The Farm Office is Open!

FarmOfficeIsOpenAs you may know, Ohio State’s campuses and offices are closed.  But we are all working away at home, and our virtual offices are still open for business.  Starting today, April 6th, the OSU Extension Farm Office Team will open our offices online and offer weekly live office hours from 8:00-9:30 pm EST.  We’ll provide you with short updates on emerging topics and help answer your questions about the farm economy.   Each evening will start off with a quick 10-15-minute summary of select farm management topics from our experts and then we’ll open it up for questions and answers from attendees on other topics of interest.  For tonight’s office hours, we’ll focus on the newly enacted CARES Act and how it affects agriculture.

Who’s on the Farm Office Team?  Our team features OSU experts ready to help you run your farm office:

  • Peggy Kirk Hall — agricultural law
  • Dianne Shoemaker — farm business analysis and dairy production
  • Ben Brown — agricultural economics
  • David Marrison — farm management
  • Barry Ward  — agricultural economics and tax

Each office session is limited to 500 people and if you miss our office hours, we’ll post recordings on farmoffice.osu.edu the following day.  Register at  https://go.osu.edu/farmofficelive.  We look forward to seeing you there!

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The CARES Act’s Paycheck Protection Program for small businesses

SBA loanWe love blogging about agricultural law, but sometimes we don’t feel the need to interpret a law that one of our colleagues has already explained perfectly.  Such is the case with the new Paycheck Protection Program recently enacted by Congress in the Coronavirus Aid, Relief, and Economic Security (CARES) Act.  Our colleague Kristine Tidgren at Iowa State’s Center for Agricultural Law and Taxation has written an excellent explanation of the new loan program here.

A few questions about the Paycheck Protection Program that Kristine answers in detail in her blog post are:

  • Who’s eligible for the loans? Any small business concern, business concern, 501(c)(3) nonprofit, veterans’ organization or tribal business concern employing 500 or fewer employees and eligible self-employed individuals including independent contractors may apply for a loan.  Farm businesses with less than 500 employees fit within these eligibility parameters.
  • How much are the loans? The program has a maximum loan amount of the lesser of either $10 million or 250% of the average monthly payroll costs in the one year prior to the loan plus refinanced Economic Injury Disaster loans received after 1/31/20.
  • What can the loans be used for? Certain payroll costs, as well as group health care benefits, salaries, commissions and similar compensation, mortgage interest, rent, utilities, and other previous debt obligations.
  • What are the terms? The loans have a maximum maturity of 10 years and the interest rate can’t exceed 4%.  Lenders have to defer both interest and principal payments for at least the first 6 months.  Note the forgiveness provisions below, however.
  • What about loan forgiveness? A borrower is eligible for loan forgiveness in an amount equal to the sum of certain payroll, mortgage interest, rent, and utility payments made during the 8-week period after the loan’s origination date.  The loan forgiveness can’t exceed the principal amount and is subject to a number of reduction factors, which Kristine explains.
  • What considerations apply to loan approval? In reviewing loan applications, a lender must consider whether the borrower was in operation on Feb. 15, 2020 and had employees for whom the borrower paid salaries and payroll taxes.  Applicants must also certify that the uncertainty of current economic conditions makes the loan request necessary to support ongoing operations; funds will be used to retain workers and pay eligible expenses; the applicant does not have an application pending for another loan for the same purpose; and that the applicant has not received amounts under the program for the same purpose for the period of February 15 to December 31, 2020.
  • How to apply? According to the Small Business Administration: “Businesses can apply through any existing SBA 7(a) lender or through any federally insured depository institution, federally insured credit union, and Farm Credit System institution that is participating. Other regulated lenders will be available to make these loans once they are approved and enrolled in the program.”   Consult with your local lender as to whether it is participating in the program. Visit www.sba.gov for a list of SBA lenders.
  • When to apply? Lenders may begin processing loan applications for most businesses as soon as April 3, 2020, and for independent contractors and self-employed individuals by April 10, 2020.
  • Where to learn more? The Treasury Department and the Small Business Administration have posted extensive information and the application the loan program on their websites.

