Recent Blog Posts

Now that the Ohio legislature has enacted an implementation bill and Governor Strickland has announced board appointments, the Ohio Livestock Care Standards Board could soon begin developing standards for farm animal care in Ohio.  Voters approved Issue 2, the constiututional amendment creating the Ohio Livestock Care Standards Board, in November of 2009.

Last week, the governor signed Issue 2's implementation bill (House Bill 414) after legislators wrangled with two different implementation proposals for more than two months.  A primary point of contention was funding--H.B. 414 originally proposed an increase of the commercial seed and feed inspection fee and allowed the transfer of at least $500,000 annually from the commercial seed and feed fund to the livestock care standards fund.  A Senate proposed bill, S.B. 233, would have provided the livestock care standards fund with $162, 280 transferred from the School Employees Health Care Board.  Neither provision survived in the final enacted law, which instead requires the director of the Ohio Department of Agriculture to rely on existing funds within the department until the legislature appropriates money for the livestock care standards fund.

The final approved bill also establishes board member terms and vacancies, allows board member travel reimbursements but does not allow compensation, and requires the board to meet at least three times per year.  The law requires the director of ODA to assist the board by hiring employees, submitting the board's proposed rules for approval, enforcing the rules and investigating potential rule violations.  According to the law, the director must obtain permission to enter premises for inspection purposes.

Two provisions in the law address animal identification and organic production--these provisions were in the Senate's version and were added to the final bill .   The new law states that the Ohio Livestock Care Standards Board may not establish a statewide animal identification system and clarifies that standards of the USDA's national organic program will prevail if there is a conflict between the organic certification standards and the Ohio livestock care standards.

Despite recommendations to do so, the new law does not define the term "family farmer," but only reiterates the constitutional amendment's requirement that three of the board members shall be "family farmers."  Nor does the legislature guide the board on the meaning of the "well-being" of livestock, which the board must address in its standards and rules.  We hoped the new law would clarify whether "well-being" includes both physical and emotional well-being, an issue that could bring legal challenges in the future (see our earlier post on "Lessons from New Jersey").   The implementation law does define "livestock" as equine raised for any purpose and the following animals if raised for human food and fiber purposes:  porcine (hogs), bovine (cattle, oxen, buffalo), caprine (goats), ovine (sheep), poultry, alpaca and llamas. 

Soon after Govenor Strickland signed H.B. 414, he announced his appointments to the Ohio Livestock Care Standards Board.  Information on the board appointments is available here.  Once the speaker of the house of representatives and president of the senate each make one of the two final board appointments, the board can begin its work of developing standards for the care and well-being of livestock in Ohio.

Meanwhile, proponents of a second ballot initiative on farm animal welfare are currently circulating around the state seeking signatures to place another proposal on the November general election ballot.  The proponents hope to tell the board, through a second constitutional amendment, a few standards that it must adopt, which includes prohibitions on certain types of confinement, requirements for humane killing of cows and pigs and restrictions against the sale or transport of downer cows.  See our earlier post on "Ohio may see a second constitutional amendment on farm animal welfare."

Not surprisingly, a group called Ohioans for Humane Farms has requested a petition initiative certification from the Ohio Attorney General that could place a second proposed consititutional amendment on farm animal care before Ohio voters this fall.  Ohioans approved "Issue 2" last fall, a constitutional amendment that created the Ohio Livestock Care Standards Board  to create standards for the care and well-being of farm animals (see earlier posts.) 

The current petition certification request for a new initiative, submitted January 27 and signed by over 1,000 Ohio electors, requests approval to circulate a petition that proposes amending the Constitution to require the newly created Ohio Livestock Care Standards Board "to adopt certain minimum standards that will prevent the cruel and inhumane treatment of farm animals, enhance food safety, and strengthen Ohio farms." 

The  petition's proposed constitutional amendment goes beyond the expected prohibitions on confinement of pregnant pigs, laying hens and veal calves that farm animal welfare advocates have advanced in other states, but it does not conflict with the language enacted by Ohio's Issue 2.  According to the proposed ballot initiative, the minimum requirements the Ohio Livestock Care Standards Board would be required to adopt include:

  • Prohibition of the confinement of veal calves, pregnant pigs and egg-laying hens on a farm, for all or the majority of any day, in a way that prevents the animal from lying down, standing up, fully extending his or her limbs, or turning around freely.  There are exceptions for scientific or agricultural research; veterinary treatments; rodeo, fair, or other exhibitions; 4-H and similar programs; during slaughter; or for pregnant pigs, in the seven days prior to giving birth.  A "farm" is land, buildings and equipment used for the commercial production of animals for food an fiber.
  • Requirements that all killings of cows and pigs be performed in a humane manner using methods deemed "acceptable" by the American Veterinary Medical Association, and prohibition of any killing of cows and pigs by strangulation.
  • Prohibitions against the sale, transport or receipt for use in the human  food supply of  any "downer" cow or calf that is too sick to stand or walk.
  • Misdemeanor charges for any violation of the standards developed by the Livestock Care Standards Board, punishable by up to one year of jail and/or $1,000.

