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.
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.
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.
We are full steam ahead in 2019, and so far we have held to our new year’s resolutions. However, we want to take a quick look in the rearview mirror. Ohio legislators passed a number of bills in 2018 that affect Ohio agriculture. They range from multi-parcel auction laws to broadband grants, and oil & gas tax exemptions to hunting licenses. Here are some highlights of bills that the Ohio General Assembly passed and former Governor Kasich signed in 2018.
- House Bill 500, titled “Change township law.” As mentioned in a previous blog post, the Ohio General Assembly made a number of generally minor changes to Ohio’s township laws with House Bill 500. The changes included, among other things, requiring a board of township trustees to select a chairperson annually, modifying how vacating township roads and name changes are carried out, allowing fees for appealing a zoning board decision, clarifying how a board can suspend a member of a zoning commission or board of appeals, and removing the requirement for limited home rule townships to submit a zoning amendment or resolution to a planning commission. To learn about more of the changes that were made, visit the Ohio General Assembly’s H.B. 500 webpage here.
- House Bill 480, titled “Establish requirements for multi-parcel auctions.” The Ohio Department of Agriculture regulates auctions, and H.B. 480 gave ODA authority to regulate a new classification of auctions: the multi-parcel auction. Revised Code § 4707.01(Q) will define these as “any auction of real or personal property in which multiple parcels or lots are offered for sale in various amalgamations, including as individual parcels or lots, combinations of parcels or lots, and all parcels or lots as a whole.” For more information, visit the Ohio General Assembly’s H.B. 480 webpage here.
- House Bill 522, titled “Allow outdoor refreshment area to include F permit holders.” A municipality or township may create a “designated outdoor refreshment area” where people may walk around the area with their opened beer or liquor. Previously, only holders of certain D-class permits (bars, restaurants, and clubs) and A-class permits (alcohol manufacturers) could allow their patrons to partake in a designated open area. H.B. 522 will allow holders of an F-class liquor permit to also allow their patrons to roam in the designated area with an open container. F-class liquor permits are for festival-type events of a short duration. However, holders of either permits D-6 (allowing Sunday sales) or D-8 (allowing sales of growlers of beer or of tasting samples) will no longer be eligible for the open container exception. For more information, visit the Ohio General Assembly’s H.B. 522 webpage, here.
- Senate Bill 51, titled “Facilitate Lake Erie shoreline improvement.” As mentioned in a previous blog post, the primary purpose of Senate Bill 51 was to add projects for Lake Erie shoreline improvement to the list of public improvements that may be financed by a special improvement district. S.B. 51 also instructed the Ohio Department of Agriculture (“ODA”) to establish programs to assist in phosphorous reduction in the Western Lake Erie Basin. This adds to the previous instructions given to ODA in S.B. 299 regarding the Soil and Water Phosphorous Program. S.B. 51 further provided funding for a number of projects, ranging from flood mitigation to MLS stadium construction. For more information, visit the Ohio General Assembly’s S.B. 51 webpage here.
- Senate Bill 299, titled “Finance projects for protection of Lake Erie and its basin.” Largely an appropriations bill to fund projects, S.B. 299 primarily targeted water quality projects and research. ODA received an additional $3.5 million to support county soil and water conservation districts in the Western Lake Erie Basin, plus $20 million to establish water quality programs under a Soil and Water Phosphorous Program. Further, the Ohio Department of Natural Resources (“ODNR”) received an additional $10 million to support projects that divert dredging materials from Lake Erie. Stone Laboratory, a sea grant research program, received an additional $2.65 million. The bill also created a mentorship program called OhioCorps, and set aside money for grants to promote broadband internet access. For more information, visit the Ohio General Assembly’s S.B. 299 webpage here.