Watch for more resources about how the CARES Act and other COVID-19 legislation affects farmers in our blog and on OSU’s Farm Office website at farmoffice.osu.edu.

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The Ag Law Harvest

Written by Ellen Essman

Hello, readers! We hope you are all staying safe and healthy. Understandably, news related to agricultural law seems to have slowed down a little bit over the last few weeks as both the federal and state governments have focused mainly on addressing the unfolding COVID-19 outbreak.  That being said, there have been a few notable ag law developments you might be interested in.

Federal government extends the tax deadline.  The IRS announced on March 21 that the deadline for filing or paying 2019 federal income taxes will be extended to July 15, 2020.

Ohio Coronavirus Legislation. The Ohio General Assembly quickly passed House Bill 197 on Wednesday March 25, 2020.  HB 197 originally just involved changes to tax laws, but amendments were added to address the current situation.  Amendments that made it into the final bill include provisions for education—from allowing school districts to use distance learning to make up for instruction time, to waiving state testing.  Other important amendments make it easier to receive unemployment, move the state tax filing deadline to July 15, extend absentee voting, allow recently graduated nurses to obtain temporary licenses, etc. Of particular note to those involved in agriculture, HB 197 extends the deadlines to renew licenses issued by state agencies and political subdivisions.  If you have a state license that is set to expire, you will have 90 days after the state of emergency is lifted to renew the license.  HB 197 is available here. A list of all the amendments related to COVID-19 is available here.

Proposed changes to hunting and fishing permits in Ohio. In non-COVID news, Ohio House Bill 559 was introduced on March 18.  HB 559 would allow grandchildren to hunt or fish on their grandparents’ land without obtaining licenses or permits.  In addition, the bill would give free hunting and fishing licenses or permits to partially disabled veterans.  You can get information on the bill here.

EPA simplifies approach to pesticides and endangered species. Earlier this month, the U.S. EPA released its “revised method” for determining whether pesticides should be registered for use.  Under the Endangered Species Act (ESA), federal agencies must consider whether an action (in this case, registration of a pesticide) will negatively impact federally listed endangered species. EPA is authorized to make decisions involving pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The revised method consists of a three-step process.  First, EPA will consider whether use of the pesticide “may affect” or conversely, have no effect on the listed species. If no effect is found, EPA can register the pesticide.  On the other hand, if EPA finds that the pesticide may affect the endangered species, it must examine whether the pesticide is “likely to adversely affect” the species. In this second step, if EPA decides that the pesticide may affect the endangered species, but is not “likely to adversely affect” the species, then the agency may register the pesticide with the blessing of the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS).  Conversely, if EPA finds that the pesticide is likely to adversely affect the species, it must move on to step three, where it must work with FWS or NMFS to more thoroughly examine whether an adverse effect will “jeopardize” the species’ existence or “destroy or adversely modify its designated critical habitat.”  The revised method is meant to simplify, streamline, and add clarity to EPA’s decision-making.

EPA publishes rule on cyazofamid tolerances. Continuing the EPA/pesticide theme, on March 18, EPA released the final rule for tolerances for residues of the fungicide cyazofamid in or on commodities including certain leafy greens, ginseng, and turnips.

Administration backs off RFS In our last edition of the Ag Law Harvest, we mentioned that the Tenth Circuit Court of Appeals had handed a win to biofuels groups by deciding that EPA did not have the authority to grant three waivers to two small refineries in 2017. By granting the waivers, the EPA allowed the refineries to ignore the Renewable Fuel Standard (RFS) and not incorporate biofuels in with their oil-based fuels. The Tenth Circuit decision overturned this action. The Trump administration has long defended EPA’s action, so that’s why it’s so surprising that the administration did not appeal the court’s decision by the March 25 deadline.

