In what should be a landmark decision (December 29, 2011) in the ongoing feud between business and the more activist environmentalists, Fresno District Judge Lawrence J. O'Neill ruled against the California Air Resources Board (CARB) in a suit filed by the Renewable Fuels Association and Growth Energy. Both organizations are  proponents of ethanol produced primarily in the Midwest. The ruling will surely cloud the courts for years to come with litigation denser than the carbon layers CARB claims Midwest ethanol would have spread over the Golden State. But the decision also hints that the friskier efforts of dogmatic environmentalists may have reached a zenith, and a return to practicality and reasonableness, not to mention better science, is on the horizon.

The case in a nutshell pitted Midwest corn growers and ethanol producers against the state of California. After several years of research and hearings centered on California's Global Warming Solutions Act of 2006 and the subsequent Low Carbon Fuel Stnadard (LCFS), CARB determined the production of Midwest ethanol was more troublesome to the environment than ethanol produced in California. Judge O'Neill had a different take on it. He ruled the state's LCFS was unconstitutional. In his decision he wrote, "This Court finds that the Low Carbon Fuel Standard discriminates against out-of-state corn-derived ethanol while favoring in-state ethanol and impermissibly regulates extraterritorial conduct."

Neither the litigation nor the court ruling had anything to do with the issue of tax incentives the ethanol industry had been receiving (and which are going away). What was at stake was the health of the Midwest agricultural economy. The California LCFS alone was a serious concern for Midwest corn growers. But an even greater threat loomed when 13 other states with activist environmental agendas confirmed they would enact the same restrictions CARB had come up with to cut greenhouse gas emissions (GHGs). They even bought into California's program without benefit of their own research.

In their zealotry for clean air, CARB officials either overlooked or disregarded the consequences their policies would have on a significant sector of the nation's economy. CARB also took an egregious misstep in its march to cleanse California skies of GHG pollutants (which catalytic converters had already done a pretty good job of since the 1970s). It may not have been a factor in Judge O'Neill's decision, but the overstep points to the arrogance typical of many (not all) people and agencies involved in environmental policy matters.

Case in point: A research model prepared in 2009 by Purdue University's Department of Agricultural Economics to help CARB justify its introduction of stricter regulations on carbon dioxide emissions in California was drastically modified in 2010. The modification came about after a year's worth of pushback from concerned scientists criticizing Purdue's data and presumptions. It seems the modelers who were tallying the release of CO2 from indirect-land-use- change did not factor in important market data or by-product information and omitted key weather events and actual yield records in calculating amounts of ethanol feedstock as it related to GHG emissions. Those miscalculations resulted in exaggerated estimations of corn ethanol's GHG emissions. By almost 72 percent. Oops.

The Purdue research team explained its new, lower estimations of GHGs would be "roughly a quarter of the only other published estimate of releases attributable to changes in indirect-land-use." By the way, that "only other published estimate" was theirs. With a dramatically lower incidence of GHG emissions finally attributed to corn growers, you'd think California would have initiated a complete review and overhaul of its stiff regulations. It didn't.  But Judge O'Neill's ruling might nudge California to do the right thing.

Yesterday, President Obama paid a call to the Environmental Protection Agency's headquarters . The reason for his visit, NPR reported, was to shore up morale and lift the spirits of staffers whose work and purpose has been questioned lately, especially by GOP presidential hopefuls during the primary debates. Oh, boo hoo. Apparently the potshots fired by GOP contenders have stung the agency. Nevermind that the EPA has taken the exercise of its duties to the limits of its authority. Even beyond in some instances, critics argue. The morale and spirits that need to be raised belong to responsible individuals, industries, companies, as well as consumers, whose livelihoods and pocketbooks are hurt disproportionately to the benefits EPA regulations are supposed to produce. 

Late last summer industry chalked up one in the 'win' column of the "Economy vs Regulators" standings when President Obama asked the EPA to withdraw an air-quality rule business groups said would cost millions of jobs. The EPA wanted ozone standards tightened to 60-70 parts per billion, down from the 75 ppb proposed by President George W. Bush but never put in place. Most states currently adhere to a level set in 1997 of 84 ppb.

