Sometimes you need to make a federal case out of it

What distinguishes a states’ issue from a federal issue?
One clear example is acid rain.

This was brought home to us last week when we interviewed Altamont lawyer and retired environmental lobbyist Bernard Melewski about his newly published book, “Inside the Green Lobby: The Fight to Save the Adirondack Park.”

The burning of fossil fuels in manufacturing plants, oil refineries, and power plants — often in states far from New York — created sulfur dioxide and nitrogen oxides that were carried by the wind and then would fall as acid rain in the Adirondacks.

Clearly, this is not an issue that can be solved on the state level. While George W. Bush’s clean skies legislation failed in Congress, Bush decided that, instead, the Environmental Protection Agency would pass regulations — the Clean Air Interstate Rule — to control the acid rain.

Melewski said that, “even as those regulations were fought tooth and nail by some parties all the way to the Supreme Court, more than once … there was a significant shutdown of older boilers or them moving from coal to natural gas, etcetera.

“So there was a sudden drop in the pollutants,” Melewski said, making him “very happy that the lakes are coming back or we’re now seeing trout in the lakes that saw no trout for many, many years.”

Asked about June’s Supreme Court ruling, in West Virginia v. EPA, that the EPA could put state-level caps on carbon emissions, Melewski said of the Inflation Reduction Act, passed in August, which is meant to drive global climate action, “In that comprehensive bill that passed with only 50 votes, buried in that was a statement that Congress recognized carbon dioxide as a pollutant.”

Melewski described this as a legislative response from Congress to the Supreme Court decision “that Congress had not given the EPA the authority to regulate carbon. Now it has.”

He added, “There was not a word spoken of this, that I could tell, in the press.”

Under the methane emissions waste reduction program, the EPA must impose and collect a charge on methane emissions from an owner or operator of a facility that emitted more than 25,000 metric tons of carbon dioxide equivalent of greenhouse gasses per year, the act says, and goes on to outline how the fees are calculated as well as exemptions from charges.

Melewski went on, “It’ll be a glacial process. We’ll get challenged in the courts again … but at least they did address the fundamental problem the Supreme Court identified.

He stressed that it will take decades for the environment to right itself. 

As we wrote on this page in July, in the 6-to-3 decision limiting the Environmental Protection Agency’s ability to control power-plant emissions, the Supreme Court said “clear congressional authorization” is needed. We called for a much needed federal response.

We cited a study from Yale Law School, showing that “overrides are a critical component of the Congress-Court dialogue in statutory interpretation cases.”

The Yale study shows how for decades, an interplay between courts and legislatures has been essential to carry out the will of the people.

The majority of overrides of 275 Supreme Court decisions, from 1967 to 2011, were “motivated not by a desire to rebuke an errant Supreme Court decision, but instead by the perceived need to update public policy,” the study found. 

The authors argue that “congressional overrides serve valuable public purposes, for they represent democratically legitimate policy updates and contribute to both good public policy and even the predictable operation of the rule of law.”

Clearly the new Inflation Reduction Act addresses issues, beyond just acid rain, that transcend state lines. They are truly federal issues.

But what about some other issues?

Many Republican leaders have argued that states are closer to citizens and should decide some issues. This month, the New York State Farm Laborer Wage Board, in a 2-to-1 vote, recommended the current threshold of 60 hours for overtime pay be reduced, over the course of a decade, to 40 hours. 

We wrote in August in support of the plan, which is to be phased in over a decade and gives farmers tax breaks to compensate for paying their laborers fairly.

The state’s labor commissioner will have to make her decision just as New Yorkers are voting for their governor but, anticipating the decision won’t go their way, two GOP members of Congress, Jacob Smith of Western New York and Elise Stefanik, representing the North Country, have proposed federal legislation that would kibosh the state’s efforts to pay farm workers like other workers.

