Written by Peggy Kirk Hall and Ellen Essman
In the not-too-surprising news category, a federal court has invalidated the Lake Erie Bill of Rights (LEBOR) that Toledo residents passed last year to recognize and protect legal rights for Lake Erie. What is surprising, however, is how the court reached its decision to strike down LEBOR, even in the wake of a law passed by the Ohio legislature in July of 2019 that denies legal standing to nature and prevents a person from bringing a court action on behalf of nature or any ecosystem.
The verdict came exactly one year after Drewes Farm Partnership filed its federal lawsuit to prevent enforcement of LEBOR a day after Toledoans passed the measure. Drewes Farm asserted that LEBOR violated the farm’s rights under the First Amendment, Equal Protection Clause, and Due Process Clauses of the Fifth and Fourteenth Amendments. Drewes Farm also argued that LEBOR exceeded the City of Toledo’s authority because it usurped the power of the state and the federal government by interfering with international relations, invalidating state and federal permits, invalidating state law, altering the rights of corporations, and creating new causes of action in state courts. In April 2019, the state of Ohio joined the lawsuit as a fellow plaintiff. Proponents of LEBOR unsuccessfully attempted to join in the litigation.
Did the plaintiffs have the right to bring the case?
The opinion begins with the court’s “standing” analysis. Toledo argued that Drewes Farm and Ohio did not have legal standing to bring the lawsuit against the City. Legal standing requires that a plaintiff (1) suffers an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Failing to meet the legal standing requirement would force dismissal of the lawsuit. Without a finding in favor of legal standing, the court wouldn’t be able to determine LEBOR’s validity.
The central issue in whether the parties had legal standing was the injury in fact requirement, according to the court. To challenge LEBOR, the plaintiffs must demonstrate “concrete and particularized” injury that is “actual or imminent, not conjectural or hypothetical.” The court determined that the state of Ohio met this requirement because it suffered an injury, “at least on paper,” from LEBOR’s invalidation of Ohio laws, regulations, licenses and permits and because the state “could” be sued under LEBOR. The judge also found that Drewes Farm demonstrated injury in fact since any Toledo resident “could” sue the farm for violating LEBOR.
In its brief attention to the second component of standing, that the injury is fairly traceable to the defendant, the court determined that the potential injuries were traceable to Toledo because its city charter was amended by voters to include the LEBOR language. Even though the City itself did not legislatively enact LEBOR, had actually attempted to keep the issue off the ballot due to concerns that it was unconstitutional, and had not indicated any intent to enforce LEBOR, the court concluded that “the City is a proper defendant in the suit.” The court also found that invalidating LEBOR would redress the plaintiffs’ injuries, the final requirement for legal standing.
LEBOR violates due process
The court next directly examined only one of the many constitutional claims against LEBOR, the Fourteenth Amendment’s right to due process, and specifically focused on one element of due process: clarity of the law. The court stated that if a law is vague and unclear, it can “trap the innocent by not providing fair warning and invite arbitrary enforcement by prosecutors, judges, and juries.” Pointing to language in LEBOR such as the right of Lake Erie and its watershed to “exist, flourish, and naturally evolve,” and Toledoans’ right to a “clean and healthy environment,” the court questioned what type of conduct would violate the broad language and how a judge or jury would determine the line between “clean and unclean and healthy and unhealthy.” Spreading even a small amount of fertilizer could possibly violate LEBOR, the court said, as well as countless other activities such as catching fish, pulling weeds, planting corn, or driving a gas-powered vehicle. Not surprisingly, the court concluded that the language is void for vagueness. While LEBOR’s language sounds powerful, the court explained, it has no practical meaning, contains merely “aspirational statements” rather than rules of law, and violates constitutional due process.
What about other constitutional claims?
The court surprisingly didn’t tackle the many other constitutional issues raised by Drewes Farm and the State. But in its “severability” analysis, the court did briefly touch on the constitutionality of LEBOR’s preemption of state and federal laws. LEBOR contains a severability clause stating that a determination of one part of LEBOR as invalid does not invalidate the remaining parts of LEBOR. According to the court, this severability clause is valid only if the constitutional and unconstitutional parts of LEBOR are capable of separation and can stand by themselves. The court concluded that once the vague rights are stripped away, the remaining parts of LEBOR are meaningless.
The court then took the opportunity to note that LEBOR’s attempt to preempt Ohio law in the name of environmental protection would fail on its own merits. Lake Erie’s health falls well beyond Toledo’s authority and rights to govern its internal affairs, and enacting laws that conflict with Ohio law is a “textbook example of what municipal government cannot do,” said the court.
