A few weeks ago we attended the American Agricultural Law Association’s (AALA) annual conference, which was held in Portland, Oregon this year. While we were there, we had the opportunity to learn about numerous topics related to agricultural law. One such topic was presented by our colleague from the National Sea Grant Law Center, Amanda Nichols. Nichols presented her research on state “right-to-farm” statutes and their applicability to aquaculture.
What is aquaculture?
For those who don’t know, aquaculture is defined by the National Oceanic and Atmospheric Administration (NOAA) as “the breeding, rearing, and harvesting of fish, shellfish, plants, algae, and other organisms in all types of water environments.” Thus, aquaculture is essentially the farming of aquatic species in freshwater and saltwater, in manmade and natural bodies of water.
What are right-to-farm laws?
Right-to-farm laws are meant to protect agricultural operations against nuisance lawsuits brought by neighboring landowners complaining about smell, dust, noise, or other annoyances. In terms of “traditional,” terrestrial farming, for example, right-to-farm laws could potentially protect against lawsuits claiming the spreading or accumulation of livestock manure is a nuisance to neighbors. Every state in the U.S. has their own right-to-farm statute, and some of the statutes protect farming operations more completely than others do. For example, Ohio’s right-to-farm language provides farmers with a complete defense to civil nuisance lawsuits when certain conditions are met. On the other hand, neighboring Michigan and Pennsylvania’s statutes provide no such defenses.
Where aquaculture and right-to-farm laws overlap
In her research on the topic of which states include protection of aquaculture operations in their right-to-farm laws, Nichols found that twenty-six states, including Ohio, “expressly include fish or aquaculture within the scope of their right-to-farm protections.” As a result, any right-to-farm protections to traditional agriculture, as well as any conditions agricultural operations must meet in order for the right-to-farm language to apply, would also extend to aquaculture in those twenty-six states. Nichols found that one state, New Jersey, did “not mention aquaculture or fish expressly” but has adopted a manual for best management practices (BMPs) for aquaculture within the state, which shows the state’s “intent” to protect aquaculture from nuisance lawsuits.
Ohio’s right-to-farm legislation
As mentioned above, Ohio’s right-to-farm legislation “expressly include[s]” aquaculture. It does so by defining “agricultural production” not only as “animal husbandry” or production of plants for “a commercial purpose,” but also as “commercial aquaculture” and “algaculture meaning the farming of algae.”
Ohio farmers, including those involved in aquaculture, have right-to-farm protection in two parts of the Ohio Revised Code (ORC). ORC Chapter 929 establishes “agricultural districts.” Generally, in order to place land in an agricultural district, the owner of the land must file an application with the county auditor. Certain requirements must be met in order for an application to be accepted. Slightly different rules apply if the land in question is within a municipal corporation or is being annexed by a municipality. If the application is accepted, the land is placed in an agricultural district for five years. The owner may submit a renewal application after that time is up.
Being part of an agricultural district in Ohio can help farmers and landowners to defend against civil lawsuits. ORC 929.04 reads:
In a civil action for nuisances involving agricultural activities, it is a complete defense if:
- The agricultural activities were conducted within an agricultural district;
- Agricultural activities were established within the agricultural district prior to the plaintiff’s activities or interest on which the action is based;
- The plaintiff was not involved in agricultural production; and
- The agricultural activities were not in conflict with federal, state, and local laws and rules relating to the alleged nuisance or were conducted in accordance with generally accepted agriculture practices.
The ORC’s chapter on nuisances provides additional protection for those “engaged in agriculture-related activities.” Under ORC 3767.13, people who are practicing agricultural activities “outside a municipal corporation, in accordance with generally accepted agricultural practices, and in such a manner so as not to have a substantial, adverse effect on public health, safety, or welfare” are typically exempt from claims of nuisance due to farm noise, smells, etc.
Not only is Ohio’s right-to-farm legislation more forceful in its protection of agriculture than many other states, but it also explicitly includes aquaculture under that protection. AALA gave us the chance to learn about this very interesting study of right-to-farm legislation as applies to aquaculture, which is an area of agriculture that many Ohioans might not necessarily think about. If you are interested in learning more about state right-to-farm laws and aquaculture, the National Sea Grant Law Center’s report is available here.
UPDATE 2: The federal spending bill signed into law on March 23, 2018 contained a provision stating that air emissions from animal waste at a farm are not subject to CERCLA reporting requirements, nor are emissions from the application, handling or storage of registered pesticides.
