Recent Blog Posts
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 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.
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.
Can Ohio townships use their zoning authority to regulate outdoor signs on agricultural property? This is a question I've received many times. I can now refer townships to legal guidance provided by the Ohio Attorney General in an opinion issued October 20, 2009 (OAG 2009-041). The OAG opinion walks us through an analysis of the persistently problematic Ohio Revised Code section 519.21, commonly referred to as the 'agricultural zoning exemption,' which states that townships may not use their zoning 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," with a few exceptions.
The OAG opinion provides the following explanation of how the agricultural exemption applies to an outdoor sign on agricultural property:
"1. Pursuant to R.C. 519.21(A), officials of a township that has not adopted a limited home rule government under R.C. Chapter 504 may not regulate the location, height,bulk, or size of a fee-standing outdoor sign that is located on a lot greater than five acres and deemed to be a structure when the use of the sign relates directly and immediately to the use for agricultural purposes of the lot on which the sign is located.
2. The use of a free-standing outdoor sign is directly and immediately related to the use for agricultural purposes of the lot on which the sign is located when the sign advertises the sale of agricultural products derived from the lot on which the sign is located.
3. The use of a free-standing outdoor sign is not directly and immediately related to the use for agricultural purposes of the lot on which the sign is located when the sign advertises the sale of (1) agricultural products not derived from the lot on which the sign is located or (2) things other than agricultural products.
4. Township officials may consider any information or facts they deem necessary and relevant in order to determine in a reasonable manner whether the use of a free-standing outdoor sign is directly and immediately related to the use for agricultural purposes of the lot on which the sign is located or an attempt to promote an activity that is not conducted in conjunction with, and secondary to, the production of the agricultural products derived from the lot on which the sign is located."
Note that the opinion pertains only to townships that have not adopted a limited home rule form of government--most of our townships have not taken the action necessary to adopt limited home rule powers. The opinion also notes that the 'farm market exception' may provide townships with limited authority to regulate outdoor signs, and that a different outcome could result for regulation of lots less than five acres in a subdivision setting.
The OAG's guidance is consistent with the history of the agricultural exemption and the many court cases that have interpreted the law. When the Ohio legislature gave townships zoning authority over 50 years ago, it tried to ensure that townships would not "zone out" all agricultural land uses in rural areas. The legislature's foresight on the issue of agricultural land use was remarkable, but their statutory language has yielded uncertainty and confusion. The OAG's opinion attempts to clarify some of that language, but the opinion forces townships into a careful analysis of each individual situation that may prove difficult and problematic for zoning officials.
The opinion itself recognizes the challenges posed by a "mixed use" situation, where the sign includes multiple products or partial products--some that derive from the property and others that do not, or promotes an activity related to the property's agricultural use. The Attorney General doesn't resolve this problem, but defers to the townships on these types of situations. The opinion states that when addressing these situations, township officials may consider "any information or facts they deem necessary and relevant in order to determine in a reasonable manner whether the use of an advertising device is drectly and immediately related to the use for agricultural purposes of the lot on which the device is located," or conversely is an "attempt to promote an activity that is not conducted in conjunction with and secondary to the production of the agricultural prouducts derived from the lot." Once again, township zoning officials may find themselves in a state of uncertainty over how or whether to regulate a land use on an agricultural property.
Read OAG opinion 2009-041 at http://www.ohioattorneygeneral.gov/Legal/Opinions.
If you heard a collective sigh of relief around Ohio on Thursday, it was likely coming from Ohio townships after learning the outcome of the long-awaited “Phantom Fireworks” court case. The Ohio Supreme Court unanimously agreed that Ohio townships may rely on countywide comprehensive land use plans as a basis for township zoning, rather than preparing individual township comprehensive plans. B.J. Alan Co. v. Congress Twp. Bd. of Zoning Appeals, Slip Opinion No. 2009-Ohio-5863 (Nov. 12, 2009).