 Right to Farm statute protects contract hog operation.  If you’re a regular reader of the blog, you may recall that many nuisance lawsuits have been filed regarding large hog operations in North Carolina. In Lewis v. Murphy Brown, LLC, plaintiff Paul Lewis, who lives near a farm where some of Murphy Brown’s hogs are raised, sued the company for nuisance and negligence, claiming that the defendant’s hogs made it impossible for him to enjoy the outdoors and caused him to suffer from several health issues. Murphy Brown moved to dismiss the complaint, arguing that the nuisance claim should be disqualified under North Carolina’s Right to Farm Act, and that the negligence claim should be barred by the statute of limitations.  The U.S. District Court for the Eastern District of North Carolina made quick work of the negligence claim, agreeing with Murphy Brown that the statute of limitations had passed.  North Carolina’s Right to Farm Act requires a plaintiff to show all of the following: that he is the legal possessor of the real property affected by the nuisance, that the real property is located within one-half mile of the source of the activity, and that the action is filed within one year of the establishment of the agricultural operation or within one year of the operation undergoing a fundamental change.  Since the operation was established in 1995 and the suit was not brought until 2019, and no fundamental change occurred, the court determined that Lewis’s claim was barred by the Right to Farm Act.  Since neither negligence or nuisance was found, the court agreed with Murphy Brown and dismissed the case.

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Ohio’s Coronavirus-19 Stay at Home Order and agricultural businesses

It’s been a quiet few weeks here at the Farm Office as we adjust to life with Coronavirus-19, but it’s time to get back to the Ohio Ag Law Blog.  We hope our readers are safe and healthy.

We’ve received several questions about Ohio’s Stay at Home Order and how it affects agricultural businesses.  As you well know, the Order states that residents are to stay at home and may leave “only for Essential Activities, Essential Governmental Functions, or to participate in Essential Businesses and Operations.”  All non-essential businesses and activities are to cease.  It became effective early Tuesday morning and remains in place until the end of the day on April 6.  Here are the relevant parts of the Order that answer the questions we’ve received:

What businesses are “essential”?

The Order lists (on pages 5 and 6) the “Essential Businesses and Operations” that may continue during this period.  The list specifically includes many agricultural activities, such as:

12 b. Stores that sell groceries and medicine. Grocery stores, pharmacies, certified farmers’ markets, farm and produce stands, supermarkets, convenience stores, and other establishments engaged in the retail sale of groceries, canned food, dry goods, frozen foods, fresh fruits and vegetables, pet supplies, fresh meats, fish, and poultry, prepared food, alcoholic and non-alcoholic beverages, any other household consumer products (such as cleaning and personal care products), and specifically includes their supply chain and administrative supp0rt operations. This includes stores that sell groceries, medicine, including medication not requiring a medical prescription, and also that sell other non-groce1y products, and products necessary to maintaining the safety, sanitation, and essential operation of residences and Essential Businesses and Operations;

c. Food, beverage, and licensed marijuana production and agriculture. Food and beverage manufacturing, production, processing, and cultivation, including farming, livestock, fishing, baking, and other production agriculture, including cultivation, marketing, production, and distribution of animals and goods for consumption; licensed medical marijuana use, medical marijuana dispensaries and licensed medical marijuana cultivation centers; and businesses that provide food, shelter, and other necessities of life for animals, including animal shelters, rescues, shelters, kennels, and adoption facilities;

h.  Gas stations and businesses needed for transportation. Gas stations and auto supply, auto-repair, farm equipment, construction equipment, boat repair, and related facilities and bicycle shops and related facilities;

o.  Restaurants for consumption off-premises. Restaurants and other facilities that prepare and serve food, but only for consumption off-premises, through such means as in-house delive1y, third-party delivery, drive-through, curbside pick-up, and carry-out…. This Order is consistent with and does not amend or supersede prior Orders regarding the closure of restaurants.