UPDATE: The court has delayed these new reporting requirements for a second time-- the new date is May 1, 2018. Farm operations of certain sizes are now required to report air emissions of certain hazardous substances that exceed a reportable quantity under CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act. This new requirement affects livestock farmers with larger numbers of animals, as they may exceed the reportable quantity for ammonia emissions. We've authored a new Law Bulletin on Continuous Release Reporting of Air Emissions for Livestock Farms to help farms determine whether they must report air emissions and if so, how to complete the reporting process. The new bulletin is available here.
Read more about the new CERCLA air emissions reporting mandate in our earlier post.
Written by Peggy Hall and Ellen Essman
UPDATE 4: Congress has clarified in new legislation enacted on March 23, 2018, that emissions from animal waste on farms are not subject to CERCLA reporting.
UPDATE 3: The U.S. EPA has requested and received an additional reporting delay until May 1, 2018 or after and has advised that the agency will provide a notice of the specific date that farms should begin reporting once the court enters its final order.
UPDATE 2: The court has delayed theese new reporting requirements until January 22, 2018.
UPDATE 1: The EPA and several agricultural groups have requested the court for a delay of the November 15 reporting deadline, but the court has not yet responded to the request. Due to a high call volume, the EPA is now advising that producers should utilize the e-mail option for continuous reporting, rather than calling the NRC line. We explain the reporting requirements in this new Law Bulletin, Continuous Release Reporting of Air Emissions for Livestock Farms.
Beginning November 15, 2017, many livestock, poultry and equine farms must comply with reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 103. The law requires entities to report releases of hazardous substances above a certain threshold that occur within a 24-hour period. Farms have historically been exempt from most reporting under CERCLA, but in the spring of 2017 the U.S. Court of Appeals for the District of Columbia Circuit struck down the rule that allowed reporting exemptions for farms. As long as there is no further action by the Court to push back the effective date, farmers and operators of operations that house beef, dairy, horses, swine and poultry must begin complying with the reporting requirements on November 15, 2017.
Farmers and operators, especially of sizeable animal operations that are likely to have larger air emissions, need to understand the reporting responsibilities. The Environmental Protection Agency (EPA) has published interim guidance to assist farms with the new compliance obligations. The following summarizes the agency’s guidance.
What substances to report
The EPA specifically names ammonia and hydrogen sulfide as two hazardous substances commonly associated with animal wastes that will require emissions reporting. Each substance has a reportable quantity of 100 pounds. If a farm releases 100 pounds or more of either substance to the air within a 24-hour period, the owner or operator must notify the National Response Center. A complete list of hazardous substances and their corresponding reportable quantities is here.
Note that farmers do not have to report emissions from the application of manure, and fertilizers to crops or the handling, storage and application of pesticides registered under federal law. However, a farmer must report any spills or accidents involving these substances when they exceed the reportable quantity.
How to report
Under CERCLA, farm owners and operators have two compliance options—to report each release or to follow the continuous release reporting process:
- For an individual release that meets or exceeds the reportable quantity for the hazardous substance, an owner or operator must immediately notify the National Response Center (NRC) by phone at 1-800-424-8802.
- Continuous release reporting allows the owner or operator to file an “initial continuous release notification” to the NRC and the EPA Regional Office for releases that will be continuous and stable in quantity and rate. Essentially, this puts the authorities “continuously” on notice that there will be emissions from the operation within a certain estimated range. If the farm has a statistically significant increase such as a change in the number of animals on the farm or a significant change in the release information, the farm must notify the NRC immediately. Otherwise, the farm must file a one year anniversary report with the EPA Regional Office to verify and update the emissions information and must annually review emissions from the farm. Note that a farm must submit its initial continuous release notification starting on November 15, 2017.
No reporting required under EPCRA
The litigation that led to CERCLA reporting also challenged the farm exemption from reporting for the Emergency Planning and Community Right to Know Act (EPCRA). EPRCRA section 304 requires facilities at which a hazardous chemical is produced, used or stored to report releases of reportable quantities from the chemicals. However, EPA explains in a statement issued on October 25, 2017 that the statute excludes substances used in “routine agricultural operations” from the definition of hazardous chemicals. EPCRA doesn’t define “routine agricultural operations,” so EPA states that it interprets the term to include regular and routine operations at farms, animal feeding operations, nurseries, other horticultural operations and aquaculture and a few examples of substances used in routine operations include animal waste stored on a farm and used as fertilizer, paint used for maintaining farm equipment, fuel used to operate machine or heat buildings and chemicals used for growing and breeding fish and plans for aquaculture. As a result of this EPA interpretation, most farms and operations do not have to report emissions under EPCRA. More information on EPA’s interpretation of EPCRA reporting for farms is here.
