Renewable Energy

Ohio capitol building
By: Peggy Kirk Hall, Wednesday, July 14th, 2021

Following a flurry of activity before its break, the Ohio General Assembly can now enjoy a few lazy days of summer.  While the legislature spent much of its energy passing the state budget, it also moved several bills affecting agriculture.  Here’s the latest update on legislation that's moving down at the capitol.

Enacted bills

Solar and wind facilities.  We wrote earlier about S.B. 52, the wind and solar facility siting bill the legislature passed in late June.  Despite pressure to veto the bill, Governor DeWine signed the legislation on July 12; its effective date is October 9, 2021.  The new law requires developers to hold a public meeting in a community at least 90 days prior to applying for project approval, allows counties to designate restricted areas where wind and solar projects may not locate, sets up a referendum process for county residents to have a voice in restricted area designations, adds two community officials to the project review process at the Power Siting Board, and establishes rules for decommissioning of projects, including performance bonds.

Natural gas services.  While communities will have a say in siting wind and solar facilities after S.B. 52’s passage, the opposite will be true for natural gas services.  H.B. 201 guarantees that persons have a right to obtain natural gas and propane services, subject to municipal home rule authority and regulatory oversight.  The bill prohibits political subdivisions from limiting or preventing gas and propane services within its boundaries.  Governor DeWine signed the bill on July 1 and it becomes effective on September 28, 2021.

State budget.  It took a good while, but the governor signed the state budget bill, H.B. 110, on June 30 and it took effect on July 1.  Highlights of agricultural provisions in the bill include:

  • H2Ohio.  Requires state agencies that prepare the already mandated annual report on the H2Ohio fund to present the report to the Senate and House finance committees each year.  ORC 126.60(D).
  • Ohio Proud.  Allows the Ohio Department of Agriculture (ODA) to sell merchandise that promotes the Ohio Proud program, and to use proceeds for the Ohio proud, international, and domestic market development fund.  ORC 901.171(B) and (C).
  • Liming inspections.  Allows the ODA director to enter into agreements with private parties for the inspection, sampling, and analysis of liming material and allows those parties to enter onto private and public land for inspections.  ORC 905.59.
  • OSU Extension.  Establishes a farm production, policy, and financial management institute in OSU Extension to address the integration of farm production practices, agricultural marketing, farm policy, and financial management challenges for farm owners and managers, lending agencies, ag teachers, and OSU professionals and provides the institute $250,000 each year for two years. ORC 3335.38.
  • Farmers market inspections.  Removes the option for a farmers market to register and be inspected as a farm market with ODA.  ORC 3717.221(A) and (B).
  • Wine taxes.  Makes the 2 cents per gallon wine tax revenue credited to the Ohio Grape Industries Fund permanent.  R.C. 4301.43.
  • Southern Ohio Agricultural and Community Development Foundation.  At the end of 2021, abolishes the foundation and its board, which was established in 1998 through the Tobacco Master Settlement Agreement with tobacco manufacturers.  Any remaining funds will transfer to the Ohio Proud Marketing Fund. 
  • H2Ohio.  Appropriates $49.3 million each year to the H2Ohio program for 2022 and 2023.
  • Farmland preservation.  Allocates $500,000 for the purchase of agricultural easements in 2022 and 2023.
  • Soil and water phosphorus program.  Allocates $10.7 million in 2022 and 2023 for programs to assist in reducing phosphorus in the Western Lake Erie Basin.
  • SWCDs in Western Lake Erie Basin.  Allocates $3.85 million to support Soil and Water Districts in the Western Lake Erie Basin in complying with former S.B. 1 and assisting with soil testing, nutrient management plan development, manure management technologies, filter strips and water management.

Bills on the move

Beginning farmers.  H.B. 95 finally passed the House on June 28, 2021—it was introduced in February and lagged in the last legislative session.  The proposal allows individuals to be certified as beginning farmers either through USDA or a certification program by ODA, Ohio State or Central State.  Certification criteria includes: farming in Ohio less than 10 years, having a net worth of less than $800,000, providing a majority of labor and management for the farm, demonstrating adequate knowledge of farming, submitting projected earning and profits, demonstrating that farming will be a significant source of income, and participation in an approved financial management program.  The bill would establish two income tax credits, one for owners who sell land and agricultural assets to certified beginning farmers and another for beginning farmers that attend a financial management program.  The bill now requires Senate approval.

Slow-moving vehiclesH.B. 30 had its first hearing before the Senate Transportation committee on June 23.  The proposal passed the House in April.  The bill aims to increase visibility of animal-drawn vehicles by changing marking and lighting requirements.  The vehicles would have to display either an SMV emblem or reflective micro prism tape rather than reflective tape on the rear, a flashing yellow lamp at the top and rear, in addition to current lighting requirements.

Earning statements.  A bill passed by the House on June 16 has been referred to the Senate Small Business and Economic Opportunity Committee.  H.B. 187 would require all employers to provide employee with a written or electronic statement of the employee’s earnings and deductions for each pay period, to include total hours worked and hourly rate, total gross wages, amounts and purposes of addition or deductions from wages, and total net wages.  The bill also establishes a request and violation reporting system for employers who fail to provide the statements. 

New bills

Moratorium on animal feeding facilities.  A bill introduced by two representatives from northwestern Ohio would affect new and expanding animal feeding facilities in the Maumee watershed.  H.B. 349 would not allow the Ohio Department of Agriculture to approve a permit for a new construction or expansion of a “regulated animal feeding facility” if it is in the Maumee watershed and the director of ODA has determined that the spring load of total phosphorus for the Maumee River exceeded 860 metric tons and total dissolved reactive phosphorus exceeded 186 metric tons in the preceding calendar year. Regulated animal feeding facilities are those housing over 250 dairy cattle; 300 beef cattle; 3,000 piglets; 750 hogs; 25,000 egg layers; 37,500 meat chickens; 9,000 egg layers and meat chickens if on liquid manure handling system; 16,500 turkeys; 3,000 sheep and 150 horses.  H.B. 349 was referred to the House Agriculture and Conservation committee on June 16, 2021.

Farm Office Team on Zoom Webinar
By: Jeffrey K. Lewis, Wednesday, July 14th, 2021

"Farm Office Live" returns this summer as an opportunity for you to get the latest outlook and updates on ag law, farm management, ag economics, farm business analysis, and other related issues.  Targeted to farmers and agri-business stakeholders, our specialists digest the latest news and issues and present it in an easy-to-understand format.

The live broadcast is presented monthly.  In months where two shows are scheduled, one will be held in the morning and one in the evening.  Each session is recorded and posted on the OSU Extension Farm Office YouTube channel for later viewing.

