Category Archives: Uncategorized

OHIO AG LAW BLOG—Case watch: LEBOR and Lake Erie battles linger

Written by Ellen Essman, Senior Research Associate, OSU Extension Agricultural & Resource Law Program

It’s been a while since we’ve written about the Lake Erie Bill of Rights (LEBOR)! As a refresher, LEBOR was passed in February in a special election as an amendment to Toledo’s city charter.  LEBOR was meant to create new legal rights for Lake Erie, the Lake Erie ecosystem, and to give Toledo citizens the ability to sue to enforce those legal rights against a government or a corporation violating them.  For a longer explanation on LEBOR, see our post here.  Since then, lawsuits for and against LEBOR have been filed, and the state of Ohio has passed legislation concerning the language in LEBOR. Updates on those actions will be discussed below.

Update on the Drewes Farm lawsuit

The day after LEBOR passed, Drewes Farm Partnership initiated a lawsuit in the U.S. District Court for the Northern District of Ohio, Western Division, against the city of Toledo. Our initial blog posts concerning this lawsuit are available here and here.  In May, we discussed updates to the Drewes Farm lawsuit in yet another blog post.  Since our last update, the Lake Erie Ecosystem and TSW’s motion to stay pending appeal and the appeal were both denied, meaning the Sixth Circuit agreed with the district court’s decision to leave the ecosystem and TSW out of the lawsuit.  As a result, the current parties to the lawsuit are plaintiffs Drewes Farm Partnership and the State of Ohio, as well as the defendant City of Toledo.  In early June, both the Drewes Farm Partnership and the state of Ohio filed motions for judgement on the pleadings.  The district court has not yet determined whether to grant the motions; the City of Toledo’s response to the motions is due on August 9, 2019.  After the response is filed, the plaintiffs will have a chance to reply.

Toledo Citizens file lawsuit against State of Ohio

In the midst of the Drewes Farm lawsuit, yet another complaint has been filed concerning LEBOR.  On June 27, 2019, three citizens of Toledo filed a complaint against the state of Ohio in the Lucas County Court of Common Pleas.  In the complaint, the citizens, who all voted for LEBOR, asked the court to find that the state has failed to address pollution in Lake Erie, and due to its inaction, circumstances in the lake are getting worse, that LEBOR is enforceable under the Ohio Constitution and state law, and to issue an injunction to prevent the state from curtailing their rights under LEBOR.  Currently, it appears as though no response has been filed by the state of Ohio.  Perhaps the state wants to let recently passed legislation do the talking.

State budget bill includes language aiming to invalidate LEBOR, adds water quality initiative

Finally, the Ohio General Assembly has also gotten in on the LEBOR action.  On July 18, 2019, Governor DeWine signed the General Assembly’s budget bill into law.  Page 482 contains language that seems to be aimed at LEBOR and other environmental community rights initiatives.  Most importantly, the bill states:

  • Nature or any ecosystem does not have standing to participate 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.

It will be interesting to see how courts handle lawsuits on behalf of ecosystems and nature after the passage of this budget law.

While the budget bill appears to take LEBOR and initiatives like it head-on, it also created a water quality initiative called “H2Ohio,” which includes a fund in the state treasury.  The money in the H2Ohio fund will go toward water quality improvement projects, including projects to reduce phosphorus, nitrogen, and sediment pollution from agricultural practices.  With this initiative, the state seems to be offering an alternative way to protect its waters, including Lake Erie.

Work continues on sorting out the legality of LEBOR and the wider problem of Lake Erie pollution, and there appears to be no end in sight. Keep an eye on the Ohio Ag Law Blog for new developments on LEBOR lawsuits and the H2Ohio program!