What should owners and operators of farms with animal wastes do now?
- Review the EPA’s interim guidance on CERCLA and EPCRA Reporting Requirements, available here.
- Determine if the operation may have reportable quantities of air emissions from hazardous substances such as ammonia or hydrogen sulfide. The EPA offers resources to assist farmers in estimating emission quantities, which depend upon the type and number of animals and type of housing and manure storage facilities. These resources are available here.
- A farm that will have reportable emissions that are continuous and stable should file an initial continuous release notification by November 15, 2017. A guide from the EPA for continuous release reporting is here. Make sure to understand future responsibilities under continuous release reporting.
- If not operating under continuous release reporting, immediately notify the National Response Center at National Response Center (NRC) at 1-800-424-8802 for any release of a hazardous substance that meets or exceeds the reportable quantity for that substance in a 24-hour period, other than releases from the normal application or handling of fertilizers or pesticides.
- Learn about conservation measures that can reduce air pollution emissions from agricultural operations in this guide from the EPA.
Note that the EPA is seeking comments and suggestions on the resources the agency is providing or should provide to assist farm owners and operators with meeting the new reporting obligations. Those who wish to comment should do so by November 24, 2017 by sending an e-mail to CERCLA103.firstname.lastname@example.org.
A legislative proposal to address manure infrastructure costs introduced by Rep. Brian Hill (R-Zanesville) is moving once again, receiving its third hearing before the House Ways and Means Committee on Tuesday, April 26. The bill proposes a refundable personal income tax credit for livestock owners in Ohio who invest in facilities or equipment for manure storage, treatment, application, handling or transportation. Rep. Hill introduced the measure last August, but it has not been on the committee's agenda since its second hearing in February. Here are the details of the proposed legislation:
- The tax credit would apply only to taxpayers who own livestock in Ohio on the bill’s effective date and for the entire taxable year in which claiming the credit. The credit would not apply to former livestock owners, those who obtain livestock after the effective date or those who do not own livestock for the entire year in which claiming the credit.
- Eligible investments would include those made between January 1, 2005 and January 1, 2020 for any costs incurred to:
- Acquire manure handling or transportation equipment, which means any machinery, device, equipment, tool, motor vehicle, system or infrastructure improvement used primarily to move manure to or from a manure storage or treatment facility or other location, or to clean or decontaminate land or surfaces on or in which manure is deposited or stored.
- Acquire manure application equipment, which includes any machinery, device, equipment, motor vehicle or system used to apply or inject manure into or onto soil for agricultural purposes;
- Plan, design, excavate, construct or install a manure storage or treatment facility anywhere in Ohio, which includes any excavated, diked or walled structure or combination of structures designed to stabilize, hold or store manure.
- The investments made must assist the taxpayer in complying with NRCS Nutrient Management Code 590 regarding manure application anywhere in the state or complying with state laws regarding the application of manure in Lake Erie’s western basin.
- The amount of the tax credit would be 50% of the total eligible investment, and the taxpayer would be required to spread the credit amount equally over a five year period.
- If the taxpayer’s credit would exceed the income tax due, the taxpayer would be entitled to a refund of the excess amount.
- The tax commissioner would be responsible for adopting rules for the tax credit, which could require the taxpayer to substantiate the amount of the investment, identify the location of the livestock or describe how the investment helps the taxpayer comply with laws regarding manure storage and application.
Several dairy farmers, the Ohio Soybean Association and the Ohio Farm Bureau testified at the April 26 committee hearing in support of the bill, highlighting the financial strains on livestock operators who install new manure storage and separation equipment. Committee members expressed several concerns with the proposal, including the retroactivity to investments made since 2005, its application to owners of Confined Animal Feeding Operations and the Legislative Service Commission’s projected loss of tens of millions of dollars per year in state revenue due to the credit.
Read and follow HB 297 on the Ohio General Assembly website, here.
New law establishes clear standards for liability, adds alpacas, llamas and bison
Livestock owners and keepers in Ohio will soon have less risk of automatic liability when their animals escape enclosures and run loose on public roadways or the property of others. The Ohio legislature has revised the "animals running at large" law to clarify two different standards for criminal and civil liability under the law.
Criminal liability will occur only when proven that a livestock operator behaved "recklessly" in allowing the animals to run loose. Under Ohio law, a person behaves recklessly when he or she perversely disregards a known risk of his or her conduct, with heedless indifference to the consequences of that conduct. For example, a livestock owner who sees but intentionally ignores a downed fence where cattle graze near a roadway could be deemed "reckless."
