Oregon bill could roll back environmental regulations

Proposed legislation touted as a technical fix for an 8-year-old land-use law is setting off alarms in the environmental community.

House Bill 3212 makes any new rule or law regulating agriculture “land use regulation” under Oregon’s Measure 49.

The 2007 voter initiative required taxpayers to compensate landowners whose property value was reduced by land use regulations passed after Jan. 1, 2010. If a government chose not to pay, it can waive the regulation.

The bill could reverse Jackson County’s ban on genetically engineered crops, current rules banning most field burning, or a moratorium on canola meant to protect the Willamette Valley’s specialty seed industry, said Ivan Maluski, policy director for Friends of Family Farmers.

And it could prevent the state or local communities from regulating anything from animal welfare to pesticides to dairy waste runoff.

“It’s far broader than anybody realizes,” said Rep. Peter Buckley, D-Ashland. “It flips things over to a point where people who are trying to do reasonable regulations would have to pay a price.”

Buckley was the only legislator to question the bill before it passed the House lon April 23 on a 48-10 vote

Rep. Brian Clem, D-Salem, said he asked for the bill after trying to determine last session whether canola growers who objected to the moratorium could sue under Measure 49.

Clem said that right was the original intent of the law, but it can’t be used without a technical fix.

“For me, the basic premise is if the farmers are going to have their currently legal farming practices regulated not for public safety or health reasons, they’re just going to be regulated for political or ideological reasons, to me that equates to a taking,” Clem said.

Clem said on the House floor before the vote that the bill would not reverse the Jackson County measure or any others laws or rules retroactively.

On Wednesday, he said he was mistaken. The language in the bill is unclear, he said, and as written, it would be retroactive.

Clem has drafted an amendment, he said, that would make it clear that the bill would not affect rules or laws passed before Jan. 1, 2016, when it would take effect.

Clem also said the bill isn’t as broad as some think, because it doesn’t apply to regulations imposed for health or safety reasons, or to some regulations that are statutorily exempt.

In a March public hearing, Oregon Department of Agriculture land use coordinator Jim Johnson said he had concerns about the proposal.

“We have 250 commodities grown in this state with a myriad of agricultural practices,” he said. “ODA has responsibilities in a lot of areas we think could be implicated by this.

For example, he said, the bill could restrict new rules for confined animal feeding operations, shellfish operations on state-owned tidelands, or the growing of biopharmaceutical crops.

Even if no challenges are brought under the legislation, it still will give some governments pause, said Melissa Wischerath an environmental lawyer with the Eugene advocacy group Center for Sustainability Law.

“I think it will have a chilling effect,” Wischerath said. “It says, hey local and state government, you better not regulate agriculture. If you do, we now have this new mechanism to start suing you.”

Clem said that’s kind of the goal.

“When a unit of government is thinking about passing something, I want them to think about the cost to the farmer of complying with these regulations,” he said.

tloew@statesmanjournal.com, (503) 399-6779 or follow at Twitter.com/SJWatchdog

About the bill

House Bill 3212 is sponsored by the House Committee on Rural Communities, Land Use and Water, It makes a law or rule passed solely for the purpose of regulating a previously allowed farming practice “land use regulation” under Measure 49.

The bill passed the House April 23. It now is in the Senate Committee on Business and Transportation awaiting a hearing.