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The Ag Law Harvest

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

It’s been a busy July in the ag law world, to say the least.  The Ohio General Assembly officially passed the hemp bill and a budget, RMA adjusted its prevent plant restrictions, and we have seen more activity on LEBOR.  With everything that is going on, it’s time for another ag law harvest.  Here’s our latest gathering of agricultural law news you may want to know:

Ohio Department of Agriculture announces website for future hemp program.  Just days after S.B. 57 took effect, the Ohio Department Agriculture (ODA) launched a new webpage declaring “Hemp Is Now Legal.”  However, the webpage goes on to explain that hemp cultivation, processing, and research licenses, which are required to legally do those activities, are not yet available as the rules and regulations have not been developed.  ODA says the goal is to have farmers licensed and able to start planting hemp by spring 2020.  As for CBD, the webpage says that it is now legal to sell properly inspected CBD products in Ohio.  Note the “properly inspected” caveat.  ODA wants to test CBD products for safety and accurate labeling before the product is sold to Ohio consumers.  If they have not already done so, those wanting to sell CBD products should contact ODA to have their product tested.  You can view the new webpage HERE.

Judge says $2 billion damages award is too much in Roundup case.  A California state judge recently reduced the punitive damages award granted to Alva and Alberta Pilliod from $2 billion to $69 million, and reduced their compensatory damages from $55 million to $17 million.  All combined, the couple would still receive $86.7 million in damages.  As we previously discussed, the couple successfully convinced a jury that the glyphosate in Roundup significantly contributed to causing their non-Hodgkin’s Lymphoma.  In reducing the awards, the judge explained that the punitive damages were excessive and unconstitutional because they exceeded the U.S. Supreme Court’s restrictions.  However, the judge denied Bayer’s request to strike the punitive damages award outright.

U.S. EPA denies petition to ban use of cholrpyrifos pesticide.  Back in 2007, environmental groups petitioned to have the U.S. EPA revoke tolerances and registrations for the insecticide chlorpyrifos, citing harmful effects to people and nature.  Without getting into the merits of the allegations, the timeline and history of the U.S. EPA’s decision is fairly interesting.  The U.S. EPA had not completed its review of the chemical by 2015, so the groups took the agency to court, where they received a court order compelling the U.S. EPA to make a decision.  The agency issued a proposed rule at the end of 2015 that would have revoked the tolerances; however, the federal court said that the U.S. EPA had not completed a full review nor properly responded to the 2007 petition.  Even though it made a decision, the court wanted to see more evidence of a full administrative review.  By the time the agency had a chance to fully review the chemical’s effects, the Obama EPA had turned into the Trump EPA.  In March 2017, the U.S. EPA issued a denial order regarding the petition, which essentially threw out the petition.  The environmental groups submitted an objection shortly after the denial order.  By July 2019, the U.S. EPA had a chance to think some more and issued a final order denying the objections.  As it stands now, the agency has decided not to revoke tolerances or registrations for chlorpyrifos.  To read the agency’s final order denying the objections, click HERE.

Animal Disease Traceability program to require RFID tagging for cattle and bison by 2023.  The USDA’s Animal and Plant Health Inspection Service is looking to fully bring animal disease traceability into the digital world, at least for beef and dairy cattle and bison.  By requiring radio frequency identification (RFID) tags, the service says that animal health officials would be able to locate specific animals within hours of learning about a disease outbreak, significantly less than with paper records.  Starting at the end of 2019, the USDA will stop providing free metal tags, but would allow vendors to produce official metal tags until the end of 2020.  At that time, only RFID tags may be used as official tags.  Starting on January 1, 2023, RFID tags will be required for beef and dairy cattle and bison moving interstate.  Animals previously tagged with metal ear tags will have to be retagged, but feeder cattle and animals moving directly to slaughter will be exempt.  To learn more, view the USDA’s “Advancing Animal Disease Traceability” factsheet HERE.

