Environment & Energy Report

Local Pesticide Bans Face Political Opposition, Court Challenges

Sept. 13, 2018, 1:00 PM

House lawmakers are seeking to halt a trend in communities—local ordinances to ban or restrict pesticides that opponents say conflict with state and federal laws.

Local government officials—skeptical that state and federal pesticide regulations are sufficiently protective of public health—are passing ordinances restricting the spraying of bug- and weedkillers in parks, front lawns, and other public areas at the behest of community members. The issue has been litigated in courts and debated in state legislatures for decades.

Lawmakers in the House of Representatives have inserted language into the latest farm bill that would prevent local governments from enacting pesticides regulations.

The House and Senate versions of the farm bill, which would authorize hundreds of billions of dollars for agriculture and nutrition programs, are being negotiated in a conference committee. Republican and Democratic lawmakers are far from a compromise. The pesticide pre-emption, called Section 9101, is just one part of the House version (H.R. 2) that Democrats don’t want to accept.

Sixty local government officials sent a letter Sept. 13 to oppose the provision.

“While we may have differing views on pesticides, we take very seriously our duty to protect our constituents,” the officials wrote. The measure “is a direct assault on this authority.”

More than 150 local governments have passed ordinances to ban pesticides, according to an analysis from the nonprofit Beyond Pesticides. They range from liberal enclaves such as Portland, Ore., to the more politically conservative Irvine, Calif.

‘Burdensome Patchwork’

The tension between state, federal, and local laws on pesticides is not new. In the 1980s, pesticide ordinances in Wauconda, Ill., Wendell, Mass., and Ames, N.Y., were struck down. But in 1991, the Supreme Court ruled in Wisconsin Pub. Intervenor v. Mortier that the Federal Insecticide, Fungicide and Rodenticide Act, the nation’s pesticide registration law, doesn’t pre-empt local government regulation of pesticide use.

The Mortier decision “created a burdensome patchwork of regulations often created by localities which lack scientific and financial resources necessary to properly regulate,” Rep. Rodney Davis (R-Ill.), chairman of the House Agriculture subcommittee that oversees pesticide regulation, told Bloomberg Environment through a spokeswoman.

“Our language continues the tradition of co-regulation while clarifying that it should occur solely between state lead agencies and the federal government,” Davis said.

In the past year, Austin, Texas, passed an ordinance to end spraying of the insecticides chlorpyrifos and neonicotinoids, and restrict the use of the herbicide glyphosate. San Clemente, Calif., updated its pest management policy to prioritize pesticides used in organic farming.

‘Reflective of Community Values’

Supporters of the local ordinances say they mirror the wishes of citizens.

“When these get passed, they really do go though a deliberative, complete process that ultimately results in something that is reflective of community values,” Drew Toher, community resource and policy director with Beyond Pesticides, told Bloomberg Environment.

The organization has distributed model policy language to local elected officials to encourage the ordinances.

But some ordinances are being challenged by residents, pesticide manufacturers, and trade organizations. A pesticide ban for lawns and gardens in Montgomery County, Md., outside Washington, D.C., was overturned in a Maryland state court last year.

The county has appealed the decision, and a judge heard arguments Sept. 11. The county is fighting an August 2017 order reversing the ban, which prohibited all pesticides except certain ones allowed in organic agriculture.

Courts have ruled efforts by both Montgomery County and Kauai County, Hawaii, to enact local pesticide bans were preempted by state law.

“This really is something that had been consistently and uniformly done by the state,” Timothy Maloney, an attorney with Joseph, Greenwalt and Laake PA in Greenbelt, Md., told Bloomberg Environment. He represents Montgomery County residents and home-and-garden products company Scotts Miracle-Gro in challenging the county’s ordinance.

CropLife America, the trade association for agricultural pesticide manufacturers, said state and federal regulators register pesticides after years of testing for health and environmental risks.

“Localities lack the staff resources and scientific expertise to conduct these reviews,” Chris Novak, CropLife America president and CEO, told Bloomberg Environment in a statement. “Section 9101 of the House farm bill proposes to clarify the role of state and federal regulation.”

Some Struggle With Ban

The pre-emption section in the House version of the farm bill is one of five pesticide-related provisions that activists and House Democrats oppose.

Another would eliminate what some say are duplicative permits under the Clean Water Act for spraying pesticides near waterways. Other language would exempt the Environmental Protection Agency from having to consult with wildlife agencies to minimize pesticide harm to threatened and endangered species.

One of the oldest ordinances on the books is an ordinance in Douglas County, Wis., a community of about 43,000 on the western edge of Lake Superior. The County Board of Supervisors in 1994 passed an ordinance that prohibits the spraying of chemical insecticides and herbicides in the county’s forests, parks, and right-of-ways.

The county receives two to three requests for exemptions from the ordinance per year, Jon Harris, director of forestry and natural resources for the county, told Bloomberg Environment. Electric utilities, which must maintain the rights-of-way where electric lines run, have clamored to update the ordinance.

“I do see this being challenged in the future,” Harris said of the ordinance.

But Mark Liebaert, chair of the County Board of Supervisors and head of the board’s forestry committee, thinks the exemptions are doled out appropriately, and changes to the ordinance aren’t necessary.

“I don’t think we’ve ever turned down a good idea [for using pesticides], an idea that makes sense,” he said.

To contact the reporter on this story: Tiffany Stecker in Washington at tstecker@bloombergenvironment.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bloombergenvironment.com

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