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Note: The following article was written by Sarah Hoak, an undergraduate student in the College of Food, Agricultural, and Environmental Sciences at Ohio State.  Sarah was a student in the Agribusiness Law Class at OSU this past semester.  Sarah researched and wrote this article to expand her knowledge and understanding of pesticide use policy, a topic of great interest to her.

On August 20, 2024, the EPA announced its final Herbicide Strategy. Many in the agriculture community are wondering what the strategy is, how it came to be and what it means for the industry.

The herbicide strategy is one part of the EPA’s workplan to protect endangered species. It was created in response to multiple lawsuits filed against the EPA for failure to comply with the Endangered Species Act (ESA) by not conducting mandatory consultations under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). FIFRA is the primary federal law that regulates pesticide use in the U.S. and prevents the sale or use of a pesticide in the United States until the EPA approves and registers a label for the product. After a pesticide label is approved, the EPA must review the label every fifteen years to ensure that it continues to meet federal requirements with regards to the environment and human health. However, the EPA has struggled to complete ESA consultations when registering pesticides or reviewing their labels. Just one ESA consultation can take years to complete, and time adds up when there are over 17,000 registered pesticide products on the market.

To better comply with the ESA and reduce the risk of more litigation, the EPA drafted the Herbicide Strategy. This policy was designed to start the protection of endangered species earlier in the regulatory process. Instead of acting after the fact, the strategy aims to mitigate herbicide exposure to endangered species at the start. The strategy lays out a set of mitigation guidelines that growers and applicators will need to follow as they apply an herbicide. These mitigation practices will help limit herbicide exposure to endangered species. A draft policy of the strategy was released in 2023 and underwent the public comment process. Because the EPA is a government agency, they have the power to make and enforce regulations. The public can share their input on drafted regulations during the “comment period,” which is a 30–60-day time frame where government agencies will hear comments from the public¹.

The comments that were submitted for the draft herbicide strategy expressed concern about the restrictiveness and complexity of the policy. The EPA took these comments into account and made changes so that the final policy is easier to understand, includes more flexibility for pesticide users and reduces the amount of additional mitigation needed.

The final policy, taking into account public comments, focuses on targeting pesticide exposure from off-target movement including spray drift, erosion and runoff. The EPA will use a three-step decision framework to implement the policy. The first step compares and identifies a herbicide's potential to have population-level impacts on endangered species as either not likely, low, medium, or high. This step sets the bar for how much mitigation is needed for use of each herbicide.

The second step will determine the level of mitigation needed to sufficiently reduce spray drift, runoff and erosion exposure to listed species. For spray drift exposure, mitigation will primarily be based on buffer distances, and the distance will be determined by a herbicide’s classification (from step one) and the method of application. Applicators have the option to reduce the required buffer size by adopting additional mitigation measures aimed at reducing spray drift.

For runoff and erosion exposure, a point system will be used with growers/applicators having a mitigation menu from which to select practices that aim to reduce off-target movement. Herbicides will require a certain amount of mitigation points based on their classification from step one. Mitigation measures receive a value of either one, two or three points - three being high efficacy and one being low efficacy. Like with spray drift, applicators/growers have the option to gain the required number of points by adopting additional mitigation measures.

Step three will determine where the mitigations identified in step two will be required. This step considers each field's characteristics. Some mitigations may apply across the entire area of herbicide use or may be geographically specific and only apply in certain locations. This step complicates the strategy and its implementation because each field may require different forms of mitigation depending on its characteristics.

Let's look at an example for runoff and erosion mitigation on a field in Franklin County, Ohio with a 2% slope:

Using the EPA’s mitigation menu, we can determine how much mitigation is needed. Using the mitigation relief options in Table 1 of the mitigation menu, the field has a starting point value of 5 points. The field gets 3 points because Franklin County has a low pesticide runoff vulnerability and 2 points because it has a slope of less than 3%. If a grower were to apply a herbicide with a low impact, no additional mitigation measures would need to be taken. Low population impact herbicides require 3 mitigation points, and the base field characteristics cover this already.

However, if a grower were to apply a high impact herbicide, then 9 mitigation points (4 in addition to the field’s starting value) would need to be met. The grower can choose from various mitigation options to reach the 9-point mark. Some of these options include no-till conservation tillage (3 points), contour farming (2 points), in field vegetative strips (2 points), cover crops with tillage (1 point), grassed waterways (2 points), mitigation tracking (1 point) or participating in a qualifying conservation program (2 points). There are even more mitigation measures to choose from that are listed in the mitigation menu. As long as the grower selects and implements enough mitigation measures to reach the 9-point mark, then they will be in compliance with the strategy.