If passed by Ohio voters, the proposed constitutional amendment would take effect within six years of the date of its adoption.

The Ohio Attorney General must act on the initiative petition by February 5, 2010.  If the Attorney General certifies that the petition's summary  contains a fair and truthful statement of the proposed amendment, the petition goes to the Ohio Ballot Board, who must ensure within ten days that the proposal contains only one constitutional amendment.  If approved, the Attorney General files the petition with the Secretary of State, and the proponents may then begin collecting signatures on the petition.  The number of valid signatures required to place the initiative on the ballot is at least 10% of the number of votes cast for governor in the last election (total votes for governor in 2006 were 4,022,928).  At least 44 of Ohio's 88 counties must be represented with signatures from at least 5% of each county's votes cast for governor in the last election.  The proponent must file the petitions by June 30, which is 125 days before the date of the general election date of November 2, and the proponent will have ten days to correct the insufficiency of signatures after a determination by the Secretary of State.

According to a press release issued by the Humane Society of the United States, the ballot proposal by Ohioans for Humane Farms is supported by The Humane Society of the United States, Farm Sanctuary, Ohio Society for the Prevention of Cruelty to Animals, Toledo Area Humane Society, Geauga Humane Society, Ohio League of Humane Voters, Center for Food Safety, United Farm Workers, Consumer Federation of America and Center for Science in the Public Interest.

View the initiative petition for the Livestock Board Amendment on the Ohio Attorney General's website at http://www.ohioattorneygeneral.gov/Legal/Ballot-Initiatives.

Thanks go to my colleague Robert Moore for  submitting our first guest blog and sharing the following expertise on the issue of vomitoxin detection in corn.

by Robert Moore, Attorney, Wright Law Company, LPA

Ohio and other areas of the Corn Belt have seen unusually high levels of vomitoxin in corn.  Vomitoxin is a mycotoxin that can cause livestock to reduce feed intake and reduce weight gain.  Some elevators and ethanol plants have been rejecting corn that has tested too high for vomitoxin.  What legal standing do producers with rejected corn have?

Producers with a Contract                       

Producers who have a contract with a buyer must look to the contract to determine their rights.  All provisions, including any small print on the back of the contract, must be read entirely before assessing legal rights.  The language of the contract is what matters; any verbal agreements made outside the contract have very little effect in enforcing legal rights.  Even if the producer and buyer agree to certain terms, if the terms do not find their way onto the contract then the parties are probably not bound by the terms.

In regards to Vomitoxin, the key terms are those describing the quality of the corn required to be delivered.  Grain contracts will include at least the bare minimum “No.2 Yellow Corn” requirement.  No. 2 Yellow corn is a grade established by the USDA and may have up to 5% damaged kernels.  The USDA defines damaged kernels as “kernels and pieces of corn kernels that are badly ground-damaged, badly weather-damaged, diseased, frost-damaged, germ-damaged, heat-damaged, insectbored, mold-damaged, sprout-damaged, or otherwise materially damaged.”  Therefore, if the only grade standard in the contract is No. 2 Yellow Corn, a producer’s corn should not be rejected or discounted solely for Vomitoxin unless more than 5% of the kernels are diseased.  However, corn could likely be rejected if 3% of the kernels were diseased with Vomitoxin and another 3% were damaged in another manner.  The 5% threshold is the accumulation of all damaged kernels and not just a single type of damage.

Some contracts will include more restrictive grade terms such as “must be suitable to be fed to livestock” or “must meet all FDA guidelines”.  The FDA has established a 5 part per million (ppm) threshold for hogs and 10 ppm threshold for cattle and poultry.  Therefore, an elevator that requires corn to meet FDA standards or to be safe for livestock consumption can reject corn if it has more than 5 ppm vomitoxin.  It is important to note that corn could have less than 5% damaged kernels but have more than  5 ppm vomitoxin.  That is, the USDA No.2 Yellow Corn grade is a completely different standard that the FDA’s ppm standard.  Ethanol plants must be extra concerned with vomitoxin becoming concentrated in the distillers grain by-product and may have even more restrictive terms than FDA.

