The long-awaited federal court decision dealing with whether challenges to the EPA "waters of the U.S. (WOTUS)" should first be heard in federal district or in appeals courts was handed down this week, with the 6th Circuit Court of Appeals ruling it will take the first shot at various cases filed against the agency. 

The deal could unravel, however, as the appeals court majority decision is shaky at best.  One judge said he went along with the ruling because of a 2009 court action related to the Clean Water Act (CWA) and pesticide spraying, but that he also believes that case was wrongly decided.  One DC newsletter said the use of the 2009 pesticide CWA case - the National Cotton Council v. EPA - could restart old legal battles over agency permitting requirements.

Cases filed by multiple states, associations and companies argued their challenges should first be heard in federal district courts and then move to the appellate courts if necessary. These plaintiffs may petition to have this week's appeals court decision reheard.

With the clock ticking toward the July 1 effective date of the Vermont genetically engineered (GE) food labeling law, Senate Agriculture Committee Chair Pat Roberts (R, KS) this week postponed markup of his draft legislation in deference to his ranking member, Sen. Debbie Stabenow (D, MI). Rescheduled committee action is set for March 1.

Stabenow has blocked Senate action on any GE food/feed labeling preemption legislation, but asked Roberts to reschedule the February 25 markup because she was floor managing a bill this week to provide emergency aid to residents of Flint, Michigan, and its water system problems. 

Roberts' proposed legislative draft is an elegantly written, seven-page document that would preempt - under USDA's Agriculture Marketing Act (AMA) and FDA's Food, Drug & Cosmetic Act (FDCA) -  local, county and state governments from requiring labels on GE foods, while requiring USDA to create a voluntary GE labeling regime for foods/feeds.  At the same time, the department would be required to work with other federal agencies to publicly promote the safety, humaneness and scientific certainty of biotech-derived foods/feeds and ingredients.  Roberts said he fully expects the draft to be modified during the March 1 markup.

Meanwhile, the Coalition for Safe & Affordable Food (CSAF), agriculture producer groups, feed, and other input suppliers, processors and food retailers led by the Grocery Manufacturers Assn. (GMA), sent members of the Senate Agriculture Committee a letter signed by 652 state and national associations, as well as several companies, endorsing the Roberts draft legislative proposal to provide a federal alternative to a patchwork of state labeling regimes on GE ingredients. 

Industry contends without federal preemption, a patchwork of laws like that in Vermont, would create logistical and financial chaos for food and feed companies.  The Corn Refiners Assn. (CFA) this week released a report showing the Vermont law would increase cost of food production in the U.S. by $82 billion a year, or $1,050 per family.  Under the Vermont law, companies would be fined up to $1,000 per day per product on store shelves not labeled.  The industry also contends food companies will have to build or buy new facilities to keep GE-labeled food products separate from non-labeled products. 

At risk also is the future of agriculture/food biotechnology, say supporters of the Roberts proposal.  Zippy Duval, president of the American Farm Bureau Federation (AFBF) said this week not reaching a compromised solution is not an option. "We need the Senate to act to protect consumers from misleading labels, and an increase...in food prices. We also need to protect farmers and the food industry from a patchwork of state labeling laws...which would stigmatize a valuable agricultural technology and have a chilling effect on future innovation."

Stabenow, who agrees with Roberts on the urgency of a bipartisan federal solution, wants food companies to be required to put on packages information sources by which consumers can easily find out what is in their food.  GMA, developer of a voluntary "Smart Label" program on package information, wants such disclosures to be voluntary, though that position may have shifted in the last 10 days to where food companies may be willing to accept mandatory on-pack labeling if it stops short of a "contains or may contain a genetically modified ingredient" label legend.  Also on the table is an idea that if a voluntary labeling program is agreed to, there would be a sunset provision.  That provision would hold that if a certain percentage of food labels don't carry adequate on-pack information by a certain date, Congress could convert the voluntary program to a mandatory program.

The Michigan Democrat and former committee chair is key to bringing other Senate agriculture committee Democrats on board, and ultimately, getting the bill through the Senate.  On the agriculture panel, key and targeted Democrats who have not yet endorsed the Roberts' approach include Sen. Heidi Heitkamp (D, ND), Sen. Amy Klobuchar (D, MN) and Sen. Robert Casey (D, PA).

Another committee member Sen. Joe Donnelly (D, IN), is clearly frustrated with what he sees as partisan wrangling and the potential for misleading labels.  Donnelly favors federal preemption and giving the industry time to implement a Smart Label-like program, similar to an offer Roberts has made to Stabenow.  Donnelly says if consumers don't think they're getting enough information, then Congress can act.  His office said the Indiana lawmaker "believes we can significantly improve the availability of information for consumers without getting bogged down in partisan debates about sticking misleading labels on every food product or pretending the status quo is acceptable to consumers."  

Committee member and former panel chair Sen. Patrick Leahy (D, VT) vowed to try and block any legislation interfering with his state's labeling law, and he I s joined in that effort by Democrat presidential hopeful Sen. Bernie Sanders (I, VT), a long-time advocate of state food labeling independence.  Sen. Barbara Boxer (D, CA), author of a bill to mandate on-pack GE food labeling, says Roberts doesn't have the support to move the legislation.

Agriculture Secretary Tom Vilsack, who tried unsuccessfully to broker a deal between the CSAF and the Just Label It! coalition led by the Environmental Work Group (EWG), weighed in again this week calling on Congress to strike a bipartisan deal.  He praised Roberts' leadership on the issue, acknowledging the Vermont law would create "chaos" in the food industry.  Long an advocate of on-pack sources of information on food ingredients, Vilsack endorsed the sunset provision being discussed among lawmakers, calling it "the issue that ultimately needs to be decided." He also pointed out that the Roberts' proposal does carry a cost to his department in that he'd be required to conduct consumer education, "and frankly this Congress is not going to give us resources to do it..." 

"While Secretary Vilsack reported the farm economy is strong, many of the farmers and ranchers that we talk to are telling us the opposite," Conaway said. "