- Senate Bill 257, titled “Changes to hunting and fishing laws.” ODNR may now offer multi-year and lifetime hunting and fishing licenses to Ohio residents under S.B. 257. Further, the bill creates a resident apprentice senior hunting license and an apprentice senior fur taker permit, and removes the statutory limits on the number of these permits a person may purchase. The bill also creates a permit for a Lake Erie Sport Fishing District, which may be issued to nonresidents to fish in the portions of Lake Erie and connected waters under Ohio’s control. For more information, visit the Ohio General Assembly’s S.B. 257 webpage here.
- House Bill 225, titled “Regards plugging idle or orphaned wells.” H.B. 225 creates a reporting system where a landowner may notify ODNR’s Division of Oil and Gas Resources about idle and orphaned oil or gas wells. Upon notification, the Division must inspect the well within 30 days. After the inspection, the Division must determine the priority for plugging the well, and may contract with a third party to plug the well. To fund this, the bill increases appropriations to the Oil and Gas Well Fund, and increases the portion of the fund that must go to plugging oil and gas wells. For more information, visit the Ohio General Assembly’s H.B. 225 webpage here.
- House Bill 430, titled “Expand sales tax exemption for oil and gas production property.” Certain goods and services directly used for oil and gas production have been exempted from sales and use taxes, and H.B. 430 clarifies what does and does not qualify for the exemption. Additionally, property used to control water pollution may qualify for the property, sales, and use tax exemptions if approved by ODNR as a qualifying property. H.B. 430 also extends the moratorium on licenses and transfers of licenses for fireworks manufacturers and wholesalers. For more information, visit the Ohio General Assembly’s H.B. 430 webpage here.
- Senate Bill 229, titled “Modify Board of Pharmacy and controlled substances laws.” The Farm Bill’s opening the door for industrial hemp at the federal level has led to a lot of conversations about controlled substances, which we addressed in a previous blog post. Once its changes take effect, Ohio’s S.B. 229 will remove the controlled substances schedules from the Ohio Revised Code, which involve the well-known numbering system of schedules I, II, III, IV, and V. Instead, the Ohio Board of Pharmacy will have rulemaking authority to create schedules and classify drugs and compounds. Prior to the removal of the schedules from the Revised Code, the Board of Pharmacy must create the new schedules by rule. S.B. 229 also mentions cannabidiols, and lists them as schedule V under the current system if the specific cannabidiol drug has approval from the Food and Drug Administration. For more information, visit the Ohio General Assembly’s S.B. 229 webpage here.
The end of 2018 effectively marked the end of the 132nd Ohio General Assembly, and 2019 marks the start of the 133rd Ohio General Assembly. Any pending bills from the 132nd General Assembly that were not passed will have to be reintroduced if legislators wish to proceed with those bills. Stay tuned to the Ag Law Blog for legal updates affecting agriculture from the Ohio General Assembly.
Written by Evin Bachelor, Law Fellow and Sr. Research Associate
We’re back from another successful Farm Science Review! Thank you to everyone who stopped by our booth to ask us questions and pick up law bulletins. We received some great suggestions on new topics affecting agricultural law, so stay tuned as we post more to our Ag Law Blog and Law Library in the near future.
Here’s our gathering of ag law news you may want to know:
ODA reviews meat inspection rules. Ohio’s meat inspection rules are up for review under the state’s Five-Year Review requirement. The Ohio Department of Agriculture (ODA) recently posted the proposed changes to Ohio Administrative Code 901:2-1; 901:2-3; 901:2-6; and 901:2-7 for stakeholder comment on its website. The primary changes to the substance of the rules are meant to bring them into compliance with new federal requirements that took effect earlier this year. ODA also proposes to merge the interstate and intrastate regulations, which could change some rule numbers, but not necessarily their substance. ODA will be accepting comments until Monday, October 1, 2018, which stakeholders may submit to AGReComments@agri.ohio.gov.