Senators want to fund more ag and food inspectors at U.S. ports of entry.  Citing the national interest to protect the nation’s food supply, four U.S. Senators have introduced a bill that would provide the U.S. Customs and Border Protection with additional funding over the next three years.  In each of the three fiscal years, the funds would be used to hire, train, and assign 240 additional agriculture specialists, 200 new agriculture technicians who provide support to the agriculture specialists, and 20 new canine teams.  The personnel would work at U.S. ports of entry, including seaports, land ports, and airports across the country.  If passed, S.2107 would require the Comptroller General of the United States to brief congressional committees one year after the bill’s enactment on how well federal agencies are doing at coordinating their border inspection efforts and how the agriculture specialists are being trained.  The bill comes months after U.S. Customs and Border Protection seized nearly a million pounds of Chinese illegally smuggled pork from China, where African swine fever has ravaged the country’s pork industry.  For more information about the bill, click HERE.

Cannabis decriminalization bill introduced in Congress.  Congressman Jerrold Nadler (D-NY) has introduced H.R. 3884 with the aim to do four things: 1) decriminalize cannabis at the federal level, 2) remove cannabis from the federal controlled substances schedules, 3) provide resources and rehabilitation for certain people impacted by the war on drugs, and 4) expunge certain criminal convictions with a cannabis connection.  The bill currently has 30 co-sponsors, including 29 Democrats and 1 Republican.  None of Ohio’s members of Congress have signed on as a co-sponsor at this time.  The bill follows the recent change in status for hemp, which found favor in the 2014 and 2018 Farm Bills.  However, that change in status was largely predicated on the argument that hemp is not marijuana, so it remains to be seen whether the political climate is ready to loosen restrictions on marijuana as well.  For more information about the bill, click HERE.

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Ohio Ag Law Blog—Hemp Bill headed to DeWine’s desk

Written by Ellen Essman, Senior Research Associate, OSU Extension Agricultural & Resource Law Program

It’s been a busy week in Columbus, with the Ohio General Assembly sending multiple bills to Governor Mike DeWine for his signature.  One of the bills is one we have been following very closely—Substitute Senate Bill 57, or the “hemp bill.”

Bill history

Ohio’s hemp bill was originally introduced in the Senate in February.  The bill was written in response to the 2018 federal Farm Bill, which gave states the option to create hemp programs so that citizens within the state could cultivate and sell hemp products.  For a breakdown of the Farm Bill, see our post here.  Ohio’s hemp bill passed the Senate in March, and was sent to the House, where numerous amendments were made.

House amendments

The Ohio House made many changes to the Senate’s original hemp bill.  In June, we highlighted those changes in a post you can find here.  Most importantly, the House version, in addition to requiring a license to cultivate hemp, also requires a license to process hemp into different products. Additionally, the House’s substitute version of the bill created a Hemp Marketing Program, which would be similar to other grain and soybean marketing programs, added legally cultivated hemp to the list of agricultural uses permitted under CAUV, required setbacks between hemp and medical marijuana cultivation, and banned people from obtaining both hemp licenses and medical marijuana licenses, among other changes.

This week’s developments

We were not expecting the hemp bill to pass the General Assembly this week, as House Speaker Larry Householder indicated in June that the House would not vote on the bill until September 2019.  However, on July 17, 2019, the bill passed in the House with emergency language, and the changes were quickly accepted by the Senate. During the July 17 afternoon legislative session, we were given some possible insight into why the bill passed so quickly and unexpectedly; State Representative Koehler spoke about the need to help Ohio’s farmers given all the struggles they currently face.  Representative Koehler viewed quick passage of the bill as an opportunity for Ohio farmers to potentially have a new commodity crop in the ground next spring.

The emergency language in the final version of the bill means that once signed by the Governor, the law will go into immediate effect.  In other words, once the bill passes, hemp and hemp products will be decriminalized in Ohio and the Ohio Department of Agriculture (ODA) will be able to immediately begin the process of writing regulations to carry out the new hemp cultivation and processing programs.

Great! Can I plant hemp right now?

No. Even with the emergency language in the bill, a few things still need to happen before farmers can plant hemp.  First and most obviously, Governor DeWine still needs to sign the bill into law.  Then, ODA must begin its hemp program rulemaking.  The rules will not become effective until the United States Department of Agriculture (USDA) approves of Ohio’s hemp program.  After USDA approves the program, then ODA will be able to approve licenses for those who want to cultivate and process hemp. The Ag Law Blog will keep you updated on the hemp rules and USDA’s decision—stay tuned!