The new law establishes a different standard of liability for a civil situation. A person may recover damages against a livestock owner if harm resulted because the livestock owner's "negligence" caused the animals to escape. Under Ohio law, negligence is a substantial lapse of "due care" that results in a failure to perceive or avoid a risk. For example, a livestock owner who has not checked the line fences in a grazing area for several years could be deemed "negligent."
Additionally, the revised law states that an animal being at large creates an initial presumption of negligence by the owner. The animal owner must then rebut the presumption by proving that he or she exercised due care.
The revised law should address a growing problem in Ohio, where livestock owners have been held automatically liable when their animals are found running at large--regardless of the reason for the animals' escape or any actions taken or not taken by the owner. This problem has occurred most frequently with criminal prosecutions. Owners of escaped animals have been assessed automatic criminal penalties, without having an opportunity to explain their management practices or present facts about the animals' escape. The new law remedies this problem by clarifying that criminal liability is not "automatic" simply because livestock are loose; there must be proof that the owner was reckless.
In addition to addressing the standards for liability, the revised animals at large law also:
- Adds llamas, alpacas and bison to the list of animals addressed in the liability provisions, which already included horses, mules, cattle, sheep, goats, swine and geese.
- Also adds llamas, alpacas and bison to the law's provisions for taking, confinement and care of animals running at large.
- Removes a separate liability provision for male breeding animals; male breeding animals will now fall under the same liability section of the law as other animals.
- Revises a similar civil liability provision for livestock in Ohio's line fence law to clarify that negligence is the requisite standard of liability under that law.
The governor signed H.B. 22 on June 21, 2011; the law takes effect on September 20, 2011. View H.B. 22 here.
Current bill in House would yield different outcome for Hi-Q CAFF permit
In a unique and controversial case, the Ohio Department of Agriculture (ODA) has denied an application under its Livestock Environmental Permitting Program for Hi-Q Egg Products, LLC to establish an egg laying facility in Union County. In denying the application, ODA Director Zehringer followed the recommendations made in April 2011 by the ODA hearing officer who reviewed the permit application (see our earlier post). The hearing officer had recommended denial on the basis of an incomplete application, because Hi-Q's application did not include a written statement from local officials certifying that final recommendations had been made for local infrastructure improvements and costs, as required by program regulations (OAC 901:10-1-02(A)(6)). Hi-Q claimed that the county and township failed to provide the recommendations, while the county and township argued that there were no final recommendations because Hi-Q refused to discuss an alternative transportation route. In agreeing that the recommendations were not included in the application, Director Zehringer stated that there was "no other viable option but to deny the [permit] due to an incomplete application."
Ohio's Livestock Environmental Permitting Program (LEPP) regulates the installation and operation of large Confined Animal Feeding Facilities (CAFFs). Critics have long complained that the program fails to consider the potential impacts of CAFF development upon the local community. Those concerned about local impacts have used the public hearing process to voice opposition to CAFF permits, but have never successfully prevented approval of a permit. Until now, the program's obscure requirement for county and township approval of infrastructure improvements has gone unnoticed as a prevention mechanism by such opponents.
While the Hi-Q denial is a first, opponents of large livestock operations won't have cause to celebrate the decision for long if a current legislative proposal meets with success. H.B. 229, introduced May 17, 2011 by Rep. Buchy, will place a time limit on the county and township officials who must consider local infrastructure improvements needed for a CAFF permit application. According to the proposal, local officials would have 75 days after receiving notice of the proposed facility to render a written statement on local infrastructure improvements and costs. After 75 days, the permit applicant may submit a notarized affidavit stating that it had provided local officials with notice but did not receive any written final recommendations from the local government within the required timeframe. Under the law as proposed by H.B. 229, ODA could not deny a permit application that lacks the written statement from local officials as long as 75 days have passed after giving notice and the permit applicant submits the notarized affidavit rather than the written statement from local officials.
Ohio livetock farms have been a target of animal welfare organizations, evidenced by recent releases of undercover videos taken at Buckeye Veal Services and Conklin Dairy Farm and the broadcast of the "Death on a Factory Farm" documentary. The strategy is to gain employment or access to the farm, videotape without the knowledge or permission of the farm owner, and later release video suggesting that the farm mistreats its livestock. This approach has heightened the visibility of farm animal welfare issues in Ohio, but the strategy and its impacts raise many legal issues. A presentation I recently prepared for the Ohio Agricultural Law Symposium highlights research we're conducting at OSU to identify the legal issues and implications of the undercover video approach. Below is synopsis of a few of the more controversial legal issues.
