The U.S. Supreme Court has decided one regulatory case and taken up another that may help further agricultural policies in federal court, according to attorneys speaking at the 2023 Oregon Farm Bureau's annual meeting.

SALEM — Attorneys for the farm industry hope to score legal victories based on a legal precedent that curbed federal climate regulations last year.

In 2022, the U.S. Supreme Court ruled that federal regulators exceeded their power under the Clean Air Act by trying to fight climate change by capping emissions from energy facilities.

With this ruling, the nation’s highest court is thought to have strengthened the “major questions doctrine,” under which transformative regulatory changes should have clear authorization from Congress.

“This is a huge shift in the court,” said Tim Bernasek, an agricultural attorney at the Dunn Carney law firm, explaining the ruling’s impacts at the Oregon Farm Bureau’s annual meeting.

While the ruling in that case, West Virginia v. EPA, pertained to energy production emissions, the court’s decision generally encourages federal restraint — potentially a big help in regulatory challenges facing agriculture, he said.

“I’m excited because I think we have a real opportunity for movement in these areas,” Bernasek said.

Attorneys from around the country are looking for opportunities to “move the needle” to improve farm policies through litigation as part of the Focus on American Agricultural Risk Management program, or FAARM, he said.

“We have a tremendous opportunity in the courts right now to do that,” Bernasek said.

The Supreme Court appears receptive to arguments that federal agencies should not overstep their authority, he said. The farm industry is strategically evaluating which cases to bring to the court to further agricultural policy objectives.

Farm Bureau members are already proficient in communicating the impacts of legislative proposals, but they should similarly mobilize to effect change through the courts, he said. “You have stories to tell.”

Agricultural attorneys will better tailor their arguments to the court based on the “major questions doctrine” principles put forth in the emissions decision, said Travis Cushman, deputy general counsel for litigation and public policy at the American Farm Bureau Federation.

The Supreme Court is increasingly focused on the text of federal laws and what that language is intended to accomplish, Cushman said. The implication is federal agencies shouldn’t be too expansive in interpreting their authority under these statutes.

“Congress does not hide elephants in mouse holes,” he said, paraphrasing former Associate Justice Antonin Scalia.

In general, the nation’s highest court has signaled that legal changes should occur through legislation rather than through executive orders and regulations, which tend to “ping pong” back and forth with each new presidential administration, Cushman said.

“Those things that matter so much, Congress needs to be doing it,” he said.

The Supreme Court has taken up another case that may further rein in federal regulations, Loper Bright Enterprises v. Raimondo, in which commercial fishing companies have challenged government rules, he said.

The case, set for oral argument in January, could potentially lead the nation’s highest court to overturn or alter “Chevron deference,” Cushman said. That refers to the oil company in a 1980s-era environmental case, which established the precedent that courts should defer to the executive branch’s interpretation of a law as long as it’s reasonable.

In the intervening decades, federal agencies have relied on the ruling to greatly expand the administrative state, he said. “This case is challenging this deference doctrine.”

Chevron deference can cut both ways, helping to uphold farm-friendly regulations opposed by environmental advocates, but on the balance it’s not helpful to agriculture, Cushman said. The ruling enables the “ping pong” of changing rules as legal interpretations change with time.

“Chevron allows agencies to twist the law,” he said. “Farmers benefit when the law is consistently applied by its word.”