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Risk Management Agency moves date for harvesting cover crops on Prevented Planting acres

With many farmers in Ohio unable to plant before the Final Planting Date for crop insurance, questions are arising about planting and harvesting cover crops on those prevented planting acres.  USDA Risk Management Agency (RMA) rules allow operators to plant cover crops on prevented planting acres and to hay, graze, or cut the cover crops for silage after the posted “harvest date.”  In previous years, the harvest date for cover crops was November 1.   If an operator harvested the cover crop before that date, the prevented plant payment would be reduced from 100% to 35%.

The RMA has changed the harvest date for 2019, however.  In response to reduced livestock feed supplies that will result from the loss of planted acres this year, the RMA has moved up the cover crop harvest date to September 1.  An operator who plants a cover crop after the Final Planting Date and then cuts the crop for forage on or after September 1 can still receive 100% of the prevented plant payment, even if the operator sells the forage and regardless of whether the operator planted the cover crop during or after the Late Planting Period.  The Final Planting Date in Ohio was June 5 for corn and June 20 for soybeans; the Late Planting Period ended on June 20 for corn and runs until July 15 for soybeans.  Note, too, that a cover crop that was in the ground before the Final Planting Date but was not terminated because the operator couldn’t plant the intended corn or soybean crop can also be harvested for forage on or after September 1.

The RMA’s chart below illustrates payment scenarios for cover crops planted and harvested on prevented planting acres.

Capture

Other requirements for cover crops

While the cover crop harvest date seems pretty straightforward, don’t be fooled–crop insurance provisions can be tricky.  Farmers planning to put out cover crops on prevented plant acres should work closely with their crop insurance agents to ensure that all policy provisions and documentation requirements are met.

An initial requirement is that the cover crop planted must meet the definition of an “acceptable cover crop” for crop insurance purposes.   The RMA considers an acceptable cover crop as one that is recognized by agricultural experts as agronomically sound for the area for erosion control or other purposes related to conservation or soil improvement and planted at the recommended seeding rate.  OSU agricultural experts can help provide guidance on acceptable cover crops.

Operators should also be aware that many seed licenses, particularly for bio-engineered seeds, restrict the use of the seed to grain production only.  In those situations, planting the seed for a cover crop or harvesting it for silage would violate the seed licensing contract and create a liability situation for the operator.

Additionally, note that crop insurance provisions prohibit harvesting the cover crop for grain or seed, and an operator who does so will lose all of the prevented plant payment.  The cover crop harvest can also impact other provisions, such as the farm’s Actual Production History (APH) yields.  These and other provisions highlight the importance of a close working arrangement with the crop insurance agent in order to comply with RMA’s cover crop provisions.

For RMA’s guidance on Prevented Planting Flooding, go to this page.  The site contains a comprehensive list of questions and answers on prevented planting, along with information about the 2019 cover crop provisions.

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What’s happening with hemp?

Written by Ellen Essman, Senior Research Associate, OSU Extension Agricultural & Resource Law Program

Since the passage of the 2018 Farm Bill, the world of agriculture has been all abuzz about the potential for adding a new crop to the rotation—industrial hemp. (Our post on the hemp provisions in the Farm Bill is available here.) The passage of the bill caused states like Ohio, which did not previously implement hemp pilot projects in 2014, to scramble to introduce state legislation allowing hemp to be grown within their boundaries.  What is more, questions have arisen about how hemp and products derived from the plant should be regulated under the federal law.

Ohio continues to tinker with its hemp bill

Ohio’s bill to legalize hemp is currently stalled in the Ohio House of Representatives. Speaker Larry Householder indicated that the House will not vote on the bill until September 2019.  The hemp bill was first introduced in the Ohio Senate in February, passed the Senate in March, and advanced to the House floor on June 4. The bill still contains a lot of the same language and provisions from when it was introduced in February, which you can read about in our post here.  However, since it was first introduced, numerous additions have been inserted into the language of the bill.