Current Schedule:

July 23, 2021 10:00 - 11:30 am  December 17, 2021 10:00 - 11:30 am 
August 27, 2021 10:00 - 11:30 am  January 19, 2022 7:00 - 8:30 pm 
September 23, 2021 10:00 - 11:30 am  January 21, 2022 10:00 - 11:30 am 
October 13, 2021 7:00 - 8:30 pm  Februrary 16, 2022 7:00 - 8:30 pm 
October 15, 2021 10:00 - 11:30 am  February 18, 2022 10:00 - 11:30 am 
November 17, 2021 7:00 - 8:30 pm  March 16, 2022 7:00 - 8:30 pm 
November 19, 2021 10:00 - 11:30 am  March 18, 2022  10:00 - 11:30 am 
December 15, 2021 7:00 - 8:30 pm  April 20, 2022 7:00 - 8:30 pm 

Topics we will discuss in upcoming webinars include:

  • Coronavirus Food Assitance Program (CFAP) 
  • Legislative Proposals and Accompanying Tax Provisions
  • Outlook on Crop Input Costs and Profit Margins 
  • Outlook on Cropland Values and Cash Rents 
  • Tax Issues That May Impact Farm Businesses 
  • Legal Trends
  • Legislative Updates
  • Farm Business Management and Analysis
  • Farm Succession & Estate Planning
 

To register or to view a previous "Farm Office Live," please visit https://go.osu.edu/farmofficelive. You will receive a reminder with your personal link to join each month. 

The Farm Office is a one-stop shop for navigating the legal and economic challenges of agricultural production. For more information visit https://farmoffice.osu.edu or contact Julie Strawser at strawser.35@osu.edu or call 614.292.2433

The United States Supreme Court building
By: Peggy Kirk Hall, Friday, July 09th, 2021

Perhaps it’s an overused phrase but “sometimes you win, sometimes you lose” has relevance to agriculture lately.  It’s a fitting response to several new decisions from the federal courts.  Some of the decisions align with positions advocated by agricultural interests but others do not.  We wrote last week about a case in the “sometimes you lose” category--the Court’s ruling in favor of small refineries claiming exemptions from renewable fuels mandates.  Several members of Congress have already proposed legislation that would nullify the Court’s decision in that case.  A second loss came with a challenge to California’s animal welfare standards and a third with the court striking down a waiver of E15 ethanol blends.  The sole win came with a challenge to a California statute allowing union organizing activities on private property.  Here’s a summary.

California Proposition 12 – North American Meat Institute v. Bonta

The U.S. Supreme Court announced that it would not grant certiorari and review a decision by the Ninth Circuit Court of Appeals’ on California Proposition 12.  Voters approved Proposition 12, the “Prevention of Cruelty to Farm Animals Act,” in 2018.  The Act establishes housing standards for egg-laying hens, breeding hogs and veal calves and prohibits the confinement of animals in spaces that don’t meet the standards.  Business owners and operators in California may not sell meat or egg products from animals that are not confined according to the standards.  Standards for calves (43 square feet) and egg laying hens (1 square foot) became effective in 2020 while standards for breeding pigs and their offspring (24 square feet) and cage-free provisions for egg laying hens are to be effective beginning January 1, 2022.

The North American Meat Institute (NAMI) sought a preliminary injunction against Proposition 12 in 2019, arguing that it violates the Interstate Commerce Clause of the U.S. Constitution, which grants only Congress the authority to regulate commerce among the states.  NAMI claimed that the Act establishes a “protectionist trade barrier” that would protect California producers from out-of-state competition and control conduct outside of its state borders. 

Both the federal District Court and the Ninth Circuit Court of Appeals disagreed with NAMI.   The appellate court affirmed the District Court’s conclusions that Proposition 12 is not discriminatory on its face and does not have a discriminatory purpose or effect, as there was no evidence that the state had a protectionist intent and the Act treats in-state and out-of-state producers the same.  Nor does the Act try to directly regulate out-of-state conduct or impose burdens on out-of-state producers, but instead only precludes sale of meats resulting from certain practices, the courts concluded.  The federal government and 20 states joined NAMI in a request for a rehearing of the case by the full panel of judges on the Ninth Circuit but were unsuccessful.

NAMI turned to the U.S. Supreme Court, seeking a review of the case on the basis that the Ninth Circuit’s decision conflicts with holdings by other appellate courts and the U.S. Supreme Court.  The Supreme Court denied the request for review on June 28, offering no explanation for its decision.  The legal challenges to Proposition 12 do not end with that denial, however.  A separate case filed by the National Pork Producers Association and American Farm Bureau Federation is pending before the Ninth Circuit Court of Appeals.  It also argues that Proposition 12 negatively impacts interstate commerce and will increase consumer costs for pork and that the federal district court judge who dismissed the case failed to examine the practical effects the law would have on producers.  The Ninth Circuit heard the appeal in April, so we may see a decision in the next few months.

E15 waiver:  American Fuel & Petrochemical Manufacturers v. EPA

The D.C. Circuit Court of Appeals held in favor of a claim by the American Fuel and Petrochemical Manufacturers (AFPM) challenging a Trump Administration rule in 2019 that waived restrictions on summer sales of E15 due to higher fuel volatility in summer temperatures.  The decision could mean that current sales of E15 must end unless further legal challenges follow.

The 2019 Reid Vapor Pressure (RVP) waiver for E15 allowed fuel stations to sell 15% ethanol blends during the summer months rather than limiting those sales to 10% ethanol, a move that would increase ethanol sales.   As expected, the oil and gas refining industry responded to the waiver issuance with a legal challenge, arguing that the administration lacked the authority to grant the RVP waiver for fuels over 10% ethanol. 

The volatility waiver authority derives from the Clean Air Act, which establishes when the EPA may alter volatility limits through the waiver process and specifically allows the EPA to grant an ethanol waiver for “fuel blends containing gasoline and 10 percent denatured anhydrous ethanol” in Section 745(h)(4).  The EPA relied upon the ethanol waiver language in the Clean Air Act back in 1992 to waive volatility standards for E10.  But whether the EPA could use the Clean Air Act language to issue a waiver for ethanol beyond 10 percent is the question at the heart of the dispute.  The EPA and intervenors in the case representing biofuel interests claimed the language was ambiguous enough to allow the EPA to grant waivers for fuel with 10% ethanol or more.

In a unanimous decision, the Court of Appeals concluded that “the text, structure, and legislative history” of the Clean Air Act do not allow EPA to extend a waiver to E15.  The court found the statutory language straightforward, lacking any modifiers that would establish a range of ethanol blends rather than the 10 percent stated in the statute.  Legislative actions at the time also supported an interpretation that the 10 percent language addressed E10 and not ethanol blends in excess of 10 percent. 

The next critical question for this case is what the Biden Administration EPA will do with case and the E15 waiver.  A request for further review of the D.C. Circuit’s opinion is possible.  Or perhaps the EPA will pursue a legislative fix that increases the statutory reference from 10 percent to 15 percent ethanol.  And it’s always possible that no further action will occur and E15 summer sales will no longer be an option.

