Environmental
Governor DeWine recently signed H.B. 15, which repeals parts of the controversial energy bill passed in 2019, H.B. 6. Introduced by Roy Klopfenstein (R, Haviland), H.B. 15 specifically repeals subsidies for coal-fired power plants introduced in H.B. 6, but it also does much more to promote energy production within the state of Ohio.
H.B. 15 is wide-ranging, but certain provisions may be of particular interest to Ohio agriculture and those living in rural areas of the state. The bill allows county commissioners, municipal corporations, or townships to adopt legislation requesting that the director of the Ohio Department of Development “designate the site of a brownfield or former coal mine within the subdivision’s territory as a priority investment area.” When considering the designation of a priority investment area (PIA), the director of the Ohio Department of Development is required to “prioritize the designation of areas negatively impacted by the decline the coal industry.” Under the law, the property becomes a PIA when the Director of Development notifies the local legislative authority, or within ninety days if no notification is sent. Once designated as a priority investment area (PIA), a property will be exempt from taxation for five years, which encourages public utilities to use the property for energy development. The law also requires the Power Siting Board to adopt rules for the accelerated review of energy projects located in an approved PIA.
Agricultural commodity groups like Ohio Corn & Wheat, as well as environmental groups like the Nature Conservancy, have praised the bill, noting that generating power on brownfields and former coal mines will have the added benefit of protecting farmland and native habitats. The thinking is that with more PIAs available for energy generation and accelerated approval from the Power Siting Board of PIAs, the need to use farmland and other areas for renewable energy projects would diminish. Instead, under the new law, political subdivisions and energy generators would be incentivized to use brownfield and former coal mine land that has already been developed, helping Ohio to both protect farmland and meet the demand for more energy generation. H.B. 15 will go into effect on August 14, 2025. The bill is available in its entirety here.
On April 9, 2025, the Ohio House of Representatives passed its version of the state’s biennial budget, also known as House Bill 96, which introduces substantial revisions to Ohio’s pesticide application laws. These updates aim to bring the state into closer alignment with current federal regulations and carry significant implications—particularly for family farms that involve youth workers. As the school year ends and more minors begin working regularly on farms, the timing of these proposed changes raises concerns about how they may limit the roles young people can legally perform—especially when it comes to pesticide-related tasks.
Changes on the Horizon?
One of the most notable changes is the proposed restriction that only licensed commercial or private pesticide applicators may “use” Restricted Use Pesticides (“RUPs”). This would eliminate the previous allowance for trained service persons, immediate family members, or employees to apply RUPs under the direct supervision of a licensed applicator.
Additionally, House Bill 96 expands the definition of “use” of RUPs to include not only the act of application but also:
- Pre-application activities such as mixing and loading;
- The application itself, performed by a licensed commercial or private applicator;
- Other pesticide-related tasks, including transporting or storing opened containers, cleaning equipment, and disposing of leftover pesticides, spray mixtures, rinse water, containers, or any materials containing pesticides.
The bill makes clear that no individual may use RUPs unless they are properly licensed under Ohio law, reinforcing the importance of formal certification for anyone involved in pesticide handling.
What Does this Mean for Youth on the Farm?
Under current Ohio law, immediate family members—including minors—are permitted to apply RUPs as long as they are under the direct supervision of a licensed applicator. For years, agricultural families have relied on this exemption to allow youth to assist with farm duties involving pesticide use. However, the proposed changes in House Bill 96 would eliminate this exception by requiring that anyone handling RUPs be individually licensed. Because Ohio law mandates that pesticide applicators be at least 18 years old, minors would no longer be permitted to perform any pesticide-related tasks, even under direct supervision. Of course, this provision is not just geared toward youth on the farm—it also affects employees and trained service persons who previously operated under a licensed applicator’s supervision. If the proposed changes go through, a violation of the law could result in significant civil penalties.
Given the proposed changes in House Bill 96, it’s an appropriate time to take a broader look at the full range of youth labor regulations that apply to farm work. While pesticide use is just one area impacted by legal restrictions, there are numerous federal and state laws that govern what tasks minors can perform, what equipment they can operate, and how many hours they can legally work—especially during the school year versus summer months. These rules can vary based on the age of the minor and their relationship to the farm owner. With regulatory changes potentially tightening in one area, it’s essential for farm families and employers to ensure they are in compliance across the board to avoid penalties and ensure safe, lawful participation of youth in agricultural work. Read more about employing youth on the farm here.
Next Steps
Farm families and employers should begin preparing for the upcoming changes to Ohio’s pesticide rules. While these changes aren't law yet—they won’t take effect until the Governor signs the bill—they are needed to align Ohio’s regulations with federal law. If Ohio wants to keep its authority to enforce the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), these updates are a forgone conclusion.
To review the specific pesticide-related provisions in House Bill 96, begin on page 903 of the bill text. Alternatively, for an overview of the proposed budget and potential changes, you can consult the summary prepared by the Ohio Legislative Service Commission.