Producers that have corn rejected can have the dual problem of having corn rejected and still being obligated to fulfill the contract.  A worse case scenario would see a producer not being able to sell his corn due to high vomitoxin levels while still being required to fulfill his contract obligations for untainted corn with the elevator.  Local reports indicate that elevators have been letting producers out of their contracts if their corn has been rejected for vomitoxin but this could change at any time.

Producers without Contracts

A producer who intends to sell a load of corn to the elevator without a contract has very little legal protection from the corn being rejected.  The elevator is under no obligation to buy the corn and can simply opt not to buy the corn for any reasonable reason.  Without a contract, the elevator is not bound to any predetermined grade standards.  Even the smallest amount of vomitoxin in the corn could cause it to be rejected.

Disputed Grain Samples

Producers have the right to appeal the grain grading determination performed by the elevator.  The Federal Grain Inspection Service (FGIS) oversees grain grading procedures and methods and also provides inspection and appeal services.  A producer who disputes the elevator’s grading can send a sample to FGIS and FGIS’ determination will be binding on both parties.  A FGIS office is located in Toledo.  For more details and information on grading appeals, contact FGIS at 419- 893-3076.

Crop Insurance

Some crop insurance policies cover Vomitoxin damage. It is best to have the corn checked by an adjuster while still in the field to avoid tainted corn from being mixed with untainted corn in bins.  Many producers have opted to not file a claim due to the significant impact on APH.  They would rather maintain a higher APH than to file a marginal crop insurance claim.  The deadline for any claims on vomitoxin was December 25, 2009.  In the future, a producer’s crop insurance agent should be contacted at the first sign of Vomitoxin to ensure that all claim procedures are property followed.

Future Implications

Will we see grain contracts move away from the USDA No.2 Yellow Corn standard and towards the FDA ppm standard for vomitoxin and other mycotoxins?  Elevators relying on the USDA standard could get stuck buying corn that exceeds the FDA’s ppm standards.  Unless blended with non-tainted grain, this grain would seemingly be unmarketable as it could not be used for human consumption, livestock consumption, and/or export. Producers should anticipate possible changes to grading standards in contracts offered by elevators and other buyers.  A careful reading of all new grain contracts should be a must for producers to make sure they fully understand the quality and grade of grain they are expected to deliver to the buyer.

Robert Moore is an attorney with Wright Law Co. LPA in Dublin, Ohio, www.wright-law.net.  E-mail:  rmoore@wright-law.net

Representatives Sayre and Bolon introduced the implementation legislation for State Issue 2's Ohio Livestock Care Standards Board on Tuesday, January 19.  H.B. 414 does the following:

  • Defines "livestock" as equine animals, regardless of the purpose for which the equine are raised; porcine, bovine, caprine and ovine animals; poultry; alpaca and llamas. 
  • Requires the appointment of the Ohio Livestock Care Standards Board within 45 days of the bill's effective date and establishes board member provisions such as terms of office, vacancies, meetings and compensation.
  • Reiterates Issue 2's language regarding the purpose of the board.
  • Directs the board to adopt rules regarding civil penalties for violating care standards.
  • Establishes duties of the director of the Ohio Department of Agriculture for assisting the board and grants authority to the director and his/her representative to enter property for inspection and investigation.
  • Prohibits anyone from providing false information in response to the livestock care standard requirements, or otherwise violating the rules developed by the board.
  • Creates an Ohio livestock care standards fund and authorizes the director of the Ohio Department of Agriculture to use the fund for program administration and enforcement.
  • Increases the commercial feed and seed inspection fee in ORC 923.44 by 15 cents over the next three years, in five cent increments per year--to 30, 35 and 40 cents per ton--and increases the minimum fee from 25 to 50 dollars.
  • Allows the director of ODA to request annual transfers of not less than $500,000 from the commercial feed and seed fund to the Ohio livestock care standards fund.
  • States that the law does not affect the authority of county humane societies or officials.
  • Clarifies that the law does not apply to food processing production activities regulated under ORC Chapter 1717.

View H.B. 414 here.

Monsanto Company must be thinking that determination sometimes yields intended results.  The U.S. Supreme Court announced on January 15 that it will grant Monsanto's request for review of a 2007 federal injunction that halted the planting and sale of Monsanto's Roundup Ready alfalfa seed pending completion of an Environmental Impact Statement.  The Court's announcement came as a surprise to many who've followed the case, which Monsanto has repeatedly lost in a protracted series of court decisions.   Since the 2007 injunction, the Animal and Plant Health Inspection Service (APHIS) has completed the court ordered draft EIS on the proposed deregulation of the Roundup Ready alfalfa seed, and the EIS comment period still remains open until February 16, 2010. 