Union organizer access as a taking – Cedar Point Nursery v Hassid

In the “win” column for agricultural employers is a case that asks whether a state regulation granting access to private property for union activities is a “taking” of property under the Constitution.  The U.S. Supreme Court’s answer to the question is “yes,” although three of the Justices dissented from the majority opinion. 

A regulation formed under the California Agricultural Labor Relations Act of 1975 gives labor organizations a “right to take access” to an agricultural employer’s property “for the purpose of meeting and talking with employees and soliciting their support.”  The regulation requires agricultural employers to allow union organizers to be on the property up to three hours per day and four 30-day periods per year but cannot be “disruptive” and must provide written notice to employers.   An employer who interferes with the organizers can be subject to sanctions. 

After representatives from United Farm Workers accessed Cedar Point Nursery and engaged in disruptive conduct and sought to access Fowler Packing Company, both occasions without notice to the employers, the companies filed a lawsuit seeking an injunction from the federal District Court.  They argued that the regulation was a physical taking of their properties because it granted an easement to the union organizers, which required compensation under the Fifth and Fourteenth amendments of U.S. Constitution.

The District Court did not grant the injunction and held that the regulation is not a physical taking because it doesn’t allow the public a permanent and continuous right of access to the property for any reason.  The Ninth Circuit Court of Appeals affirmed that decision, agreeing that it wasn’t a physical taking, but a strong dissent argued that the union activities were a physical occupation and taking of property.  The agricultural companies sought but were denied a hearing before all of the Ninth Circuit judges, leading to a request for review granted by the U.S. Supreme Court.

The majority of the Justices concluded that the California regulation is a physical taking because it grants union organizers a right to invade an agricultural employer’s property.  Particularly important to the majority was the regulation’s removal of an owner’s right to exclude people from their private property, which is a “fundamental element” of property rights according to the Court.  The Court rejected the argument that the access must be continuous and permanent to be a physical taking and dispensed with claims that the holding could endanger regulations that allow government entries onto private land.  The Court’s holding was clear:  the access regulation amounts to simple appropriation of private property.

Read the court opinions in these three cases here:

Ninth Circuit’s Opinion North American Meat Institute v. Becerra/Bonta

American Fuel & Petrochemical Manufacturers v. EPA

Cedar Point Nursery v. Hassid

Solar panels in a field
By: Peggy Kirk Hall, Thursday, July 01st, 2021

Update:  Governor DeWine signed this bill on July 12, 2021 and it becomes effective on October 9, 2021.

It’s been a long and winding road to the Governor’s desk for Senate Bill 52, the controversial bill on siting and approval of large-scale wind and solar facilities in Ohio.  The bill generated opposition and concern from the outset, requiring a major overhaul early on.  A substitute bill passed the Senate on June 2 after six hearings and hundreds of witnesses testifying for and against the bill.  It took the House five hearings to pass a further revised version of the bill earlier this week, and the Senate agreed to those revisions the same day.  Now the bill awaits Governor DeWine’s action.  If the Governor signs the bill, it would become effective in 90 days.

S.B. 52 generates conflicting opinions on property rights and renewable energy.  It would grant counties and townships a voice in the siting and approval of large-scale wind and solar projects, allowing a community to go so far as to reject facility applications and prohibit facilities in identified restricted areas of the county.  Supporters of the bill say that new local authority would allow local residents to protect their individual property rights as well as the fate of the community.  On the other side, opponents claim that the bill interferes with the property rights of those who want to lease their land for solar and wind development and unfairly subjects renewable energy to stricter controls than other energy projects.

The bill itself is lengthy and a bit tedious but we’ve organized it into the following summary.  An important first step is to understand the types of projects subject to the law, so we begin with the definitions section of the bill.

Definitions – Ohio Revised Code 303.57

The bill defines several key terms used to identify the types of wind and solar projects and applications that would be subject to the new law:

  • “Economically significant wind farm” means wind turbines and associated facilities with a single interconnection to the electrical grid and designed for, or capable of, operation at an aggregate capacity of five or more megawatts but less than fifty megawatts, excluding any such wind farm in operation on June 24, 2008 and one or more wind turbines and associated facilities that are primarily dedicated to providing electricity to a single customer at a single location and that are designed for, or capable of, operation at an aggregate capacity of less than twenty megawatts, as measured at the customer's point of interconnection to the electrical grid.
  • “Large wind farm” means an electric generating plant that consists of wind turbines and associated facilities with a single interconnection to the electrical grid that is a “major utility facility.”
  • “Large solar facility” means an electric generating plant that consists of solar panels and associated facilities with a single interconnection to the electrical grid that is a major utility facility.
  • “Utility facility” means all of the above.
  • “Major utility facility” means (a) electric generating plant and associated facilities designed for, or capable of, operation at a capacity of fifty megawatts or more, (and also includes certain electric transmission lines and gas pipelines).
  • “Material amendment” means an amendment to an existing utility facility certificate that changes its generation type, increases its nameplate capacity or changes the boundaries outside existing boundaries or that increase the number or height of wind turbines.

 

Designation of utility facility restricted areas in a county – ORC 303.58 and ORC 303.59

The bill would allow the county commissioners to designate “restricted areas” within the unincorporated parts of the county where economically significant wind farms, large wind farms, and large solar facilities may not be constructed.  

  • The commissioners may take this action at a regular or special meeting.
  • The commissioners must give public notice of the meeting and proposed restricted areas at least 30 days prior, including to all townships, school districts and municipalities within the proposed restricted areas.
  • The restricted area designations shall not apply to utility facilities that were not prohibited by the commissioners in the county review under ORC 303.61, described below.
  • The restricted area designations become effective 30 days after the commissioners adopt the resolution unless a petition for referendum, described below, is presented to the commissioners within 30 days of adoption.
  • Once effective, a restricted area designation prohibits anyone from filing an application for a certificate or a material amendment to an existing certificate to construct, operate or maintain a utility facility in the restricted area.

 

Referendum on designation of utility facility restricted areas – ORC 303.59

If a county approves a restricted area, the bill sets up a referendum procedure to allow voters to have a say in the designation.  Residents may file a petition for referendum and request the county commissioners to submit the designation of a utility facility restricted area to a vote of the electors in the county.

  • At least 8% of the total vote cast for governor in the most recent election must sign the petition.
  • The petition must be presented to the commissioners within 30 days of the resolution adopted to designate the restricted areas.
  • Within two weeks of receiving the petition and no less than 90 days prior to the election, the county commissioners must certify the petition to the county board of elections, who must verify the validity of the petition.
  • The utility facility restricted area designation must be submitted to electors for approval or rejection at a special election on the day of the next primary or general election that occurs at least 120 days after the petition is filed.
  • If a majority of the vote is in favor of the restricted area designation, the designation shall be effective immediately.

