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 judgement 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!
The OSU Extension Farm Office team has returned from the National Farm Business Conference in Wisconsin. We gained some fresh perspective on events beyond Ohio’s borders, but are happy to be back in slightly warmer weather. Our colleagues from across the nation presented on a variety of farm management topics, and we had a chance to discuss some of our recent projects. We also toured a number of dairy and agritourism farms, and of course ate lots of cheese curds. The fresh perspective means that it is time for a fresh Ag Law Harvest.
Here’s our latest gathering of agricultural law news that you may want to know:
OSU Extension Ag Law Team featured on Agronomy and Farm Management Podcast. Recently we had a chance to talk with OSU Extension Educators Amanda Douridas and Elizabeth Hawkins, who together moderate the bi-weekly Agronomy and Farm Management Podcast for OSU Extension. We discussed the status of Ohio’s hemp bill and what we expect to happen in the near future with hemp regulation and production. Then we provided an update on the Drewes Farm Partnership v. City of Toledo lawsuit, which grapples with the legality of the Lake Erie Bill of Rights. Click HERE to listen to the podcast, and look for episode 28.
Minnesota focuses new commercial nitrogen fertilizer regulations on drinking water quality. In an effort to protect public drinking water sources, the Minnesota Department of Agriculture has chosen to regulate the commercial application of fertilizer. The state has long regulated the application of manure, but not commercial nitrogen. The regulations focus on two types of geographic areas: regions with vulnerable soil (coarse soils, karst geology, or shallow bedrock) and farms located in Drinking Water Supply Management Areas. These management areas are designated based upon nitrate levels found in the drinking water. Starting in 2020, the state will ban the application of commercial nitrogen in these areas during the fall months and on frozen ground. Farms in any of the 30 Drinking Water Supply Management Areas would have to follow best management practices to start, but if nitrate levels continue to exceed state limits, then the state may impose additional restrictions in an area to reduce nitrogen pollution. For more information on Minnesota’s Groundwater Protection Rule, click HERE.
Federal court puts a hold on Bud Light’s “100 percent less corn syrup” ads. If they missed seeing it live during the Super Bowl, most people in the agricultural industry have at least seen the recent Bud Light advertising campaign that claims the beer uses no corn syrup while its competitors do. Shortly after the initial release of the ad, MillerCoors sued Anheuser-Busch, which makes Bud Light. MillerCoors wants a permanent injunction that would stop Bud Light from continuing its corn syrup advertising campaign, arguing that the advertisements are false and misleading to consumers. The first step to a permanent injunction is often a preliminary injunction, which makes a party act or not act in a certain way only while the case is pending. The judge presiding over the lawsuit granted MillerCoors’ motion for a preliminary injunction in part. The judge ordered Anheuser-Busch to temporarily stop using ads mentioning corn syrup if those ads do not contain language explaining that Bud Light does not use corn syrup in the brewing process. The judge’s act does not ban the ad that premiered during the Super Bowl. Rather it only blocks ads released later that claim Bud Light uses 100 percent less corn syrup than competitors like MillerCoors. Click HERE to view the complaint, and HERE to view the judge’s order.
It’s (mostly) official: USDA’s ERS and NIFA are headed to Kansas City. U.S. Secretary of Agriculture Sonny Perdue announced the USDA’s selection of the Kansas City, Missouri region as the new headquarters for the Economic Research Service and National Institute of Food and Agriculture. The location changed caused a great deal of controversy as some viewed it as a political move. However, the USDA has maintained that relocation will save millions of dollars over the next few years and put the agencies closer to a number of other USDA offices in Kansas City, such as the Farm Service Agency’s Commodity Operations Office. The Secretary reduced some of the controversy by scrapping plans to place the agencies under the USDA’s Chief Economist, who is a political appointee. Before we call the move a done deal, we must note that Congress could stop the plans. The U.S. House of Representatives might block the move via a Department of Agriculture-FDA spending bill currently under consideration. Click HERE to read Secretary Perdue’s press release.
Bayer announces multi-billion dollar hunt for glyphosate replacement. Somewhat buried in a press release titled “Bayer raises the bar in transparency, sustainability and engagement,” Bayer recently announced a substantial investment in its weed management research. Over the next ten years, the company plans to spend 5 billion euros, or roughly 5.6 billion U.S. dollars, to develop weed control products as alternatives to glyphosate. The announcement comes at a time with thousands of plaintiffs across the United States have claimed that the widely-used glyphosate caused their cancer. As we have previously discussed in the Ag Law Blog, the first three juries have in total awarded plaintiffs billions of dollars in damages. Bayer continues to fight the allegations and defend its product, but the press release marks the first time that Bayer has publically announced a search for an alternative to glyphosate. It remains to be seen whether the press release could have an impact in the lawsuits, but Bayer will likely try to keep the press release out of the trials by using court rules of evidence.
Ohio House passes amusement ride safety bill. County fair season has officially kicked off in Ohio, and some state lawmakers want to make sure that amusement rides at those fairs are safe. House Bill 189 seeks to heighten Ohio’s amusement ride safety inspection standards and impose additional duties on amusement ride owners. The bill would require the Ohio Department of Agriculture to adopt ride classification rules that identify types of rides needing more comprehensive inspection, along with the minimum number of inspectors and number of inspections for each ride. Further, the bill would require amusement ride owners to keep a manual for each amusement ride, and make it available upon request of an inspector. Amusement ride owners would also have to keep records, including documents and photographs, of all major repairs along with all locations where the owner stored or operated each ride. The bill includes an emergency clause, which would allow it to take effect as soon as the Governor signs it. Lawmakers named the bill “Tyler’s Law” after the young man who died following an equipment breakdown at the Ohio State Fair in 2017. Click HERE for more information about the bill.