The following is a compilation of summaries we've written in the past about the earlier decisions in Geertson Seed Farms v. Monsanto.

The 2007 decisions:  Geertson Seed Farms v. Johanns, 2007 WL 518624 (N.D. Cal. Feb. 13, 2007), amended by Geertson Farms, Inc. v. Johanns, 2007 U.S. Dist. LEXIS 21491 (N.D. Cal., Mar. 12, 2007).

The federal district court in California issued its opinion on the deregulation of “Roundup Ready” alfalfa pursuant to the Plant Protection Act on February 13, 2007.   Upon receiving Monsanto’s petition for deregulation of the alfalfa seed, APHIS conducted an Environmental Assessment and received over 500 comments in opposition to the deregulation.  The opposition’s primary concern was the potential of contamination.  APHIS, however, made a Finding of No Significant Impact (FONSI) and approved the deregulation petition, thereby allowing the seed to be sold without USDA oversight.  Geertson Seed Farms, joined by a number of growers and associations, filed claims under the National Environmental Policy Act (NEPA)  as well as the Endangered Species Act and Plant Protection Act.  In regards to NEPA, they argued that the agency should have prepared an EIS for the deregulation.

Addressing only the NEPA claims, the court agreed that APHIS should have conducted an EIS because of the significant environmental impact posed by deregulation of the alfalfa seed.  A realistic potential for contamination existed, said the court, but the agency had not fully inquired into the extent of this potential.  The court also determined that APHIS did not adequately examine the potential effects of Roundup Ready alfalfa on organic farming and the development of glyphosate-resistant weeds and that there were “substantial questions” raised by the deregulation petition that the agency should have addressed in an EIS.  Concluding that the question of whether the introduction of the genetically engineered alfalfa and its potential to affect non-genetic alfalfa posed a significant environmental impact necessitated further study, the court found that APHIS’s decision was “arbitrary and capricious” and ordered the agency to prepare an EIS.  The court later enjoined the planting of Roundup Ready alfalfa from March 30, 2007, until completion of the EIS and reconsideration of the deregulation petition, except for those farmers who had already purchased the seed.  In May of 2007, the court enjoined any future planting of the alfalfa.  An order by the court in June, 2007 required disclosure of all Roundup Ready planting sites.

The 2008 appeal:  Geertson Seed Farms v. Johanns, 2008 U.S. App. LEXIS 18752 (9th Cir. Sept. 2, 2008)

In continued litigation over the planting of genetically modified alfalfa, the Ninth Circuit Court of Appeals upheld a permanent injunction against further planting pending completion of an Environmental Impact Statement (EIS) by the U.S.  Animal and Plant Health Inspection Service (APHIS).  In Geertson I, the District Court for the Northern District of California ordered an injunction on a challenge of APHIS’s approval of the “Roundup Ready” seed brought by alfalfa seed farms, farm organizations and environmental groups.   The USDA, Monsanto and Forage Genetics appealed, arguing that the injunction was overly broad and the district court failed to hold an evidentiary hearing prior to the injunction order.  According to the appeals court, the district court correctly applied the traditional balancing test, and an evidentiary hearing after two earlier hearings was not required because the injunction had a limited purpose and duration—until completion of the EIS.  Judge Smith issued a dissent, citing serious concerns with the scope of the injunction and claiming the court created a new exception to the evidentiary hearing requirement.

The 2009 requests:  Geertson Seed Farms v. Johanns, 570 F. 3d 1130, 2009 U.S. App. LEXIS 13884 (9th Cir. Cal., 2009).

In the three year old Geertson Seed case, the Ninth Circuit refused a rehearing request on the injunction that halted planting of Monsanto’s Roundy Ready alfalfa.  Geertson Seed Farms v. Johanns, --- F.3d ---, 2009 WL 1782972 (9th Cir. 2009).  Monsanto had appealed the injunction issued by the trial court, which required completion of an Environmental Impact Statement by the USDA’s Animal and Plant Health Inspection Service (APHIS) before further planting of the alfalfa seed, but the court of appeals upheld the order last September in Geertson Seed Farms v. Johanns, 541 F.3d 938 (9th Cir. 2008).  Monsanto then sought panel rehearing and rehearing en banc.  In June, the majority denied the rehearing request and prohibited any further rehearing petitions, despite a sharp dissent on the appeal that had criticized the majority for creating a new exception to the need for a full evidentiary hearing prior to issuing an injunction.