 

County review of proposed wind and solar utility facilities -- ORC 303.61

Local residents and officials have expressed concerns that they’re the last to know of a proposed large-scale wind or solar development proposed for their community.  Under the bill, utility facilities must hold a public meeting in each county where the facility will be located within 90 to 300 days prior to applying for or making a material amendment to an application for a certificate from the Ohio Power Siting Board.

  • The facility applicant must give a 14 day advance written notice of the public meeting to the county commissioners and to trustees of townships in which facility would be located.
  • At the meeting, the facility applicant must present in written form the type of utility facility, its maximum nameplate capacity, and a map of its geographic boundaries.
  • Up to 90 days after the public meeting, the county commissioners may adopt a resolution that prohibits the construction of the facility or limits its boundaries to a smaller part of the proposed location.  If the county commissioners do not prohibit or limit the facility, the applicant may proceed with the application.

 

Ohio Power Siting Board Composition – ORC 4906.021 to ORC 4906.025

The bill also responds to concerns that community members do not have a voice in the facility approval process overseen by Ohio’s Power Siting Board (OPSB).  For every utility facility application or material amendment to an application, the bill would require the OPSB to include two voting “ad hoc” members on the board to represent residents in the area where the facility is proposed.

  • The ad hoc members shall be the chair of the township trustees and the president of the county commissioners in the township and county of the proposed location, or their elected official or resident designees, or a trustee and commissioner chosen by a vote of the trustees and commissioners if the application affects multiple townships and counties.
  • An ad hoc member or the member’s immediate family members cannot have an interest in a lease or easement or any other beneficial interest with the applicant utility facility and cannot be an intervenor or have an immediate family member who is an intervenor in the OPSB proceeding.
  • The ad hoc members must be designated no more than 30 days after the county or township is notified by the OPSB that the application has been submitted and meets statutory requirements.
  • An ad hoc member may not vote on a resolution by its county commissioners or township trustees to intervene in the application proceeding.
  • An ad hoc member is exempt from restrictions on ex parte communications with parties in the case but must disclose the date and participants of ex parte conversations and shall not disclose or use confidential information acquired in the course of official duties.

 

OPSB Authority – ORC 4901.101; ORC 4906.30

There are parameters in the bill for projects that the OPSB may not approve.  The OPSB may not grant a certificate for the construction, operation, and maintenance of or material amendment to an existing certificate for a utility facility in these situations:

  • If the utility facility is prohibited by a restricted area designation.
  • If the county commissioners have prohibited the utility facility by resolution.
    • Where the utility facility would be in multiple counties, the OPSB must modify a certificate to exclude the area of a county whose commissioners prohibited the facility.
  • For any areas outside the boundaries of the utility facility that were changed by action of the county commissioners.
  • If the facility has a nameplate capacity exceeding the capacity provided to the county commissioners, has a geographic area not completely within the boundaries provided to the county commissioners, or is a different type of generation than that provided to the county commissioners.

 

Decommissioning Plans for Utility Facilities – ORC 4906.21 to ORC 4906.212

The question of what happens to a facility when its production life ends has been another issue of voiced concern.  The bill establishes decommissioning procedures for facilities.  At least 60 days prior to commencement of construction of a utility facility, an applicant must submit a decommissioning plan for review and approval by the OPSB.

  • A state registered professional engineer must prepare the plan, and the OPSB may reject the selected engineer.
  • The plan must include:
    • A list of parties responsible for decommissioning of the utility facility.
    • A schedule of decommissioning activities, which cannot extend more than 12 months beyond the date the utility facility ceases operation.
    • Estimates of the full cost of decommissioning, including proper disposal of facility components and restoration of the land on which the facility is located to its pre-construction state, but not including salvage value of facility materials.
      • The estimate of the full cost of decommissioning a utility facility must be recalculated every five years by an engineer retained by the applicant.

 

Performance Bonds – ORC 4906.22 to ORC 4906.222

How to and who pays for facility decommissioning is also addressed in the bill.  Before beginning construction of a utility facility, the applicant must post a performance bond to ensure that funds are available for the decommissioning of the facility.

  • The utility facility must name the OPSB as the bond oblige.
  • The bond shall equal the estimate of decommissioning costs included in the facility’s decommissioning plan.
  • The bond shall be updated every five years according to the most recent costs of decommissioning the facility and shall increase if estimated costs increase but shall not decrease if estimated costs decrease.

 

OPSB Provision of Approved Application -- ORC 4906.31

Under the bill, local governments would formally know if a project receives OPSB approval.  The OPSB must provide a complete copy of an approved application for or material amendment to a certificate to each board of trustees and county commissioners in the townships and counties of the facility location.

  • The copy must be provided within 3 days of the OPSB’s acceptance of the application and filing fee payment by the applicant.
  • The copy may be in electronic or paper form.

 

Effect on Utility Facility Applications in Process – Sections 3, 4 and 5 of the Act

Many wind and solar facility projects are currently in process, so the bill addresses what happens to those projects should the law go into effect.

  • The new law would apply to all applications for a certificate or a material amendment to an existing certificate for an economically significant wind farm or large wind farm that is not accepted by the OPSB within 30 days after the effective date of the legislation. 
    • An application for an economically significant wind farm or large wind farm that is not approved within 30 days after the effective date would be subject to review by the county commissioners, who would have 90 days after the effective date to review the application and act according to the provisions of the new law.
  • If an application for a certificate or material amendment to a certificate for a utility facility has not been accepted by the OPSB as of the new law’s effective date, the OPSB must include “ad hoc” members in further OPSB proceedings on the application.
  • The new law would not apply to an application for a certificate or material amendment to a certificate for a large solar facility that, as of the effective date of the new law, is in the new services queue of the PJM interconnection and regional transmission organization at the time the application is accepted by OPSB and the applicant has received a completed system impact study from PJM and paid its filing fee.
    • If the facility has multiple positions in the PJM new services queue, all queue position in effect on the law’s effective date are exempt from the new law.
    • If the facility submits a new queue position for an increase in its capacity interconnection rights, the change shall not subject the facility to the new law as long as the facility’s nameplate capacity does not increase.

We’ll keep an eye on the Governor to learn where S.B. 52’s road will end.  Read the full text of S.B. 52 and further information about it on the Ohio General Assembly’s website.

Posted In: Renewable Energy
Tags: solar, wind, renewable energy
Comments: 0
Biorefining facility in Ohio
By: Peggy Kirk Hall, Tuesday, June 29th, 2021

The meaning of the word “extension” was at the heart of a dispute that made its way to the U.S. Supreme Court over small refinery exemptions under the nation’s Renewable Fuel Program (RFP).  The decision by the Supreme Court came as a bit of a surprise, as questions raised by the Justices during oral arguments on the case last Spring suggested that the Court would interpret “extension” differently than it did in its June 27 decision.

