in Latest Clinton Release are COMPLETELY Classified, they breathlessly write.
The email is redacted in full, save for the names “Hillary” and “Sid.” The emails are classified as confidential and redacted in full because they contain foreign government information and information related to foreign relations and foreign activities.
When we look at the emails, what we find in each is that Blumenthal sent information to Clinton’s attention. Unless Blumenthal had a higher security clearance than Clinton, we can assume that Blumenthal discovered whatever information he found using either his own sources, or various publications of the day, and he then passed the information on to Clinton.
At no time, did Clinton respond with information back. In fact, other than forwarding a couple of the emails, her only response was to ask a State Department employee when a 100 meters finale was going to be.
I decided to take a look through the other released emails. What I discovered is a) Clinton doesn’t communicate much via email, and b) she really doesn’t know email etiquette. Frequently, someone would send her an email and CC Jacob Sullivan, in the State Department. Clinton would get the email, and then forward it on to Sullivan.
Even more humorous, many of the so-called “classified” emails Clinton received, were sent by the very departments who, I suspect, newly classified them in the recent releases.
As a former Department of Justice official who regularly dealt with classified information, I am glad a team of officials from the FBI, the intelligence community and other agencies is not currently reviewing every email I sent and received while I worked in government. If they did, they would likely find arguably classified information that was transmitted over unclassified networks—and the same thing is undoubtedly true for other senior officials at the White House, the State Department and other top national security agencies.
The same would probably be true for most, if not all, of Congress. I suspect many of our tweets on Twitter, and posts on Facebook, would also fail the intelligence community‘s interpretation of what is classified, secret, and even top-secret.
Yesterday’s top story on the emails has died out today, because you can’t keep crying “wolf” without people demanding to see some actual teeth, and this story is toothless.
During a Twitter exchange with Jonathan Wood, from the Pacific Legal Foundation, Jonathan sent me a link to a Cato Institute article on the armed takeover of the Malheur National Wildlife Refuge. The Cato article condemns the Bundy actions, even as it deplores what it views as an overly harsh penalty for the ranchers (Dwight and Steven Hammond) at the center of the dispute.
The article notes that neither the Bundys nor the Hammonds are exactly poster children for the land use movement:
Property rights advocates who want to change public views need to find ranchers more appealing than the Bundys, who want to overgraze other people’s land without paying for the right to do so, or the Hammonds, whose unauthorized fire on federal lands threatened firefighters’ lives. Without better representatives–preferably ones willing to pay their own way and not rely on taxpayer subsidies–they won’t be able to capture the hearts and minds of the American people, which means the future of ranchers who depend on federal lands is dim.
The article also mentions Section 8 of the Constitution, which property and states rights people continually use to demand that the federal government turn over land to state control.
I can agree with the author, Randal O’Toole in his assessment of the Bundys and Hammonds, but disagree with him about the severity of the punishment the Hammonds received. And I disagree with his reference to Section 8, without mentioning the Property Clause, which does give the government right to own land:
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.
However, even without mentioning the Property Clause, O’Toole does note that the only way to battle federal land ownership is via Congressional action:
The Supreme Court has heard hundreds of cases involving federal land and has never ruled that the Constitution does not allow the federal government to own land in the West. So any battle against federal ownership would have to be fought politically, not in the courts.
Supreme Court decisions have upheld the federal government’s right to own and maintain land, until and unless, Congress revokes this right. And even attempts by President Reagan to sell off all federal land failed. Why? As a Washington Post article notes, private ownership of the land didn’t suit ranchers because they would lose the free ride they’ve had from the government. In addition, environmentalists rose in one body to demand the government stop its actions. And it wasn’t just environmentalists who were alarmed: something about paving over Yellowstone, and putting McDs in the Grand Canyon just doesn’t quite suit the majority of people in this country.
Returning to O’Toole’s criticism of the sentence the Hammonds received, was the punishment unjust?
It’s unfortunate that the law the Hammonds were charged under is named The Antiterrorism and Effective Death Penalty Act, because everyone focused on “terrorism” in defense of the Hammonds. The Hammonds aren’t terrorists, the critics scoffed.
Of course they aren’t terrorists. To call them terrorists is to lessen acts such as the recent shootings in California and Paris. But the Hammonds were tried and convicted, by a jury of their peers, for the following:
Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.
Dwight and Steven Hammond were convicted of deliberately setting a fire on federal land in 2001 that burned 139 acres. In addition, Steven Hammond was convicted of setting fire to federal land in 2006. They both claimed to be burning invasive species, or in the latter fire, protecting a crop of winter wheat. However, it was not their call to make—not only to set fire to federal land, but to their neighbor’s land, when the fire spread; particularly when it comes to a wildlife refuge, where incorrectly set fires could prove detrimental to not individual birds, but an entire species if endangered birds are threatened.
In addition, the 2001 fire was created not to burn invasive species, as the Hammonds imply, but to cover up an illegal deer hunt, according to a relative of the Hammonds who testified against them. They also endangered a three-person fire crew during the 2006 fire, almost trapping them behind a fire line. All of the Hammond fires, not just the two related to the criminal case, ended up costing the government over $600,000. The government sued the pair after the fires, and was able to recover $200,000, but we tax payers ended up footing the bill for the rest. The Oregonian noted the Hammonds paid $200,000 in 2014, and the rest, recently. That still leaves at least $200,000, or more, firefighting costs and damages to the tax payers.
