Lake Erie

By: Peggy Kirk Hall, Friday, March 06th, 2020

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.”

Now what?

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. 

Read the U.S. District Court’s opinion on LEBOR here.  For our in-depth look at LEBOR, click here.  We review other current Lake Erie legal activities here.

By: Ellen Essman, Wednesday, February 19th, 2020

For the last several years, the state of Ohio and the U.S. EPA have been plagued with objections and lawsuits—from states, local governments, and environmental groups—concerning Ohio’s list of impaired waters and development of total maximum daily loads (TMDLs) for the Western Basin of Lake Erie. (Some of our past blog posts on the subject are available here, here, and here.) Under the Clean Water Act (CWA), states are required to submit a list of impaired, or polluted, waters every two years.  Typically, designating a water body as impaired triggers a review of pollution sources, determinations of TMDLs for different pollutants, and an action plan for meeting those TMDLs.  Ohio repeatedly failed to include the Western Basin in its list of impaired waters, even though the area has been subject to pollution-caused algal blooms in recent years.  When the state finally listed the Western Basin waters as impaired in 2018, it still did not develop the accompanying TMDL for the area.  However, Ohio’s TMDL drought ended last week. 

Ohio EPA announced on February 13, 2020, that it would develop TMDLs for the Western Basin “over the next two to three years.” This decision will ultimately affect farmers in the watershed, as it is likely that the Ohio EPA would create TMDLs for phosphorus, nitrogen, and other fertilizers in the Western Basin. Consequently, farmers may have to reduce the amounts they put on their fields, and/or implement additional measures to keep such inputs from running off into the water.

So, Ohio listed the Western Basin as impaired and is working on TMDLs for the area—the controversy is over, right?  Not so fast.  Lucas County, Ohio and the Environmental Law & Policy Center filed a lawsuit against the U.S. EPA that is still ongoing.  (We last discussed this lawsuit here.) Basically, the plaintiffs in the suit are arguing that the U.S. EPA violated the CWA when it allowed the Ohio EPA to designate the Western Basin as impaired in 2018, but did not make the state develop TMDLs.  Even though Ohio has since promised to implement TMDLs for the area, the outcome of the case will still weigh in on the crucial question of whether the U.S. EPA can make states create TMDLs for impaired waters under the CWA.  In addition, the U.S. District Court case applies to Ohio’s 2018 impaired waters list, whereas Ohio EPA’s recent announcement concerns the 2020 list.  Finally, it’s doubtful that environmental groups and others will stop their efforts just because Ohio has now promised to create TMDLs—it’s almost a certainty that the debate over pollution in the Western Basin and the best ways to remedy the problem will persist. 

By: Ellen Essman, Friday, January 17th, 2020

Lawsuits against the U.S. EPA and individual states seem to be a popular strategy to address water pollution problems.  Last April, we wrote about Lucas County, Ohio and its suit against the EPA over water quality in the western basin of Lake Erie.  Since that time, a federal judge has given another lawsuit concerning Lake Erie, filed by the Environmental Law & Policy Center (ELPC), the green light.  But not all litigation concerns Ohio waters—recently, Maryland’s attorney general was directed to sue the EPA and Pennsylvania over water pollution in the Chesapeake Bay.   Here are summaries of these two developments.

Environmental Law & Policy Center vs. EPA

We wrote about this lawsuit in February 2019, when ELPC had just filed its complaint.  Essentially, ELPC contended that the U.S. EPA violated the Clean Water Act (CWA) when it allowed the Ohio EPA to designate Lake Erie as an impaired water body without instituting a Total Maximum Daily Load (TMDL) for pollutants going into the lake.  You can get more details on this case by reading our blog post, here.  Subsequently, EPA moved to dismiss the complaint.  In addition, Lucas County joined ELPC as co-plaintiffs. 

On November 13, 2019, the U.S. District Court for the Northern District of Ohio denied EPA’s motion to dismiss.  Judge James Carr ruled that the case can go forward, finding that ELPC “plausibly alleges that Ohio EPA has clearly and unambiguously refused to develop a TMDL for Western Lake Erie.” This means that the action will go forward and that ELPC will be able to argue the case on the merits.  You can read the ruling here.