Congress established the RFP in 2005 to require domestic refineries to incorporate specified percentages of renewable fuels like ethanol into the fuels they produce.  Recognizing that meeting RFP obligations could be more difficult and costly for small-scale refineries, Congress included an automatic two-year exemption from RFP obligations in the statute for small refineries producing less than 75,000 barrels per day. 

The law also allowed the Secretary of Energy to extend an exemption for a small refinery an additional two years if blending of renewables would impose a “disproportionate economic hardship” and authorized a small refinery to petition the EPA for an “extension” of an exemption for the same economic hardship reason.  This leads us to the significance of the meaning of the word “extension”:  a small refinery that receives an extension of an exemption need not meet the RFP blending mandate for the period of the extension.

We likely all have opinions on what the word “extension” means, but what matters is what it means in the context of the statute that uses the word.  But the RFP statute doesn’t define the word.  The three small refineries that appealed the case to the Supreme Court argued that an extension is simply an increase in time.  The extension, they claimed, need not be directly connected to and occur just after an exemption.  The refineries had received the initial exemption from RFP blending, had a lapse of the exemption for a period, then later asked for and received an extension of the exemption from the EPA.   

A group of renewable fuel producers led by the Renewable Fuels Association disagreed with the refineries and defined “extension” to mean an increase in time that also requires unbroken continuity with the exemption.  They argued that the EPA could not grant a small refinery an extension if an exemption had already lapsed.  Theirs was the definition adopted by the Tenth Circuit Court of Appeals, which held that the refineries could not receive an extension because their exemptions had lapsed and made them permanently ineligible for an extension.

In its decision, the majority on the Supreme Court held in favor of the definition advanced by the small refineries.  Explaining that the courts must give a term its “ordinary or natural meaning” when Congress doesn’t provide a definition, the majority concluded that “it is entirely natural—and consistent with ordinary usage—to seek an “extension” of time even after some lapse.”  Examples the Court drew upon included a student seeking an extension for a paper after its deadline, a tenant asking for an extension after overstaying a lease, and the negotiation of an extension to a contract after it expires.  Additionally, federal laws such as recent COVID and unemployment legislation allow an extension of benefits following an expiration of those benefits, the Court explained.  The Court also pointed to dictionary meanings of the word and contextual clues within the RFP statute, such as language in the statute stating that a small refinery may “at any time” petition for an extension.

Justice Gorsuch, who wrote the majority opinion, was careful to refute the arguments offered in the dissenting opinion written by Justice Coney-Barrett, joined by Justices Sotomayor and Kagan.  Justice Coney-Barrett argued that a natural and ordinary reading of the RFP’s text and structure clearly indicate that an extension could not occur for an exemption that no longer exists.  Referring to the Tenth Circuit’s earlier holding, the dissent agreed that the “ordinary definitions of ‘extension,’ along with common sense, dictate that the subject of an extension must be in existence before it can be extended.”

Does the future of ethanol markets hang on the meaning of one word?  How will the decision affect the renewable fuels sector?  Many claim that Congress included the exemptions to help small refineries adjust to and adopt the renewable blending mandates, but not to indefinitely avoid those mandates.  Renewable fuel interests state that the exemptions have created a detrimental effect on the renewable fuels market.  On the other hand, small refineries claim that Congress did not intend to drive them out of business by forcing them to comply with renewable blending requirements but instead designed the exemption and extension to protect them from disproportionate economic hardship.   

How long the protection from RFP compliance remains in place for small refineries is a question many in agriculture are asking.  Based on the Court’s recent decision, it could be indefinitely.  Perhaps Congress should step in and clarify the meaning of that one simple word.

Read the Supreme Court decision in HollyFrontier Cheyenne Refining, LLC v Renewable Fuels Assn. here

Close up of beef cow.
By: Jeffrey K. Lewis, Friday, June 04th, 2021

As planting season draws to a close, new agricultural issues are sprouting up across the country.  This edition of the Ag Law Harvest brings you federal court cases, international commodity news, and new program benefits affecting the agriculture industry. 

Pork processing plants told to hold their horses.  The USDA’s Food Safety and Inspection Service (“FSIS”) is not going to appeal a federal court’s ruling that requires the nation’s hog processing facilities to operate at slower line speeds.  On March 31, 2021, a federal judge in Minnesota vacated a portion of the USDA’s 2019 “New Swine Slaughter Inspection System” that eliminated evisceration line speed limits.  The court held that the USDA had violated the Administrative Procedure Act when it failed to take into consideration the impact the new rule would have on the health and safety of plant workers.  The court, however, only vacated the provisions of the new rule relating to line speeds, all other provisions of the rule were not affected.  Proponents of the new rule claim that the rule was well researched and was years in the making.  Further, proponents argue that worker safety was taken into consideration before adopting the rule and that the court’s decision will cost the pork industry millions.  The federal court stayed the order for 90 days to give the USDA and impacted plants time to adjust to the ruling.  All affected entities should prepare to revert to a maximum line speed of 1,106 head per hour starting June 30, 2021. 

Beef under (cyber)attack.  Over the Memorial Day weekend, JBS SA, the largest meat producer globally, was forced to shut down all of its U.S. beef plants which is responsible for nearly 25% of the American beef market.  JBS plants in Australia and Canada were also affected.  The reason for the shut down?  Over the weekend, JBS’ computer networks were infiltrated by unknown ransomware.  The USDA released a statement showing its commitment to working with JBS, the White House, Department of Homeland Security, and others to monitor the situation.  The ransomware attack comes on the heels of the Colonial Pipeline cyber-attack, leading many to wonder who is next.  As part of its effort, the USDA has been in touch with meat processors across the country to ensure they are aware of the situation and asking them to accommodate additional capacity, if possible.  The impact of the cyber-attack may include a supply chain shortage in the United States, a hike in beef prices at the grocery store, and a renewed push to regulate other U.S. industries to prevent future cyber-attacks. 

Texas has a new tool to help combat feral hogs.  Texas Agriculture Commissioner, Sid Miller, announced a new tool in their war against feral hogs within the state.  HogStop, a new hog contraceptive bait enters the market this week.  HogStop is being released in hopes of curbing the growth of the feral hog population.  According to recent reports, the feral hog population in Texas has grown to over 2.6 million.  It is estimated that the feral hogs in Texas have been responsible for $52 million in damage.  HogStop is an all-natural contraceptive bait that targets the male hog’s ability to reproduce.  HogStop is considered a 25(b) pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), which allows Texas to use it without registering the product.  Commissioner Miller thinks HogStop is a more humane way to curb the feral hog population in Texas and hopes that it is the answer to controlling the impact that feral hogs have on farmers and ranchers.  More information about HogStop can be found at their website at www.hogstop.com

USDA announces premium benefit for cover crops.  Most farmers who have coverage under a crop insurance policy are eligible for a premium benefit from the USDA if they planted cover crops this spring.  The USDA’s Risk Management Agency (“RMA”) announced that producers who insured their spring crop and planted a qualifying cover crop during the 2021 crop year are eligible for a $5 per acre premium benefit.  However, farmers cannot receive more than the amount of their insurance premium owed.  Certain policies are not eligible for the benefit because those policies have underlying coverage that already receive the benefit or are not designed to be reported in a manner consistent with the Report of Acreage form (FSA-578).  All cover crops reportable to the Farm Service Agency (“FSA”) including, cereals and other grasses, legumes, brassicas and other non-legume broadleaves, and mixtures of two or more cover crop species planted at the same time, are eligible for the benefit.  To receive the benefit, farmers must file a Report of Acreage form (FSA-578) for cover crops with the FSA by June 15, 2021.  To file the form, farmers must contact and make an appointment with their local USDA Service Center.  More information can be found at https://www.farmers.gov/pandemic-assistance/cover-crops.