Tags: pesticides, restricted use pesticides, youth labor, Labor and Employment, minors on the farm, pesticides and minors.
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Part 3 in our series on Carbon Capture and Storage
As expected, proposed legislation to allow for carbon capture and storage wells (CCS) was introduced this week in the Ohio General Assembly. The legislation opens the door for CCS underground injection wells to store captured carbon dioxide in “pore space” or cavities far beneath the land’s surface. As we explained in Part 1 and Part 2 of our CCS series, CCS technology removes carbon dioxide from the atmosphere to reduce greenhouse gas emissions and can also trigger final production in an oil or gas field. If passed, the new law would affect agricultural landowners, who could be asked to lease their “pore space” for CCS projects.
The identical CCS bills introduced in the Ohio House of Representatives and Senate are H.B. 170, sponsored by Rep. Monica Robb Blasdel (R-Columbiana) and Rep. Bob Peterson (R-Sabina) and S.B. 136, sponsored by Sen. Tim Schaffer (R-Lancaster) and Sen. Brian Chavez (R-Marietta). The proposal varies in several places from a bill introduced late last year, the result of “fine tuning” by interested parties over the winter, according to Rep. Blasdel.
The proposed legislation includes clarification of the pore space property interest, a regulatory framework and fees for injection wells, consolidation or “pooling” provisions, well closure procedures, and liability provisions for carbon dioxide migration.
Clarification of “pore space” as a real property interest
Currently, Ohio does not have statutory laws that recognize pore space as a real property interest. The proposal would change that by recognizing that the owner of surface lands and water also owns “all pore space in all strata below the surface lands and waters.” The definition of “pore space” is “subsurface cavities and voids, whether natural or artificially created, that are suitable for use as a sequestration space for carbon dioxide.”
The proposal also addresses conveyancing of pore space, stating that a conveyance of surface ownership also conveys the pore space interest unless the pore space is expressly reserved or severed from the surface interest. This means a landowner could sever pore space rights and convey those separate from the surface, as Ohio law currently allows with minerals. A severed pore space interest would have priority over the surface interest. The proposal also addresses the relationship with mineral interests, stating that severed mineral or oil and gas interests would be dominant over pore space rights.
Regulatory framework for CCS injection wells
The proposed legislation would place state regulatory authority over CCS storage facilities in Ohio’s Division of Oil and Gas Resources Management in the Ohio Department of Natural Resources (ODNR). Note that the federal Safe Drinking Water Act also requires CCS injection wells to have a Class VI injection well permit from the U.S. EPA, although with the passage of the proposed bills, Ohio hopes to receive approval from the EPA to administer the state’s Class VI permit program.
The bills directs ODNR to adopt rules for CCS. At a minimum, the rules must include:
(1) Requirements for the operation and monitoring of a carbon dioxide well;
(2) Safety concerning the drilling and operation of a carbon dioxide well;
(3) Spacing, setback, and other provisions to prevent storage facilities and storage operators from impacting the ability of owners of oil and gas interests to develop those interests;
(4) Protection of the public and private water supply, including the amount of water used and the source or sources of the water;
(5) Fencing and screening of surface facilities of a carbon dioxide well;
(6) Containment and disposal of drilling and other wastes related to a carbon sequestration project;
(7) Construction of access roads for purposes of the drilling and operation of a carbon dioxide well;
(8) Noise mitigation for purposes of the drilling of a carbon dioxide well and the operation of such a well, excluding safety and maintenance operations;
(9) Liability insurance to pay damages for injury to persons or property caused by the construction or operation of the storage facility;
(10) Liability insurance coverage of at least fifteen million dollars to cover bodily injury and property damage caused by the construction, drilling, or operation of wells, including environmental coverage.
(11) A surety bond sufficient to cover corrective actions, plugging, post-injection site care prior to receipt of a certificate of project completion, and emergency or remedial response.
The proposed law also states that ODNR may require a CCS storage well operator to deploy a seismicity monitoring system to determine seismic activity in the carbon storage area and requires a well operator to show that owners of oil and gas will not be adversely affected by the well. Both the well operator and the well owner would pay fees to ODNR for the amount of carbon dioxide stored in the well.
Consolidation or “pooling” of pore space
If a well operator can’t obtain the consent of all pore space owners within a proposed storage area, the legislation would allow the operator to apply for “consolidation” if the operator has consent from at least 75% of the pore space owners. The remaining percentage of pore space owners could be “forced” into the project if ODNR determines that the consolidation is “reasonably necessary to facilitate the underground storage of carbon dioxide.” Provisions would also address how to compensate the pore space owners.