I tend to like the pragmatic opinions authored by Justice Pfeifer, and this case is no exception. The decision answers with brevity the question of whether a township must prepare its own comprehensive land use plan in order to comply with Ohio zoning law. Examining the language of Ohio Revised Code 519.02, which grants townships the authority to utilize zoning “in accordance with a comprehensive plan,” the court determined that the statute does not require each township to develop its own comprehensive plan. Such an interpretation would be reading additional language into 519.02, said the court, and “the law requires only that a zoning resolution be ‘in accordance with a comprehensive plan.’” A countywide comprehensive plan is sufficient, and “accounts for the interrelationship of communities and marshals resources and expertise.”
Had the court reached a different conclusion, it would have invalidated hundreds of Ohio township zoning resolutions that are based on county land use plans. This was the hope of the B.J. Alan Company, which brought the case as a challenge to a zoning decision by Congress Township in Wayne County. The township denied the company’s request for a use variance to allow it to construct a Phantom Fireworks store on land zoned for agricultural use. When the case went to the court of appeals, that court agreed with the company’s argument that Congress Township’s zoning resolution was invalid according to ORC 519.02 because it was not based on a township comprehensive plan.
The controversial nature of the case led to parties lining up in interesting partnerships on both sides of the appeal to the Ohio Supreme Court. Backing the township were the Ohio Township Association, the Ohio Farm Bureau Federation, the Wayne County Farm Bureau and the Ohio Prosecuting Attorneys’ Association. On the opposite side in support of B.J. Alan Company’s appeal were the Ohio Home Builders’ Association, American Planning Association and Ohio Planning Conference.
The Supreme Court referred the case back to the court of appeals to resolve the question of whether Congress Township’s zoning is indeed “in accordance with” the Wayne County comprehensive plan. The court did examine the county plan, and held that the plan itself is a valid comprehensive plan for purposes of ORC 519.02. Sidestepping the fact that Ohio law does not clearly define a “comprehensive plan,” the court concluded that the Wayne County plan “presents a thorough study of the region and sets forth comprehensive land-use goals for the County.”
For now, townships need not panic about finding the time and funds to develop township comprehensive plans. Townships may continue to enforce their zoning resolutions based on county plans. Unknown to us is whether B.J. Alan Company will need to find a new piece of land for its Phantom Fireworks store—that decision is now in the hands of the appellate court.
By a solid margin, Ohio voters on November 3 passed Issue 2, a constitutional amendment that establishes a Livestock Care Standards Board. (See "Understanding Ohio's Issue 2" post on October 28). The ballot issue was a forceful jab at the Humane Society of the United States, who had identified Ohio as its next target for new laws restricting certain livestock confinement practices. Passing Issue 2 was an accomplishment for its proponents, and it has generated a good deal of discussion around the country about using Ohio's strategy as a model for other states. But now a significant challenge looms before the Governor, the Ohio General Assembly and the Ohio Department of Agriculture: implementing Issue 2. Much must happen before the new Article 14 of the Constitution results in actual standards for livestock care. A number of concerns and needs rise quickly to the surface:
- Establishing board conditions. The new law allows the Ohio General Assembly to set the terms of office and conditions of service for the members of the Livestock Care Standards Board. An important first step in implementing Issue 2 is for the Ohio legislature to utilize this authority and establish clear guidelines for board members, as it has done for other state boards. Doing so should diminish the potential of issues such as political maneuvering in board appointments, internalized power by the board, procedural conflicts and uncertainty, and should help increase the efficiency and productivity of the board.
- Clarifying definitions. A few terms in the new law are vague, perhaps intentionally, and have already led to serious debate. What is a "family farmer"? Issue 2 uses the term when referring to the composition of the board--one member representing "farmily farms" and two "family farmers" are to be on the board. Yet neither the new Article 14 or Ohio law defines the term. Also scattered throughout the law is the term "local foods," a popular term these days, but what is its legal meaning? The lack of a definition for "livestock" led to one campaign argument that the term livestock includes dogs, and that the board could thus use its power to regulate or endorse "puppy mills" --a weak argument that demonstrates a lack of understanding about Ohio animal laws but illustrates the need for definitional clarity. The Ohio legislature should refine these terms in its legislation.