Federal court vacates prior administration’s small refinery exemptions.  The Tenth Circuit Court of Appeals issued an order vacating the EPA’s January 2021 small refinery exemptions issued under the Trump administration and sent the case back to the EPA for further proceedings that are consistent with the Tenth Circuit’s holding in Renewable Fuels Association v. EPA.  The Tenth Circuit held that the EPA may only grant a small refinery exemption if “disproportionate economic hardship” is caused by complying with Renewable Fuel Standards. The EPA admitted that such economic hardship may not have existed with a few of the exemptions granted and asked the court to send the case back to them for further review.  The order granted by the Tenth Circuit acknowledged the agency’s concession and noted that the EPA’s motion to vacate was unopposed by the plaintiff refineries.  

Michigan dairy farm penalized for National Pollutant Discharge Elimination System violations.  A federal district court in Michigan issued a decision affirming a consent decree between a Michigan dairy farm and the EPA.  According to the complaint, the dairy farm failed to comply with two National Pollutant Discharge Elimination System (“NPDES”) permits issued under Section 402 of the Clean Water Act.  The violations include improper discharges, deficient maintenance and operation of waste storage facilities, failing to report discharges, failing to abide by its NPDES land application requirements, and incomplete recordkeeping.  The farm is required to pay a penalty of $33,750, assess and remedy its waste storage facilities, and implement proper land application and reporting procedures.  The farm also faces potential penalties for failing to implement any remedial measures in a timely fashion.  

Solar panels in a field
By: Peggy Kirk Hall, Thursday, May 13th, 2021

Energy is a hot topic at the statehouse these days.  The Ohio General Assembly is reviewing several proposals dealing with energy sources, including solar and wind facilities, oil, gas, and gas pipelines.  The proposals raise a critical question about where control over energy production activities should lie:  with the state or with local communities?  The proposals offer contrasting views on the answer to that question.

Solar and wind projects.  We reported in March that companion bills H.B. 118 and S.B. 52 were on hold due to conflicts with the proposals, which would have allowed citizens to use the referendum process to reject proposed large scale wind and solar energy developments in their communities.  On May 12, the bill sponsors offered a substitute bill to the House Public Utilities Committee.   The new approach in the substitute bill would allow a township to adopt a resolution designating all or parts of the township as “energy development districts.”  Doing so would allow wind and solar facilities to be constructed within the designated district(s) and would prevent the Ohio Power Siting Board from approving any projects that are not within a designated district.  The residents in a township, however, would have the right to petition an energy development district designation and submit it to a vote by township residents.  Sponsor Sen. Rob McColley (R-Napoleon) explained that the new approach would allow a township to let energy developers know “up front” that the community is “open for business.”  The committee will hear responses to the substitute bill in additional hearings, not yet scheduled.

Fossil fuel and gas pipelines.  A proposal regarding energy generation from fossil fuels and gas pipelines takes an opposite approach on local control.  H.B. 192, sponsored by Rep. Al Cutrona (R-Canfield) would prohibit counties, townships, and municipal corporations from prohibiting or limited the use of fossil fuels for electricity generation and the construction or use of a pipeline to transport oil or gas.  About a dozen opponents testified against the bill at its third hearing before the House Energy and Natural Resources last week, with most arguing that the proposal removes rights of local communities to control their energy sources and violates the home rule authority for municipalities provided in Ohio’s Constitution.  The bill is not yet scheduled for an additional committee hearing.

Natural gas.  A bill that guarantees access to natural gas passed the House of Representatives on May 6, largely along party lines.  H.B. 201, sponsored by Rep. Jason Stephens (R-Kitts Hill), guarantees that every person has a right to obtain any available distribution service or competitive retail natural gas service from gas suppliers, and bars a political subdivision from enacting laws that would limit, prevent, or prohibit a consumer within its boundaries from using distribution services, retail natural gas service, or propane.  Opponents argue that the bill violates home rule authority and is unnecessary, since no community in Ohio has ever banned the use of natural gas.  The bill was referred to the Senate Energy and Public Utilities Committee on May 12.

We'll keep you posted on the progress of these bills as the Ohio General Assembly continues to deal with the question of local versus state control of energy production and distribution in Ohio.

By: Peggy Kirk Hall, Monday, February 15th, 2021

The Ohio General Assembly is off and running in its new session.  Many bills that affect agriculture in Ohio are already on the move.   Here’s a summary of those that are gaining the most momentum or attention.

Tax Conformity Bill S.B. 18 and H.B. 48.  The Senate has already passed its version of this bill, which conforms our state tax code with recent changes to the Internal Revenue Code made in the latest COVID-19 stimulus provisions of the Consolidated Appropriations Act.  Both the Senate and the House will also exempt forgiven Paycheck Protection Program second-draw loan proceeds from the Commercial Activity Tax.  The Senate version additionally exempts Bureau of Workers Compensation dividend rebates from the Commercial Activity Tax beginning in 2020, but the House bill does not.  Both bills include “emergency” language that would make the provisions effective in time for 2020 tax returns.

Beginning farmers tax credits H.B. 95.  A slightly different version of this bill is returning after not passing in the last legislative session.  The bi-partisan bill aims to assist beginning farmers through several temporary income tax credits:

  • Businesses that sell or rent agricultural assets such as land, animals, facilities or equipment to certified beginning farmers can receive a 5% income tax credit for sales, a 10% of gross rental income credit for cash rents, and 15% of gross rental income for share rents.
  • Certified beginning farmers can receive an income tax credit equal to the cost of participating in a certified financial management program.

Beginning farmers, among other requirements, are those in or seeking entry into farming in Ohio within the last ten years who are not a partner, member or shareholder with the owner of the agricultural assets and who have a net worth of less than $800,000 in 2021, which adjusts for inflation in subsequent years.  Beginning farmers must be certified by the Ohio Department of Agriculture or a land grant institution.  The House Agriculture and Conservation Committee will discuss the bill at its meeting on February 16.