The list also includes many businesses that service and supply agricultural businesses, such as hardware and supply stores, shipping and delivery services, and financial and professional services.

Can employees travel to and for an “essential business”?

Yes.  The Order allows (on page 2) residents to leave their homes to perform work at Essential Businesses or Operations.   The Order also allows (on page 7) for “Essential Travel,” which includes “any travel related to the provision of or access to” Essential Businesses and Operations.

What precautions should I take for employees and others at my “essential business”?

First, the Order lays out (on page 8) several required measures that Essential Businesses must follow:

15 a. Required measures. Essential Businesses and Operations and businesses engaged in Minimum Basic Operations must take proactive measures to ensure compliance with Social Distancing Requirements, including where possible:

    1. Designate six-foot distances. Designating with signage, tape, or by other means six-foot spacing for employees and customers in line to maintain appropriate distance;
    2. Hand sanitizer and sanitizing products. Having hand sanitizer and sanitizing products readily available for employees and customers;
    3. Separate operating hours for vulnerable populations. Implementing separate operating hours for elderly and vulnerable customers; and
    4. Online and remote access. Posting online whether a facility is open and how best to reach the facility and continue services by phone or remotely.

Second, the Order also includes (on pages 8 and 9) a COVID-19 Information and Checklist for Businesses/Employers that requires businesses and employers to take the following actions.  We encourage employers to read these provisions carefully:

    1. Allow as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing.
    2. Actively encourage sick employees to stay home until they are free of fever (without the use of medication) for at least 72 hours (three full days) AND symptoms have improved for at least 72 hours AND at least seven days have passed since symptoms first began. Do not require a healthcare provider’s note to validate the illness or return to work of employees sick with acute respiratory illness; healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
    3. Ensure that your sick leave policies are up to date, flexible, and non-punitive to allow sick employees to stay home to care for themselves, children, or other family members. Consider encouraging employees to do a self-assessment each day to check if they have any COVID-19 symptoms (fever, cough, or shortness of breath).
    4. Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovere
    5. Reinforce key messages stay home when sick, use cough and sneeze etiquette, and practice hand hygiene to all employees, and place posters in areas where they are most likely to be seen. Provide protection supplies such as soap and water, hand sanitizer, tissues, and no-touch disposal receptacles for use by employees.
    6. Frequently perform enhanced environmental cleaning of commonly touched surfaces, such as workstations, countertops, railings, door handles, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use.
    7. Be prepared to change business practices if needed to maintain critical operations (e., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations).

What is “social distancing,” exactly?

There’s been a lot of talk about social distancing.  The Order requires residents to practice social distancing when outside of their residences and defines (on page 15), exactly what it means:

15.  Social Distancing Requirements. For purposes of this Order, Social Distancing Requirements includes maintaining at least six-foot social distancing from other individuals, washing hands with soap and water for at least twenty seconds as frequently as possible or using hand sanitizer, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands.

Who’s enforcing the Order?

The Order also addresses enforcement (on page 8), stating that:

17. Enforcement. This Order may be enforced by State and local law enforcement to the extent set forth in Ohio law. To the extent any public official enforcing this Order has questions regarding what services are prohibited under this Order, the Director of Health hereby delegates to local health departments the authority to answer questions in writing and consistent with this Order.

Note, however, that Governor DeWine (on Twitter) has encouraged businesses not to overwhelm law enforcement or local health departments with questions and advice on what’s “essential,” but instead to “use your own good judgment of that order to make your own determination if you are essential.”

Are there recordkeeping requirements?

No.  But we attorneys always advise agricultural operators to keep good records.  Governor DeWine agrees, as he has stated (on Twitter) that businesses should “create a document about why you believe you are an essential business and how you are providing a safe workplace.”  If there is a question in the future about what you did or did not do during this important period, be sure that you have documentation to back it up.  As always, documentation includes not only written information but also photographs and videos.