OSU explains tariff relief program and impacts. Our good friend and economist Ben Brown and other policy experts in OSU's College of Food, Agricultural, and Environmental Sciences recently published information that explains and analyzes the USDA’s response to the tariffs. View a brief brochure that explains the Market Facilitation Program here. View a longer report on the Market Facilitation Program and the impacts on farm income in Ohio here .
U.S. EPA petitions for new hearing on Chlorpyrifos registrations. A panel of three judges on the U.S. Court of Appeals for the Ninth Circuit in San Francisco ordered the U.S. Environmental Protection Agency (EPA) to cancel chlorpyrifos registrations in August. The judges cited scientific evidence that the chemical insecticide causes developmental defects in children. The U.S. Department of Justice (DOJ), on behalf of the U.S. EPA, filed a petition on Monday, September 24th, requesting an en banc hearing on the decision. If granted, an en banc hearing would involve all the judges who serve on the Ninth Circuit, rather than only the three judges who initially ordered the cancellation of the registrations. The U.S. DOJ argues that the August decision was incorrect and that the court should allow the U.S. EPA to reconsider the insecticide’s registration. For more details, check out The Progressive Farmer’s post here.
License needed to broker oil and gas leases in Ohio. On Tuesday, September 25th, the Ohio Supreme Court decided that oil and gas leases fall within the statutory definition of “real estate.” As such, a person who offers and negotiates an oil and gas lease must have a real estate broker’s license under Ohio Revised Code § 4735.01(A) and § 4735.02(A). Check out Court News Ohio’s webpage for more details.
No "bill of rights" vote for Lake Erie. The group Toledoans for Safe Water sought to put a “Lake Erie Bill of Rights” on the ballot this November as an amendment to the Toledo City Charter. The amendment would have stated that Lake Erie and its watershed “possess the right to exist, flourish, and naturally evolve,” and that the citizens of Toledo have a right to a clean and healthy environment. Enforcement would have been through a mix of revoking corporate licenses and privileges or criminal penalties if violated. Despite having enough signatures, the Lucas County Board of Elections refused to place the issue on the ballot, saying that the amendment contained provisions beyond the City of Toledo’s authority. The dispute made it up to the Ohio Supreme Court, which on Friday, September 21st, decided that Toledoans for Safe Water failed to prove that the Lucas County Board of Elections improperly denied their petition to place the issue on the ballot. The court’s decision is here.
Iowa court makes owner liable for corporate liabilities. An Iowa Court of Appeals decision recently allowed a plaintiff who was suing a biosolids management corporation to “pierce the corporate veil” and collect directly from the sole owner of the corporation. The plaintiff obtained a judgment of $410,067 against the corporation for breach of contract after the corporation stopped performing its work. However, the plaintiff could not collect against the corporation, and an Iowa Court of Appeals decided that the sole owner must pay the judgement. The court said that the owner did not conduct the business or maintain its finances in a manner that demonstrates the existence of a separate legal entity from himself or his other businesses. The owner co-mingled corporate and personal assets and accounts, failed to keep records, and had no bylaws or meeting records. For more on the case, visit the Iowa State University’s Center for Agricultural Law and Taxation website here, or view the case opinion here.
California passes "home cooked food" law. California's governor signed a bill into law last Friday that allows cities and counties to authorize and permit residents to operate “microenterprise home kitchens.” Assembly Bill 626 exempts qualifying businesses from some food service facility regulations to allow residents to sell prepared food from their home, while also recognizing the differences between a home kitchen and a commercial kitchen. To qualify, among other things, the operation can have no more than one full-time non-family employee, the food must be sold direct to the customer, and no more than 60 individual meals can be prepared per week. The bill’s full text and legislative analysis are here.
Barn wedding popularity continues to grow. Fifteen percent of weddings in the United States took place in a barn last year, according to a survey published by the wedding planning site The Knot. In comparison, only two percent of weddings took place in a barn as recently as 2009. The popularity of wedding barns has become a point of contention in many states, including Ohio, because statutory zoning exemptions for agriculture have been used to exempt wedding barns from zoning requirements. We explain Ohio's zoning exemption for "agritourism" in this law bulletin.