Protecting Lake Erie is a worthy goal
In a slightly sympathetic nod to LEBOR supporters “frustrated by the status quo,” the court notes that using a democratic process to protect Lake Erie is a well-intentioned goal but LEBOR simply fails to achieve the goal. Careful drafting by Toledoans could result in valid legislation that would reduce water pollution, the court explains, while highlighting an ordinance in Madison, Wisconsin that restricted the use of phosphorus-containing fertilizers in the city and withstood a legal challenge.
It comes as no surprise
Echoing what many had already concluded, the court criticized LEBOR’s authors for ignoring legal principals and constitutional limitations and stated that LEBOR’s invalidation should come as no surprise. “This is not a close call,” the court says. “LEBOR is unconstitutionally vague and exceeds the power of municipal government in Ohio. It is therefore invalid in its entirety.”
LEBOR has met the end of its road, but it never really stood a chance of actual enforcement due to its clearly unconstitutional language. LEBOR’s proponents often claimed that the purposes of LEBOR were to gain more attention to Lake Erie’s poor water quality and to push the concept of recognizing legal rights for nature and ecosystems a bit further down the road. Were they successful? Will Toledoans give up, or will they regroup and carefully draft new legislation to protect their water?
Farmers in Ohio now have absolute certainty that they will not be sued for violating Lake Erie’s “rights,” but such a lawsuit never really stood a chance of actual success due to LEBOR’s clearly unconstitutional language. And let’s not forget the new language in Ohio Revised Code §2305.01 stating that “nature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas; no person, on behalf of or representing nature or an ecosystem, shall bring an action in any court of common pleas; and no person shall bring an action in any court of common pleas against a person who is acting on behalf of or representing nature or an ecosystem.”
And what about Lake Erie’s water quality? New voluntary programs are rolling out from Governor DeWine’s H2Ohio plan. But many claim that more forceful measures are necessary. Other litigation over the lake’s water quality lingers, and Ohio has listed the Western Lake Erie Basin as “impaired” and must develop a plan to address Total Maximum Daily Loads of pollutants in the lake. It’s no surprise that even though it’s the end of the road for LEBOR, conflicts over solving Lake Erie’s water quality problems will continue.
Sparse dry weather conditions haven't dampened concerns about the extent of agricultural water quality problems we may see when summer weather finally arrives. Despite the weather, harmful algal bloom (HAB) predictions for the summer are already out and are one important measure of water quality impacts that are attributed to agriculture. As HABs arise, so too do the questions about what is being done to reduce HABs and other water quality impacts resulting from agricultural production activities. We set out to answer these questions by examining key players in the water quality arena: the states.
In our new national report, State Legal Approaches to Reducing Water Quality Impacts from the Use of Agricultural Nutrients on Farmland, we share the results of research that examines how states are legally responding to the impact of agricultural nutrients on water quality. After examining state laws, regulations and policies across the country, we can make several observations about state responses to the agricultural water quality issue. First, more activity occurs in states that are near significant water resources such as the Chesapeake Bay, Great Lakes, Mississippi River and coastal regions. States in those areas have more legal solutions in place to address nutrient impacts. Next, nearly all states rely heavily on nutrient management planning as a tool for reducing agricultural nutrient impacts on water quality. We also note that there is an absence of monitoring, bench marking, and data collection requirements in the laws that address agricultural nutrient management and water quality. Finally, many states have piecemeal, reactionary approaches rather than an organized statewide strategy accompanied by a locally-driven governance structure.
As we conducted our research, two types of approaches quickly emerged: mandatory and voluntary. Mandatory approaches are those that require specific actions or inactions by persons who use nutrients on agricultural lands, while voluntary approaches allow a user of agricultural nutrients to decide whether to engage in programs and practices that relate to water quality, with or without incentives for doing so. Because we could identify mandatory approaches through statutory and administrative codes, we were able to compile the laws into a database. Our compilation of Mandatory Legal Approaches to Agricultural Nutrient Management is available on the National Agricultural Law Center's website.
We classified the state mandatory approaches into three categories:
1. Nutrient management planning is the most common mandatory tool used by the states. All but two states mandate nutrient management planning, but the laws vary in terms of who must have or prepare a nutrient management plan (NMP). In the report, we provide examples of states that require NMPs for animal feeding operations, those that require NMPs only in targeted areas, those that require all operators to have an NMP, and those that require preparers of NMPs to be certified.