We encourage readers to carefully review the Stay at Home Order, which is available here on Ohio’s coronavirus.ohio.gov website.  OSU also has a site with COVID-19 resources, available here on https://u.osu.edu/2019farmassistance/covid-19/

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What’s the “dirt” on organic hydroponics?

Written by Ellen Essman

The Center for Food Safety (CFC), along with other groups and a number of organic farms, filed a lawsuit early this month claiming that USDA violated the Organic Foods Production Act (OFPA) when it allowed hydroponically-grown crops to bear the “Certified Organic” label.  In January 2019, CFC filed a legal petition asking USDA to create regulations which would ban hydroponic operations from using the organic label.  USDA denied the petition, and CFC’s current lawsuit also alleges that USDA’s denial violated the Administrative Procedure Act (APA).  CFC asks the U.S. District Court for the Northern District of California to vacate USDA’s denial of their petition and to bar the agency from certifying any hydroponic operations as organic.  The complaint can be found here.

What do “hydroponic” and “organic” mean anyway?

Many of you are probably familiar with hydroponic and organic growing, but since the terms are very important in this lawsuit, it’s worth reviewing them before we continue.

The USDA, on its National Agricultural Library website, defines “hydroponics” as “growing plants in a nutrient solution root medium.” In other words, hydroponic plants can be grown in mediums such as sand, gravel, and water with additional nutrients.  Simply put, hydroponic plants are not grown in the soil.

OFPA (available here) says in order to sell or label an agricultural product as “organically produced,” the product must:  1) have been produced and handled without the use of synthetic chemicals, except as otherwise provided; (2) except as otherwise provided in this chapter and excluding livestock, not be produced on land to which any prohibited substances, including synthetic chemicals, have been applied during the 3 years immediately preceding the harvest of the agricultural products; and (3) be produced and handled in compliance with an organic plan agreed to by the producer and handler of such product and the certifying agent.  Thus, for a plant to be “organic,” it must meet these criteria.

CFC’s argument under OFPA

In their lawsuit, CFC is principally concerned with the third part of the organic requirements listed above—that in order to be labeled as organic, an agricultural product must be “produced and handled in compliance with an organic plan.” Organic plans, in turn, must also meet a number of requirements.  One of those requirements is that the “organic plan shall contain provisions designed to foster soil fertility, primarily through the management of the organic content of the soil through proper tillage, crop rotation, and manuring.” At its most basic, CFC’s argument is that fostering soil fertility is an integral and required part of the OFPA, and therefore, plants not grown in actual soil cannot meet all the requirements necessary for organic certification.  In other words, since hydroponics by definition are not grown in soil, hydroponic farmers can’t foster soil fertility.  As a result, CFC maintains that since fostering soil fertility is required in order for plants to be labeled “organic,” hydroponically-grown plants can’t be organic.  By allowing hydroponics to be labeled organic, CFC asserts that USDA is in violation of the OFPA.

CFC’s argument under the APA

The plaintiffs also contend that USDA’s denial of their 2019 petition violated the APA. The APA (you can find the relevant chapter here) is the law that federal agencies must follow when writing and adopting regulations.  Under the APA, courts have the power to overturn agency actions if they are arbitrary, capricious, an abuse of discretion, or are otherwise unlawful.  Additionally, courts can overturn agency actions when they go beyond the authority given to the agency by Congress.  Here, CFC argues that USDA’s denial of their petition was arbitrary and capricious and not in accordance with the law.  Basically, they are arguing that USDA violated the APA by ignoring the soil fertility language that Congress included in OFPA.

What’s USDA’s take?

USDA’s denial of CFC’s petition gives us a little insight into what the agency’s response to the lawsuit might include.  The agency claims that the National Organic Program (NOP) has allowed hydroponic operations to be certified organic in the past.  Furthermore, USDA counters that the statutory and regulatory provisions that refer to “soil” do not require every organic plant to be grown in soil.  Instead, they say the provisions are simply “applicable to production systems that do use soil.”