Ohio legislation on the move:
- Ohio Senate refers township bill to committee. The Ohio House of Representatives passed House Bill 500 earlier this summer, and the bill has recently been referred to the Ohio Senate’s Local Government, Public Safety, and Veterans Affairs Committee. House Bill 500 proposes to make a number of changes to Ohio’s township statutes, including a change to agricultural zoning regulations. If passed as-is, the bill would allow a township to use zoning to regulate agricultural activities within any platted subdivision. Under current law, townships are limited to a specified list of platted subdivisions that townships may regulate; however, the new law clarifies that the specified list is not intended to be exclusive. For more information on the bill, view the bill analysis produced by the Ohio Legislative Service Commission, or visit the Ohio General Assembly’s website here.
All is quiet at the statehouse as the Ohio legislature continues on its summer recess, but here’s our gathering of other agricultural law news you may want to know:
Does Roundup cause cancer? A jury in California has determined that it’s possible. The jury awarded $289 million last Friday against Monsanto in the first of thousands of cases alleging that Monsanto should have warned users about Roundup’s cancer risk. The plaintiff argued that Monsanto has known for decades that the Roundup product could cause cancer but failed to warn consumers, while Monsanto claimed that more than 800 studies and reviews conclude that glyphosate itself does not cause cancer. Monsanto plans to appeal the award.
Pursuing a Bill of Rights for Lake Erie. The Toledoans for Safe Water submitted over 10,500 signatures last week on a petition proposing to amend the city’s charter to establish a bill of rights for Lake Erie. The proposed bill of rights would state that Lake Erie and its watershed possesses a right to exist, flourish and naturally evolve; that the people of Toledo have a right to a clean and healthy Lake Erie, a collective and individual right to self-government in their local community and a right to a system of government that protects their rights; and that any corporation or government that violates the rights of Lake Erie could be prosecuted by the city and held legally liable for fines and all harm caused. The effort is backed by the Community Environmental Legal Defense Fund. If successful, the initiative would appear on the November ballot for Toledo residents.
EPA ordered to ban the sale of chlorpyrifos. The U.S. Ninth Circuit Court of Appeals late last week ordered the U.S. EPA within 60 days to cancel all registrations for chlorpyrifos, a pesticide first introduced by Dow and commonly used on crops and animals. The court held that there was no justification for a decision by previous EPA Administrator Scott Pruitt refusing to grant a petition to ban chlorpyrifos in the face of scientific evidence that the pesticide can cause neurodevelopmental damage in children. The court also discarded the agency’s argument that it could refuse to ban chlorpyrifos so based on a possible contradiction of evidence in the future. Both actions, said the court, placed the agency in direct violation of the Federal Food, Drug, and Cosmetic Act and the Federal Insecticide, Fungicide and Rodenticide Act. The highest uses of chlorpyrifos are on cotton and corn crops and almond and fruit trees.
Highest award in Smithfield nuisance litigation raises responses. The third and largest jury award in a series of nuisance lawsuits in North Carolina yielded a $473.5 million award for plaintiffs claiming harm from hog farms owned by Smithfield. The verdict will reduce to $94 million due to a state law that caps punitive damages. Agricultural interests are claiming that the lawsuits circumvent state right to farm laws and are seeking state legislative responses. Opponents are also hoping to reverse a gag order issued by the court to impose communication restrictions on potential witnesses, parties and lawyers in the cases. The federal judge in the case, Hon. Earl Britt from the Eastern District of North Carolina, is stepping down due to health issues. Hon. David Faber of the Southern District of West Virginia will replace Judge Britt and will soon hear a fourth trial that targets a 7,100 head hog farm in Sampson County, North Carolina.