2. Nutrient application restrictions are becoming increasingly common across the states, but also vary by type of restrictions. In the report, we categorize four types of nutrient application restrictions and present the combination of restrictions in place in five states across the country:
---Weather condition restrictions
---Setback and buffer requirements
---Restrictions on method of application
---Targeted area restrictions
3. Certification of nutrient applicators is an approach used by 18 states, but state laws differ in terms of who must obtain certification. Some states require only animal feeding operations and commercial "for hire" applicators to be certified, while others extend certification to private landowners, users of chemigation equipment, or those in targeted sensitive areas. We provide examples of each type of certification approach.
The number and types of voluntary approaches to reducing agricultural nutrient impacts on water quality is extensive and more than we could identify and gather into a state compilation. In our report, however, we present examples of four types of voluntary approaches states are taking:
1. Technical assistance in the form of technical expertise and informational tools.
2. Economic incentives such as cost share programs, tax credits and water quality trading programs.
3. Legal protections for those who engage in nutrient reduction efforts.
4. Research and education programs that aim to increase understanding of the problem and expand the knowledge base of those who use and work with nutrients.
Please read our report, available here, to learn more about legal approaches states are taking in response to concerns about the impact of agricultural nutrients on water quality. We produced the report with funding from the USDA National Agricultural Library in partnership with the National Agricultural Law Center.
Disagreements over how to improve the health of Lake Erie have led to yet another federal lawsuit in Ohio. This time the plaintiff is the Board of Lucas County Commissioners, who filed a lawsuit in federal court last Thursday against the U.S. EPA. The lawsuit accuses the U.S. EPA of failing to enforce the federal Clean Water Act, which the county believes has led to an "alarming" decline in the water quality of western Lake Erie.
The Clean Water Act requires states to monitor and evaluate water quality and establish water quality criteria, and also to designate a water body as “impaired” if it does not meet the criteria. Once a water body is on the impaired waters list, the state must create Total Maximum Daily Loads (TMDLs) for the water body. TMDLs determine the maximum amounts of each pollutant that can enter a water body and still allow the water to meet the established water quality criteria. Plans for reducing a pollutant would be necessary if the pollutant exceeds the TMDLs. The state’s efforts to establish the water quality criteria, designate impaired waters and develop TMDLs are subject to review and approval by the U.S. EPA, who must ensure that the states are taking adequate action pursuant to the Clean Water Act.
Lucas County alleges that the U.S. EPA has failed in its Clean Water Act obligations by allowing Ohio to refuse to prepare TMDLs for the western basin of Lake Erie. Even after another court battle forced the designation of the western basin as “impaired,” the county explains, Ohio’s EPA declared the western basin to be a low priority for TMDL development and has not yet proposed either TMDLs or an alternative plan for addressing the basin’s impaired water status. Lucas County argues that since Ohio has not established TMDLs for the impaired waters of Lake Erie, the U.S. EPA must step in and do so.
The county also contends that the lack of state and federal action on the impaired waters status of the western basin has forced Lucas County to expend significant resources to maintain and monitor Lake Erie water quality for its residents. According to Lucas County, such actions and costs would be unnecessary or substantially reduced if the U.S. EPA had fulfilled its legal obligations to ensure the preparation of TMDLs for the western basin.
Agricultural pollution is an explicit concern in the county’s complaint. The development of TMDLs for the western basin would focus needed attention and remedial measures on pollution from agricultural operations, Lucas County states. The county asserts that TMDLs would establish a phosphorous cap for the western basin and methods of ensuring compliance with the cap, which would in turn address the harm and costs of continued harmful algal bloom problems in Lake Erie.
The remedy Lucas County requests is for the federal court to order the U.S. EPA to either prepare or order the Ohio EPA to prepare TMDLs for all harmful nutrients in the western basin, including phosphorous. The county also asks the court to retain its jurisdiction over the case for continued monitoring to ensure the establishment of an effective basin-wide TMDL.
This is not the first TMDL lawsuit over the western basin. In early February of this year, the Environmental Law and Policy Center (ELPC) and the Toledo-based Advocates for a Clean Lake Erie filed a lawsuit that similarly alleges that the U.S. EPA has failed to require Ohio to establish TMDLs for the western basin, which is still ongoing. See our summary of that case here. The case followed an earlier and successful push by the ELPC to order Ohio to declare the western basin as impaired, which the state had refused to do previously. We explain that history here.