At the time, Jack Gerard, president of the American Petroleum Institute, was hopeful the White House was "becoming more sensitive to the uncertainty created by its heavy regulatory hand." As would be expected, environmentalists had another take. "The White House is siding with corporate polluters over the American people," said Frances Beinecke, president of the Natural Resources Defense Council. "The White House now has polluted that process with politics." 

The environmentalist's view is overstated. Congress is facing 219 major regulation proposals, each with an estimated cost to the economy of $100 million or more. And the White House concedes seven of those will each have a price tag of at least $100 billion. The Administration has also increased the number of regulation proposals (environmental, financial and so on) it is drafting by 15 percent, and bumped up the budget for regulatory agencies 16 percent.

As it stands now, the score at the end of 2011 is actually one victory for business and the economy and 4,200 for the regulators. That's right. Along with the 219 big ticket regulations, the Administration admits another 4,000 new or revised regulations are in the pipeline. 

It's bad enough that the expanding array of government regulations costs the American economy $1.75 trillion annually, which the Small Business Administration also calculates as more than twice the amount of revenue collected each year from individual income taxes. While large and small U.S. businesses grumble about the expense, tediousness and inconvenience of compliance, it seems some of the beneficiaries of the regulations, especially those in the wild, are, well, ungrateful.

Two decades after six million acres of federal forests in the Northwest were closed to logging by the Endangered Species Act in an effort to restore the spotted owl population, these nocturnal birds of prey don't seem to have got with the program. They are vanishing at an average rate of 3 percent a year and 9 percent in some parts of the preserve. In the meantime, 200 sawmills in Oregon alone are out of business. Unemployment there is 20 percent, and the unmanaged forests have become firetraps. The 2002 Biscuit Fire in southern Oregon and northern California burned 500,000 acres, cost $150 million to fight and destroyed $5 billion worth of timber. It also resulted in the deaths of an estimated 75 pairs of spotted owls.

Biologists admit they don't really know what is behind the spotted owls' demise. But some suspect the hoot owl, a fierce rival, is preying on its cousin. So, despite Mother Nature's settled law, i.e., natural selection, survival of the fittest, the U.S. Fish and Wildlife Service is pressing on with a final Revised Recovery Plan issued this past summer. The Plan sets aside additional acreage for the spotted owls and calls for shooting the hoot owl.

As the U.S. prepares to withdraw most of its troops from Iraq by the end of the month, is the nation really prepared for an incursion of armed federal agents into the Northwest forests on a search and destroy mission against hoot owls? By the way, the price tag for this Revised Recovery Plan is $127 million, and the Fish and Wildlife Service only ventures to say it might restore the spotted owl population in 30 years.

A priest, a rabbi and a lawyer run into a pack of pittbulls. The dogs attack the two clerics but ignore the lawyer who asks why he's been spared a mauling. One of the dogs shrugs and says, "Professional courtesy."

Okay, that's a cheap shot at the lawyers. But attorneys have been currying favor with dogs and animals of all colors and stripes in earnest for almost 20 years. Animal law is one of the fastest growing areas in the legal profession. In the mid-1990s only two law schools offered courses focusing on animal law. Currently around 100 schools list classes specializing in it. The Animal Defense Legal Fund (ADLF) was relatively small 15 years ago, but now has chapters in at least 124 law schools and claims to have 100,000 members. Animal law actually can be traced back 4,000 years to Hammurabi's time when his Code set reasonable fees for livestock owners to pay animal health care providers; but it threw the book at those caregivers if the animal's condition worsened or it died.

Animal law embraces a wide range of legal discussions exploring the rights of animals on a philosophical level and draws up guidelines for adjudicating the rights of those who own and use animals. Overall, legal scholars and animal law experts are not grandstaning pettifoggers advocating for a pet whose inheritance of a fortune from its eccenctric deceased owner is being contested by surviving family members shut out of the will. Rather, lawyers who take on animal cases are practicing in the usual areas of contract, tort, criminal and constitutional law. Typical cases involve animal custody disputes in divorces and separations; veterinary malpractice; housing discrimination where 'no pet' policies exist; damages for wrongful death or injury to a companion animal; enforceable trusts for companion animals; criminal law comprising domestic violence and anti-cruelty laws.