Maryland to sue EPA, Pennsylvania

Meanwhile, in Maryland, the governor recently sent a letter to the state’s attorney general asking him to “commence litigation” against the EPA for “failing to enforce the Chesapeake Bay” TMDL, and against its upstream neighbor, Pennsylvania, for “repeatedly falling short of necessary pollution reduction goals.” At the center of this controversy is Pennsylvania’s draft Watershed Implementation Plan (WIP), which Maryland’s governor alleges will cause Pennsylvania to fall far behind its 2025 pollution reduction targets in addition to not meeting the TMDL.  The governor asserts that by accepting Pennsylvania’s WIP with very few changes, the EPA is failing to enforce Pennsylvania’s compliance with the established TMDL.

What’s next?

It typically takes these types of lawsuits a while to work through the courts. The way the courts decide these cases will affect how TMDLs are viewed.  Are TMDLs necessary under the CWA and enforceable, as the plaintiffs claim? Or are TMDLs simply soft goals and guidelines for reducing pollution that EPA does not necessarily have to enforce?  Ultimately, outcomes of these cases could have implications for agricultural runoff, which can be a contributor to pollution in both Lake Erie and the Chesapeake Bay. 

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, August 01st, 2019

It’s been a while since we’ve written about the Lake Erie Bill of Rights (LEBOR).  As a refresher, LEBOR was passed in February in a special election as an amendment to Toledo’s city charter.  LEBOR was meant to create new legal rights for Lake Erie, the Lake Erie ecosystem, and to give Toledo citizens the ability to sue to enforce those legal rights against a government or a corporation violating them.  For a longer explanation on LEBOR, see our post here.  Since then, lawsuits for and against LEBOR have been filed, and the state of Ohio has passed legislation concerning the language in LEBOR. Updates on those actions will be discussed below. 

Update on the Drewes Farm lawsuit

The day after LEBOR passed, Drewes Farm Partnership initiated a lawsuit in the U.S. District Court for the Northern District of Ohio, Western Division, against the city of Toledo. Our initial blog posts concerning this lawsuit are available here and here.  In May, we discussed updates to the Drewes Farm lawsuit in yet another blog post.  Since our last update, the Lake Erie Ecosystem and TSW’s motion to stay pending appeal and the appeal were both denied, meaning the Sixth Circuit agreed with the district court’s decision to leave the ecosystem and TSW out of the lawsuit.  As a result, the current parties to the lawsuit are plaintiffs Drewes Farm Partnership and the State of Ohio, as well as the defendant City of Toledo.  In early June, both the Drewes Farm Partnership and the state of Ohio filed motions for judgment on the pleadings.  The district court has not yet determined whether to grant the motions; the City of Toledo’s response to the motions is due on August 9, 2019.  After the response is filed, the plaintiffs will have a chance to reply.

Toledo Citizens file lawsuit against State of Ohio

In the midst of the Drewes Farm lawsuit, yet another complaint has been filed concerning LEBOR.  On June 27, 2019, three citizens of Toledo filed a complaint against the state of Ohio in the Lucas County Court of Common Pleas.  In the complaint, the citizens, who all voted for LEBOR, asked the court to find that the state has failed to address pollution in Lake Erie, and due to its inaction, circumstances in the lake are getting worse, that LEBOR is enforceable under the Ohio Constitution and state law, and to issue an injunction to prevent the state from curtailing their rights under LEBOR.  Currently, it appears as though no response has been filed by the state of Ohio.  Perhaps the state wants to let recently passed legislation do the talking. 

State budget bill includes language aiming to invalidate LEBOR, adds water quality initiative

Finally, the Ohio General Assembly has also gotten in on the LEBOR action.  On July 18, 2019, Governor DeWine signed the General Assembly’s budget bill into law.  Page 482 contains language that seems to be aimed at LEBOR and other environmental community rights initiatives.  Most importantly, the bill states:

  • Nature or any ecosystem does not have standing to participate 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. 

It will be interesting to see how courts handle lawsuits on behalf of ecosystems and nature after the passage of this budget law. 

While the budget bill appears to take LEBOR and initiatives like it head-on, it also created a water quality initiative called “H2Ohio,” which includes a fund in the state treasury.  The money in the H2Ohio fund will go toward water quality improvement projects, including projects to reduce phosphorus, nitrogen, and sediment pollution from agricultural practices.  With this initiative, the state seems to be offering an alternative way to protect its waters, including Lake Erie. 

Work continues on sorting out the legality of LEBOR and the wider problem of Lake Erie pollution, and there appears to be no end in sight. Keep an eye on the Ohio Ag Law Blog for new developments on LEBOR lawsuits and the H2Ohio program!