The newest round of litigation again highlights differences in opinion on how to remedy Lake Erie’s phosphorous pollution problem. Like the TMDL lawsuits, a successful effort by the Toledoans for Safe Water to enact the Lake Erie Bill of Rights was also predicated on claims that Ohio and the federal government aren’t taking sufficient action to protect Lake Erie. Lucas County made it clear that it isn’t satisfied with the state of Ohio’s approach of providing funding to promote voluntary practices by farmers to reduce phosphorous pollution, despite stating that the county isn’t “declaring war on agriculture.” In its press conference announcing the current lawsuit, the county explained that the state’s voluntary approach won’t provide the “sweeping reforms we need.” On the other hand, the Ohio Farm Bureau has argued that the TMDL process for Lake Erie can take years longer and be less comprehensive than the voluntary practices farmers are pursuing. Still others believe that more research will help us fully understand the phosphorous problem and identify solutions.
As battles continue over the best approach to improving Lake Erie’s water quality, maybe all could at least agree that litigation is costly, in many ways. An alternative but perhaps more challenging path would be appreciation of the concerns on both sides of the issue and cultivation of collaborative solutions. Let’s hope we can find that path. In the meantime, we’ll keep you up to date on the continuing legal battles over water quality in Lake Erie.
Read the complaint in Board of Lucas County Commissioners vs. U.S. EPA here.
Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program
Toledo’s Lake Erie Bill of Rights (LEBOR) has been in the headlines a lot lately, and certainly on the minds of farmers in the Lake Erie watershed. So far, the Ag Law Blog has focused attention on what LEBOR is, why it was on the ballot, and what types of defenses agricultural producers can raise if sued. Because voters approved the ballot measure, the focus now shifts to how LEBOR will be treated in the courts.
On February 26th, Toledo held a special election, with one of the ballot questions being whether to amend the City of Toledo’s charter to adopt LEBOR. While less than 9 percent of Toledo’s registered voters cast a ballot, the majority of those who did voted in favor of amending the city’s charter to include LEBOR.
On February 27th, the Drewes Farm Partnership filed a complaint and initiated a lawsuit in federal court against the City of Toledo. Family owned and operated, this Wood County based grain farm operates wholly within the Lake Erie watershed. Drewes Farm utilizes both manure and commercial fertilizers, and states in its complaint that it follows industry best practices, scientific recommendations, and all legal requirements such as keeping records and not applying fertilizer on snow covered ground. Two of the family members obtained Fertilizer Applicator Certificates, and the Ohio Department of Agriculture certified the farm under its Ohio Agricultural Stewardship Verification Program.
The complaint specifically alleges violations of Drewes Farm’s rights under the First Amendment, Equal Protection Clause, and Due Process Clauses of both the Fifth and Fourteenth Amendments. Further, the complaint argues that LEBOR exceeds the City of Toledo’s authority by intruding on state and federal powers by attempting to meddle with international relations, invalidate state and federal permits, invalidate state law, alter the rights of corporations, and create new causes of action in state courts. Drewes Farm requests that the court 1) grant it a preliminary and permanent injunction to prevent LEBOR’s enforcement, 2) invalidate LEBOR, and 3) grant the plaintiff an award for costs and fees.
The following day, Drewes Farm filed a motion for a preliminary injunction. Parties use preliminary injunctions as a way to enforce the status quo and prevent the other parties from acting in a way that would cause further harm. If granted, the preliminary injunction would prevent the enforcement of LEBOR against the Drewes Farm Partnership during the course of the litigation. At the end of the case, there would be a determination of whether Drewes Farm should receive a permanent injunction, which would prevent LEBOR from being enforced against it after the case has ended.
The party who brings the motion must argue and prove four elements in order for the court to grant the motion for a preliminary injunction:
First, that the movant has a likelihood of success on the merits, meaning that it is likely that the movant will win the underlying case. Drewes Farm’s motion examines each of the grounds that it believes violates its constitutional rights and state and federal law. Drewes Farm argues that it can win on each of the dozen grounds it examines, and that it need only show a likelihood of success on one ground to satisfy this element.
Second, that the movant could suffer irreparable harm without a preliminary injunction, meaning that without a preliminary injunction, the other party may take action to harm the movant in a way that it will not be able to recover. Here, Drewes Farm cites court cases explaining that the loss of one’s constitutional rights for any amount of time constitutes irreparable harm, and that a likelihood of success also demonstrates irreparable harm.