It’s official: no reporting of air emissions from animal waste. The U.S. EPA has posted a final rule clarifying that air emissions from animal waste at farms are exempt from federal regulations that require the reporting of air releases from hazardous wastes. The rule implements an order by the U.S. Court of Appeals for the District of Columbia and revisions in the Fair Agricultural Reporting Method Act enacted by Congress earlier this year. We reported on the court case and legislation earlier this year.
Written by Ellen Essman, Sr. Research Associate
Here’s our gathering of recent agricultural law news you may want to know:
Kasich’s Executive Order delayed. As we previously wrote about, Governor John Kasich signed an executive order earlier this month which directed 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.” The OSWC voted on July 19 to delay Kasich’s executive order, which means that the eight watersheds will not be labeled “watersheds in distress” at this time. Instead, a subcommittee of the OSWC is tasked with researching and determining if each of the watersheds should be listed as “watersheds in distress.” More information on this delay is available in Ohio’s Country Journal.
ODA to submit “Watersheds in Distress” rule package. In more news regarding “watersheds in distress,” ODA is expected to propose a new rule package. While rules concerning watersheds in distress already limit the land application of manure on farms, the new rules would also limit the application of “nutrients,” which are defined as “nitrogen, phosphorus, or a combination of both.” Stay tuned to the Ag Law Blog for any updates on this rule package!
ODA upgrades website. The Ohio Department of Agriculture updated its website last month. The update includes a section with frequently asked questions and answers for each of the separate Divisions. For example, the questions frequently asked about food safety, making and selling food are available here. Head to www.agri.ohio.gov to check it out the new ODA website.
Additional comments sought on WOTUS. On July 12, 2018, the Army Corps of Engineers and the EPA published a supplemental notice of proposed rulemaking in the Federal Register. The supplemental notice is meant to “clarify, supplement and seek additional comment on” last summer’s proposal to repeal the 2015 Waters of the United States (WOTUS) Rule. As a reminder, the 2015 WOTUS rule expanded the meaning of “waters of the United States,” or those waters protected under the Clean Water Act, to include “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters and other waters that have a significant nexus to interstate waters.” If the 2015 WOTUS rule is repealed, then the pre-2015 regulations defining WOTUS will be recodified. The agencies are seeking additional comments on the proposed rulemaking through this supplemental notice. The comment period is open through August 13, 2018. Comments can be left here.
Ohio legislation on the move
- Dogs on patios. H.B. 263, which we have been following, was sent to the Governor on 7/24/2018. Kasich’s signature would mean that food establishments and food service operations could permit customers to bring a dog into an outdoor dining area if the dog is vaccinated. Each establishment must adopt a policy requiring customers to control their dogs and to keep their dogs out of indoor areas. See our previous coverage of this legislation here and here.
Recent actions by the Ohio legislature and Governor Kasich will affect the management of agricultural nutrients in Ohio. The Ohio General Assembly has passed “Clean Lake 2020” legislation that will provide funding for reducing phosphorous in Lake Erie. Governor Kasich signed the Clean Lake 2020 bill on July 10, in tandem with issuing Executive Order 2018—09K, “Taking Steps to Protect Lake Erie.” The two actions aim to address the impact of agricultural nutrients on water quality in Lake Erie.
The Clean Lake 2020 legislation provides funding for the following:
- $20 million in FY 2019 for a Soil and Water Phosphorus Program in the Ohio Department of Agriculture (ODA). In utilizing the funds, ODA must:
- Consult with the Lake Erie Commission and the Ohio Soil and Water Conservation Commission to establish programs that help reduce total phosphorus and dissolved reactive phosphorus in the Western Lake Erie Basin and must give priority to sub-watersheds that are highest in total phosphorus and dissolved reactive phosphorus nutrient loading.
- Create specific programs that include the purchase of equipment for (1) subsurface placement of nutrients into soil; (2) nutrient placement based on geographic information system data; and (3) manure transformation and manure conversion technologies; soil testing; tributary monitoring; water management and edge-of-field drainage management; and an agricultural phosphorus reduction revolving loan program.