- Appointing the board. Critics of Issue 2 claim that the Livestock Care Standards Board will not represent the full range of agricultural interests in Ohio, a criticism frequently made on agricultural policy issues. The law itself establishes the board's composition, but filling those slots is a crucial step in the implementation process. At risk is acceptance of the board and its standards by Ohio's smaller scale and alternative farmers, many of whom opposed the law, as well as citizens who fear that the board will amount to "big agribusiness" regulating itself. Ensuring that the board contains diverse types and sizes of agricultural operations appears critical to the board's future success.
- Integration with existing institutions and programs. The law's several references to "local foods" immediately leads me to the Ohio Food Policy Council, established two years ago by Governor Stickland. The Food Policy Council focuses on the environmental, social, and economic benefits that Ohio's food and farming system contributes to Ohio, and has developed an impressive body of work and set of recommendations for the state. We also have the Livestock Environmental Permitting Program, responsible for permitting of confined animal feeding operations. How will Ohio integrate the Livestock Care Standards Board with these and other related programs?
- Transparency. This concern needs little explanation; any appearance of a closed, pre-ordained process could doom the board's credibility and solidify attempts to reverse Issue 2 on the next ballot.
OSU Agricultural & Resource Law Program at Farm Science Review ~ September 17-19, 2013. See http://fsr.osu.edu/. Ohio State Bar Association Agricultural Law Committee ~ fall meeting ~ date TBA in September, 2013. American Agricultural Law Association Annual Conference ~ October 31 -- November 2 in Madison, Wisconsin. Information is available on the AALA website. Ohio Agricultural Law Symposium 2014 ~ Friday, May 16, 2014. Location and program to be announced; check back for further details.
Does the law require a minimum amount of acreage for a landowner to engage in agricultural activities like raising crops, livestock or horses in Ohio? This is a common question I receive in the Farm Office. The answer is usually a simple "no," but the explanation is not exactly simple.
One situation where there could be a legal minimum acreage requirement is if land is within a municipality. Because cities, towns and villages have greater zoning authority than counties and townships in Ohio, they can prohibit agriculture altogether or establish regulations for agricultural activities such as minimum acreage requirements.
That's not the case when counties and townships have zoning. Their zoning regulations are subject to an Ohio law that largely exempts agricultural land uses from zoning--the "agricultural exemption." Unless a parcel is in what I call a "subddivision situation," county and township zoning can't prohibit or regulate agricultural land uses on that parcel. Within a platted residential subdivision or where there are 15 or more contiguous subdivided lots established outside of the platting process, county and township could use zoning to regulate certain agricultural activities on lots that are less than five acres. For example, zoning could regulate lots under one acre and could regulate animal husbandry activities, set back lines, and building sizes on lots between one and five acres.
But if a lot in a subdivision situation is over five acres, the agricultural exemption applies and a county or township can't regulate or prohibit agricultural activities on the lot. This means county or township zoning can't require a landowner to have at least two acres to raise cattle or horses, for instance, or to have at least five acres to plant an agricultural row crop. These types of requirements would be an attempt to regulate agriculture, and Ohio's agricultural exemption from zoning simply doesn't allow counties and townships to do so in those situations.
Note that Ohio's Current Agricultural Use Valuation (CAUV) law does establish a minimum acreage. CAUV is the program that allows qualifying property to be valued and taxed as agricultural rather than for its fair market value. Parcels must be either at least ten acres in size or produce an average annual gross income of $2500 from agriculture. The land must be dedicated to "commercial" agricultural activity to qualify for CAUV. Zoning regulations and CAUV eligibility are not related to one another but they likely lead to confusion on the issue of minimum acreage for agriculture.
For more on agriculture and zoning, see our Zoning Law shelf on theFarm Office Ag Law Library, here.
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/.