Wind and solar facilities S.B. 52.  In addition to revising setback and safety specifications for wind turbines, this proposal would amend Ohio township zoning law to establish a referendum process for large wind and solar facility certificates.  The bill would require a person applying for a certificate for a large wind or solar facility to notify the township trustees and share details of the proposed facility.  That notification sets up opportunities for the township trustees or residents of the township to object to the application and submit the proposed application to a vote of township residents.  A certificate would not take effect unless approved by a majority of the voters.  A first hearing on S.B. 52 will be held on Tuesday, February 16 before the Senate Energy and Public Utilities Committee.

Grants for broadband services H.B. 2 and S.B. 8.  The Senate passed its version of this bill last week, which sets up a $20 million competitive grant program for broadband providers to extend broadband services throughout the state.  The proposal would also allow broadband providers to use electric cooperative easements and poles, subject to procedures and restrictions.  The bill had its second hearing before the House Finance Committee last week.

Eminent domain – H.B. 63.   Based on a similar bill that didn’t pass last session, this bill changes eminent domain law in regard to property taken for the use of recreational trails, which include public trails used for hiking, bicycling, horseback riding, ski touring, canoeing and other non-motorized recreational travel.  H.B. 63 would allow a landowner to submit a written request asking a municipality or township to veto the use of eminent domain for a recreational trail within its borders.   The bill would also allow a landowner to object to a use of eminent domain for any purpose at any time prior to a court order for the taking, rather than limiting that time period to ten days as in current law.   The bill had its first hearing before the House Civil Justice Committee last week.

Minimum wage increases.  S. B. 51 and H.B. 69.  Bills on each side of the General Assembly propose gradually increasing the state minimum wage to $15, but have different paths for reaching that amount.  S.B. 51 proposes increasing the wage to $12/hour in 2022, followed by $1/hour increases each year and reaching $15 by 2025, which is when a federal bill proposes to establish the $15 minimum wage.  H.B. 69 begins at $10/hour in 2022 with $1/hour increases annually, reaching $15 in 2027.  S.B. 51 was referred last week to the Workforce and Higher Education Committee and H.B. 69 was referred to the Commerce and Labor Committee.

USDA NAL and National Agricultural Law Center

By: Ellen Essman, Wednesday, December 11th, 2019

Written by Ellen Essman and Peggy Hall

The holidays are almost here, 2019 is almost over, but the world of ag law isn’t taking a break.  From cannabidiol, to Ohio bills on water quality and wind power, to a cage-free egg law in Michigan, here’s the latest roundup of agricultural law news you may want to know:

FDA warns companies about cannabidiol products. If you’ve been following the hemp saga unfold over the past year, you know that the Food and Drug Administration (FDA) has been contemplating what to do with cannabidiol, or CBD from derived hemp products.  In addition to manufacturing standards, FDA has also considered how CBD products are marketed and labeled.  Although FDA has issued no official rules on CBD marketing and labeling, the agency has warned a number of companies that their marketing of CBD violates the Federal Food, Drug, and Cosmetic Act (FD&C Act). On November 25, FDA sent warning letters to 15 companies.  FDA asserts that the companies “are using product webpages, online stores and social media to market CBD products in interstate commerce in ways that violate the FD&C Act.”  In particular, FDA is apprehensive about those companies who market CBD products in ways that claim they can treat diseases or be used therapeutically for humans and animals.  Since CBD has not been approved by FDA or found safe for these uses, companies cannot make such claims.  You can see FDA’s news release for more information and for the list of companies. 

It won’t be as difficult for financial institutions to serve hemp related businesses.  Federal agencies and state bank regulators released a statement clarifying what is required of banks when hemp businesses are customers.  Since hemp was removed from the federal list of controlled substances, banks no longer have to file a Suspicious Activity Report on every customer involved in growth or cultivation of hemp just because they grow hemp.  This action will make it easier for those legally cultivating hemp to work with banks and obtain loans for their farms.  For more information, the agencies’ press release is available here.

Ohio House considers the Senate’s water quality bill.  Ohio’s House Energy & Natural Resources Committee held a hearing on Senate Bill 2 just last week.  The bill would implement a Statewide Watershed and Planning Program through the Ohio Department of Agriculture (ODA). Under the bill, ODA would be charged with categorizing watersheds in Ohio and appointing coordinators for each of the watersheds.  ODA and the coordinators would work closely with soil and water conservation districts to manage watersheds.  Ag groups such as the Sheep Improvement Association, the Cattleman’s Association, the Pork Council, the Dairy Producers Association, and the Poultry Association testified in favor of SB 2. 

Ohio House committee debates wind bill.  The House Energy & Natural Resources Committee was busy last week—in addition to SB 2, they also discussed House Bill 401.  In the simplest terms, if passed, HB 401 would allow townships to hold a referendum on approved wind projects.  This means that with a vote, townships could overturn decisions made by the Ohio Power and Siting Board (OPSB).  In the committee hearing, wind industry representatives argued that such a referendum would be harmful, since it would overturn OPSB decisions after companies have already spent a great deal of money to be approved by the Board.  They also argued that the bill singles out the wind industry and does not allow referendums on other energy projects.  Republican committee members signaled that they may be willing to revise the language of HB 401 to allow a referendum before OPSB decisions.

Iowa’s ag-gag law is paused.  In May, we wrote about Iowa’s new ag-gag law, which was the state’s second attempt to ban undercover whistleblowers and journalists from secretly filming or recording at livestock production facilities.  In response, numerous animal rights groups sued the state, claiming that the law unconstitutionally prevents their speech based on content and viewpoint.  On December 2, the U.S. District Court for the Southern District of Iowa issued a preliminary injunction, which means that the state will not be able to enforce the ag-gag law while the lawsuit against it is being considered. The preliminary injunction can be found here.

Cage free eggs coming to Michigan in 2024. Michigan lawmakers recently passed Senate Bill 174, which, among other things, will require that all birds producing eggs both in and out of the state be housed in “cage-free” facilities by 2024.  The cage-free facilities will have to allow hens to roam unrestricted with the exception of exterior walls, and some types of fencing to contain the birds.  In an indoor facility, the farmer must be able to stand in the hens’ usable floor space while caring for them.  In addition, the facilities must have enrichments for hens such as scratch areas, perches, nest boxes, and dust bathing areas. Michigan joins California, Oregon, Rhode Island, and Washington in banning non-cage-free eggs.  Note that Michigan’s law will apply to Ohio egg producers who sell eggs to buyers in Michigan.

Case watch:  hearing set in Lake Erie Bill of Rights case.   The court has set a January 28, 2020 hearing date for the slow moving federal lawsuit challenging the Lake Erie Bill of Rights (LEBOR) enacted by Toledo voters in February.  The hearing will likely focus on several motions to dismiss the case filed by the parties on both sides of the controversy, but Judge Zouhary indicated that he’ll set the agenda for the hearing prior to its date.  Drewes Farm Partnership filed the federal lawsuit against the City of Toledo in February, claiming that LEBOR is unconstitutional and violates several Ohio laws.  The State of Ohio was permitted to join the farm as plaintiffs in the case, but the court denied motions by Toledoans for Safe Water and the Lake Erie Ecosystem to join as defendants in the case.   For more on the LEBOR lawsuit, refer to this post and this post.  For our explanation of LEBOR, see this bulletin.