Well closure
After carbon injections into a storage facility have ended and a period of 50 years passes, a storage operator may apply for a certificate of closure. If the operator can establish full regulatory compliance and that there is no potential of migration or threat to public health or the environment, the state may issue a certificate of project completion that releases the operator from regulatory requirements and transfers the primary responsibility and liability for the stored carbon dioxide to the state. An operator could remain liable, however, under several circumstances, such as criminal acts, providing deficient or erroneous information, or violating duties.
Liability
The proposal clearly protects owners of pore space and owners of surface or subsurface property interests from liability relating to the injection of carbon dioxide into a storage facility. It also limits any claims for damages against a storage operator to instances where the claimant can prove that the carbon dioxide injection or migration obstructed the free use of property, or caused direct physical injury to an individual, animal, or real or personal property. The bill prohibits awarding of punitive damages if the storage operator acted in compliance with the required permit, and limits damages for personal or real property to the “diminution” or loss of value of the property.
How will the legislation affect agricultural landowners?
Our next article in the Carbon Capture and Storage series will focus on issues agricultural landowners need to consider if the CCS legislation passes. Watch for Part 4 on CCS soon, along with continued updates on the progress of Ohio's CCS legislative proposals.
Tags: carbon capture and storage, CCS, carbon dioxide, pore space
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Note: The following article was written by Sarah Hoak, an undergraduate student in the College of Food, Agricultural, and Environmental Sciences at Ohio State. Sarah was a student in the Agribusiness Law Class at OSU this past semester. Sarah researched and wrote this article to expand her knowledge and understanding of pesticide use policy, a topic of great interest to her.
On August 20, 2024, the EPA announced its final Herbicide Strategy. Many in the agriculture community are wondering what the strategy is, how it came to be and what it means for the industry.
The herbicide strategy is one part of the EPA’s workplan to protect endangered species. It was created in response to multiple lawsuits filed against the EPA for failure to comply with the Endangered Species Act (ESA) by not conducting mandatory consultations under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). FIFRA is the primary federal law that regulates pesticide use in the U.S. and prevents the sale or use of a pesticide in the United States until the EPA approves and registers a label for the product. After a pesticide label is approved, the EPA must review the label every fifteen years to ensure that it continues to meet federal requirements with regards to the environment and human health. However, the EPA has struggled to complete ESA consultations when registering pesticides or reviewing their labels. Just one ESA consultation can take years to complete, and time adds up when there are over 17,000 registered pesticide products on the market.
To better comply with the ESA and reduce the risk of more litigation, the EPA drafted the Herbicide Strategy. This policy was designed to start the protection of endangered species earlier in the regulatory process. Instead of acting after the fact, the strategy aims to mitigate herbicide exposure to endangered species at the start. The strategy lays out a set of mitigation guidelines that growers and applicators will need to follow as they apply an herbicide. These mitigation practices will help limit herbicide exposure to endangered species. A draft policy of the strategy was released in 2023 and underwent the public comment process. Because the EPA is a government agency, they have the power to make and enforce regulations. The public can share their input on drafted regulations during the “comment period,” which is a 30–60-day time frame where government agencies will hear comments from the public1.
The comments that were submitted for the draft herbicide strategy expressed concern about the restrictiveness and complexity of the policy. The EPA took these comments into account and made changes so that the final policy is easier to understand, includes more flexibility for pesticide users and reduces the amount of additional mitigation needed.
The final policy, taking into account public comments, focuses on targeting pesticide exposure from off-target movement including spray drift, erosion and runoff. The EPA will use a three-step decision framework to implement the policy. The first step compares and identifies a herbicide's potential to have population-level impacts on endangered species as either not likely, low, medium, or high. This step sets the bar for how much mitigation is needed for use of each herbicide.
The second step will determine the level of mitigation needed to sufficiently reduce spray drift, runoff and erosion exposure to listed species. For spray drift exposure, mitigation will primarily be based on buffer distances, and the distance will be determined by a herbicide’s classification (from step one) and the method of application. Applicators have the option to reduce the required buffer size by adopting additional mitigation measures aimed at reducing spray drift.
For runoff and erosion exposure, a point system will be used with growers/applicators having a mitigation menu from which to select practices that aim to reduce off-target movement. Herbicides will require a certain amount of mitigation points based on their classification from step one. Mitigation measures receive a value of either one, two or three points - three being high efficacy and one being low efficacy. Like with spray drift, applicators/growers have the option to gain the required number of points by adopting additional mitigation measures.
Step three will determine where the mitigations identified in step two will be required. This step considers each field's characteristics. Some mitigations may apply across the entire area of herbicide use or may be geographically specific and only apply in certain locations. This step complicates the strategy and its implementation because each field may require different forms of mitigation depending on its characteristics.
Let's look at an example for runoff and erosion mitigation on a field in Franklin County, Ohio with a 2% slope:
Using the EPA’s mitigation menu, we can determine how much mitigation is needed. Using the mitigation relief options in Table 1 of the mitigation menu, the field has a starting point value of 5 points. The field gets 3 points because Franklin County has a low pesticide runoff vulnerability and 2 points because it has a slope of less than 3%. If a grower were to apply a herbicide with a low impact, no additional mitigation measures would need to be taken. Low population impact herbicides require 3 mitigation points, and the base field characteristics cover this already.