- Ohio's penalty structure for animal cruelty. At least one animal welfare organization claims that it has targeted Ohio for undercover investigations because Ohio is one of the few remaining states that limits animal cruelty punishment to misdemeanor penalties (with the exception of a repeated offense against "companion animals," which is a fifth degree felony). Most states have adopted a felony penalty structure for acts of animal cruelty, which results in more severe punishment. Ohio legislators have made nearly a dozen attempts to increase penalties for animal cruelty, most recently with H.B. 55 (see our earlier post). The proposals always fail, allegedly due to an effective lobbying effort from groups who argue that penalties for cruelty to animals in Ohio should not be higher than those for abuse of humans. While undercover video releases don't appear to be moving felony penalty legislation forward currently, they could be garnering public support for a future proposal. Should Ohio adopt a felony penalty, and if it does, will undercover investigations find a new state target?
- Duty to report animal abuse. The videographer of the Conklin Dairy Farm video witnessed acts of mistreatment against animals by an employee for approximately one month before the organization released the videos. Many argue that the videographer should have reported the abuse right away, but neither Ohio or any other state has a law requiring an ordinary person to report animal cruelty. Fifteen states have laws mandating that veterinarians report suspected animal cruelty: Ohio does not. Another 13 states have "voluntary" reporting laws for veterinarians, which grant a veterinarian immunity and a waiver of client confidentiality upon reporting abuse, but not Ohio. Ohio does have several mechanisms a person could use to initiate an investigation of suspected animal cruelty through local law enforcement or the county humane society. In a similar vein, should livestock farms have an employment policy requiring employees to report incidents of animal mismanagement and abuse by other employees?
- Who's committing the crime? The person committing the act against an animal is the obvious offender, but what about the videographer and the employer? Circumstances may exist such that the videographer was a legal "accomplice" to the crime. Under Ohio law, a person can be prosecuted as an accomplice if the person solicited another to commit a criminal offense; aided, abetted or conspired with another in committing the offense; or caused an innocent or irresponsible person to commit the offense, and also shared in the intent to commit the crime. Likewise, it may be possible to prove that a videographer acted with "recklessness" by observing and taping the crime or by encouraging and interacting with the offender; recklessness is the required mental state for an animal cruelty violation. As for the employer, Ohio's humane society law clarifies that a conviction of an employee for animal cruelty does not prevent the prosecution of the employer for "allowing a state of facts to exist which will induce cruelty to animals" by the employee.
These are only a few of the issues surfacing from the undercover video strategy. Given the current climate of continued attempts to "out" livestock farmers and push the farm animal welfare issue in Ohio, perhaps it's time we begin finding solutions to the issues.
Bill introduced in Ohio House of Representatives to clarify liability standards
A recurring problem around Ohio may be resolved if H.B. 503 progresses through the General Assembly before the end of the year. Representatives Bubp (R-88th Dist.) and Garrison (D-93rd Dist.) recently introduced the bill to revise Ohio's animals at large law. The proposal clarifies the standards for civil and criminal liability under the law.
The animals running at large law, found in Ohio Revised Code Chapter 951, states that no owner or keeper of horses, mules, cattle, sheep, goats, swine, or geese "shall permit" the animals to run at large on public roads or outside of their enclosures. Many law officers, prosecutors and judges have interpreted the word "shall" as a trigger for automatic liability--if an animal is out, the owner is liable. But in a case before the Ohio Supreme Court, the court stated that the law does not establish automatic liability. The court explained that the law creates the duty to exercise ordinary care to keep animals from running at large and sets up a "rebuttable presumption" of liability. An animal owner whose animals are found running at large has the opportunity to rebut the presumption of liability and prove that he or she exercised ordinary care to contain the animals. Despite the Supreme Court opinion, animal owners have continued to be subject to prosecution under an automatic liability standard.
H.B. 503 removes the possibility of interpreting the animals at large law as a strict liability law and lays out two different standards for civil and criminal liability. An owner or keeper of animals who "negligently" permits animals to run at large is liable for all damages caused by the animal, and an owner or keeper who "recklessly" permits animals to run at large is guilty of a fourth degree criminal misdemeanor. Under Ohio law, "negligence" is the failure to exercise ordinary care, while "recklessness" is acting with indifference to consequences and with disregard to a known risk.