The Herbicide Strategy is a complex and layered policy that will affect growers and pesticide applicators across the United States. Compliance with the ESA has been a struggle for the EPA, but through the Herbicide Strategy, mitigation of spray drift and runoff/erosion exposure to endangered species should be reduced. Remember, geography, proximity to endangered species, method of application, pesticide applied, and farm management will dictate how much of an effect this policy has on a specific operation. Not every grower and applicator will be in the same situation, each will have to adjust and change certain aspects of how they manage their farm or specific fields.

Unfortunately, how this policy will play out and be implemented is unclear.  The agriculture community will have to be vigilant and adapt to the Herbicide Strategy as more information arises and implementation begins.

If you are one of those farm businesses putting off the requirement to file “beneficial ownership information” (BOI) to the federal government under the new Corporate Transparency Act (CTA), you just received an early Christmas present from a federal court in Texas.  The U.S. District Court for the Eastern District of Texas has issued a nationwide preliminary injunction against the CTA, concluding that the law “appears likely unconstitutional.”  The court halted enforcement of the CTA and its regulations (the Reporting Rule) and stayed the January 1, 2025 deadline for BOI reporting. 

What is the CTA?

The CTA is a new federal law that requires certain businesses to report the identities of those with “beneficial ownership interests” in the business to the federal Department of Treasury’s Financial Crimes Enforcement Network.  The CTA’s first reporting deadline was set to be January 1, 2025.

The parties who brought the lawsuit

Six Plaintiffs filed the lawsuit against the United States -- a private individual, three businesses, the Libertarian Party of Mississippi, and the National Federation of Independent Business.  The parties claimed that the CTA and its regulations are unconstitutional on several grounds:  first, for violating State’s rights under the Ninth and Tenth Amendments; second, for violating the First Amendment by compelling speech and burdening rights of association, and third, for violating the Fourth Amendment by forcing disclosure of private information.

The court’s analysis

Stating that whether the CTA and its rules are absolutely unconstitutional “is a question for another day,” the court instead focused its opinion on its duty to determine whether the Plaintiffs satisfied the proof necessary for being awarded the “extraordinary relief” of an injunction.  Doing so required the court to examine the elements a plaintiff must prove to receive an injunction.  The court’s opinion consumes 79-pages, but here’s a snapshot of the court’s analysis of the required elements:

1. That the CTA and Reporting Rule substantially threaten the plaintiffs with irreparable harm.  The Plaintiffs presented two arguments that they would suffer irreparable harm by complying with the CTA reporting requirements.  First, Plaintiffs claimed they would have to expend resources, spend time and effort, and incur compliance costs and legal expenses. Second, they argued that their constitutional rights would also be irreparably harmed because the fear of noncompliance and criminal punishment would force them to reveal protected information. The court agreed that Plaintiffs would suffer irreparable harm in both the form of compliance costs and substantial threats to their constitutional rights.  In doing so, the court rejected the federal government’s argument that reporting costs would be minimal and “not a heavy lift.
2. A substantial likelihood of success on the merits of any of their challenges.  The lengthiest part of the court’s decision is its analysis of whether the Plaintiffs are likely to be successful in their argument that the CTA is unconstitutional.  Plaintiffs raised several constitutional challenges, but the court addressed only the Tenth Amendment claim that Congress exceeded its authority by passing the CTA.  The government first argued that the Constitution’s Commerce Clause authorized the CTA, but the court determine that the CTA appears to be a “substantial expansion of commerce power” because it neither regulates economic activity nor non-economic activity among the states, but instead “regulates reporting companies simply because they are registered entities and compels disclosure of information for a law enforcement purpose.” Likewise, the court rejected the government’s second argument, that the Constitution’s Necessary and Proper clause authorized it to enact the CTA as a necessary and proper extension of its power to regulate commerce and foreign affairs and to lay and collect taxes.  The court found “no constitutional solace” in any of the government’s arguments, however.  The Plaintiffs had a substantial likelihood of of proving their claim that the CTA exceeds Congress’ authority and violates the Tenth Amendment, the court concluded.
3. That the threatened harm outweighs any damage the injunction might have on the Government and that preliminary injunctive relief will not harm the public.  A final question the court deliberated is the “balancing of the equities,” or whether the threatened injury to Plaintiffs by not granting the injunction outweighs any potential harm to the government from issuing the injunction.  The court quickly concluded that because the Plaintiffs’ injuries are concrete and because it is in the best interest of the public to prevent a violation of a party’s constitutional right by allowing enforcement of the CTA, the balance of equities favors issuing an injunction.