A four year battle over the construction of a garden center has ended with an appellate decision affirming that the retail building is exempt from zoning under Ohio's agricultural exemption provision in ORC 519.21.   The Second District Court of Appeals decided Siebenthaler Company v. Beavercreek Township on December 11, 2009.

The Siebenthaler Company constructed a building in 2006 on its 435 acre parcel in Beavercreek Township, Greene County.  Siebenthaler has grown trees, plants and flowers on the property since the 1950s.  The company planned the garden center for the sale and display of its nursery stock along with other products such as garden supplies and garden furniture.  The building would also contain a few offices, including one for providing landscaping services to its clients. 

The issue in this case is whether the garden center is exempt from township zoning authority pursuant to the  agricultural zoning exemption in ORC 519.   ORC 519.21(A) prevents township zoning officials from using their authority "to prohibit the use of any land for agricultural purposes or the construction or use of buildings or structures incident to the use for agricultural purposes of the land on which such buildings or structures are located, including buildings or structures that are used primarily for vinting and selling wine and that are located on land any part of which is used for viticulture, and no zoning certificate shall be required for any such building or structure."  (emphasis added).  Chapter 519 defines "agriculture" as "farming; ranching; aquaculture; apiculture; horticulture; viticulture; animal husbandry, including, but not limited to, the care and raising of livestock, equine, and fur-bearing animals; poultry husbandry and the production of poultry and poultry products; dairy production; the production of field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, sod, or mushrooms; timber; pasturage; any combination of the foregoing; the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with, but are secondary to, such husbandry or production" (emphasis added).

It seems apparent that Siebenthaler's production activities fit within the definition of agriculture as the "production of nursery stock, trees anf flowers," that its garden center also fits within that definition as the "marketing of agricultural products" conducted in conjunction with and secondary to such production, and that the building is "incident to an agricultural use of the land."   Nevertheless, Beavercreek Township determined that the building did not qualify for the agricultural zoning exemption.  After detailing to the township why the agricultural zoning exemption applied, Siebenthaler constructed the garden center.  Upon the building's completion, the zoning inspector issued a cease, desist and removal order based on Siebenthaler's failure to obtain permits for the building.  Siebenthaler appealed to the township's Board of Zoning Appeals, which upheld the zoning inspector's order.  An appeal to the Greene County Court of Common Pleas yielded different results.  The court concluded that the garden center is incident to the primary use of the property for agriculture and therefore exempt from zoning regulation.  The township appealed the case to the court of appeals.

The court of appeals agreed that the agricultural zoning exemption applied to the garden center.  Evidence had indicated that the primary function of the garden center was to serve as an outlet for the agricultural products grown on the property, said the court.   To the contrary, the township produced no evidence suggesting that other activities, such as selling other products and offering landscaping services, were the primary activities or occupied a greater amount of time than agricultural production.  

In response to the Board of Zoning Appeals' decision that the garden center "was not being used solely for a bonafide agricultural purpose,"  the court of appeals clarified that Ohio law does not require such.  Rather, the law requires that a structure only be "directly and immediately related"  and "usually or naturally and inseparably dependent upon" an agricultural use of the property.  Marketing activities may occur in conjunction with, and must be of lesser importance than, the agricultural production on the property, the court explained.

As of this date, there is no record of the township seeking review of the decision by the Ohio Supreme Court. 

The Siebenthaler case is one example of the tension that often exists between zoning officials and agricultural operations.  It's difficult to understand why the Siebenthaler case progessed as far as it did, but many factors likely contributed to the situation:  the lack of clarity in ORC 519.21, the need to redefine "agriculture" in ORC 519.01, non-farm growth and development in traditionally agricultural areas, diversification of agricultural businesses, concerns for safety,  inadequate resources for zoning officials, property rights expectations, and of course, complete misunderstandings of the law.  Agriculture and local zoning authority is a continuing problem Ohio should address, first by identifying when incompatible land uses may occur and public health and safety may be at issue, second by revising our zoning laws to reflect the changes in agriculture and the rural landscape and last, through education.  

Watch for a few more agricultural zoning cases currently under consideration by Ohio courts.  The Second District's opinion in Siebenthaler v. Beavercreek is available here.

Posted In: Zoning
Tags: agricultural signs, agricultural zoning, Zoning
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Since 2000, Ohio law has allowed property owners to avoid the probate process with a transfer on death deed, a deed that automatically transfers real property to a designated beneficiary upon the death of the property owner.   Under a new Ohio law, such transfers now require the preparation of an affidavit rather than a transfer on death deed.  The new law also allows those who hold "survivorship rights" in property to transfer their rights upon death, which the previous law prohibited. 