However, if a grower were to apply a high impact herbicide, then 9 mitigation points (4 in addition to the field’s starting value) would need to be met. The grower can choose from various mitigation options to reach the 9-point mark. Some of these options include no-till conservation tillage (3 points), contour farming (2 points), in field vegetative strips (2 points), cover crops with tillage (1 point), grassed waterways (2 points), mitigation tracking (1 point) or participating in a qualifying conservation program (2 points). There are even more mitigation measures to choose from that are listed in the mitigation menu. As long as the grower selects and implements enough mitigation measures to reach the 9-point mark, then they will be in compliance with the strategy.
The Herbicide Strategy is a complex and layered policy that will affect growers and pesticide applicators across the United States. Compliance with the ESA has been a struggle for the EPA, but through the Herbicide Strategy, mitigation of spray drift and runoff/erosion exposure to endangered species should be reduced. Remember, geography, proximity to endangered species, method of application, pesticide applied, and farm management will dictate how much of an effect this policy has on a specific operation. Not every grower and applicator will be in the same situation, each will have to adjust and change certain aspects of how they manage their farm or specific fields.
Unfortunately, how this policy will play out and be implemented is unclear. The agriculture community will have to be vigilant and adapt to the Herbicide Strategy as more information arises and implementation begins.
1Comments can be submitted at www.regulations.gov. Once on the website, search the desired EPA docket number, click “comment now” and then follow the online instructions to submit comments.
Part 2 in our series on Carbon Capture and Storage
If you’re a landowner, you may hold a valuable property interest that is gaining attention across the country: pore space. Pore space is the empty space between the particles of soil, sand, rock, and sediment beneath the surface of your land. It’s a geological formation that, if large enough, can store gas, brine water, and similar substances. Why the recent interest in pore space? It’s a necessity for Carbon Capture and Storage (CCS)—a technology that removes carbon dioxide (CO2) from emission sources and stores it in pore space far beneath the land’s surface.
We began this series on CCS with an overview of the technology and why it’s gaining traction in Ohio. See our first post on the Ohio Ag Law Blog. This second post focuses on legal issues related to pore space. The capacity to store CO2 in the pore space beneath the surface is a property interest that may have value to landowners—one that could be sold or leased to another party for CCS or other storage purposes. But before pore space transactions occur in Ohio, the General Assembly must address a few legal issues: clarification of pore space ownership, whether and how pore space interests can be severed and conveyed, and the relationship between a severed pore space interest and surface and mineral interests. Here’s why these are important legal needs.
- Ownership of pore space. A golden rule of property law partly answers the issue of pore space ownership in Ohio: the “ad coleum” doctrine. The doctrine states that the owner of land owns the rights above and below the land, from the sky to the earth’s core. The assumption under this common law rule, then, is that a landowner owns all subsurface pore space. But what if the pore space is created as a result of a particular activity, like mining? While a few court cases in Ohio have followed the ad coleum doctrine and recognized pore space ownership as an attribute of surface ownership, there have been inconsistent court rulings on the question of ownership of pore space resulting from mining activities. The rulings drive a need for the Ohio legislature to clarify pore space ownership issues, first by codifying the ad coleum doctrine and stating that a surface owner also owns the pore space beneath the surface. Second, statutory law could state whether the surface or mineral owner holds the right to pore space resulting from mineral extraction. If Ohio follows the general rule on mineral extraction adopted among other states, Ohio law would state that the surface owner retains the right to pore space after minerals are fully extracted.
- Severance, conveyance, and recording of pore space interests. Can a surface owner sever the rights to pore space and convey the interest to another party, as Ohio law allows with mineral interests? That’s another legal question in need of clarification in Ohio. The legislature could establish the right to sever pore space and adopt the same conveyancing and recording standards we utilize for tracking other property interests in Ohio.
- Conflicts with other property interests. Can pore space owners interfere with mineral and surface ownership interests by taking actions such as establishing a CCS well on the surface to store CO2 in the pore space? Which property interest has priority over the others if there is a conflict? Our courts can address legal questions as they arise but the Ohio legislature has the power to clear up the relationship between these property interests through statutory law. In particular, Ohio law should establish the priority of rights between the surface, pore space, and mineral interests and answer which is dominant over another when there is a conflict.
Will the legislature tackle these pore space issues that arise with the potential of CCS in Ohio? Possibly, but probably not until the next legislative session begins in January. There are currently proposals in both chambers of the legislature that simply declare an “intent to regulate carbon capture and storage technologies and the geologic sequestration of carbon dioxide for long-term storage,” House Bill 358 and Senate Bill 200, but those bills do not yet contain any detailed language and they will die if not passed by year’s end. With few days remaining in the legislative session this year, the bills are not likely to see any action. There will likely be new versions of the bills introduced next year, however, if the interest in CCS in Ohio continues. Hopefully, the proposals will answer our legal questions about pore space as a property interest of Ohio landowners.