Some advocacy groups, however, have been using legislation and litigation to press an agenda of animal rights that sometimes boarders on the extreme and unnecessary. The Humane Society of the United States (HSUS) works with and funds regional and local animal welfare organizations to get propositions such as California's Prop 2 (in 2008) and Missouri's Prop B (in 2010) on the general election ballots. In 2009, states passed 121 new animal rights laws, and 93 state initiatives were approved at the polls in 2008.

What altruistic local animal welfare proponents care about, however, does not necessarily mesh with what a HSUS/PETA-type organization has in mind. HSUS and PETA, say their more outspoken critiques, want to eradicate  animal agriculture and the ownership of animals for companionship, labor, food, sport and research. The head of the HSUS has noted that the animal rights movement was "essentially in a pre-regulation phase in dealing with animals reared for food." The group's goal is to extend the federal Animal Welfare Act to include farm animals. Currently, the Act's jurisdiction covers only the treatment of pets and lab and zoo animals.

While animal rights groups have made inroads toward that goal one piece of legislation at a time, the agriculture industry and the academic law community is starting to throw up roadblocks. The legal profession is floating the notion that societies ought to be "centering on human responsibility" rather than on regulation to protect animals, and that "may well be an appropriate reason to adopt [only] some of the less extreme animal protections sought by animal rights activists." (Law Professor Richard L. Cupp, Jr., Pepperdine Universtiy; San Diego Law Review, Vol. 46, 2009.

Bravo, for that line of thinking. But what are we to make of such antics as PETA's latest? And I'm not talking about  its ad campaigns featuring nudes with fruit and vegetables strategically shielding certain body parts.The PETA Vice President for Policy is calling for an animal-friendly adaptation of the New International Version (NIV) of the Bible which  was introduced in 1966 and updated earlier this year. He wants "speciesist' language removed, and the text to refer to animals as he or she instead of it. Will PETA sue to change the word of God if the Bible is not redacted to its liking?





 

Second In a Series

Animal welfare is a human responsibility that encompasses all aspects of animal well-being, including proper housing, management, disease prevention and treatment, responsible care, humane handling and, when necessary, humane euthanasia. Animal rights is a philosophical view that animals have rights (equity,independence and advantage) similar to or the same as those humans enjoy. Dogmatic animal rightists believe  humans do not have the right to use animals at all. For these purists the bottom line is a general ban on all use of animals by humans whether they are used for food, clothing, sport, labor or companionship.


Animal welfare groups stand for several traditional ideals that historically have defined the relationship between animals and humans. First and foremost, they seek to improve the treatment and well-being of animals, but they believe humans can interact with animals in entertainment, industry, sport, recreation and industry as long as the interaction includes provisions for the proper care and management for all the animals involved. At the same time animal welfare advocates support self-regulation of animal sports such as polo, rodeo, three-day eventing, FFA competions, horse racing, field trials and endurance riding. They also utilize scientific research and medical evidence to develop animal care and handling guidelines.

Animal rights proponents, on the other hand, have a harshly different picture of the 'animal kingdom' and occasionally countenance radical means to bring their view into focus. They initiate, draft and support laws and regulations that would prohibit rodeos, horse racing, circuses, hunting, life-saving medical research using animals, raising livestock for food, petting zoos, marine parks, breeding purebred pets and any use of animals for industry and entertainment. Violence, misinformation and publicity stunts have been justified in achieving their ends, and they consider such activities as valid use of funds donated to their tax-exempt organizations. Some members of these groups have indicated they are comfortable with arson, vandalism and assualt to further the cause of animal rights. Groups such as the Animal Liberation Front have been classified as terrorists by the FBI.

Next up in this series: Animal law is one of the fastest growing areas in the legal profession.


 

FIrst in a Series:
You're not going to give your five-year-old the car keys and ask him to pick up his younger sister from daycare. So why would you cozy up to animal rights groups which ultimately want you to let your five-year-old Lab out to pee, and then have him sashay off into a world where there is no animal ownership? Because maybe you're not aware that animal rights activists often pose as animal welfare advocates? But have a completely different agenda.