First, the original version of the hemp bill only required a license to cultivate hemp.  The version currently on the House floor also requires a license to process hemp into different products.  Moreover, the current version of the bill would make licenses for both cultivating and processing hemp valid for three years instead of five years.  The new language in the bill also creates a Hemp Marketing Program, which would fall under the same laws and regulations as the grain and soybean marketing programs.  Legally cultivated hemp would also be added to the list of agricultural uses permitted under the current agricultural use value (CAUV) for land, which would mean land used to grow hemp would qualify for a lower tax assessment.

The most recent version of the bill also adds many more topics to the list for the Ohio Department of Agriculture (ODA) to promulgate via regulation.  The new version tasks ODA with adding conditions for acquiring hemp cultivation licenses, such as experience, and procurement of equipment, facilities, a sufficient amount of land, and financial responsibility requirements.  ODA is charged with establishing a compulsory setback distance between hemp cultivation and medical marijuana cultivation, and with including regulatory language banning hemp cultivation or processing licensees from also cultivating or processing marijuana.  ODA must also establish requirements for recordkeeping and reporting for licensees.  These are just a few of the new regulations ODA is authorized to enact.

The most recent bill, much like the first version, includes overarching prohibitions.  The current list of actions banned under the law is as follows:

  • No person shall cultivate hemp without a hemp cultivation license issued by ODA;
  • No person shall process hemp without a hemp processing license issued by ODA;
  • A person who is licensed to cultivate or process hemp shall not violate any provision of the hemp law or regulations;
  • A person subject to a corrective action plan issued by ODA shall not fail to comply with the plan;
  • No person may transport hemp in violation of the hemp law or rules; and
  • Any other requirements or procedures necessary to enforce the law.

The most recent rendition of Ohio’s hemp bill would keep the provisions of the first version of the bill relating to negligent and reckless violations of the law, but new enforcement tools have been added.  Finally, the new and improved hemp bill includes an emergency clause, which would make the legislation immediately effective upon its passage in both houses and signature by the governor.

FDA holds a hearing on the safety of CBD products

On May 31, the Food and Drug Administration (FDA) held public hearing to gather information and scientific data about cannabis products, so that such information can be used for future regulatory oversight by the agency.  Industrial hemp is a type of cannabis plant, so the hearing included discussion of hemp and hemp-derived compounds, such as cannabidoil (CBD).  In particular, FDA was interested in whether different amounts of cannabis in a product would affect people differently, or cause safety concerns, whether there is any data to show that cannabis is safe in food and dietary supplements, whether there are, or if there need to be, industry standards in the manufacturing of cannabis products to ensure safety and quality, and how marketing and labeling should be used to address potential risks connected to using cannabis products.   The hearing did not result in any FDA decisions on cannabis products and their regulation, although it is an indicator that regulations will probably be coming soon.  This means that sales of CBD oil and other products made from hemp will have to follow FDA regulations in order to be manufactured and sold.  Information on the hearing is available here.  As we reported in one of our Ag Law Harvest posts, those people still interested in submitting their comments about cannabis and cannabis compounds to the FDA can do so until July 2.

USDA releases its interpretation on transportation of hemp

In another federal development, on May 28, the United States Department of Agriculture (USDA) released a memo addressing the transportation of hemp.  The 2018 Farm Bill specified that states can ban hemp production and sales within their boundaries, but states cannot bar legally grown hemp from being transported through their state.  Since hemp regulations under the 2018 Farm Bill have not yet been promulgated, technically, there is no hemp that has been legally produced under the new law yet.  As a result, law enforcement in several states has continued to arrest people transporting hemp.  Furthermore, in at least one decision in Idaho, a court determined that it was illegal to transport hemp.  USDA released the memo to explain its disagreement with such interpretations.