Tags: pore space, CCS, carbon, carbon capture, carbon injection, carbon lease, carbon sequestration
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One thing we're not short on in agriculture today is the opportunity to engage in carbon sequestration programs. Many programs are available that offer to pay farmers and landowners for adopting practices that sequester carbon dioxide to keep the pollutant out of the atmosphere. The practice aims to reduce greenhouse gas (GHG) emissions, as carbon dioxide is a significant contributor to GHG. Farming practices that sequester carbon include using cover crops, adopting no-till, and planting trees.
If you're considering a carbon sequestration or carbon credit program, what do you need to know about carbon sequestration? An upcoming program offered by OSU Extension's Energy Outreach Program will offer insight into carbon sequestration. Join us on October 29, 2024 at 8 a.m. for a webinar on "Carbon Sequestration for the Farmer and Landowner" and hear from these three panelists:
- Michael Estadt, Assistant Professor & Extension Educator, Pickaway County
- Peggy Kirk Hall, Attorney & Director, Agricultural & Resource Law Program
- John Porter, Outreach & Partnership Liaison,Truterra, LLC
The panel will highlight important issues and considerations for farmers and landowners interested in carbon sequestration. Pre-registration is not necessary; simply join the webinar through this link: go.osu.edu/carbon2024.
Contact Dan Lima at lima.19@osu.edu or call the OSU Extension office in Belmont Co. (740) 695-1455 for more information.
Tags: carbon, carbon sequestration, carbon dioxide, greenhouse gas, climate change, climate smart
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Co-authored by Tyler Zimpfer, Law Fellow, National Agricultural Law Center
Many in Ohio agriculture are familiar with the terms “carbon sequestration” and “carbon credits.” The terms relate to efforts to reduce carbon in the atmosphere by capturing or “sequestering” the carbon. Ohio farmers have taken advantage of their ability to sequester carbon through practices like conservation tillage and cover crops, thus exchanging carbon sequestration practices or the generation of carbon credits for cash payments.
Now an additional form of carbon sequestration is emerging: Carbon Capture and Storage (“CCS”). CCS is a carbon sequestration technology that industries with large carbon dioxide (CO2) emissions are using to reduce their carbon “footprint.” CCS technology captures CO2 from airborne emissions and injects it into geologic formations beneath the land surface. Because CCS requires land and can reduce the “carbon index” of products like ethanol, the technology has implications for Ohio agriculture.
In this first post on CCS, we’ll lay out the background of CCS and what’s driving interest in it. Future posts will explain legal hurdles for bringing CCS to Ohio, how CCS relates to ethanol and the potential growth of the sustainable aviation fuels market, and how Ohio landowners could be affected by CCS.
What is Carbon Capture and Storage?
CCS is a process that captures carbon dioxide from an emitting source and permanently stores it underground in geologic formations referred to as “pore space.” Though some are hearing of CCS for the first time, CCS technology has existed for decades, as have many studies on its safety, sustainability, and the amount of carbon that can be stored in different formations and regions. The Environmental Protection Agency (“EPA”) finalized a rule regulating geologic sequestration in 2010 pursuant to the agency’s authority under the Safe Drinking Water Act.
CCS involves three separate steps – capture, transport, and storage. CO2 is captured and separated from other gases at industrial facilities or directly from the atmosphere. After captured, the CO2 is then compressed for transportation. The compression forces the CO2 to act like a liquid. CO2 is most commonly transported via pipelines but can also be moved by ship to offshore wells. Once the CO2 arrives at the intended destination, it is injected into rock formations, often a mile or more underground, where it spreads throughout the pore space of the formation in a plume. The CO2 is then permanently stored in the geological formation. CCS technology is also used for “enhanced oil recovery,” because CO2 injection can recover untapped oil reserves in a partially-depleted oil field. When used for enhanced oil recovery and storage, the technology is referred to as “carbon capture utilization and storage” or CCUS. The image below illustrates different types of CCS.
Source: Congressional Budget Office
Regulation of CCS wells
CO2 injection wells are regulated under the federal Safe Drinking Water Act by the EPA through the Underground Injection Control (UIC) Program. The category of wells relevant to CO2 for geological storage is “Class VI” wells. The primary purpose of the Class VI regulations is to protect underground sources of drinking water and prevent leakage, explosions, and contamination. Much attention is currently focused on CCS technology due to a recent Archer Daniels Midland (ADM) suspended the injection of CO2 at a site in Illinois after discovering a potential leak due to corrosion in a monitoring well. While there is no report of water contamination, the EPA found ADM violated federal safe drinking water rules by failing to follow an emergency response plan after detecting the leak.