The court will certainly have a lot to sift through in this lawsuit.  USDA still has to respond to the complaint, and hydroponic operations might throw their support behind the agency’s cause.  We’ll be keeping an eye on what happens and will make sure to keep you updated!

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The Ag Law Harvest

Written by Ellen Essman

In Ohio and around the country, farmers are gearing up for a new planting season.  Spring is (almost) here! Before we leave winter totally behind, we wanted to keep you up to date on some notable ag law news from the past few months.

Here’s a look at what’s going on in ag law across the country…

New law signed to ramp up ag protections at U.S. ports of entry. Last summer, a bill was introduced in the United States Senate by a bipartisan group of senators.  The purpose of the bill was to give more resources to Customs and Border Control (CBP) to inspect food and other agricultural goods coming across the U.S. border.  On March 3, 2020, the President signed the bill into law.  The new law authorizes CBP to hire and train more agricultural specialists, technicians, and canine teams for inspections at ports of entry.  The additional hires are meant to help efforts to prevent foreign animal diseases like African swine fever from entering the United States.  You can read the law here.

The Renewable Fuel Standard gets a win.  We reported on Renewable Fuel Standard (RFS) issues last fall, and it seems as though the battles between biofuel producers and oil refineries have spilled over into 2020.  For a refresher, the RFS program “requires a certain volume of renewable fuel to replace the quantity of petroleum-based transportation fuel” and other fuels.  Renewable fuels include biofuels made from crops like corn, soybeans, and sugarcane.  In recent years, the demand for biofuels has dropped as the Trump administration waived required volumes for certain oil refiners.  As a result, biofuels groups filed a lawsuit, asserting that EPA did not have the power to grant some of the waivers it gave to small oil refiners.  On January 24, 2020, the U.S. Court of Appeals for the Tenth Circuit agreed with the biofuels groups.  You can find the 99-page opinion here. If you’re not up for that bit of light reading, here’s the SparkNotes version: the court determined that EPA did not have the authority to grant three waivers to two small refineries in 2017.  The court found that EPA “exceeded its statutory authority” because it extended exemptions that had never been given in the first place. To put it another way, the court asked how EPA could “extend” a waiver when the waiver had not been given in previous years. The Trump Administration is currently contemplating whether or not to appeal the decision.

Virginia General Assembly defines “milk.” To paraphrase Shakespeare, does “milk by another name taste as sweet?” Joining the company of a number of other states that have defined “milk” and “meat,” the Virginia General Assembly passed a bill on March 4, 2020 that defines milk as “the lacteal secretion, practically free of colostrum, obtained by the complete milking of a healthy hooved mammal.” The bill would make it illegal to label products as “milk” in Virginia unless they met the definition above.  Essentially, products like almond milk, oat milk, soy milk, coconut milk, etc. would be misbranded if the labels represent the products as milk.  Governor Ralph Northam has not yet signed or vetoed the bill. If he signs the bill, it would not become effective until six months after 11 of 14 southern states enact similar laws. The 11 states would also have to enact their laws before or on October 1, 2029 for Virginia’s law to take effect.  The states are: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and West Virginia.  North Carolina has already passed a similar law.

And now, for ag law in our neck of the woods.

Purple paint bill reintroduced in Ohio.  You may recall that the Ohio General Assembly has been toying with the idea of a purple paint law for the past several years.  On March 4, 2020, Senator Bill Coley (R-Liberty Township) once again introduced a purple paint bill.  What exactly does “purple paint” mean? If passed, the bill would allow landowners to put purple paint on trees and/or fence posts. The marks would have to be vertical lines at least eight inches long, between three and five feet from the base of the tree or post, readily visible, and placed at intervals of at most 25 yards. If the bill passed, such marks would be sufficient to inform those recklessly trespassing on private property that they are not authorized to be there.  People who recklessly trespass on land with purple paint marks would be guilty of a fourth degree criminal misdemeanor.  You can read the bill here.

