ADVOCACY UPDATE

1803 Consulting, LLC tony@1803consulting.com

Tony is the governmental affairs liaison for OhioPLANT, of which OGIA is a member. OhioPLANT is a coalition of pesticide, landscape, agriculture, nursery and turf professionals. For more information, visit OhioPLANT.com

You may remember my article in a previous edition about the success OGIA, as a member of OhioPLANT (Coalition of Pesticide, Landscape, Agriculture, Nursery, and Turf professionals), achieved at the end of the 134th legislative session in December with the passage of a bill, House Bill 507, that included “pesticide preemption” language we drafted. Our pesticide preemption amendment protects private pesticide use by preempting local governments from banning or regulating pesticides for use on private property or private property open to the public (think golf courses). Unfortunately, the constitutionality of HB 507 has been challenged in court. To understand the lawsuit, I need to give a little background on the bill’s journey through the General Assembly.

The bill originally was introduced by State Representative Kyle Koehler to reduce the number of poultry chicks sold in lots. The bill was amended in the House Agriculture and Conservation Committee to include food safety amendments requested by the Ohio Department of Agriculture, and amendments revising the law governing environmental health specialists and environmental health specialists in training. The bill was favorably reported out of Committee on March 31 and passed the full House on April 6, 2022.

The Senate Agriculture and Natural Resources Committee amended the bill to include OhioPLANT’s pesticide preemption language as well as two amendments for the oil and gas industry. The oil and gas amendments made changes to current law allowing drilling for oil and gas on state property and included “natural gas” in the definition of clean energy. The Committee favorably reported the bill on December 7 and was passed by the full Senate the same day. The House concurred with the Senate amendments and Governor DeWine, after many requests from environmental groups to veto the bill because of the oil and gas amendments, signed HB 507 into law on January 6 of this year. The bill became effective on April 7.

On April 6, the Ohio Environmental Counsel, the Sierra Club, and Earthjustice (“Plaintiffs”), filed a verified complaint in the Franklin County Court of Common Pleas for preliminary injunction, permanent injunction, and declaratory judgment (“Complaint”). Mary Mertz, the Director of the Ohio Department of Natural Resources, and Dave Yost, Ohio’s Attorney General, were named defendants in their official capacities. Plaintiffs allege in the Complaint that HB 507 is unconstitutional because it violates the single subject clause and the “three hearing” clause of the Ohio Constitution. Plaintiffs are asking the court to hold that HB 507 is unconstitutional and therefore void. It is important to note that our pesticide preemption language is not the subject of the challenge to the bill, it solely is the inclusion of the two oil and gas amendments.

With the filing of the Complaint, the Plaintiffs also filed a motion for a temporary restraining order and a preliminary injunction (“Motion”) to prevent the oil and gas provisions of the bill from going into effect. The court heard the Motion on April 10 and issued an order denying the Plaintiffs’ Motion.

Claim One: Violation of the Single Subject Clause, Article II, Section 15(D)

Plaintiffs contend that the oil and gas amendments violate the single subject clause in Article II, Section 15(D) of Ohio’s Constitution, which states,

No bill shall contain more than one subject, which shall be clearly expressed in its title. No law shall be revived or amended unless the new act contains the entire act revived, or the section or sections amended, and the section or sections amended shall be repealed.

Plaintiffs contend that because the bill’s original subject was agriculture and amendments added by the House dealt with food purity, the oil and gas amendments had no relationship to the bill. They claim that because the oil and gas amendments are distinct and separate from the subject of agriculture and food purity, the bill violates Article II, Section 15(D) and should be ruled unconstitutional.

Claim Two: Violation of the “Three Day” Clause of Article II, Section 15(C)

Plaintiffs contend the oil and gas amendments added in the Senate Ag and Natural Resources Committee and passed in HB 507 violated the “three day” clause of Article II, Section 15(C) of the Ohio Constitution, which reads, Every bill shall be considered by each house on three different days, unless two-thirds of the members elected to the house in which it is pending suspend this requirement, and every individual consideration of a bill or action suspending the requirement shall be recorded in the journal of the respective house. No bill may be passed until the bill has been reproduced and distributed to members of the house in which it is pending and every amendment been made available upon a member’s request.

Plaintiffs argue the oil and gas amendments “vitally altered” the bill, therefore requiring the Senate to hear the bill on three further separate days and that the House failed to do so when HB 507 returned to the House for concurrence on the Senate changes.

The outcome of the case is uncertain. Plaintiffs have asked the court to declare the bill unconstitutional and therefore fully void because of the two oil and gas amendments. However, courts have been reluctant to rule entire bills to be void and instead sever the challenged provisions from the law allowing the other sections to remain. Hopefully this is what will happen in this case.