H.B. 503 would alleviate the problems many animal owners in Ohio have faced--potential criminal liability when natural disasters, vandals, pranksters or neighbor disputes, rather than the owner's action or inaction, caused the release of the animals. A disturbing increase in such incidents led the Ohio State Bar Association and its Agricultural Law Committee to work with H.B. 503 sponsors to develop the revisions. View H.B. 503 here.
The recent passage of Issue 2 in Ohio (see earlier posts) will eventually lead to the establishment of an Ohio Livestock Care Standards Board, which will have the responsibility to develop standards for the care and well-being of livestock. While the process is new for Ohio, we're not the first state to develop farm animal care standards.
In 1995, the New Jersey legislature directed its Department of Agriculture to develop "standards for the humane raising, keeping, care, treatment, marketing, and sale of domestic livestock; and rules and regulations governing the enforcement of those standards." Nine years later, the agency finalized its regulations for the "Humane Treatment of Domestic Livestock." The regulatory program defines acceptable and prohibited practices for feeding, watering, keeping, marketing, sale, care and treament of cattle, horses, poultry, rabbits, small ruminants, and swine. The program establishes an investigation and enforcement process that includes a complaint procedure and investigation by Certified Livestock Inspectors.
Soon after final publication of the New Jersey regulations, a group of animal welfare organizations, consumers and farmers filed a lawsuit challenging the rules. The group included the Humane Society of the United States, Farm Sanctuary, the American Society for the Prevention of Cruelty to Animals and the Center for Food Safety.
The lawsuit attacked the regulations from several directions. The regulations allowed the use of "routine husbandry practices," defined as "techniques commonly taught by veterinary schools, land grant colleges, and agricultural extension agentsfor the benefit of animals, the livestock industry, animal handlers and the public health and which are employed to raise, keep, care, treat, market and transport livestock, including, but not limited to, techniques involved with physical restraint; animal handling; animal identification; animal training; manure management; restricted feeding; restricted watering; restricted exercising; animal housing techniques; reproductive techniques; implantation; vaccination; and use of fencing materials, as long as all other State and Federal laws governing these practices are followed." The lawsuit claimed this definition to be impermissibly broad and an improper delegation of the agency's authority.
The lawsuit also challenged specific practices permitted by the rules, including tail docking of cattle; castration, de-beaking, and toe-trimming without anesthesia; crating; tethering; and transporting sick cattle to slaughter. The plaintiffs claimed that the practices are not supported by sound science and are not "humane," as required by the New Jersey legislature's original directive.
The New Jersey Superior Court heard the case and upheld the agency's regulations. The animal welfare groups filed for a review by the New Jersey Supreme Court, and the court issued a decision in July, 2008.
Neither side won a complete victory. While the Supreme Court of New Jersey refused to reject the entire body of regulations, it did strike down the definition of "routine husbandry practices" for being overly broad, not based on a careful determination of the practices being taught by schools and colleges, and not based on a determination of whether the practices are "humane." The court also invalidated the regulation's endorsement of tail docking for cattle, questioning whether the practice itself is humane but concluding that the agency could not provide support for the necessity of the practice. In its examination of castration, de-beaking and toe-trimming, the court noted that scientific evidence would support the agency's acceptance of the practices, but the agency's reference within the rules that the practices should only be "performed in a sanitary manner by a knowledgeable individual and in such a way as to minimize pain" was vague and could not ensure that the practices would be "humane." In regards to the rule's allowance of crating, tethering and transporting of sick cattle, the court upheld the rules by concluding that the agency had relied upon its own techical expertise as well as a wide array of scientific studies before determining that the practices are beneficial and humane.
The Supreme Court sent the regulations back to the New Jersey Department of Agriculture for revisions consistent with the court's opinion. Rumour suggests that the department does not currently have appropriate funding to conduct a review and revision of the regulations. Because the rules were to expire in June of 2009, the governor of New Jersey exercised his authority to extend the expiration date to December of 2010 to give the agency adequate time to revise the rules. In the meantime, the regulations remain in effect except for those specific provisions struck down by the Supreme Court.
The New Jersey situation provides a few lessons for Ohio as we embark upon creating the Ohio Livestock Care Standards Board and a livestock care regulatory program, as authorized by Issue 2. Undoubtedly, interests similar to those who filed the New Jersey lawsuit will be watching, commenting upon, and possibly challenging any regulations proposed by the board and the Ohio Department of Agriculture (ODA). While Issue 2 did not include New Jersey's "humane" language, it does create a similar benchmark by calling for the establishment of "standards governing the care and well-being of livestock and poultry." A standard developed by the board thus must be consistent with an animal's "well-being" and be based upon evidence or expertise supporting a relationship to "well-being." Issue 2 does not legally define "well-being," a void the legislature may want to consider in its implementing legislation for Issue 2. As for specifying acceptable practices such as de-beaking or tail-docking, the New Jersey analysis illustrates a basic premise of administrative law--that a court will defer to an agency that can demonstrate technical expertise and a sound basis for its decision.