The changes occurred in S.B. 124, which became effective upon the governor's signature on December 28, 2009.  The Ohio State Bar Association's Real Property Law Section proposed the changes to simplify the transfer on death process and remove confusion over the rights of those holding survivorship deeds. 

See the bill and its changes to Ohio Revised Code Chapter 5302  here.     The Legislative Service Commission's analysis of S.B. 124 is available here.   Visit this website for a good summary of the law.

Last week's Climate Change Conference in Copenhagen illustrates one certainty about climate change -- the topic generates controversy.  And like animal welfare, climate change forces a painful divide within the agricultural community.  Below I offer two contrasting viewpoints on climate change and agriculture.  The first is from Neil Hamilton, law professor at Drake University School of Law in Des Moines, Iowa and director of the Drake Agricultural Law Center.  Prof. Hamilton attended the Copenhagen conference.  Second is an article from American Farm Bureau that summarizes its current cap and trade campaign.  Taken together, the articles clarify how difficult and important the issue is for agriculture.  From Neil Hamilton:  Agriculture must engage in climate change

Next month, I travel to Copenhagen for the U.N. Climate Change Negotiations (COP 15) with two Drake agricultural law students. We are part of the Iowa U.N. Association delegation going to witness the international talks on possibly the most significant environmental, social and political issue shaping our futures.
My special interest is what the talks may mean for farmers in the United States and abroad. U.S. policy discussions show much of America's agricultural sector doesn't take climate change seriously.The reality is the impacts of climate change are being felt around the globe - whether or not U.S. farm groups and politicians believe it. Fortunately, most other nations recognize the obligation and opportunity to engage in deciding how best to respond.
The adverse impacts climate change has on food production and the critical role agriculture may play in addressing it means farmers have a major stake in the debate.
The magnitude of U.S. contributions to greenhouse gas emissions make Copenhagen a prime opportunity for America to help lead development of effective responses - leadership the world needs and expects. The negotiations are especially important to farmers, because American agriculture thrives on international rules supporting free trade and open markets. If we engage at Copenhagen, then ideas to protect the environment and increase farm income may emerge, but sitting on the sidelines while others craft the agenda is a recipe for conflict and lost opportunities. Lack of U.S. leadership won't just limit success of the negotiations and limit the willingness of other nations to act, but may signal erosion in U.S. prestige and national confidence. The Kyoto climate-change treaty created little role for agriculture, but proposals for COP 15 give farmers a large, even central role. Still many U.S. farm groups are ambivalent - not just to Copenhagen but to whether climate change is real or U.S. action is needed.
Some groups like the National Farmers Union and the renewable energy coalition 25X25 endorse cap-and-trade legislation as the basis for ambitious goals for Copenhagen.
Others like the American Farm Bureau Federation oppose cap and trade - and appear uninterested in what the world may do. Farm Bureau members are being encouraged to protest to Congress "don't cap our future," arguing agriculture will suffer increased energy costs with no corresponding economic benefits. Studies show the proposed legislation will have limited impacts on farm costs and Secretary of Agriculture Tom Vilsack argues the law will open new streams of farm income from offsets and carbon markets. He has spent months explaining to farmers why they should support the legislation. Last week, President Barack Obama announced he and Vilsack will go to Copenhagen to show U.S. resolve to address climate change, even though Congress has yet to act.
Agriculture's opposition to cap and trade is delaying progress on legislation to reform U.S. energy policy. The lack of progress has already led to scaling back expectations for what might happen in Copenhagen. But remember the saying, "If you aren't part of the solution you are part of the problem." We shouldn't delude ourselves the rest of the world won't act without us or that we are immune from either the natural effects of climate change or the political effects of policies developed in our absence.
Our lack of engagement threatens to make U.S. agriculture the "problem" other nations address and risks development of an international agreement adverse to U.S. interests. Ironically the opposition may also jeopardize our ability to engage in international markets and the trade negotiations central to continued growth of American agriculture. The opposition to climate-change action is puzzling given agriculture's support for biofuels like corn ethanol as the "answer" to our energy needs. America's farmers have a successful history of innovating to meet new demands. But U.S. politics on cap and trade has become largely a question of "What is in it for me?" rather than focusing on how agricultural practices can help address climate change.
Our responding is not optional - the scientific and international political realities of climate change are real, as is the need to act. Yes, there is debate about whether the practices and policies being proposed will significantly reduce global temperatures, but disagreement about effectiveness shouldn't obscure the fact that doing nothing ensures no progress. From a legal perspective, something will happen. If Congress fails to act, the Environmental Protection Agency will regulate greenhouse gas emissions as required by a 2007 U.S. Supreme Court ruling. Legislation may raise concerns but it will be friendlier and more tailored to agriculture's needs than EPA regulations.
The world is going to address climate change, and farmers and agriculture in other nations will lead in developing responses - many have no choice if they are to protect their land and futures. The COP 15 negotiations are a stage on which the willingness of nations to act and lead will be measured. American agriculture is fond of congratulating itself for "feeding the world," even if the claim is far from true. The reality is most of the world tries to feed itself. The tragedy is that over 1 billion go hungry today, and climate change threatens even more. America may not feed the world, but we have long claimed a central role in leading it.
The climate-change debate is an opportunity for the United States - agriculture and farmers included - to live up to our self-image as leaders. Failing to do so risks America being seen as a self-serving nation in decline - a portrait our enemies and critics are happy to paint. My hope is we have the vision, courage and wisdom to rise to this occasion. That is why I am going to Copenhagen.

