Will State, Local Pesticide Bans Make More News?

TipSheet: Will State, Local Pesticide Bans Make More News?

When Hawaii enacted a law in June banning chlorpyrifos, a pesticide that can have toxic effects on the human nervous system, it was news … because the action was taken by a state, not the U.S. Environmental Protection Agency.

The EPA regulates pesticides under a law called the Federal Insecticide, Fungicide, and Rodenticide Act. With FIFRA, EPA is supposed to judge the health and safety effects of a pesticide and “register” (license) it. EPA sets requirements for safe use, which must be displayed on the product’s label.

In the case of the organophosphate pesticide chlorpyrifos, widely used in agriculture, the Obama-era EPA had been preparing a ban on the basis of studies suggesting it harmed children’s neurological development.

Pesticide companies opposed the ban, especially Dow Chemical, the principal manufacturer of chlorpyrifos. In March 2017, not long after taking office, ex-EPA administrator Scott Pruitt ruled against banning chlorpyrifos. Controversially, this was after Dow had donated $1 million to the January 2017 Trump inaugural.

Here the story took an unusual turn.

As with so many laws setting up “environmental federalism,” the states are usually the ones who have the primary responsibility for enforcing use and safety requirements.  But a key point: Under FIFRA, EPA sets minimum requirements that the states are supposed to enforce. But while FIFRA prohibits states from being less stringent than EPA, it does not prohibit states from being more stringent.

That’s precisely what happened in Hawaii.

A map of the United States showing a low-end estimate of the use of chlorpyrifos as an agricultural pesticide in 2015. (Click image to enlarge.) Image: U.S. Department of the Interior-U.S. Geological Survey

Perfectly legal actions like the Hawaii chlorpyrifos ban don’t happen very often. In agricultural states, the farm and pesticide lobbies typically have strong influence on state government. That, in fact, was why FIFRA gave regulatory authority to EPA, which at least in theory was less vulnerable to political influence that could hurt public health. This is the theory behind most federal environmental laws.

But in the Trump era, we could see states become more aggressive than feds a little more often.

Dicamba conflict yields complaints, bans, lawsuits

The brouhaha about the pesticide dicamba is another case in point. Dicamba is a weedkiller used on a wide range of crops because it kills a wide range of weeds. It has been around for decades.

But the plot thickened in 2016 when EPA registered pesticide products containing dicamba for use on genetically modified crop varieties (mostly soy and cotton) engineered to resist dicamba. The idea was to spray the dicamba product on crops directly, killing the weeds but preserving the crops.

By 2017, tens of millions of acres were being planted with dicamba-resistant crops. And the companies that had patented GMO-based dicamba-resistant seeds were making money.

The problem turned out to be dicamba spray drifting onto nearby fields of crops not engineered to withstand it. Almost immediately, farmers in states like Arkansas and Missouri started complaining about severe crop damage from dicamba.

By the summer of 2017, Arkansas slapped a temporary ban (may require subscription) on dicamba. Lawsuits ensued. Since then, other states have joined the fray. Manufacturers tried to alleviate the problem by formulating products less prone to drift and volatilization.

But non-GMO farmers say they feel coerced to buy dicamba-resistant seeds as the only way to protect their crops. The dicamba conflict has yet to be resolved.

Watch for state, local preemption angle

All this suggests that environmental reporters will continue to find state and regional stories about pesticides if they look for the state preemption angle.

One starting point is to find the agency or agencies in your state that enforce pesticide regulations. Online lists of state pesticide regulatory agencies can be found here, here and here. The setup differs by state, but often the regulatory body is the state department of agriculture or environmental protection.

FIFRA’s relegation of enforcement authority to the states can often give states an opportunity to loosen environmental controls. For example, FIFRA allows states to issue “Experimental Use Permits,” or to register pesticides for “Special Local Needs.”

FIFRA also allows the federal EPA to authorize “Emergency Exemptions” for situations that constitute a crisis, such as an outbreak of a pest that threatens whole crops.

 

A significant number of cities and counties

are passing local ordinances prohibiting pesticide use

in some way more stringent than state or federal

requirements under FIFRA. Is it legal? Not necessarily.

 

One other pesticide story trending now is local preemption. A significant number of cities and counties are passing local ordinances prohibiting pesticide use in some way more stringent than state or federal requirements under FIFRA.

Is it legal? Not necessarily. There is nothing in FIFRA to forbid it, but most states have passed laws disallowing it. Here is a map of the situations in the various states.

Way back in 1991, the U.S. Supreme Court found that FIFRA did not prevent local governments from setting stricter-than-federal pesticide restrictions. The case was Wisconsin Pub. Intervenor v. Mortier. After that, the pesticide lobby mounted a nationwide campaign in state legislature, resulting in 43 states banning stricter local pesticide laws in some way.

The law is still not 100 percent settled everywhere, though. Maryland is one of the states that does not preempt local ordinances. But in a recent lawsuit in Montgomery County, Md., a county circuit judge struck down the county’s ordinance prohibiting the use of cosmetic pesticides on residential lawns. Environmentalists are still fighting in places like Cleveland Heights, Ohio, and Seattle, Wash.

It is different in Canada, by the way. In 2001, Canada’s Supreme Court upheld the legality of local bans on pesticide use. Scores of local governments there have passed local pesticide bylaws since then.

Editor’s Note: For more on the regulation of pesticides, check out our recent Backgrounder, “Amid the Fog of Policy, Reporting on Pesticide Regulation.”

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* From the weekly news magazine SEJournal Online, Vol. 3, No. 27. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.