In its memo, USDA says that the language decriminalizing hemp in the 2018 Farm Bill was “self-executing,” so it is no longer illegal to possess hemp or THC from hemp. USDA further asserts that hemp grown under pilot programs allowed under the 2014 Farm Bill can be legally transported across state lines because the 2018 Farm Bill did not immediately repeal the pilot programs.  USDA argues that this means that the hemp grown under 2014 pilot programs is legally produced, can be legally possessed, and therefore can be legally transported across state lines under the new Farm Bill.

It is important to note that USDA’s memo is meant as guidance to the states, and is legally persuasive, but not legally binding.  This means a person could theoretically still be arrested for transporting hemp through a state, and the courts may or may not uphold the state’s decision.  After the federal regulations under the 2018 Farm Bill are in place, however, there will be less wiggle room for states to carry out their own interpretations, which will likely but an end to this controversy.

What does it all mean?

While the regulation of hemp products, the transportation of hemp, and the legality of hemp in certain states may still be in question, all of this activity means that the state and federal governments are attempting to work all the kinks out.  Over time, the rules regarding how to produce, process, sell, and transport hemp, will likely become more defined and clear.  In the meantime, those interested in legally growing and processing hemp will have to play a waiting game.

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The Ag Law Harvest

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

The OSU Extension Farm Office team has returned from the National Farm Business Conference in Wisconsin.  We gained some fresh perspective on events beyond Ohio’s borders, but are happy to be back in slightly warmer weather.  Our colleagues from across the nation presented on a variety of farm management topics, and we had a chance to discuss some of our recent projects.  We also toured a number of dairy and agritourism farms, and of course ate lots of cheese curds.  The fresh perspective means that it is time for a fresh Ag Law Harvest.

Here’s our latest gathering of agricultural law news that you may want to know:

OSU Extension Ag Law Team featured on Agronomy and Farm Management Podcast.  Recently we had a chance to talk with OSU Extension Educators Amanda Douridas and Elizabeth Hawkins, who together moderate the bi-weekly Agronomy and Farm Management Podcast for OSU Extension.  We discussed the status of Ohio’s hemp bill and what we expect to happen in the near future with hemp regulation and production.  Then we provided an update on the Drewes Farm Partnership v. City of Toledo lawsuit, which grapples with the legality of the Lake Erie Bill of Rights.  Click HERE to listen to the podcast, and look for episode 28.

Minnesota focuses new commercial nitrogen fertilizer regulations on drinking water quality.  In an effort to protect public drinking water sources, the Minnesota Department of Agriculture has chosen to regulate the commercial application of fertilizer.  The state has long regulated the application of manure, but not commercial nitrogen.  The regulations focus on two types of geographic areas: regions with vulnerable soil (coarse soils, karst geology, or shallow bedrock) and farms located in Drinking Water Supply Management Areas.  These management areas are designated based upon nitrate levels found in the drinking water.  Starting in 2020, the state will ban the application of commercial nitrogen in these areas during the fall months and on frozen ground.  Farms in any of the 30 Drinking Water Supply Management Areas would have to follow best management practices to start, but if nitrate levels continue to exceed state limits, then the state may impose additional restrictions in an area to reduce nitrogen pollution.  For more information on Minnesota’s Groundwater Protection Rule, click HERE.

Federal court puts a hold on Bud Light’s “100 percent less corn syrup” ads.  If they missed seeing it live during the Super Bowl, most people in the agricultural industry have at least seen the recent Bud Light advertising campaign that claims the beer uses no corn syrup while its competitors do.  Shortly after the initial release of the ad, MillerCoors sued Anheuser-Busch, which makes Bud Light.  MillerCoors wants a permanent injunction that would stop Bud Light from continuing its corn syrup advertising campaign, arguing that the advertisements are false and misleading to consumers.  The first step to a permanent injunction is often a preliminary injunction, which makes a party act or not act in a certain way only while the case is pending.  The judge presiding over the lawsuit granted MillerCoors’ motion for a preliminary injunction in part.  The judge ordered Anheuser-Busch to temporarily stop using ads mentioning corn syrup if those ads do not contain language explaining that Bud Light does not use corn syrup in the brewing process.  The judge’s act does not ban the ad that premiered during the Super Bowl.  Rather it only blocks ads released later that claim Bud Light uses 100 percent less corn syrup than competitors like MillerCoors.  Click HERE to view the complaint, and HERE to view the judge’s order.