Third, that the issuance of an injunction will not cause greater harm. This element balances the previous element to see whether the injunction is fair. Where the second element looks at the harm to the movant, the third element looks at whether a preliminary injunction will harm others. Here, Drewes Farm argues that others will not be harmed by the granting of a preliminary injunction because it will merely allow the farm to continue operating as required under the law and its permits using best practices. Further, Drewes Farm mentions that the other farms in the watershed will actually experience a benefit from the prevention of LEBOR’s enforcement.
Fourth, that the issuance of a preliminary injunction would serve the public interest. Here, Drewes Farm cites additional court cases explaining that the enforcement of constitutional rights is inherently in the public interest. Further, it argues that the State of Ohio holds its portion of Lake Erie in trust “for all Ohio citizens, not just those residing in a single municipality.”
If the court is satisfied that Drewes Farm has established each of the four elements, it may grant a preliminary injunction.
At this time, the City of Toledo has not filed any responses to the complaint or motion; however, procedural rules require it to respond in a timely manner. Because it has not filed anything with the court, it is unclear how the City of Toledo intends to defend or respond. However, since enforcement of LEBOR had not been commenced against the Drewes Farm Partnership, it is possible that Toledo will challenge the plaintiff’s standing to sue at the present time.
The case is cited in court records as Drewes Farm Partnership v. City of Toledo, Ohio, 3:19-cv-00343 (N.D. Ohio). Stay tuned to the Ag Law Blog for updates about the case.
Whether producing crops, livestock, or other agricultural products, it can be challenging if not impossible for a farmer to completely prevent dust, odors, surface water runoff, noise, and other unintended impacts. Ohio law recognizes these challenges as well as the value of agricultural production by extending legal protections to farmers. The protections are “affirmative defenses” that can shield a farmer from liability if someone files a private civil lawsuit against the farmer because of the unintended impacts of farming. A court will dismiss the lawsuit if the farmer successfully raises and proves an applicable affirmative legal defense.
In our latest law bulletin, we summarize Ohio’s affirmative defenses that relate to production agriculture. The laws afford legal protections based on the type of activity and the type of resulting harm. For example, one offers protections to farmers who obtain fertilizer application certification training and operate in compliance with an approved nutrient management plan, while another offers nuisance lawsuit protection against neighbors who move to an agricultural area. Each affirmative defense has different requirements a farmer must meet but a common thread among the laws is that a farmer must be a “good farmer” who is in compliance with the law and utilizing generally accepted agricultural practices. It is important for farmers to understand these laws and know how the laws apply to a farm’s production activities.
To learn more about Ohio’s affirmative defenses for agricultural production activities, view our latest law bulletin HERE.
Lake Erie once again made headlines when the Ohio Supreme Court recently decided that a “Lake Erie Bill of Rights” (LEBOR) initiative could be placed on the Toledo ballot on February 26, 2019. The decision raised alarm in Ohio’s agricultural community and fears that, if passed, the measure will result in litigation for farmers in the Lake Erie watershed.
The OSU Extension Agricultural and Resource Law Program took a close look at LEBOR. Specifically, we wanted to know:
- What does Toledo’s Lake Erie Bill of Rights petition mean?
- What does the petition language say?
- What happened in the legal challenges to keep the petition off the ballot?
- Have similar efforts been successful, and if not, why not?
- Who has rights in Lake Erie?
- What rights do business entities have?
We examine all of these questions, plus a number of frequently asked questions, in a new format called “In the Weeds.” While many of our readers know of our blog posts and law bulletins, explaining this issue required something different. Using “In the Weeds” is a way for us to dig into a current legal issue more in depth.
For answers to the questions above and more, CLICK HERE to view the new “In the Weeds: The Lake Erie Bill of Rights Ballot Initiative.”
Written by Ellen Essman, Sr. Research Associate
The Ohio Supreme Court recently decided that a “Lake Erie Bill of Rights” initiative could be placed before Toledo residents in a special election on February 26, 2019. The Lake Erie Bill of Rights (LEBOR) is a proposed amendment to the Toledo City Charter. Josh Abernathy, an opponent to the initiative, brought the lawsuit seeking a “writ of prohibition”—meaning he wanted the Ohio Supreme Court to determine that the Lucas County Board of Elections must remove LEBOR from the special election ballot.
The Supreme Court began its analysis in the case by explaining that in order to obtain a writ of prohibition in an election case, the party bringing suit must prove all of the following:
- The board of elections exercised quasi-judicial power,
- The exercise of that power was unlawful, and
- The party bringing suit has no adequate remedy in the ordinary course of law.