Why so much interest in CCS?
CCS is expected to be an important strategy of industries that struggle with decarbonization or net-zero greenhouse gas emission goals. CCS can reduce CO2 emissions for hard-to-abate sectors that don’t have other methods for reducing their emissions, such as refineries and cement, steel, and chemical manufacturing
A more recent (and arguably more prominent) factor driving CCS is the current federal tax incentive. The 2022 Inflation Reduction Act (IRA) expanded the tax credit known as “Section 45Q,” first enacted in 2008 and extended in 2018. A company that captures and stores a certain threshold of CO2 every year is eligible for the tax credit. The IRA made several changes to the Section 45Q tax credit to further promote CCS and make it more lucrative and accessible, such as increasing the value of the credit by 70% to $85 per metric ton; lowering the annual capture amount required for eligibility by at least 50% for most facilities; and allowing transferability of the tax credit. With the significant changes in the IRA, researchers expect an increase in CCS projects across the United States.
Can we do CCS in Ohio?
No, not without legislation. Two legal changes are necessary to enable CCS technology in Ohio. (1) Ohio law must define and clarify property rights to the pore space in geological formations beneath land surfaces, and (2) the state must allow the establishment of CCS injection wells in Ohio. We explain these two requirements in our second post in this series on CCS, available at https://farmoffice.osu.edu/blog/carbon-capture-and-storage-legal-issues-pore-space.
For more background information on CCS and Section 45Q, see:
- Congressional Research Service, Carbon Capture and Sequestration (CCS) in the United States, https://crsreports.congress.gov/product/pdf/R/R44902
- Congressional Budget Office, Carbon Capture and Storage in the United States, https://www.cbo.gov/publication/59832#_idTextAnchor007
- Ohio Department of Natural Resources, Carbon Capture, Utilization, & Storage, https://ohiodnr.gov/discover-and-learn/safety-conservation/about-odnr/geologic-survey/energy-resources/carbon-capture-utilization-storage
- Congressional Research Service, The Section 45Q Tax Credit for Carbon Sequestration, https://crsreports.congress.gov/product/pdf/IF/IF11455
Tags: carbon capture, CCS, sequestration, 45Q, pore space, carbon injection, carbon storage
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We are back with another edition of the Ag Law Harvest, where we bring you rulings, laws, and regulations that affect the agricultural industry. This month's Ag Law Harvest is bringing the heat with H-2A wage rule injunctions, cultivated meat ban challenges, sales and use tax issues, and an emergency order from the EPA.
Federal Judge in Georgia Blocks H-2A Wage Rule for Named Plaintiffs. A Georgia federal judge has limited the U.S. Department of Labor's enforcement of a rule titled "Improving Protections for Workers in Temporary Agricultural Employment in the United States" (the “Final Rule”). This rule, challenged by 17 states led by Kansas and Georgia, as well as by Miles Berry Farm and the Georgia Fruit and Vegetable Growers Association (the “Plaintiffs”), is claimed to be unconstitutional. The Plaintiffs argued that the Final Rule violates the 1935 National Labor Relations Act (the “Act”) by granting H-2A farmworkers greater organizing and collective bargaining rights than those afforded to U.S. citizen agricultural workers, effectively bypassing the Act. The U.S. District Court in Georgia sided with the plaintiffs, ruling that the Department of Labor's Final Rule improperly creates a right that Congress did not intend and did not create by statute. The court emphasized that administrative agencies, including the DOL, cannot create laws or rights that Congress has not established. The court criticized the DOL for overstepping its authority, stating that while the DOL can assist Congress, it cannot assume the role of Congress. The court granted a preliminary injunction prohibiting the DOL from enforcing the Final Rule, but only for the Plaintiffs. Thus, the preliminary injunction will only apply in Georgia, Kansas, South Carolina, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Tennessee, Texas, and Virginia. The injunction will also apply to Miles Berry Farm and the Georgia Fruit and Vegetable Growers Association. We will keep you updated as the case goes up on appeal and how this ruling affects other H-2A lawsuits across the country.
Florida Cultivated Meat Ban Challenged. A California business has filed a federal lawsuit against the state of Florida, challenging a law that bans the sale of cultivated meat. The company argues that Florida's prohibition is unconstitutional, claiming it violates their right to engage in interstate commerce by restricting their ability to sell their products across state lines. Upside Foods, Inc., the California based company, alleges that Florida Senate Bill 1084 (“SB 1084”), which bans the manufacture, distribution, and sale of cultivated meat, violates the U.S. Constitution’s Supremacy Clause because SB 1084 “is expressly preempted by federal laws regulating meat and poultry products.” Furthermore, Upside Foods alleges that SB 1084 violates the U.S. Constitution’s Dormant Commerce Clause because SB 1084 “was enacted with the express purpose of insulating Florida agricultural businesses from innovative, out-of-state competition like UPSIDE.” Upside Foods has asked the district court in Florida to declare SB 1084 unconstitutional and to issue an injunction preventing SB 1084’s enforcement. Proponents of SB 1084 argue that the law protects Floridians, however, Upside Foods alleges that the Florida ban isn’t meant to protect the public, rather it was passed to “protect in-state agricultural interests from out-of-state competition.”