New Jersey's experience also teaches us that a court may not support adoption of customary livestock management practices taught in our universities and educational programs without a comprehensive review of the practices and an inquiry into whether the practices support an animal's "well-being." Such a stipulation might also apply to adoption of accepted industry or association standards. Likewise, a regulatory scheme that aims to ensure well-being by deferring generally to a livestock handler's knowledge level or handling practices may not survive a legal challenge. The New Jersey court voided such regulations for failing to contain detailed definitions and objective criteria against which to determine whether a person or his handling practices were sufficient. This presents Ohio with a question to ponder: should Ohio's standards include a training or certification program for livestock operators?
Ohio probably didn't expect to draw upon New Jersey's experience on this issue, but the New Jersey Supreme Court has aptly described the challenge now before Ohio:
"In part, the issues before this Court require us to evaluate the very methodology utilized by the Department in its creation of the challenged regulations; in part, the issues before us raise questions and debates arising from deeply held notions concerning the welfare of animals generally. Nonetheless, the dispute before this Court has nothing to do with anyone’s love for animals, or with the way in which any of us treats our pets; rather, it requires a balancing of the interests of people and organizations who would zealously safeguard the well-being of all animals, including those born and bred for eventual slaughter, with the equally significant interests of those who make their living in animal husbandry and who contribute, through their effort, to our food supply."
The New Jersey rules on the Humane Treatment of Domestic Livestock are in Title 2, Chapter 8 of the New Jersey Administrative Code, available at http://www.lexisnexis.com/njoal. The New Jersey Supreme Court's opinion in New Jersey Society for the Prevention of Cruelty to Animals v. New Jersey Dept. of Agriculture, 196 N.J. 366 (2008) is available at http://lawlibrary.rutgers.edu/courts/supreme/a-27-07.doc.html.
There's much debate about Ohio's Issue 2, a proposal regarding farm animal welfare. Below are answers to legal questions about Issue 2. Are there other unanswered legal questions? If so, let me know.
What is Issue 2?
Issue 2 is a ballot issue that Ohio voters will decide in the November 3, 2009 general election. The issue proposes an amendment to the Ohio Constitution that addresses the care of livestock in Ohio.
How did Issue 2 get on the ballot?
There are two ways to propose an amendment to the Ohio Constitution: by citizen initiative or by a joint resolution passed by Ohio’s legislature, the General Assembly. Both methods require that the proposal be placed on the ballot for majority approval by Ohio voters. Issue 2 arose through a joint resolution in the General Assembly. The Ohio House of Representatives and the Ohio Senate both approved the proposed constitutional amendment. As required by law, the Ohio General Assembly then submitted the enacted resolution to the Ohio Secretary of State, who chairs the Ohio Ballot Board. The five member Ballot Board reviewed the resolution and developed a summary of the joint resolution for the ballot. The Ohio Attorney General certified that the Ballot Board’s summary is an accurate depiction of the joint resolution, and the summary will appear as Issue 2 on the November 3, 2009 general election ballot. You may view the joint resolution passed by the Ohio legislators here, which is the actual language that would be included in the Ohio Constitution if approved on November 3, 2009. The Ballot Board’s summary of the joint resolution, which is the actual language that will appear on the ballot as Issue 2, is here. To learn more about the ballot initiative procedure in Ohio, visit this page.
Is a constitutional amendment the same as a law?
Yes. Ohio’s Constitution is one source of law; Ohio also has statutory law (the Ohio Revised Code), administrative law (agency rules), and common law (written court decisions). However, the Constitution is Ohio’s “supreme” law because it establishes the framework for Ohio’s governmental structure, sets forth powers of the government, provides for fundamental individual rights, and is difficult to change. Only a majority vote by Ohio voters can change the Ohio Constitution.
What does Issue 2’s proposed constitutional amendment do?
Issue 2 proposes to amend the Ohio Constitution by including language in the Constitution that:
- Creates an Ohio Livestock Care Standards Board that would have the authority to establish standards for livestock care in Ohio.
- Gives the Ohio Department of Agriculture the authority to oversee and enforce the livestock care standards.
- Grants the Ohio General Assembly the authority to enact laws necessary for creating the Livestock Care Standards Board and overseeing, implementing and enforcing its standards.