 
In a series of posts starting here, we'll take a look at the differences between animal rights and animal welfare. The philosophical postions are starkly distinct. Animal rights supporters, embodied by such organizations as People for the Ethical Treatment of Animals (PETA) and the Humane Society of the United States (HSUS), maintain that humans and animals are virtually equal and should have the same rights. They renounce the use of animals for the benefit of humans whether it is for food, labor, sport, clothing, research and companionship.

Supporters of animal welfare, on the other hand, represented by groups like the American Veterinary Medical Association (AVMA) and the American Society for the Prevention of Cruelty to Animals (ASPCA) endorse the responsible used of animals to satisfy certain human needs. They work to ensure animals' basic needs are fulfilled in terms of food, shelter and health; and that animals experience no unnecessary suffering in their service to humans.  Animal welfare champions further argue that giving equal rights to animals will not provide for their well being.

As interest in the humane treatment of animals grows, media coverage tends to lump animal lovers and animal rights activists together. "The popularity of the phrase animal rights activists rather than something like animal welfare activists  reflects an increasing focus on animals as potential bearers of rights rather than on humans as bearers of responsibility for the welfare of animals they control," writes Richard L. Cupp, Jr., of the Pepperdine University School of Law. In the introduction to his paper Moving Beyond Animal Rights: A Legal Contractualist Critique published in May 2009, Cupp noted that legal reforms regarding animals are "better suited to social contract ideals than to the creation of new rights." He suggests a formal code of rights would be "harmful to both humans and, ultimately, to animals."

Over several installments, we'll examine the entire landscape of the animal rights/animal welfare discussion: the rapidly growing field of animal law how activists use ballot initiatives to move their not-so-transparent agendas forward, among other issues.

While a change in the majority in the House of Representatives along with a new speaker has put a different face on the 112th Congress, the impact it might ultimately have for agriculutre could emerge from subtler factors. Scott Shearer, vice president of the Bockorny Group, a leading bipartisan government affairs consulting  firm in Washington, D.C., described the last general election as historic with its huge turnover of legislators: 96 freshmen representatives were sworn into the House and 16 to the Senate. But just because many of the new legislators are Republicans from agricultural states, agribusiness shouldn't be looking for automatic guarantees or favorable legislation to come its way. For one thing, redistricting in many states has resulted in representation of agriculutral regions by lawmakers with no direct connection to farming, ranching and food animal production. There are 23 new members on the House Ag Committee, and 60 percent of the current committee did not serve on it  during the 2008 Farm Bill discussion.

As he addressed attendees at the February meeting of the Agriculture Business Council of Kansas City, Shearer implied agriculture could find itself on the backburner as Congress focuses on righting the economy and prioritizes foreign policy, health care, trade and oversight/government regulations ahead of ag issues. This latter concern, however, might be a bright spot for agriculture. With more Republicans in the House, he indicated there could be aggressive hearings on how regulations are hurting the economy and causing job losses. Shearer mentioned EPA's Lisa Jackson might want to get a permanent place on the Hill, since she could be spending a lot of time there answering questions.

Uppermost on the minds of the lawmakers involved in the 2012 Farm Bill is the regular list of aggie issues: input costs, commodities (acreage, yields, prices), dairy, crop insurance, CRP, as well as livestock issues of export competition, animal welfare, food safety and anitbiotics. As for anitbiotics, he noted, the issue has been around for ten years and won't be going away soon. But with the turnover in Congress bringing in more representatives who are unfamiliar with animal agriculture but are weighing in  on the issue of whether anitbiotics should be given to food animals as preventative health care could be a problem for the industry.