It’s (mostly) official: USDA’s ERS and NIFA are headed to Kansas City.  U.S. Secretary of Agriculture Sonny Perdue announced the USDA’s selection of the Kansas City, Missouri region as the new headquarters for the Economic Research Service and National Institute of Food and Agriculture.  The location changed caused a great deal of controversy as some viewed it as a political move.  However, the USDA has maintained that relocation will save millions of dollars over the next few years and put the agencies closer to a number of other USDA offices in Kansas City, such as the Farm Service Agency’s Commodity Operations Office.  The Secretary reduced some of the controversy by scrapping plans to place the agencies under the USDA’s Chief Economist, who is a political appointee.  Before we call the move a done deal, we must note that Congress could stop the plans.  The U.S. House of Representatives might block the move via a Department of Agriculture-FDA spending bill currently under consideration.  Click HERE to read Secretary Perdue’s press release.

Bayer announces multi-billion dollar hunt for glyphosate replacement.  Somewhat buried in a press release titled “Bayer raises the bar in transparency, sustainability and engagement,” Bayer recently announced a substantial investment in its weed management research.  Over the next ten years, the company plans to spend 5 billion euros, or roughly 5.6 billion U.S. dollars, to develop weed control products as alternatives to glyphosate.  The announcement comes at a time with thousands of plaintiffs across the United States have claimed that the widely-used glyphosate caused their cancer.  As we have previously discussed in the Ag Law Blog, the first three juries have in total awarded plaintiffs billions of dollars in damages.  Bayer continues to fight the allegations and defend its product, but the press release marks the first time that Bayer has publically announced a search for an alternative to glyphosate.  It remains to be seen whether the press release could have an impact in the lawsuits, but Bayer will likely try to keep the press release out of the trials by using court rules of evidence.

Ohio House passes amusement ride safety bill.  County fair season has officially kicked off in Ohio, and some state lawmakers want to make sure that amusement rides at those fairs are safe.  House Bill 189 seeks to heighten Ohio’s amusement ride safety inspection standards and impose additional duties on amusement ride owners.  The bill would require the Ohio Department of Agriculture to adopt ride classification rules that identify types of rides needing more comprehensive inspection, along with the minimum number of inspectors and number of inspections for each ride.  Further, the bill would require amusement ride owners to keep a manual for each amusement ride, and make it available upon request of an inspector.  Amusement ride owners would also have to keep records, including documents and photographs, of all major repairs along with all locations where the owner stored or operated each ride.  The bill includes an emergency clause, which would allow it to take effect as soon as the Governor signs it.  Lawmakers named the bill “Tyler’s Law” after the young man who died following an equipment breakdown at the Ohio State Fair in 2017.  Click HERE for more information about the bill.

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WOTUS lawsuits continue to trickle through federal courts

Written by Ellen Essman, Senior Research Associate

The controversy over the 2015 Waters of the United States (WOTUS) rule never really leaves the news. Case in point: last week, on May 28, 2019, the U.S. District Court for the Southern District of Texas decided to keep a preliminary injunction that prevents the enforcement of the 2015 version of the rule in Texas, Louisiana, and Mississippi, meaning that the 2015 rule does not currently apply in those states.  Meanwhile, at the end of March, the U.S. District Court for the Southern District of Ohio was not persuaded by Ohio and Tennessee to issue a preliminary injunction which would have halted the execution of the 2015 rule in those states.  All of this judicial activity is taking place while the Trump administration is working on a replacement for the Obama administration’s 2015 rule.