The Supreme Court examined the three elements in reverse order. The Court quickly answered the third element in the affirmative—reasoning that because the election was so imminent, Abernathy did “not have an adequate remedy in the ordinary course of the law,” because any other suit, such as an injunction, would not be finished prior to the election.
The Supreme Court determined that the second element was not satisfied. The Court reasoned that the “exercise of power” was not “unlawful,” because “a board of elections has no legal authority to review the substance of a proposed charter amendment and has no discretion to block the measure from the ballot based on an assessment of its suitability.” In doing so, the Supreme Court pointed to past cases it had decided, as well as the language in Article XVIII, Section 9 of the Ohio Constitution, which must be read with Section 8, both provided above. Section 9 says that a charter amendment can “be submitted to” the voters “by a two-thirds vote of the legislative authority,” as well as through a petition signed by 10 percent of the voters in the municipality. Then, as is explained above, the board of elections must pass an ordinance to include the proposed amendment on the ballot. After that, the Supreme Court found, based on precedent and the language of the Constitution, the only responsibility of the board of elections is to put the charter amendment on the ballot—the board has no other authority.
Finally, the Ohio Supreme Court concluded that since the second element was not met, there was no reason to address the first element—whether or not “the board’s exercise of authority was quasi-judicial.” Abernathy also argued that the board of elections should not have put LEBOR on the ballot due to the doctrine of claim preclusion—meaning that since the Court had already decided a case concerning LEBOR, the board should not have the power to place it on the ballot afterwards. The Supreme Court disagreed, pointing once again to the language in the Ohio Constitution, which effectively says that “the board had no power to keep the proposed charter amendment off the ballot for any reason, including claim preclusion.” In sum, the Supreme Court decided that based on a reading of case law and the Ohio Constitution, the board of elections in Toledo had no option other than placing LEBOR on the ballot. This outcome does not necessarily mean that if Toledo passes LEBOR, it is a done deal; if and when it passes, courts could determine it is unconstitutional and/or beyond the scope of the city’s power.
The case is cited as State ex rel. Abernathy v. Lucas Cty. Bd. Of Elections, Slip Opinion No. 2019-Ohio-201, and the opinion is available at https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2019/2019-Ohio-201.pdf.
The legislative Joint Committee on Agency Rule Review (JCARR) has voted to send the "watersheds in distress" rule revisions back to the Ohio Department of Agriculture (ODA). JCARR reviews administrative rules to make sure they follow legal requirements, which we explained in a previous blog post. The "watersheds in distress" rules seek to address agricultural nutrient impacts on water quality, also explained in an earlier post. At its meeting yesterday, JCARR members voted 8 to 1 to recommend that ODA revise and refile the rules for consideration at JCARR's next meeting on January 22, 2019.
The January 22 meeting date efectively removes Governor Kasich's administration from the rules revision. Kasich issued an executive order last July directing his agencies to prepare the controversial rule package. But the incoming DeWine Administration will control the fate of the rules since DeWine takes office on January 14, 2019. JCARR is apparently counting on the new administration to take a different approach on agricultural nutrient pollution reduction.
"There will be a new administration and we'll have maybe more productive talks," stated JCARR's chair, Sen. Joe Uecker (R-Loveland). "The DeWine Administration has demonstrated an interest on working with stakeholders on this issue."
The lack of stakeholder involvement was a common concern voiced by JCARR members, who stated that the rules had been rushed and did not involve all of the interested parties. Several committee members also suggested that the rules are inconsistent with legislative intent and will have a significant adverse impact on farmers. The Ohio Soybean Association, Ohio Corn & Wheat Growers Association, and Ohio Farm Bureau echoed those criticisms to JCARR members while several local residents, local groups and the Ohio Environmental Council testified that the rules would not sufficiently protect water quality.
If ODA fails to refile the rules proposal for the January meeting, JCARR will have 31 days to recomend that the Ohio General Assembly invalidate the rules. That action would allow each chamber five days to pass a resolution invalidating the rules; if the concurrent resolution does not pass within that time period, the rules would stand. Alternatively, ODA could remove the proposal from JCARR's agenda and refile revised rules at a later date, a likely course of action for the incoming DeWine administration.