From the American Farm Bureau:  The Humble Farm Cap takes Center Stage

Across America, farmers and ranchers are gearing up to voice their concerns from the countryside about proposed climate change cap-and-trade legislation. United through a grassroots effort, food and fiber producers of all types will be using a familiar item – the humble farm cap – to capture the attention of lawmakers and make their views known.
Bob Stallman, president of the American Farm Bureau Federation, is encouraging members of local and state Farm Bureaus to sign, right across the bill, a new farm cap and hand-deliver it to a member of Congress with the message “Don’t CAP Our Future.”
The farm cap is an ever-present icon of American agriculture, and it seemed a natural fit as the symbol with which to send a message regarding congressional cap-and-trade schemes. Virtually everyone in farm country, including school-age boys and girls who pitch in with pride alongside their parents and grandparents, sports a farm cap as they go about producing food for our nation and the world. Even cowboys are known to occasionally put their hats aside in favor of an unassuming farm cap.
But the symbol is only as strong as its message, and in this case, the message is robust – “Don’t CAP Our Future.” The message refers to the fact that analyses from numerous sources show farmers and ranchers will pay more for fuel, fertilizer and energy if cap-and-trade becomes law. Over time, these higher expenses and a shift in land use would lead to a decrease in food production in the United States.
Already, the economic situation in some sectors of agriculture is dire. Many farmers, particularly dairy and pork producers, are keeping financially afloat on nothing more than bank lines of credit. For many, sheer determination is what keeps them in business. Those who are persevering are doing so with a brighter future in mind. They are also driven by the goal of being able to pass the farm or ranch on to the next generation when they retire or perhaps farming with their children as they grow into adulthood.
“I’m doing this for my kids,” is an oft-expressed and sincere sentiment among farmers. During the “Don’t CAP Our Future” effort, that truth will likely be repeated to members of Congress, as they hand their lawmakers a signed farm cap and explain how their ability to produce food and fiber for the U.S. and much of the rest of the world will be compromised if cap-and-trade becomes law.
Consumers also will be hit hard under cap-and trade. The Department of Energy estimates energy costs could grow by $1,870 per household. Combined with higher costs for food, the additional yearly hit on families would be about $2,300 per household. Said another way, the cap-and-trade law would impose costs of up to $200 billion a year on American households.  (Note that a  more detailed explanation of American Farm Bureau's position on climate change is available at http://fb.org/issues/docs/climatechange09.pdf)

The development of wind farms is a controversial land use issue in Ohio, as in other states.  Arguments abound on both sides and revolve around private property rights, community land use planning, green energy, preservation of open landscapes and wildlife impacts.  It is this last factor--impacts on wildlife--that convinced a federal court to halt a wind development project in the Appalachian mountains of West Virginia, much to the dismay of developers of the $300 million project.

