A Look Back: Agricultural Law in 2019

By Peggy Kirk Hall

I often receive quizzical looks when someone asks me what kind of law I practice and I say “agricultural law.” A common response is “what in the world is that”? A look back at agricultural law in 2019 provides a pretty good answer to that question. Our review of major developments in the last year illustrates the diversity of legal issues that make up the world of agricultural law. It’s never dull, that’s certain.

Here are the highlights of what we saw in agricultural law in 2019:

• The Lake Erie Bill of Rights (LEBOR). Toledo citizens gained national attention when they passed a charter amendment granting legal rights to Lake Erie and its ecosystem to “exist, flourish, and naturally evolve.” The amendment also allowed Toledoans to sue corporations and governments that violate the lake’s legal rights. Ohio’s legislature quickly enacted a law prohibiting any attempt to enforce LEBOR, and Drewes Farm challenged LEBOR as unconstitutional in a lawsuit that is still tied up in federal court. While Toledoans won’t be able to use LEBOR to recognize legal rights for the lake, the measure raised awareness of the water quality frustrations felt by Toledoans and others with ties to Lake Erie, and brought attention to similar efforts around the country to protect natural resources by granting them legal rights. Read our review of LEBOR here.
• Watersheds in Distress tug-of-war. Controversial rules proposed by the Kasich administration would have expanded areas in Ohio designated as “watersheds in distress” and added regulations for farmers operating within those areas. Governor DeWine’s new Director of Agriculture yanked the rules upon taking office in January, however, effectively ending the controversy over whether more regulations for farmers are the solution to Ohio’s water quality problems. The governor’s H2OH initiative offers an alternative to the Watersheds in distress approach.
• Hemp hemp, hooray. After the 2018 Farm Bill legalized hemp by distinguishing it from marijuana under federal law, then authorized states to allow hemp production, Ohio passed legislation also decriminalizing hemp. Ohio’s proposed rules for cultivating and processing hemp are now out, and ODA held a hearing on the proposed rules on December 18, 2019. ODA also submitted Ohio’s Hemp Production Plan to the USDA in December, and the USDA approved the plan. Once the state rules become final, Ohio’s hemp program will open up and applicants can apply for cultivation licenses and begin growing hemp as a commodity crop in 2020.
• Waves of WOTUS. We began 2019 with the Trump administration’s proposed WOTUS rewrite in February, which is still under review and not yet effective. We followed that with the administration’s announced repeal of the Obama-era 2015 WOTUS rule in September; the repeal became effective on December 23, 2019. There’s more: the administration published a reinstatement of the WOTUS definition from 1996/1998 until its proposed rule becomes final. But that’s not all. Sprinkled in and around those dates were a slew of lawsuits and injunctions challenging the Obama-era rule, the rulemaking process, and the pre-2015 definitions of WOTUS. By the end of the year, we were left with a patchwork of different WOTUS rules across the country and uncertainty about which are actually in effect. Third Roundup cancer lawsuit is biggest yet. A jury awarded a whopping $2 billion to a California couple who claimed that Monsanto failed to warn them about the health risks of using Roundup, which they believe caused their non-Hodgkins lymphoma. This was the largest of three verdicts against Monsanto to date, but the court later reduced the amount to $87 million. Approximately 13,000 more Roundup cases are pending in state and federal courts across the country, and more Roundup lawsuits are also underway against Home Depot and Lowe’s. Bayer announced in June that it would invest $5.6 billion on weed management research to find alternatives to the glyphosate used in Roundup.
• Ohio’s Right to Farm law expanded. Buried deep in Ohio’s budget bill were significant changes to Ohio’s Right to Farm law, the law that gives agricultural activities immunity from civil nuisance lawsuits. The changes were an obvious response to the Lake Erie Bill of Rights initiative. The revisions allow agricultural activities on any CAUV land and agricultural activities conducted by a person pursuant to a lease agreement to qualify for the immunity, in addition to the pre-existing law’s coverage for land owners enrolled in the “Agricultural District Program” with the county auditor. The new law also attempts to clarify the types of agricultural activities that receive protection under the law, including fertilizer and manure applications and any expansions or changes in farm operations.
• Congress increases farm bankruptcy limit. Sometimes Congress can agree on something. The Family Farmer Relief Act of 2019 is one example. The federal bill, effective August 23, 2019, raised the debt limit for family farmers and fishermen seeking to use Chapter 12 bankruptcy law to reorganize debts and stay in business. Farmers may now have an aggregate debt of up to $10 million when using Chapter 12, rather than the previous limit of $4.4 million.
• Revisions to H-2A rules begin. Long awaited revisions to the H-2A program are underway. In October, changes were made to the labor market test for H-2A labor certification, which determines whether qualified American workers are available to fill temporary agricultural positions and if not, allows an employer to seek temporary migrant workers. Employers will no longer have to advertise a job in a print newspaper of general circulation in the area of intended employment.
• Meat and eggs are not so simple anymore. While all is quiet in Ohio, the country continues to battle over what exactly is “meat” and when eggs must come from cage free hens. The most recent egg law arose in Michigan, whose lawmakers passed a bill that will require all eggs sold in the state by 2024 to be from birds housed in cage-free facilities. Oregon and Washington passed similar laws in 2019. Meanwhile, litigation in Arkansas has put a hold on carrying out a state law that prohibits labeling a food product as “meat” if it doesn’t derive from an animal. A similar law and lawsuit developed in Missouri last year. And in Washington DC, the USDA and FDA jockeyed for regulatory authority over “cell cultured meat” and finally agreed to divide labeling and inspection authority between the two agencies. We expect these food battles to continue in 2020.
• Solar leasing on the rise. Yes, solar leasing in Ohio. Thousands of acres of farmland in Ohio will soon be home to utility-scale solar energy facilities under long-term solar energy leases. The Ohio Power Siting Board has approved six solar facilities, with eight more in the works.