In an ongoing attempt to carry out Governor Kasich's executive order to establish nutrient management requirements for agricultural nutrients within "watersheds in distress," the Ohio Department of Agriculture (ODA) has made a second revision to its proposed rule package. According to ODA, the proposed watersheds in distress rules "create a uniform, state-wide standard that governs the application of manure and fertilizer on frozen, snow-covered and rain-soaked ground" within areas designated as "watersheds in distress." pursuant to Ohio Admin. Code 1501:15-5-20. Those proposed standards include the following:
- Manure and nutrient application restrictions. Owners, operators and applicators shall not surface apply manure and nutrients (nitrogen and phosphorus) on more than 50 acres of land used for agricultural production on snow covered, frozen and saturated soil or when there's a greater than 50% chance that precipitation would exceed one-half inch in 24 hours, unless the manure or nutrients are injected, incorporated with 24 hours or applied to a growing crop.
- Compliance with 590 standards. Owners, operators and applicators must follow the conservation practices in USDA's “Field Office Technical Guide,” also known as the “590 standards.”
- Nutrient management plan (NMP) requirements. Owners and operators within watersheds in distress must develop and comply with NMPs if applying nutrients on more than 50 acres or producing, applying, or received more than 350 tons or 100,000 gallons of manure annually by deadlines established by ODA, must submit an attestation of NMP completion to ODA, and must produce a copy of the plan within five days of a demand by ODA. The rule outlines the requirements and standards for NMPs.
- Ongoing compliance. Owners and operators must update NMPs and attestations once every three years or when conditions change.
- Enforcement. The rule includes penalities for failure to comply with rule provisions.
ODA proposed the first rule package in July, accepted public comments on the rule, and published a revised rule package for public comments. In response to the second round of comments, ODA has made another revision to the rule. The agency states that it is now amending the rule "to require the Department to conduct an audit of at least 5% of the attestations submitted to determine compliance regarding completion of nutrient management plans." Explaining the purpose of the revision, ODA states that "support was voiced from certain stakeholders regarding the flexibility of farmers to apply manure and nutrients during the winter months when conditions were favorable and safe to apply. In contrast, other stakeholders raised concerns that agricultural operations would no longer have any restrictions on the application of manure and nutrients. Stakeholders also raised concerns regarding the Department’s ability to enforce the new proposals."
The proposed watersheds in distress rule package is here and the business impact analysis for the rules is here. The public may submit comments on the proposal to ODA at AGReComments@agri.ohio.gov until October 5, 2018.
It's Farm Science Review week! Be sure to visit us in the Firebaugh Building to get your questions answered and pick up copies of our Law Bulletins and a helping of candy corn. We'll be speaking on "Pond Liability" at the Gwynne Conservation Area on Wednesday and on "Estate Planning: Mistakes to Avoid" in the Ask the Experts session everyday.
Here's our gathering of ag law news you may want to know:
Movement on Ohio “Watersheds in Distress” rules. As we have reported on several times this summer, Governor John Kasich signed an executive order on July 11, 2018 directing ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission (OSWC) to designate” certain watersheds “as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment.” Since that time, ODA has submitted a proposed rule dealing with Watersheds in Distress. Amendments were made to the proposed rule after evaluating the first set of public comments, and ODA is now resubmitting the rules package. ODA reopened the proposed rule for public comments, but it closed the comment period on September 7, 2018. Information about the proposed rules, as well as how and where to comment, can be found here (click on the “Stakeholder Review” tab and then the “Soil and Water Conservation – Watersheds in Distress OAC 901:13-1” drop down option). A draft of the newly amended proposed rules is available here.
WOTUS woes continue. The Obama administration’s hotly contested “Waters of the United States” Rule is back in the news, and this time, where it applies is dependent on where you live. A background on the rule can be found in our previous blog post. The rule basically expanded which bodies of water qualify as “waters of the United States,” which in turn protected more waters under the Clean Water Act. The rule became effective in 2015. Since that time, U.S. District Courts in North Dakota and Georgia have issued preliminary injunctions against Obama’s WOTUS Rule, which means it cannot be carried out in twenty-four states. Additionally, last summer, the EPA and Army Corps of Engineers, under the direction of President Trump, announced their plan to repeal Obama’s WOTUS Rule and replace it with the definition of WOTUS “that existed prior to 2015” until a new definition could be developed. Trump’s rule was published on February 6, 2018, giving the administration until 2020 to come up with a new definition. However, in a ruling on August 16, 2018, in a U.S. District Court in South Carolina, Judge David Norton determined that the Trump administration “failed to comply with” requirements of the Administrative Procedure Act when it enacted its rule. This means that the Trump rule repealing and replacing the definition of WOTUS is invalidated. As a result of Judge Norton’s decision, in the remaining twenty-six states without an injunction, the Obama administration’s version of the rule has been reinstated. Ohio is one of the twenty-six states where the Obama rule currently applies. Will the Trump administration and the EPA respond to Norton’s decision by announcing yet another new WOTUS rule? Follow the Ag Law Blog for any updates. In the meantime, the country remains nearly split in half by which version of the WOTUS rule is carried out.