By: Evin Bachelor, Wednesday, May 15th, 2019

Lawsuits can be a long and drawn out process, and the Lake Erie Bill of Rights (LEBOR) lawsuit has demonstrated that.  Two and a half months after the complaint in Drewes Farm Partnership v. City of Toledo was filed by the farm, which parties will be allowed to participate in the lawsuit is becoming somewhat clearer, but it might not be over yet.  However, a conference call between the court and the current parties scheduled for the end of this week may signal that some substantive action is on the horizon.

The State of Ohio is now a party.  Judge Zouhary granted Ohio Attorney General Yost’s motion to intervene, making the State of Ohio a party to the lawsuit.  The procedural rules for federal courts permit non-parties to ask a court to allow them into a lawsuit either as of right or at the judge’s discretion.  As of right means that a statute, rule, or case gives a non-party a right to enter into a lawsuit as a party.  In contrast, a discretionary intervention allows a judge to grant a motion to intervene at his or her discretion so long as the person or entity seeking to intervene has a “common question of law or fact” with a current party to the lawsuit.  Non-parties often argue both in order to cover all of their bases, which is what the Ohio Attorney General did in this case.  Judge Zouhary focused his analysis on discretionary intervention, and found that the state has asserted the same question as the plaintiff, Drewes Farms, in that Ohio’s constitution, statutes, and administrative regulations preempt the LEBOR amendment to Toledo’s city charter.  The court also noted that the City of Toledo did not oppose the state’s intervention.  Based on these points, the court granted the motion to intervene.  The State of Ohio may now make arguments and participate in the lawsuit as a full party.

Lake Erie Ecosystem and Toledoans for Safe Water are denied party status.  Days after allowing the Ohio Attorney General’s intervention, Judge Zouhary decided that neither Lake Erie nor Toledoans for Safe Water will be allowed to intervene as parties.  Much like the Ohio Attorney General, these non-parties made arguments to support both forms of intervention.  Judge Zouhary believed that neither Lake Erie nor Toledoans for Safe Water met the requirements for either form of intervention.  As for Toledoans for Safe Water, the court found that it had no right to intervene since it does not have a substantial interest in defending the charter amendment.  Just being the group that put LEBOR on the ballot is not enough.  Further, since the group recognized that its arguments about the rights of nature are novel and not currently recognized in U.S. law, allowing the party to intervene and make these arguments would cause undue delay.  As for Lake Erie, Judge Zouhary noted that the only basis for intervention cited in the motion was LEBOR itself, and that LEBOR only gave Lake Erie the right to enforce its rights in the Lucas County Court of Common Pleas.  Therefore, neither Lake Erie nor Toledoans for Safe Water will be able to participate in the lawsuit at this time.

But Lake Erie Ecosystem and Toledoans for Safe Water still want in.  Shortly after their motions to intervene were denied, Lake Erie and Toledoans for Safe Water filed two documents with the court: a motion to stay pending appeal and a notice of appeal.  First, the motion to stay pending appeal asks the court to pause the proceedings while the non-parties ask an appellate court to review Judge Zouhary’s decision.  Their hope is that no decisions would be made in their absence should the appellate court decide that their intervention should be granted.  Drewes Farm has already filed a brief in opposition to the motion to stay, which asks the court to continue the case as quickly as possible.  Second, the notice of appeal is a required notice to the court and the parties that an appeal of a judge’s decision has been made to the U.S. Sixth Circuit.  An appeal of this sort, especially one involving a discretionary act, imposes a high burden on the appellant in order to succeed.

Conference call set for Friday, May 17th regarding a Motion for Judgment on the Pleadings.  On May 7th, Judge Zouhary issued an order stating that the parties must submit letters in a joint filing regarding a Motion for Judgment on the Pleadings.  Our case law updates often talk about motions for summary judgment, but motions for judgment on the pleadings are less frequently discussed.  Motions for judgment on the pleadings are requests for the court to make a decision after a complaint and answer (and, when allowed, a reply) have been filed.  The court can make a decision at this stage only if it finds that there is no real dispute about the facts.  The parties essentially agree about what happened, and all the court has to decide is how the law applies to the facts in the pleadings.  A motion for summary judgment generally involves the presentation of additional facts that were not included in the pleadings, but makes a similar request.  The court can grant a motion for judgment on the pleadings in part, which means that some of the case will be resolved and some will continue, but these motions can also be used to end the entire case.

It would be quite interesting to be a fly on the wall during the conference call scheduled for this Friday.  It seems likely that we will hear about it soon after.  However, this conference call does not necessarily mean that this case, or even LEBOR, will be over soon.  Stay tuned to the Ohio Ag Law Blog for more case updates.