Bill giving tax credits to beginning farmers considered. Senate Bill 159, titled “Grant tax credits to assist beginning farmers” had a hearing in the Senate Ways & Means Committee on March 3, 2020.  The bill, introduced last year, seeks to provide tax incentives to beginning farmers who participate in an approved financial management program, as well as to businesses that sell or rent agricultural land, livestock, facilities, or equipment to beginning farmers. A nearly identical bill is being considered in the House, HB 183. Back in February, Governor Mike DeWine indicated he would sign such a bill if it passed the General Assembly.  SB 159 is available here, and HB 183 is available here.

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Case watch: Lake Erie Bill of Rights battle ends

Written by Peggy Kirk Hall and Ellen Essman

In the not-too-surprising news category, a federal court has invalidated the Lake Erie Bill of Rights (LEBOR) that Toledo residents passed last year to recognize and protect legal rights for Lake Erie.  What is surprising, however, is how the court reached its decision to strike down LEBOR, even in the wake of a law passed by the Ohio legislature in July of 2019 that denies legal standing right to nature and prevents a person from bringing a court action on behalf of nature or any ecosystem.

The verdict came exactly one year after Drewes Farm Partnership filed its federal lawsuit to prevent enforcement of LEBOR a day after Toledoans passed the measure.  Drewes Farm asserted that LEBOR violated the farm’s rights under the First Amendment, Equal Protection Clause, and Due Process Clauses of the Fifth and Fourteenth Amendments.  Drewes Farm also argued that LEBOR exceeded the City of Toledo’s authority because it usurped the power of the state and the federal government by interfering with international relations, invalidating state and federal permits, invalidating state law, altering the rights of corporations, and creating new causes of action in state courts.  In April 2019, the state of Ohio joined the lawsuit as a fellow plaintiff.  Proponents of LEBOR unsuccessfully attempted to join in the litigation.

Did the plaintiffs have the right to bring the case?

The opinion begins with the court’s “standing” analysis.  Toledo argued that Drewes Farm and Ohio did not have legal standing to bring the lawsuit against the City.  Legal standing requires that a plaintiff (1) suffers an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.  Failing to meet the legal standing requirement would force dismissal of the lawsuit.  Without a finding in favor of legal standing, the court wouldn’t be able to determine LEBOR’s validity.

The central issue in whether the parties had legal standing was the injury in fact requirement, according to the court.  To challenge LEBOR, the plaintiffs must demonstrate “concrete and particularized” injury that is “actual or imminent, not conjectural or hypothetical.”  The court determined that the state of Ohio met this requirement because it suffered an injury, “at least on paper,” from LEBOR’s invalidation of Ohio laws, regulations, licenses and permits and because the state “could” be sued under LEBOR.  The judge also found that Drewes Farm demonstrated injury in fact since any Toledo resident “could” sue the farm for violating LEBOR.

In its brief attention to the second component of standing, that the injury is fairly traceable to the defendant, the court determined that the potential injuries were traceable to Toledo because its city charter was amended by voters to include the LEBOR language.  Even though the City itself did not legislatively enact LEBOR, had actually attempted to keep the issue off the ballot due to concerns that it was unconstitutional, and had not indicated any intent to enforce LEBOR, the court concluded that “the City is a proper defendant in the suit.”  The court also found that invalidating LEBOR would redress the plaintiffs’ injuries, the final requirement for legal standing.