- Not use more than 40% of the funds on a single program or activity.
- $3.5 million for county soil and water conservation districts in the Western Lake Erie Basin for staffing costs and for soil testing and nutrient management plan assistance to farmers, including manure transformation and manure conversion technologies, enhanced filter strips, water management, and other conservation support.
- $2.65 million for OSU’s Sea Grant—Stone Laboratory on Lake Erie to construct new research lab space and purchase in-lake monitoring equipment including real-time buoys and water treatment plant monitoring sondes.
- A $2 million obligation increase for the Ohio Public Facilities Commission allocated to the costs of capital facilities for state-supported and state-assisted institutions of higher education.
Governor Kasich’s Executive Order contains two parts:
- Directs the ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission to designate the following Hydrologic Unit Code (HUC) watersheds or portions of watersheds in the Maumee River Basin as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment: Platter Creek Watershed, Little Flat Rock Creek Watershed, Little Auglaize River Watershed, Eagle Creek Watershed, Auglaize River, Blanchard River, St. Mary’s, Ottawa River.”
- If the Soil and Water Commission consents to a designation of a watershed in distress, ODA, the Ohio Department of Natural Resources and the Ohio EPA “should recommend a rule package that establishes the following . . . nutrient management requirements for all nutrient sources; development of associated management plans for agricultural land and operations within the designated watershed boundaries; requirements for the storage, handling, land application, and control of residual farm products, manure, and erosion of sediment and substances attached thereto within the designated watershed boundaries.”
A pair of companion bi-partisan bills just introduced in the Ohio Senate and Ohio House of Representatives would provide significant funding to help meet Ohio’s goal of reducing phosphorus loading by 20% in Lake Erie by 2020. The sponsors of S.B. 299 are Senators Gardner (R-Bowling Green) and O’Brien (D-Bazetta) and Representatives Arndt (R-Port Clinton) and Patterson (D-Jefferson) are the sponsors of H.B. 643. The legislation is a “targeted funding solution bill,” according to Rep. Arndt, “providing both [general revenue funds] and capital funding for a variety of strategies that scientists, Lake Erie advocates, agriculture leaders, and others believe can help achieve our phosphorus reduction goals.”
The legislation includes the following:
- A “Soil and Water Conservation Support Fund” of up to $3.5 million to support county soil and water conservation districts in the Western Lake Erie Basin for staffing and to assist in soil testing, nutrient management plan development that would also include manure transformation and manure conversion technologies, enhanced filter strips and water management.
- A “Soil and Water Phosphorus Program” of up to $20 million, to be established by the Ohio Department of Agriculture to reduce phosphorus in sub-watersheds of the Western Lake Erie Basin. The bill requires that the programs be supported with the purchase of equipment for subsurface placement of nutrients into the soil; nutrient placement based on geographic information system data; soil testing; variable rate technology; manure transformation and manure conversion technologies; tributary monitoring and water management and edge-of-field drainage management.
- $3.5 million for Ohio State’s Sea Grant—Stone Laboratory on Lake Erie to construct new research lab space and purchase in-lake monitoring equipment.
- Up to $10 million for the Healthy Lake Erie Initiative to reduce open lake disposal of dredged materials into Lake Erie.
Both bills were immediately referred to committee, with proponent testimony heard before the Senate Finance Committee on May 15 and the House Finance Committee on May 16. The Lake Erie Foundation, Nature Conservancy, Ohio Environmental Council, Soil and Water Conservation Districts and Ohio Farm Bureau testified in support of the legislation.
The legislators also introduced Senate Joint Resolution 6 and House Joint Resolution 16 on May 9 that propose to submit a constitutional amendment authorizing the issuance of up to $1 billion in general obligation bonds to pay for the Lake Erie clean water improvements for voter approval at the November 6, 2018 general election. The resolutions were also referred to the respective finance committees but were not on the committees’ recent agendas.