WOTUS background

If you’re a regular follower of the Ag Law Blog, you know we’ve written numerous updates on the WOTUS saga.  For a refresher, the WOTUS rule defines which waters are considered “waters of the United States,” and are consequently protected under the Clean Water Act. In 2015, the Obama administration promulgated its final WOTUS rule, which many agricultural groups and states felt regulated too many waters.  Needless to say, many lawsuits over the rule ensued. The Trump administration, hoping to replace the Obama-era rule, released its new proposed rule on February 14, 2019.  The comment period for the proposed rule ended on April 15, 2019.  The new rule is forthcoming, but in the meantime, due to all of the litigation, whether or not the 2015 WOTUS rule is applicable varies by state.  For an explanation of the 2015 rule and the new proposed rule, see our previous blog post here.

Judge continues to block 2015 WOTUS in Texas, Louisiana, and Mississippi…

At the end of May, Judge George C. Hanks Jr. of the U.S. District Court for the Southern District of Texas handed down a decision remanding the 2015 WOTUS rule to the EPA and Army Corps of Engineers and ordering that a previously issued preliminary injunction stay in place, meaning that the government should not implement the 2015 rule in Texas, Louisiana, and Mississippi.  While Judge Hanks declined to take up the questions raised by the plaintiffs about the constitutionality of the 2015 rule, he did determine that the agencies violated the Administrative Procedure Act (APA) at the rule’s conception.  The APA is a federal law that controls how federal agencies must go about making regulations.  Importantly, the APA dictates that agencies should give the American public notice of a proposed rule, as well as a chance to comment on a proposed rule.  In the case of Obama’s 2015 WOTUS rule, the definition of “adjacent waters” was changed from being based upon a “hydrologic connection” in the proposed rule to being based on how many feet separated the waters in the final rule. Interested parties did not have any chance to comment on the change before it was included in the final rule.  What is more, interested parties did not have the chance to comment on the final report that served as the “technical basis” for the rule.  For these reasons, Judge Hanks found that the final rule violated the APA.  As a result, he remanded the rule to the agencies to fix and left in place the preliminary injunction blocking the implementation of the rule in Texas, Louisiana, and Mississippi.

…but 2015 WOTUS still applies in Ohio and Tennessee

A decision in the District Court for the Southern District of Ohio came to the opposite conclusion of the Texas case.  In March of this year, Judge Sargus denied the states’ motion for a preliminary injunction against carrying out the 2015 WOTUS rule.  Sargus did not agree that Ohio and Tennessee were being irreparably harmed by having to follow the 2015 rule, and therefore did not go through with what he called the “extraordinary measure” of providing the states preliminary injunctive relief.  Basically, Ohio and Tennessee were not persuasive enough in their argument, and “failed to draw the Court’s attention” to any specific harm the states faced from the 2015 rule.  Therefore, as of this writing, the 2015 WOTUS rule still applies in Ohio and Tennessee.

What regulation applies in which states?

All of these lawsuits with different outcomes beg the question: what rule is applicable in which state?  EPA has a map depicting which states must currently follow the 2015 rule, and which states instead must follow the pre-2015 definition of WOTUS.  The map has not been updated since September of 2018.  Since the last update, Colorado, Michigan, New Mexico, and Wisconsin, whose governors’ mansions flipped from red to blue in November, have pulled out of lawsuits against the 2015 rule.  These withdrawals could affect which version of WOTUS applies in these states.

Although the outcomes in the different lawsuits throughout the country presently affect which version of the WOTUS rule applies in which state, it is not clear how the rulings will ultimately affect the 2015 WOTUS rule.  The Trump administration is currently carrying out its plan to scrap the rule and replace it with new language, which may render all of the existing legal fights over the 2015 rule irrelevant.

What’s next?

The new WOTUS rule, which is expected in its final form later this year, will probably not mark the end of the WOTUS debate.  While implementation of the new rule will likely make the aforementioned lawsuits moot, it doesn’t necessarily mean we’ll be out of the woods yet.  With all the contention over this topic, it is likely lawsuits will be filed challenging the new rule, as well.  Disagreement over what makes up WOTUS might be around for as long as rivers flow.

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