Chevron Deference: Strangling Farmers One Regulation at a Time?
From AgWeb article:
The federal government has a hidden wild card. When farmers face the creep of federal agency regulation, the game is consistently tilted in the bureaucracy’s favor, and although agricultural producers know the deck is stacked, most are unaware of the joker concealed in the government’s sleeve: Chevron deference.
Born of an environmentally-related Supreme Court case (Chevron vs. NRDC) in 1984, Chevron deference allows judges to defer to agency interpretation when “ambiguous language” is found in federal law. (When in doubt, rely on agency judgement.) However, because ambiguous language is splashed across regulatory and environmental law, Chevron deference provides a massive boost to government agency authority. The implications for agriculture are heavy when the same regulatory agency can make and interpret rules.
Chevron deference has a sledgehammer impact on agriculture, according to Roger McEowen, Kansas Farm Bureau Professor of Agricultural Law and Taxation at the Washburn University School of Law. “It’s absolutely huge and has tremendous influence on producer activity and private land ownership. WOTUS and Endangered Species Act (ESA) interpretations are just a couple of examples of how deferring to the governmental agency’s interpretation of the law impacts activity on private property,” he explains. “This is part of an ever-expanding bureaucracy where courts cede authority to an unelected bureaucratic body to decide what the law says. That is the root of the problem and it infects so many areas involving farmers. Frankly, it’s unbelievable.”
McEowen, author of the Agricultural Law and Taxation Blog, says Chevron deference raises fundamental questions of fairness, particularly related to the regulation of agricultural activity. “Farmers have to understand what is happening. The same agency that writes a rule is the same agency called on to judge the rule. If you get in a rule dispute with USDA, where did the rule come from? USDA. Then you appeal to the same people that wrote the rule. Then you appeal to the director of same agency. When you finally get to a court, the judge is going to uphold the agency interpretation of the law at issue unless it is ‘arbitrary and capricious.’ A farmer or rancher doesn’t often win a battle under that standard.”