Who would be on the Ohio Livestock Care Standards Board?
Issue 2 establishes a thirteen member Livestock Care Standards Board. No more than seven members on the board may be of the same political party. The Ohio General Assembly would have the power to set the terms of office for the Board members and determine any conditions for the Board members' service. The proposal states that the Board would consist of:
- The director of the department of agriculture, who would serve as chair of the Board;
- Ten members appointed by the Governor with Senate approval, which must include: one family farm representative, one member knowledgeable about food safety in Ohio; two members representing statewide farmer organizations; one veterinarian licensed in Ohio; the State Veterinarian; the dean of an Ohio college or university’s agriculture department; two members of the public representing Ohio consumers; one member representing a county humane society
- One family farmer appointed by the Speaker of the Ohio House of Representatives.
- One family farmer appointed by the President of the Ohio Senate.
What is a “family farmer” for purposes of Issue 2?
Issue 2 does not contain a definition of “family farmer,” nor does Ohio’s statutory laws.
How would the Board create the livestock care standards?
Issue 2 does not specifically detail how the Livestock Care Standards Board would go about creating the livestock care standards, but it does state that when developing the standards, the Board must consider factors that include, but are not limited to, agricultural best management practices for such care and well-being, biosecurity, disease prevention, animal morbidity and mortality data, food safety practices, and the protection of local, affordable food supplies for consumers. Issue 2 also directs the Ohio legislature to enact laws to help the Board carry out its duties, which would allow the legislature to establish a process for the Board to follow when developing the livestock care standards.
Who would enforce the livestock care standards?
According to Issue 2, the state department that regulates agriculture (which is currently the Ohio Department of Agriculture) would have the authority to implement and enforce the standards developed by the Livestock Care Standards Board, and could create administrative rules and regulations necessary to do so.
How much will a Livestock Care Standards Board cost and how will it be funded?
The Office of Budget and Management has prepared a fiscal analysis for Issue 2. The analysis projects costs based upon similar Ohio boards and programs. OBM assumes that funding will derive from the state’s General Revenue Fund, since the proposal does not designate a funding source. See the OBM’s cost projections here.
Do other Ohio laws affect the care of farm animals?
Yes. Ohio currently has laws related to the care of domestic animals, commonly referred to as our animal cruelty laws. The laws prohibit acts such as torture; confinement without adequate shelter, fresh air, food or water; and unnecessary or cruel harm to an animal. Unless the Ohio General Assembly changes them, these laws will remain in effect and will apply to farm animals even if Issue 2 passes. The Ohio General Assembly could choose to amend the existing animal cruelty laws to include the livestock care standards developed by the Board. See Ohio’s animal cruelty laws here.
If Issue 2 passes, could it ever be changed?
Yes, but because Issue 2 proposes an amendment to the Ohio Constitution, it could only be changed by another proposed constitutional amendment that must be approved by Ohio voters.
How does Ohio’s Issue 2 differ from Proposition 2 that passed last year in California?
The ballot initiative known as Proposition 2 passed by California voters last fall amended California’s statutory law. It was not a constitutional amendment like Ohio’s Issue 2. The California law does not address the care of all livestock, but instead prevents certain actions for certain types of livestock. California’s law prohibits the tethering or confinement of pregnant hogs, veal calves and egg-laying hens in a way that prevents the animal from lying down, standing up, fully extending its legs or turning around freely for a majority of the day.
Could a ballot proposal like California’s Proposition 2 come to Ohio if Issue 2 passes?
In addition to allowing initiatives that amend the Constitution, Ohio law allows citizens to propose new statutory laws through the ballot initiative process. A person or group could use the ballot initiative to propose a law like California’s Proposition 2 in the future, and the proposal could be placed on the general election ballot for voter approval. If Issue 2 passes, however, a future ballot proposal that conflicts with Issue 2’s constitutional amendment could be challenged legally.
Do other states have laws like the one proposed by Issue 2?
A number of states have addressed the issue of farm animal care, but none have enacted a law similar to Ohio’s Issue 2. Rather, the laws follow California’s approach of prohibiting certain practices for certain types of livestock, such as egg-laying poultry, veal calves and pregnant hogs. Only Florida has enacted a constitutional amendment on farm animal care, and the Florida provision applies only to confinement of pregnant pigs. For links to other state laws on farm animal welfare, see our website at http://aede.osu.edu/programs/aglaw or visit Michigan State University’s Animal Legal & Historical Center at http://www.animallaw.info/.