Board of Tax Appeals Finds Utility Vehicle Not Exempt Under Agricultural Sales Tax Exemption. Claugus Family Farm LP (CFF), an Ohio timber farm, purchased a 2015 Mercedes-Benz utility vehicle and claimed it was exempt from sales tax under Ohio’s Agricultural Sales Tax Exemption. After an audit, the Ohio Department of Taxation assessed the sales tax on the vehicle. CFF petitioned for reassessment, but the Ohio Tax Commissioner determined that CFF did not provide enough evidence to prove the vehicle was primarily used for farming as required by law. CFF then appealed to the Ohio Board of Tax Appeals, arguing that the vehicle was mainly used for farming operations, such as transporting people around the farm, monitoring tree health, applying pesticides, maintaining equipment, and carrying supplies. CFF claimed the vehicle was used 95% of the time on farming activities. Upon review, the Board of Tax Appeals noted that “the use of vehicles for transportation around a farm, as well as general uses such as delivering parts and cutting and hauling of wood and brush, do not constitute direct farming activities.” The Board held that the vehicle was used primarily for these purposes and not directly in farming and thus found the vehicle to be subject to Ohio’s sales and use tax.
EPA Emergency Order Suspends Use of Pesticide DCPA/Dacthal. On August 7, 2024, the U.S. Environmental Protection Agency (“EPA”) issued an Emergency Order immediately suspending the registration and use of all pesticides containing dimethyl tetrachloroterephthalate (“DCPA” or “Dacthal”). The EPA cited the danger the substance poses to pregnant women and unborn babies. The agency determined that the continued sale, distribution, or use of DCPA products during the cancellation process would present an imminent hazard, justifying the emergency suspension without a prior hearing. Despite efforts by AMVAC Chemical Corporation, the sole registrant of DCPA products, to address these concerns, the EPA concluded that no practicable mitigations could make the use of DCPA safe.
Tags: ag law harvest, H-2A, pesticides, EPA, Cultivated Meat, U.S. Constitution, Ohio Sales Tax, Agricultural Sales Tax Exemption, Ag Law, Farm Law
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Featured Discussion on the Downward Trend in Global Profitability of Crop Farming and a Bearish Outlook for 2024
During its annual conference from June 10th to 14th, the agri benchmark Cash Crop Network discussed recent developments in global crop production. I was fortunate to recently attend the agri benchmark conference in Valladolid, Spain. The conference was hosted by the Spanish Ministry of Agriculture who together with its operating company Tragsa, established and manages a network of 37 typical crop farms. Approximately 55 international experts from all over the world discussed recent results and topical issues of global crop production.
The Ohio State University College of Food, Agricultural and Environmental Sciences is a member of the agri benchmark network and I serve as the network representative for the College. The following are a few selected highlights from the conference.
Last year (2023) was difficult for most typical agri benchmark farms when compared with previous, more profitable, years. Increasing machinery cost and lower output prices many farms experienced a massive downturn in return to land.
The projections for 2024 for the agri benchmark network, which is coordinated by the German Thünen Institute, are even more bearish. The likely relief provided by lower fertilizer prices will not fully compensate for the increase in machinery costs. In addition, based on global price projections, farm-gate production prices are likely to be lower in 2024 than in 2023. Many typical farms are likely to struggle with returns in 2024.
US renewable diesel boom – how US soybean production may increase
A number of U.S. states have implemented blending targets for renewable fuels. As a result, renewable diesel production has increased substantially. By 2029 this will lead to an annual demand of 8 million tons of soybean oil renewable diesel production (FAPRI-MU, 2024), a 3-million-ton increase in demand relative to 2020. The respective supply can be generated through more domestic crushing or an increase of soybean acreage; most likely, a combination of both options will be used. To satisfy this increased demand for soybean oil via expansion of soybean acreage, about 5.1 million ha (+15% of current soybean acreage) of additional farmland would be required. An increase in soybean acreage may come from either (a) shifting away from continuous corn rotations to corn-soy and (b) shifting corn-soy rotations toward corn-soy-soy. Based on agri benchmark data, Margaret Lippsmeyer from Purdue University showed that option (a) would require an increase in soybean prices of 6% and option (b) of 8% to make these rotations preferable over existing ones.
Ukraine grain exports: No specific effects on Central & Eastern European farm-gate prices
At the national level, agri benchmark farm-gate data did not yield an indication that growers in Central and Eastern Europe have been suffering from the inflow of Ukrainian grain. As the graph attached indicates, respective wheat margins between Western Europe and Central and Eastern Europe actually narrowed. However, agri benchmark partners mentioned that in regions close to the Ukrainian border lower than usual prices have been observed.