Proponents of antibiotic use in food animals argue the meds prevent animal disease that could be transported to humans as food-borne diseases. When antibiotics are routinely given to food animals they generally are healthier overall, and because of that they grow larger faster.Opponents fear the anitbiotics given to food animals are done so only to promote faster growth (and earlier entry to the market at higher weights, which translates to higher prices). When the meat is consumed by humans, says the anti-antibiotic crowd, their systems can build up resistance to antibiotics which may be called on at some time  to combat a disease the person has contracted. So far, the science has come down in favor of food animal producers who use antibiotics to keep their animals healthy. But public sentiment has been roused by anti-agriculture forces who argue that the distant, faint potential of developing resistance to life saving, healing antibiotics is more dangerous than the probability of coming down with a food borne disease carried by a sick animal that went untreated by antibiotics.

Under the weight of the negative press about agricultural practices and the proliferation of anti-agriculture ballot inititatives sponsored by animal rights and so-called consumer advocates, agribusiness has taken an image beating in the last couple of years. But the farmers are fighting back, finally, with campaigns  organized by agribusiness giants such as Monsanto and groups like the U.S. Farmers and Ranchers Alliance which has organized more than 20 separate ag associations to show how farmers have been practicing responsible land stewardship, conservation and animal care long before "sustainability" became a regular but misinterpreted  term in the lexicon of the environmental movement.  For more information go to: www.usfraonline.org


 

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Forget the old chestnut about politics being the art the possible.  The way senators and representatives – not to mention their constituents – have conducted  themselves  in the  last several  Congressional sessions,  politics is nothing but a logjam.  It might require an act of God to get effective government going again. So, as the 112th Congress convenes this week, let’s hope He lets  the laws of physics exert their rightful dominion over all things that move, separate, collide, inflate, combust, freeze, thaw, oxidize and whatever else they do in the physical universe.

Earlier in the decade the ideological pendulum swung so far to the right it was inevitable that the equal and opposite leftward reaction would hardly be balanced like it is supposed to be under natural law. Politics yawed sharply to the left when Democrats  grabbed the House gavel for the 110th Congress in 2007, and then took an even  sharper angle in that direction during the 111th session in 2009.  But maybe that was a good thing. Maybe the inevitable opposite reaction back to the right will only have enough steam to move ideology and government back to the middle where prudent legislation has a chance of getting passed.

The federal  budget is the  primary issue facing the new 112th Congress  in 2011 and 2012. Until the budget is addressed with reasonable discussion of the situation and realistic assessments of how spending can be controlled and income increased, not much else can be undertaken in terms of providing services, entitlements and security.

Entitlement programs  account for about 55 percent of the federal government’s budget. Social Security and Medicare alone represent a third of the federal budget. They continue to operate whether tax money is available or not. Legislators will have to control these costs through a combination of re-qualifying  recipients  and possibly reducing benefits.  Then they have to convince Americans of the fairness and judiciousness of their plans.

Defense represents 20 percent of the budget; but in these dangerous times cutting defense appropriations is not to be approached frivolously.

Appropriations for discretionary programs and the multitude of government agencies like the EPA, FDA, FBI add up to around 20 percent; and the amounts each program receives are evaluated annually.  The remainder of the budget is targeted for administrative and miscellaneous activities.

It seems the greatest opportunity to cut spending and get federal finances back on an even keel is in the area of entitlements. While everyone should be able to admit that programs like Social Security need to be reformed – that it can’t go on forever without re-structuring  –  it is just as important for everyone to approach the debate with informed views that take into consideration the reasonable concerns  of all interest groups. Realistically, though, legislators will probably take their shot at controlling government spending in the discretionary program sector. These programs are budgeted on an annual basis, and the order can go out that all departments have to cut their costs by “x” number of percentage points. Just like in the real world of business and homemaking.

The financial situation of the country could be worse than it appears. Despite their hue and cry about the  growing deficit and swelling national debt, the Tea Partiers’ strident protests could actually be understated.  The government caught a fiscal break in a sense, thanks to the Federal  Reserve’s low interest rate policies that were instituted in hopes of countering the effects of the 2008 economic meltdown. Instead of seeing debt service payments spike as the nation’s debt burden climbed 36 percent to $13.5 trillion, the U.S. treasury actually saved $202 billion of estimated interest obligation when rates were slashed. But that type of good fortune doesn’t last very long in bad times; and there could be a brutal hangover if all the factions of Americans and their lawmakers don’t come together to make some mutually painful decisions.