The extent of the injunction

The court’s final deliberation was whether the injunction should apply nationwide or only to the Plaintiffs, and whether it should also prevent enforcement of the CTA’s Reporting Rule and put the January 1, 2025 compliance deadline on hold.  Given that the CTA applies nationwide to nearly 33 million businesses, the court held that the extent of the potential constitutional violations Plaintiffs alleged would be best served through a nationwide injunction of the CTA and its Reporting Rule.  Combined with a stay of the compliance date, the nationwide injunction will maintain the status quo and protect the parties from irreparable harm pending further review of the Plaintiffs’ claims.

What does the case mean for farm businesses?

Businesses who haven’t yet filed their BOI information with the Department of Treasury’s Financial Crimes Enforcement Network are not currently required to do so, and the Department of Treasury cannot enforce the law or issue penalties against businesses who do not report.  Note that the court case did not address or include any remedies for businesses that have already filed BOI information.  But the lawsuit is not over and there will be further legal proceedings on both the constitutional challenges and the issuance of the injunction (UPDATE: The federal government filed an appeal of the court's decision on December 5, 2024).  For now, businesses might want to consult with their legal counsel and be prepared to file if the injunction is lifted. If that occurs, there is likely to be advance notice or an extension of time granted for filers to come into compliance.

Expect to hear more from us in the future on the legal status of the CTA and its BOI reporting requirements. 

Read the case, Texas Top Cop Shop v. Garland, here.

Our Agricultural & Resource Law Program team is excited to be part of the new Northeast Ohio Ag Innovation Center (NEO-AIC), a center that targets farm-based value-added businesses in Northeast Ohio. Based at OSU's campus in Wooster, Ohio, the center offers individual assessment and assistance to farmers in the Northeast region of the state who want to add or expand their production of value-added food, fiber, or fuel products.  Ohio State's center is the newest of the USDA-funded Ag Innovation Centers, which includes seven other centers in Massachusetts, New York, Minnesota, Georgia, Maryland, Missouri and Indiana.

The center will focus on "value-added agriculture," which refers to enhancing an agricultural product by altering its physical state, production method, or marketing approach, ultimately broadening the customer base for the product. Examples include:

• Making a physical change, like milling wheat into flour or making strawberries into jam, that transforms the original product into something new.

• Changing your production method, which includes growing organically, shifts how the product is produced and makes it more appealing to a specific market.

• Adding marketing labels like “locally grown” or “Ohio Proud” which enhance their appeal by emphasizing local origins and can attract new customers. *

The NEO-AIC team will work with clients to assess and assist with their specific needs for developing or expanding value-added production.  The team will also coordinate connections with processors, markets, and distribution outlets throughout the region and identify new products and opportunities for farms. As the legal member of the team, I'll provide resources to help clients understand the laws and regulations that apply to their value-added production and their businesses.  Specific services the team will provide include:

• Technical assistance:  Help with legal and food safety questions and making connections to local service providers.
• Value chain coordination:  Help finding markets and distribution outlets for value-added products and strategic identification of new customer demands that can be filled by local farms.  
• Business development support:  Help with developing the plans necessary to start or expand a business, including legal and regulatory requirements, financing options, and connections to resources.

Thanks to the hard work and foresight of Dr. Shoshanah Inwood, OSU secured financial support for the new center from USDA Rural Development.  With additional assistance from Ohio State University Extension and The Ohio State University College of Food Agriculture and Environmental Sciences, NEO-AIC is able to offer its services free of charge to Northeast Ohio farms. 

Visit this link to learn more about the NEO-AIC.

Join experts David Marrison and Robert Moore at Ohio Maple Days for a hands-on workshop on farm transition planning. This engaging session is designed to guide farm families in making thoughtful plans for the future of their farm business. Discover how to have essential conversations about succession and explore practical strategies and tools for transferring ownership, management, and assets to the next generation.

The workshop will take place on December 6, from 10:00 a.m. to 3:00 p.m., at the Ashland University Convocation Center. Visit woodlandstewards.osu.edu for additional information. Can't attend? More farm transition workshops are scheduled in the coming months—find dates and locations under the Farm Transition section at farmoffice.osu.edu.