The pair put out inflammatory statements in announcing the bill. Stefanik called it a “critical check on Far-Left Democrats who are crushing out Upstate farmers” and concluded, “No farms, no food.”

We believe we’ll still have food if laborers are paid fairly and we’ll feel better eating it, knowing those who work the hardest to produce it are compensated like the rest of us.

Albany County, according to the latest United States Department of Agriculture Census, from 2017, has 440 farms; 94 percent are family farms, and 26 percent hire farm labor. Those are similar to statewide numbers: Of the 33,438 farms in New York State, 96 percent are family farms; 27 percent hire farm labor.

So that would leave nearly three-quarters of our farms untouched by the wage board’s recommendation, if adopted. For the remaining 26 percent in Albany County, those farmers would get tax breaks paying for the wage increases and their farm workers would be better off.

Rather than “jeopardizing New York’s agricultural industry” as Stefanik claims, it may well turn out as it has in California, which implemented, over a decade, overtime pay for more than 40 hours of work a week — without “any negative impacts or shocks to the California farm economy or labor market,” according to Economic Policy Institute testimony to New York’s Farm Laborers Wage Board.

Fair wages may even entice agricultural workers to settle in New York. As one local farm worker told us, “It’s wicked to try to take … the working-class people at the bottom of the food chain who are making the least amount of money and hold them there and say, ‘We can’t survive if you make more money.’”

If our nation were fair to all, there wouldn’t be the many exemptions for agricultural workers that allow employers to pay them less than the federal minimum wage and exempt all farmworkers from the overtime pay provision of the Fair Labor Standards Act — unless states step in.

This is an issue where we believe headway will be best made one state at a time — without irrevocably dividing our union.

But another national issue — women’s reproductive rights — looms along with the fall elections that will determine women’s rights for the foreseeable future.

Republicans this month have done a complete about-face on abortion rights. Intially, after the Supreme Court overturned Roe v. Wade in June, Republican leaders maintained abortion was a states’ issue. Some said women in states with abortion bans could simply go to other states to get full reproductive care.

On Aug. 2, deep red Kansas soundly rejected a ballot measure that would have stripped abortion-rights protections from the state constitution, which may have been a wake-up call for Republicans elsewhere.

At her Sept. 13 White House briefing, press secretary Karine Jean-Pierre said, “I’m going to quote Lindsey Graham from August 7th, 2022.  And he said, ‘I’ve been consistent. I think states should decide the issue of marriage and states should decide the issue of abortion.’ And so there — you know, that’s from his own — his own mouth, and now he wants to do a national ban.”

In the majority opinion itself, Justice Samuel Alito wrote: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.” In overturning Roe v. Wade, he writes, “We … return that authority to the people and their elected representatives.”

American historian Heather Cox Richardson had this to say on Graham’s proposed national ban on abortion in her “Letters From an American”: “When the court ended the recognition of the constitutional right to reproductive rights in June, Republicans tried to manage the backlash by saying that the decision would simply return to the states the right to decide the status of abortion within their boundaries.

“The idea was actually that of enslavers in the 1830s: that true democracy operated at the state level because lawmakers there were closer to their constituents and would represent them better than those at the national level, thus enabling them to dismiss national pressure against enslavement as interference in state rights.”

In May on this page, we compared aspects of the leaked Alito text to the Supreme Court’s 1857 Dred Scott decision, which ruled that our Constitution was not meant to include Black people as citizens regardless of whether they were enslaved or free, and inflamed rather than settled the so-called “slavery issue.”

“A house divided against itself cannot stand,” said Abraham Lincoln in a speech the next year, in 1858. “I believe this government cannot endure, permanently half slave and half free.

“I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided. It will become all one thing, or all the other.”

We believe we are now at a similar point with women’s rights: In response to the Supreme Court decision, federal legislation is needed, but not that proposed by the Republican from South Carolina.

Each of us needs to vote our conscience in November and elect representatives that will craft and pass legislation to guarantee women’s rights.

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