Regulators, meet “meat.” Under a new Missouri law, it is a criminal offense to misrepresent a product as “meat” if there is, in fact, no meat. Missouri’s revision of its meat advertising laws took effect on August 28th, and has been dubbed by many as the first attempt by a state to regulate what qualifies as meat. Defining meat as “any edible portion of livestock, poultry, or captive cervid carcass,” the law prohibits “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.” Violations are treated as a misdemeanor, with a fine up to $1,000 and possible jail time. The Missouri Department of Agriculture has said that it intends to enforce the law, but that it plans to give affected companies until the start of next year to bring their labels into compliance. Supporters of the law, like the Missouri Cattlemen’s Association, argue that it will provide consumers with accurate information about their food, and also protect meat producers from unfair labeling of plant-based or lab-grown meat alternatives. Opponents have already filed a lawsuit to prevent enforcement, arguing that the law restricts free speech and improperly discriminates against out-of-state producers of meat alternatives. The named plaintiff on the lawsuit is Turtle Island Foods, an Oregon company that does business under the names Tofurky and The Good Foods Institute. The company makes plant-based food products, and is joined in its opposition by the American Civil Liberties Union of Missouri and the Animal Legal Defense Fund. Beyond Missouri, the National Cattlemen’s Beef Association has listed the issue as a top policy priority for this year, and the U.S. Cattlemen’s Association has petitioned the USDA to adopt stricter labeling requirements. As this issue develops, the Ag Law Blog will keep you updated.
USDA taps Commodity Credit Corporation to aid farmers. Readers are no doubt aware of global trade disputes in which other countries have increased tariffs on American agricultural exports. Given the extensive news coverage, the Harvest will not attempt to cover the dispute in depth; however, one point that has been less covered is the tool that the USDA has selected to provide relief to impacted farmers: the Commodity Credit Corporation. What is it? The Commodity Credit Corporation (CCC) is a federal government entity created during the Great Depression in 1933 to “stabilize, support, and protect farm income and prices.” Since 1939, it has been under the control of the Secretary of Agriculture, although it is managed by a seven member Board of Directors. CCC is technically authorized to borrow up to $30 billion from the U.S. Treasury at any one time, but due to trade agreements, that number is, in reality, much smaller. This gives USDA access to billions of dollars in funding without having to go to Congress first. The money can be used to provide loans or payments to agricultural producers, purchase agricultural products to sell or donate, develop domestic and foreign markets, promote conservation, and more. CCC has no staff, but is instead administered through other USDA agencies, largely the Farm Service Agency and Agricultural Marketing Service. On August 27th, Secretary of Agriculture Sonny Perdue announced that USDA plans to tap the Commodity Credit Corporation for up to $12 billion worth of aid to farmers affected by recent tariffs. The Market Facilitation Program will provide direct payments to eligible corn, cotton, dairy, hog, sorghum, soybean, and wheat producers, and the Food Purchase and Distribution Program will purchase up to $1.2 billion in select commodities. For more about the Commodity Credit Corporation, check out its website.
Bayer reports increasing number of lawsuits against newly acquired Monsanto. Bayer, the German pharmaceutical and life sciences company that acquired Monsanto early this summer, has indicated that there are an increasing number of lawsuits in the United States alleging that its weed killers cause cancer. According to the Wall Street Journal, there were roughly 8,700 plaintiffs seeking monetary damages from Bayer as of late August, a sharp increase from the 5,200 plaintiffs just months earlier. Many of these lawsuits involve cancer patients who claim that Monsanto’s glyphosate-containing herbicides like Roundup caused their cancer. As we reported in a previous edition of the Harvest, one person’s successful lawsuit against Monsanto resulted in a San Francisco jury award of $289.2 million for failing to warn consumers of the risks posed by its weed killers. Monsanto is expected to file motions for a new trial and for the judge to set aside the verdict, and may ultimately appeal the decision. These cancer-related claims come at a time when another Monsanto product, Dicamba, is causing great controversy. Stay tuned to the Ag Law Blog as these lawsuits continue to develop.