The Indiana bat, an endangered species with the power to stop a wind development project

The Beech Ridge wind energy project involves construction of 122 wind turbines along  the ridgeline of the Appalachian mountains in Greenbrier County.   About forty of the turbines are currently in the construction phase, but the federal court has issued an injunction stopping construction of any additional turbines and limiting existing turbine use to the bat's winter hibernation period.  The reason:  project developers failed to take seriously the issue of harm to the Indiana bat.   The Indiana Bat is on the list of "endangered" species, and interference with the animal or its habitat is prohibited by the federal Endangered Species Act (ESA).   The wind project developers did hire an environmental consultant to examine the situation, but the consultant repeatedly disregarded information and advice from the U.S. Fish and Wildlife Service (FWS) that would have more accurately identified the Indiana bat population.   The court critized the consultant's efforts, stating that "[s]earching for bats near proposed wind turbine locations for one year instead of three, looking in one season rather than three, and using only one method to detect bats was wholly inadequate to a fair assessment."  Later surveys revealed the existence of two caves within ten miles of the project that are home to hundreds of bats, including Indiana bats, and evidence suggested that nearly 7,000 bats would die each year because of the project.

Despite the existence of the bats near the project, however, the court pointed out that Beech Ridge's developers could have requested an "incidental take permit" (ITP) pursuant to the ESA.  The ESA's incidental take permit mechanism could have allowed the project to proceed, but with preparation of an FWS approved Habitat Conservation Plan demonstrating that measures would be taken to minimize or mitigate adverse effects on the Indiana bat.  "Indeed, the tragedy of this case is that Defendants disregarded not only repeated advice from the FWS but also failed to take advantage of a specific mechanism, the ITP process, established by federal law to allow their project to proceed in harmony with the goal of avoidance of harm to endangered species," said the court.

The Animal Welfare Institute and Mountain Communities for Responsible Energy filed the lawsuit, and produced expert testimony indicating that Indiana bats exist near the project site and that there was a very high likelihood that the turbines would kill and injure the bats.   The court drew upon Benjamin Franklin in its response to the expert testimony,  stating ". . . the Court concludes, by a preponderance of the evidence, that, like death and taxes, there is a virtual certainty that Indiana bats will be harmed, wounded, or killed imminently by the Beech Ridge Project . . ."

The difficulty of rendering such a decision is apparent in the court's opinion.   Judge Titus expresses disappointment and frustration with the project developer's approach to the bat issue, and "reluctantly" orders the injunction.  But unlike many in the wind development arena, the court does not hesitate to give credibility to the interference of wind turbines with the bat population.  He recognizes that the case illustrates a clash between two federal policies:  protection of species and encouragement of renewable energy development, but insists that the two policies are not necessarily in conflict because of  the ESA's incidental take option and the opportunity for harmonious development.  Seeking an incidental take permit is the only avenue available to help project developers resolve their "self-imposed plight," states the court.  "The development of wind energy can and should be encouraged," says Judge Titus, "but wind turbines must be good neighbors." 

As the Indiana bat did years ago, wind development has made its way to Ohio.  The Ohio Power Siting Board is currently considering approval of several wind projects including the Buckeye Wind Project, a 70 turbine project in Champaign County that would be Ohio's largest wind development.   Testimony by an environmental consultant at last month's hearings before the board focused on potential impacts of the project on the Indiana bat.  According to the consultant, studies revealed no evidence of the Indiana bat in the project area.   Studies in nearby Logan County in 2008 revealed the existence of Indiana bats in an area that has since been removed from the project, and another wind developer reported finding an Indiana bat in Champaign County earlier this year.  The Ohio Power Siting Board may take months to decide whether to approve the Buckeye Wind Project and to indicate its conclusions about impacts on Indiana bats.

In accordance with state policy promoting renewable resource development,  the Ohio Department of Natural Resources encourages wind developers to enter into a voluntary agreement to cooperatively address wildlife issues.  In the agreement, ODNR promises not to pursue liability against the developer for any incidental takings of endangered or threatened species.  However, ODNR's agreement cannot prevent private groups from challenging the turbines in federal court using the approach of the Beech Ridge Energy case.  Should the Ohio Power Siting Board approve a project like the Buckeye Wind Project, Ohio may see its own federal court case on Indiana bats and wind development.

Read the court's December 8, 2009 decision in the Beech Ridge Energy case here or go to the Maryland District Court's webpage for the opinion and order at http://www.mdd.uscourts.gov/publications/opinions/Opinions.asp.

The Ohio Supreme Court this week addressed a relevant issue given our current economic climate: when a debtor defaults on a written instrument, and neither the instrument or Ohio law authorizes the compounding of interest, can the creditor obtain compound interest for the amount due?  The court's answer is no--unless there is an agreement between the parties that allows compounding of interest, or unless an Ohio statute specifically authorizes it.  With neither supporting authority in the agreement or an authorizing statute, the creditor may only receive simple interest on the debt, said the court.   The court's opinion in Mayer v. Medancic, Slip Opinion No. 2009-Ohio-6190 (Dec. 3, 2009) is available at http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-6190.pdf.

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