The judge who originally sentenced them claimed that the mandatory five year sentence shouldn’t apply, because the fire was a “wilderness” fire, and in his opinion, that wasn’t what Congress intended for this law. However, I think we’ve all seen enough of “wilderness” fires this last year to know they are deadly, they are dangerous, they destroy homes, pets, people…they can even destroy entire towns. The appeals courts, rightfully, dismissed the unlawful sentencing and imposed the five year minimum.
Here, we need not progress beyond the first step.
Congress has “broad authority” to determine the appropriate
sentence for a crime and may justifiably consider arson,
regardless of where it occurs, to be a serious crime. Solem v.
Helm, 463 U.S. 277, 290 (1983). Even a fire in a remote area
has the potential to spread to more populated areas, threaten
local property and residents, or endanger the firefighters
called to battle the blaze. The September 2001 fire here,
which nearly burned a teenager and damaged grazing land,
illustrates this very point.
Given the seriousness of arson, a five-year sentence is not
grossly disproportionate to the offense.
This wasn’t the Hammonds’ first act of arrogant disregard for the welfare or concerns of others, either. When FWS attempted to build a fence to keep the Hammonds’ cattle out of the Refuge land around a watering spot, Steven Hammond parked a 25-ton Caterpillar earth mover on the fence line and refused to move it. Not only refused to move it, forcibly dropped the earth mover’s shovel near one of the federal employees in an act of intimidation.
The Hammonds were arrested for their actions, but pressure from land-use groups, and Representative Wes Cooley, most likely kept them from being prosecuted.
Cooley would later testify in a budget hearing for the Fish & Wildlife Service that the Hammonds had a successful injunction against the FWS, which would then allow them access to the land, but I can find no record in PACER to corroborate this statement. However, I did find an agreement between the Hammonds and various other organizations, including FWS, related to water rights in the region. This agreement did not specify that the Hammonds had the right to drive their cattle into the FWS land, only that they may divert water during the spring to another reservoir.
The Hammonds also refused to allow federal firefighting crews access to their land so they could fight fires, and tried to get the local Sheriff to arrest the crew for doing so.
As part of the sentencing deal the Hammonds made with the government, they agreed to give FWS first rights to purchase a parcel of Hammond property, but only if the Hammonds had to sell it in order to pay their fines. The Hammonds were able to pay their fines without selling the land, so the new adherence to the minimum sentence had nothing to do with a government attempt to get the Hammond land, contrary to what the land-use fanatics are proclaiming.
Misdirection and misinformation is a hallmark of any of the activities associated with the Hammonds. It is difficult to find the truth, among all the misrepresentations. Enforcing laws against people like the Hammonds isn’t all peaches and cream, either. In the article, Peril in the West: Enforcing Environment Laws Gets Scary, the author begins with:
Someone has threatened to kill Forrest Cameron, and to harm his wife and children.
Cameron, the manager of the Malheur National Wildlife Refuge, knows who threatened to kill him, and why. He doesn’t know who called his home in Princeton, Ore., to harass his wife and daughters. But he assumes it’s for the same reason he says Dwight Hammond threatened to shoot him: because Cameron was enforcing the law.
As for Bundy boys, rather than piss in their own pond, they went to Oregon to piss in someone else’s. And that’s the least negative thing I can say about them.
Photo compilation:
Photos of Malheur National Wildlife Refuge Sandhill Crane: Roger Baker, USFWS Mule Deer: Barbara Wheeler, USFWS Prescribed Burn: Carla Burnside, USFWS Owl: Jim Maloney, USFWS
Arrest photo of Dwight Hammond from article about the arrest in the Burns Times-Herald, August 10, 1994.
My friend Karoli wrote an excellent article on all this fooflah. She has more reach than I do, so hopefully this information will eventually work its way around to the original publications.
There’s enough BS about the Clinton emails without additional false associations.
Because we’re all damn tired of hearing about the Clinton emails.
last update
Confirmed. The documents were issued by the State Department in 2014, in response to a FOIA request by The Telegraph’s Philip Sherwell. They have absolutely nothing to do with Clinton, and were not on Clinton’s email server.
Update:
I believe the Philip Sherwell, who instigated the FOIA request, also is the author of this piece, in the Telegraph. I’ve asked him if this was so, and whether he was familiar with the recent stories. Will update when I hear back from him.
earlier
I noticed a story claiming to be about a “smoking gun” proving that Hilary Clinton knew she had top secret information on her server. They got the information from a Daily Mail story. The story has since been picked up by Newsmax, the Telegraph, the BBC, and many other publications too numerous to list.
It has nothing to do with Clinton, and was not among the documents turned over related to the Clinton FOIA requests. We know this for a fact because the FOIA case number and release date are printed at the bottom of the documents. And it seems that the publications weren’t aware that this story was told previously…in 2006. That smoking gun is looking more like a cap gun right about now.
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:
Johnson did dam the creek without permit
There is no doubt this is in violation of CWA
The reason for the permit process was so the Army Corps of Engineers could evaluate the risk to the environment for a project
Both the Corps and the EPA attempted to discuss the dam with Johnson before issuing the letter of violation
The EPA did have a discussion with Johnson after the letter was issued is unsure why he suddenly broke off discussions (PLF comes to mind)
The EPA has not issued fines and believes there is a solution equitable to all parties, and asked for third-party assistance in ADR
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.
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.
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.