Stay tuned to the Ohio Ag Law Blog as we continue to track these and other developments in agricultural law through the holidays and beyond.

By: Ellen Essman, Thursday, November 14th, 2019

We haven’t done a legislative update in a while—so what’s been going on in the Ohio General Assembly? Without further ado, here is an update on some notable ag-related bills that have recently passed one of the houses, been discussed in committee, or been introduced. 

  • House Bill 7, “Create water quality protection and preservation”

This bill passed the House in June, but the Senate Finance Committee had a hearing on it just last month.  HB 7 would create both the H2Ohio Trust Fund and the H2Ohio Advisory Council.  To explain these entities in the simplest terms, the H2Ohio Advisory Council would decide how to spend the money in the H2Ohio Trust Fund.  The money could be used for grants, loans, and remediation projects to address water quality priorities in the state, to fund research concerning water quality, to encourage cooperation in addressing water quality problems among various groups, and for priorities identified by the Ohio Lake Erie commission.  The Council would be made up of the following: the directors of the Ohio Department of Agriculture (ODA), the Ohio Environmental Protection Agency (OEPA), and the Ohio Department of Natural Resources (ODNR) the executive director of the Ohio Lake Erie commission, one state senator from each party appointed by the President of the Senate, one state representative from each party appointed by the Speaker of the House, and appointees from the Governor to represent counties, municipal corporations, public health, business or tourism, agriculture, statewide environmental advocacy organizations, and institutions of higher education. Under HB 7, the ODA, OEPA, and ODNR would have to submit an annual plan to be accepted or rejected by the Council, which would detail how the agencies planned to use their money from the Fund. You can find the bill in its current form here

  • House Bill 24, “Revise Humane Society law”

HB 24 passed the House unanimously on October 30, and has since been referred to the Senate Committee on Agriculture & Natural Resources.  The bill would revise procedures for humane society operations and require humane society agents to successfully complete training in order to serve.  Importantly, HB 24 would allow law enforcement officers to seize and impound any animal the officer has probable cause to believe is the subject of an animal cruelty offense.  Currently, the ability to seize and impound only applies to companion animals such as dogs and cats.  You can read HB 24 here

  • House Bill 160, “Revise alcoholic ice cream law”

Since our last legislative update, HB 160 has passed the House and is currently in Agriculture & Natural Resources Committee in the Senate.  At present, those wishing to sell ice cream containing alcohol must in Ohio obtain an A-5 liquor permit and can only sell the ice cream at the site of manufacture, and that site must be in an election precinct that allows for on- and off-premises consumption of alcohol.  This bill would allow the ice cream maker to sell to consumers for off-premises enjoyment and to retailers who are authorized to sell alcohol. To read the bill, click here.

  • House Bill 168, “Establish affirmative defense-certain hazardous substance release”

This bill was passed in the House back in May, but there have been several committee hearings on it this fall.  HB 168 would provide a bona fide prospective purchaser of a facility that was contaminated with hazardous substances before the purchase with immunity from liability to the state in a civil action.  In other words, the bona fide prospective purchaser would not have the responsibility of paying the state of Ohio for their investigations and remediation of the facility. In order to claim this immunity, the purchaser would have to show that they fall under the definition of a bona fide prospective purchaser, that the state’s cause of action rests upon the person’s status as an owner or operator of the facility, and that the person does not impede a response action or natural resource restoration at the facility. You can find the bill and related information here.

  • House Bill 183, “Allow tax credits to assist beginning farmers”

House Bill 183 was discussed in the House Agriculture & Rural Development Committee on November 12.  This bill would authorize a nonrefundable income tax credit for beginning farmers who attend a financial management program.  Another nonrefundable tax credit would be available for individuals or businesses that sell or rent farmland, livestock, buildings, or equipment to beginning farmers.  ODA would be in charge of certifying individuals as “beginning farmers” and approving eligible financial management programs. HB 183 is available here. A companion bill (SB 159) has been introduced in the Senate and referred to the Ways & Means Committee, but no committee hearings have taken place.    

  • House Bill 373, “Eliminate apprentice/special auctioneer licenses/other changes”

HB 373 was introduced on October 22, and the House Agriculture & Rural Development Committee held a hearing on it on November 12. This bill would make numerous changes to laws applicable to auctioneers.  For instance, it would eliminate the requirement that a person must serve as an apprentice auctioneer prior to becoming an auctioneer; instead, it would require applicants for an auctioneers’ license to pass a course. The bill would also require licensed auctioneers to complete eight continuing education hours prior to renewing their license.  HB 373 would give ODA the authority to regulate online auctions conducted by  a human licensed auctioneer, and would require people auctioning real or personal property on the internet to be licensed as an auctioneer. To read the bill in its entirety and see all the changes it would make, click here.

  • Senate Bill 2, “Create watershed planning structure”

Since our last legislative post, SB 2 has passed the Senate and is now in the House Energy and Natural Resources Committee. If passed, this bill would do four main things. First, it would create the Statewide Watershed Planning and Management Program, which would be tasked with improving and protecting the watersheds in the state, and would be administered by the ODA director.  Under this program, the director of ODA would have to categorize watersheds in Ohio and appoint watershed planning and management coordinators in each watershed region.  The coordinators would work with soil and water conservation districts to identify water quality impairment, and to gather information on conservation practices.  Second, the bill states the General Assembly’s intent to work with agricultural, conservation, and environmental organizations and universities to create a certification program for farmers, where the farmers would use practices meant to minimize negative water quality impacts. Third, SB 2 charges ODA, with help from the Lake Erie Commission and the Ohio Soil and Water Conservation Commission, to start a watershed pilot program that would help farmers, agricultural retailers, and soil and water conservation districts in reducing phosphorus.  Finally, the bill would allow regional water and sewer districts to make loans and grants and to enter into cooperative agreements with any person or corporation, and would allow districts to offer discounted rentals or charges to people with low or moderate incomes, as well as to people who qualify for the homestead exemption. The text of SB 2 is available here.

  • Senate Bill 234, “Regards regulation of wind farms and wind turbine setbacks”

Senate Bill 234 was just introduced on November 6, 2019.  The bill would give voters in the unincorporated areas of townships the power to have a referendum vote on certificates or amendments to economically significant and large wind farms issued by the Ohio Power and Siting Board. The voters could approve or reject the certificate for a new wind farm or an amendment to an existing certificate by majority vote.  The bill would also change minimum setback distances for wind farms might be measured.  SB 234 is available here.  A companion bill was also recently introduced in the House.  HB 401 can be found here

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