LEBOR violates due process

The court next directly examined only one of the many constitutional claims against LEBOR, the Fourteenth Amendment’s right to due process, and specifically focused on one element of due process:  clarity of the law.  The court stated that if a law is vague and unclear, it can “trap the innocent by not providing fair warning and invite arbitrary enforcement by prosecutors, judges, and juries.”  Pointing to language in LEBOR such as the right of Lake Erie and its watershed to “exist, flourish, and naturally evolve,” and Toledoans’ right to a “clean and healthy environment,” the court questioned what type of conduct would violate the broad language and how a judge or jury would determine the line between “clean and unclean and healthy and unhealthy.”  Spreading even a small amount of fertilizer could possibly violate LEBOR, the court said, as well as countless other activities such as catching fish, pulling weeds, planting corn, or driving a gas-powered vehicle.  Not surprisingly, the court concluded that the language is void for vagueness.  While LEBOR’s language sounds powerful, the court explained, it has no practical meaning, contains merely “aspirational statements” rather than rules of law, and violates constitutional due process.

What about other constitutional claims?

The court surprisingly didn’t tackle the many other constitutional issues raised by Drewes Farm and the State.  But in its “severability” analysis, the court did briefly touch on the constitutionality of LEBOR’s preemption of state and federal laws.  LEBOR contains a severability clause stating that a determination of one part of LEBOR as invalid does not invalidate the remaining parts of LEBOR.  According to the court, this severability clause is valid only if the constitutional and unconstitutional parts of LEBOR are capable of separation and can stand by themselves.  The court concluded that once the vague rights are stripped away, the remaining parts of LEBOR are meaningless.

The court then took the opportunity to note that LEBOR’s attempt to preempt Ohio law in the name of environmental protection would fail on its own merits.  Lake Erie’s health falls well beyond Toledo’s authority and rights to govern its internal affairs, and enacting laws that conflict with Ohio law is a “textbook example of what municipal government cannot do,” said the court.

Protecting Lake Erie is a worthy goal

In a slightly sympathetic nod to LEBOR supporters “frustrated by the status quo,” the court notes that using a democratic process to protect Lake Erie is a well-intentioned goal but LEBOR simply fails to achieve the goal.  Careful drafting by Toledoans could result in valid legislation that would reduce water pollution, the court explains, while highlighting an ordinance in Madison, Wisconsin that restricted the use of phosphorus-containing fertilizers in the city and withstood a legal challenge.

It comes as no surprise

Echoing what many had already concluded, the court criticized LEBOR’s authors for ignoring legal principals and constitutional limitations and stated that LEBOR’s invalidation should come as no surprise.  “This is not a close call,” the court says.  “LEBOR is unconstitutionally vague and exceeds the power of municipal government in Ohio.  It is therefore invalid in its entirety.”

Now what?

LEBOR has met the end of its road, but it never really stood a chance of actual enforcement due to its clearly unconstitutional language.  LEBOR’s proponents often claimed that the purposes of LEBOR were to gain more attention to Lake Erie’s poor water quality and to push the concept of recognizing legal rights for nature and ecosystems a bit further down the road.  Were they successful?  Will Toledoans give up, or will they regroup and carefully draft new legislation to protect their water?

Farmers in Ohio now have absolute certainty that they will not be sued for violating Lake Erie’s “rights,” but such a lawsuit never really stood a chance of actual success due to LEBOR’s clearly unconstitutional language.  And let’s not forget the new language in Ohio Revised Code §2305.01 stating that “nature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas; no person, on behalf of or representing nature or an ecosystem, shall bring an action in any court of common pleas; and no person shall bring an action in any court of common pleas against a person who is acting on behalf of or representing nature or an ecosystem.”

And what about Lake Erie’s water quality?  New voluntary programs are rolling out from Governor DeWine’s H2Ohio plan.  But many claim that more forceful measures are necessary.  Other litigation over the lake’s water quality lingers, and Ohio has listed the Western Lake Erie Basin as “impaired” and must develop a plan to address Total Maximum Daily Loads of pollutants in the lake.  It’s no surprise that even though it’s the end of the road for LEBOR, conflicts over solving Lake Erie’s water quality problems will continue.

Read the U.S. District Court’s opinion on LEBOR here.  For our in-depth look at LEBOR, click here.  We review other Lake Erie legal activities here.

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