Every county in Ohio has them and their numbers are growing — blighted, undeveloped properties that were once factories, dumps, processing plants, dry cleaners, and filling stations that left behind environmental hazards that make them costly to redevelop. They’re called “brownfields,” and one Ohio non-partisan advocacy group, the Greater Ohio Policy Center, set out to do something about them two years ago. (To find brownfield sites near you, visit the Ohio EPA’s website.)
As a think-tank devoted to smart, sustainable development, GOPC found that Ohio was lagging behind other states that had reformed their regulatory laws to encourage private companies to step in and redevelop brownfield sites. GOPC then partnered with environmental professionals, legal experts, and other redevelopment organizations to craft and promote a new brownfield regulatory bill that, so far, appears to be a textbook example of how proposed legislation in Ohio becomes law. House Bill 168 breezed through the Ohio House of Representatives this spring on a unanimous vote. Advocates believe it will be approved by the Senate and signed by the Governor before the end of the year.
How did GOPC do it? The old-fashioned way — by doing their due diligence. They researched and drafted the bill, found state legislators who would champion it, educated industry representatives such as the Ohio Chamber of Commerce and Ohio Bar Association that might question it, and then smoothed its progress through the General Assembly every step of the way. (See the sidebar for a summary of all the steps in how a bill becomes a law in Ohio.)
“We crossed every T and dotted every I” in drafting the legislation and made sure “we had conversations with committee members and all the people (in the General Assembly) it will be in front of,” says Aaron Clapper, project manager of GOPC.
One way to kick start the redevelopment of brownfields is to give developers immunity from being sued by the state if unforeseen hazards are discovered at the site after purchasing it and following federal standards for cleaning it up. Under House Bill 168, if developers show good faith and “all appropriate inquiries” in cleaning up a brownfield site, they would be protected from any additional government-imposed clean-up costs.
The protection is called the Bona Fide Purchaser Defense and, under federal law, it already spares developers the risk of being sued by the federal government. The BFPD also allows developers to clean up a brownfield site to a level that is less than pristine but acceptable for whatever reuse is being planned at the site.
“What’s the point of cleaning it up perfectly if it’s going to be used as a factory anyway?” Clapper says.
Eight states, including Michigan and Indiana, have followed the federal lead in providing similar immunity from state lawsuits as well. As a result, GOPC found, states like Michigan now have a competitive edge over Ohio in attracting new development and creating jobs. Michigan’s brownfield redevelopment program averaged 1,032 issuances per year between 1995 and 2015, while Ohio averaged only 26 per year during that same time period.
One way for lobbyists and advocates to get a bill introduced into the General Assembly is to write the bill themselves. And that’s exactly what the GOPC did with the help of legal experts and environmental professionals, including the former director of the Ohio EPA. The group then took their draft to the Legislative Service Commission, a non-partisan state agency that helps legislators craft their bills. The commission checks the legality of the bill’s provisions, its potential costs and its impact on the Ohio Revised Code.
Simultaneously, the GOPC went looking for an influential state legislator who would sponsor the bill and help push it through the legislative process. The GOPC found an able and passionate champion in then Ohio Rep. Steve Arndt, a Republican from Port Clinton. Arndt had a stake in passage of the bill because of his district’s many brownfield sites along Lake Erie that were once manufacturing plants.
Arndt submitted the bill to the clerk’s office of the Ohio House of Representatives, which gave it a unique number and sent it on to the Rules and Reference Committee, a 12-member panel of legislators that decides which of the standing committees is best suited to handle a particular bill or whether it should be considered at all. They decided on the Civil Justice Committee.
Under the Ohio Constitution, standing committees must hold at least three days of public hearings on a bill before deciding on whether to pass it on to the full membership of the house for a floor vote. The first committee hearing is usually testimony from the sponsor of the bill. The second is devoted to proponents of the bill. And the third is held for opponents of the bill and anyone else with a stake in the legislation.
A key role for lobbyists or any advocate for a bill is finding an influential legislator to push it through and to make sure committee members, especially powerful committee chairs, keep the bill moving through the legislative process. Most bills are “killed” in committee and never reach the floor of the either house for a full vote. This “greasing of the wheels” is done not only through public hearings, but also in behind-the-scenes conversations with legislators and influential interest groups, and with organized letter-writing campaigns from interested constituents.
Ohio has strict guidelines for lobbyists. They must register with the Joint Legislative Ethics Commission and file regular reports showing they have kept within the spending limits on wining and dining legislators. But as Herb Asher, professor emeritus of political science at Ohio State University, points out, lobbying can take other forms that are harder to control. Campaign contributions are another way to influence legislators. And as the U.S. Supreme Court has ruled, there is no limit on how much lobbying groups can spend on TV ads to influence voters, as long as the ads don’t tell people specifically how to vote.
Clapper notes that, as a non-profit, GOPC does not make campaign contributions or give meals or gifts to policymakers. As a result of GOPC’s education and outreach to policymakers and stakeholders, no opponents testified against House Bill 168 — a measure of how well it was crafted and vetted before it came to the committee. After the three hearings, the Civil Justice Committee voted 10 to 1 to send the bill without amendments to the floor of the House of Representatives, where it was unanimously approved, again without amendments.
All bills must be approved by both the House of Representatives and the Senate before they can become law. House Bill 168 was introduced to the Senate and referred to the Committee on Agriculture and Natural Resources. The committee held its first hearing on the bill before the General Assembly recessed for the summer. This fall, it is expected to get two more hearings before the committee before being sent to the Senate for a floor vote. Clapper is hopeful that the Senate will approve the bill without amendments, in which case it won’t have to be returned to the House of Representatives for a second floor vote.
The final step before becoming law is the signature of the Governor, who has veto power over all proposed legislation. GOPC believes Gov. Mike DeWine will sign the bill. But if he vetoes it, it would have to be returned to the floor of a Senate, where a three-fifths majority vote would be required to overturn the veto and make the bill a new law.
Clapper says the GOPC continues to see smooth sailing for the bill. “We’re hoping it will end up being ‘How a Bill Becomes Law 101’.” If so, it becomes law 90 days after the governor’s signature.
Editor's note: On June 17, 2020, Governor Mike DeWine signed HB168 into law, following the unanimous passage of HB168 through both the Ohio House and the Ohio Senate last month. The bill, introduced in March 2019 by former State Representative Steven Arndt (R – Port Clinton), provides liability protection to purchasers of brownfield sites through an affirmative defense. The bill will take effect 90 days after the governor’s signature, on September 14. This is a step towards the investment in and development of brownfields, which will create jobs and bolster the economy.
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