By: Peggy Kirk Hall, Monday, April 22nd, 2019

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.

By: Peggy Kirk Hall, Thursday, March 28th, 2019

The media storm that surrounded the controversial Lake Erie Bill of Rights (LEBOR) has quieted, but the federal lawsuit over LEBOR has heated up.  Just a month ago, Toledo residents voted to approve LEBOR.  The measure establishes rights within the City’s charter for the Lake Erie Ecosystem to “exist, flourish, and naturally evolve” as well as rights to self-government and a clean and healthy environment for the citizens of Toledo.  LEBOR states that corporations or governments that violate these rights can be liable for harm caused and also cannot use existing federal and state laws or permits in defense of the violations.   Drewes Farm Partnership filed a lawsuit in federal court the day after LEBOR passed.  The farm’s complaint asks a federal court to declare LEBOR unconstitutional on several grounds and also claims that LEBOR violates state laws.   Recent developments in the past week prompted us to provide this quick update on the lawsuit:

City of Toledo agrees to a preliminary injunction.  The court announced on March 18 that the City of Toledo agreed to the entry of a Preliminary Injunction Order.  Drewes Farm requested the injunction when it filed the lawsuit.  The court stated that the purpose of a preliminary injunction “is merely to preserve the relative positions of the parties until a trial on the merits can be held” and noted that the City of Toledo has not “commenced or initiated any action against Drewes Farms or others pursuant to LEBOR.”  Toledo therefore agreed to the injunction and to maintain its current position of not taking any action to enforce LEBOR. 

Lake Erie Ecosystem and Toledoans for Safe Water ask to join the lawsuit.    Also on March 18, two attorneys filed a motion asking the court to allow the Lake Erie Ecosystem and the Toledoans for Safe Water to “intervene” in the case as defendants.  Federal rules allow a party to file a motion to intervene and become a party to ongoing litigation as either a matter of right or with permission of the court.  The attorneys argue that the parties should be allowed to intervene as of right because they have significant legal interests that will be impaired by the case and that the City of Toledo can’t adequately represent those interests.  They also ask the court to allow permissive intervention because the parties have a claim or defense that share a common question of law or fact with the main action.  The court has asked Drewes Farm and Toledo to file briefs in response to the motion to intervene. Note that the two attorneys representing the Lake Erie Ecosystem and the Toledoans for Safe Water have worked with the Community Environmental Legal Defense Fund, the organization that assisted with the petition initiative that resulted in the adoption of LEBOR. 

Lake Erie Ecosystem and Toledoans for Safe Water file a motion to dismiss the lawsuit.  On the same day as filing a motion to intervene, the attorneys also filed a motion to dismiss the case on behalf of the Lake Erie Ecosystem and Toledoans for Safe Water.  The motion argues that Drewes Farm does not have legal “standing” to bring the case, which is based upon federal constitutional law that states that a federal court cannot have jurisdiction over a case unless the plaintiff demonstrates that he or she has suffered concrete and particularized “injury in fact” that is fairly traceable to the defendant’s conduct and that the requested remedies will redress the alleged injuries.  Lake Erie and the Toledoans for Safe Water argue that Drewes Farm has not stated a concrete injury or actual or imminent harm due to LEBOR and therefore cannot meet the standing requirement.

City of Toledo files its answer to the complaint.  Yesterday, the City of Toledo filed its answer to the complaint filed against it by Drewes Farm.  Toledo presents sixteen defenses to the farm’s allegations, which include a general denial of the complaint and other defenses based upon arguments that:  the farm does not have legal standing, has not stated a claim or stated actual or imminent harm and has based its harm on premature speculation; that the City itself is immune and has acted properly, in good faith, and as authorized or required by law to act; that the relief requested by the farm would violate the rights of the citizens of Toledo; that the farm has a duty to mitigate its damages; and that the farm failed to join necessary parties and has not stated a basis for the relief requested.   Toledo asks the court to dismiss the case and award all costs of the lawsuit to the City of Toledo.

What’s next? Now the parties must wait for the court to act on the motion to intervene, motion to dismiss, and/or the City of Toledo’s request to dismiss the case.  We’ll keep watching the case and will let you know when the court makes a ruling on any of these requests.

By: Evin Bachelor, Tuesday, March 12th, 2019

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.

By: Evin Bachelor, Monday, February 11th, 2019

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.”

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