EU sugar production: Expanding and rather profitable in 2023
Due to high EU sugar prices in 2022, EU production increased by 7% in 2023. Therefore, the EU became a net exporter again. Since global sugar prices were still rather high, the negative impact on domestic prices was low. Thomas de Witte from Thünen Institute stated that profitability of sugar beet production was extraordinarily high – an advantage of 1.000 to even 2.000 €/ha over other crops could be observed. A possible future cut of 15 to 30 €/t in beet prices (or 20% to 40%) would still make beets competitive at wheat prices of 230 €/t.
Regenerative agriculture – a promising option to reduce environmental footprint?
The members of the agri benchmark Network discussed the concept and the environmental claims of regenerative agriculture. Many industry leaders and politicians are promoting this idea to address public concerns regarding agriculture; influential global consulting companies try to educate growers regarding the profitability of suggested measures such as cover crops and no-till. One discussion focused on the notion that proponents of regenerative agriculture oversell the potentials, in particular regarding greenhouse gas savings and economics. Furthermore, the two major sources for GHG emissions – nitrogen use and land use change – are not addressed. Considering these shortcomings, the network will be publishing a thesis paper on this topic and will suggest more meaningful indicators to define goals that effectively reduce GHG emissions and reduce pressure on biodiversity.
agri benchmark, a nonprofit, politically independent organization, provides comprehensive information and advice on crop production systems. With its proven and unique farm level data and a global network of on-the-ground experts, agri benchmark enables economic and environmentally sustainable decision-making by agricultural stakeholders worldwide.
Let’s grow together – Your strategic partner for tomorrow’s agriculture
For more information visit: agribenchmark.org
Evolution of average return to land* across all crops (USD/ha)
* Total revenue (incl. decoupled payments) minus total cost (excluding land cost);
weighted average per farm, simple average across all farms per region
Evolution of farm-gate wheat prices – regional agri benchmark averages (USD/t)
Source: agri benchmark Cash Crop (2024)
Group picture from the conference
Source: agri benchmark Cash Crop (2024)
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Ohio’s Wild, Scenic, and Recreational Rivers Program will soon see some changes under Senate Bill 156, recently passed by the Ohio General Assembly. The legislature forwarded those changes to the governor on July 16. Governor DeWine is expected to sign the bill, which had unusually high non-partisan support with only one legislator voting against the measure.
The legislature’s focus on the Wild, Scenic, and Recreational Rivers Program began with concerns from owners of private land that abuts watercourses designated under the program as wild, scenic, or recreational. Ohio currently has 15 designated watercourses comprising 27 stream segments and just over 830 river miles. Many of the designated watercourses are along agricultural lands.
Those landowner concerns initiated a program review and led to the revisions enacted by the legislature in S.B. 156, which makes the following changes.
- Transfers the authority to administer the program from the Division of Parks and Watercraft to the Division of Natural Areas and Preserves (DNAP) in the Ohio Department of Natural Resources (ODNR).
- Narrows DNAP’s scope of authority to the watercourses that are designated as wild, scenic, and recreational rivers, rather than to wild, scenic, and recreational river “areas” as under the current law.
- States that a watercourse designation does not affect private property rights or authorize the Director of Natural Resources, DNAP Chief, or any governmental agency or political subdivision to restrict the use of private land adjacent to a designated river.
- States that the law does not give any right to the above parties to enter upon private land.
- Expands the types of watercourses subject to designation as a wild, scenic, or recreational river to include the headwaters of those rivers.
- Requires DNAP to perform certain duties regarding publicly owned land along a designated river, including both of the following:
- To adopt rules governing the use, visitation, and protection of scenic river lands and other specified publicly owned lands administered by DNAP within the watersheds of wild, scenic, and recreational rivers; and
- To establish facilities and improvements within the system of wild, scenic, and recreational rivers, scenic river lands, and other specified publicly owned lands that are necessary for their visitation, use, restoration, and protection and that do not impair their natural character.
- Requires the DNAP Chief to adopt rules establishing fees and charges for the use of facilities in nature preserves, scenic river lands, and on publicly owned lands.
- Clarifies that certain public entities must obtain approval from the ODNR Director if specified construction activities are performed within 1,000 feet of a wild, scenic, or recreational river.
- Requires the ODNR Director to post the intention to declare a watercourse as a wild, scenic, or recreational river on DNAP’s website.
- Allows the DNAP Chief to accept, receive, and expend gifts, devises, or bequests of money, land, or other properties for purposes of the wild, scenic, and recreational river program.
Learn more about S.B. 156 on the Ohio legislature’s website. Information on Ohio’s Scenic Rivers Program is on ODNR’s website.
Tags: water law, scenic rivers, ODNR, Property Rights
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