(Beyond Pesticides, October 25, 2017) Oregon is the most recent site of an effort by a locality to establish more-protective pesticide regulations than are provided by the state. Voters in Lincoln County, on the north-central Oregon Coast, approved a ballot measure earlier this year that established a ban on aerial spraying of pesticides in the county. Immediately, county landowners Rex Capri and Wakefield Farms, LLC, both of whom use aerial spraying on their properties, filed a legal challenge to the ordinance created through that vote. The issue is whether the state of Oregon has the legal authority to stop its local political subdivisions from adopting more rigorous than those enacted by the state.
When the state of Maine considered legislation to preempt its local jurisdictions (take away their authority to act) this summer, Beyond Pesticides wrote, “The democratic process is foundational to the culture of Maine and the country. LD 1505 betrays the democratic process. Maine communities want to be able to adopt standards that exceed or are more stringent than state standards as a matter of public health and environmental protection, or quality of life. Why would a town or city want to do use its local authority to adopt a pesticide restriction? It is the simple exercise of the local democratic process that, while meeting state and federal standards, decides that it wants to do more to protect the health of families, children, local waterways, pollinators, and those with pre-existing medical conditions that are exacerbated by pesticide exposure.”
The Oregon case began its hearing in early October before Lincoln County Circuit Court Judge Sheryl Bachart, who says she expects to issue a written ruling soon. The plaintiffs’ attorney, Gregory Chaimov, argues that the county lacks the authority to create such an ordinance, that local statute cannot override state law, and that the ban is barred by state regulations governing use of “pesticides, forestry practices, and the ‘right to farm.’”
Lincoln County Community Rights (LCCR), a nonprofit that intervened as a defendant in the case, counters that people, in this case in the form of the county, have the inherent right to community self-governance, and should be able to protect themselves and their community from “toxic trespass” from aerial pesticide applications. The group says that the state legislature does not have the authority to establish a “ceiling” that would proscribe more-protective local regulations on health and safety than the state sets out. On those grounds, LCCR also argues that any Oregon law that would prevent local governments from regulating pesticides use is unconstitutional. In a local newspaper, LCCR stated, “The [plaintiffs’] preemption complaint boils down to asserting there is a greater legal authority for Capri, Wakefield Farms, and others to aerial spray than for the people of Lincoln County to ban aerial spraying on the grounds of protecting the right not to be toxically trespassed, the right to clean water free from aerial sprayed pesticides, and the rights of the ecosystems not to be exposed to aerial sprayed pesticides.”
Ann Kneeland, LCCR attorney, maintains that the Oregon Constitution places all authority in the people, “‘who may reform or abolish the government. . . . The county’s power to self-govern derives directly from the Oregon Constitution, therefore it supersedes state laws that limit the authority of local governments. These concepts may seem radical or revolutionary to us now but these are concepts in our Constitution.’”
The case points to the legal conundrum that localities face in trying to protect their residents, lands, and resources from the assaults of pesticides, GMOs (genetically modified organisms), factory farms, fracking sites, or a host of other ills that communities may find objectionable because of health, safety, and/or environmental concerns. As communities (in the form of towns, counties, or cities) initiate efforts to establish regulations that may be more protective than prevailing state laws are, states and, very often, corporations persistently challenge those initiatives, arguing that state statutes supersede local authority to regulate. Such deference to state authority and statute is referred to as preemption — the use of state law to nullify the authority of a “lower” level of government, or a specific statute or ordinance, on that preemptive basis.
There are several types of preemption that states employ: (1) express preemption, or the prohibition of local governments from regulating in a specific area; (2) implied preemption, wherein “state laws give the impression that the intent of the state was to occupy the field and exclude local ordinances”; and (3) preemption by conflict, which happens when a local ordinance either prohibits or allows an activity permitted or prohibited, respectively, by state statute. Another definitional note: there are “ceiling preemptions” and “floor preemptions,” the former being federal or state laws that establish a maximum level of protection for people’s safety, health, well-being, and rights, and the latter establishing a minimum level of protection, above which local regulations can create greater protections.
As communities become more aware of and concerned about unsafe, harmful, or objectionable actions in their localities, people’s interest in local control and authority has grown considerably. The Community Environmental Legal Defense Fund (CELDF), which advocates for greater local authority over what affects the welfare of communities, has grown alongside this awareness and interest. As noted in the Beyond Pesticides’ factsheet on preemption, “As pesticide pollution and concerns over the effects of GE foods on human and environmental health mount, many are fighting to overturn preemption laws and return the power back to localities, enabling them to adopt more stringent protective standards throughout their communities.”
The notion that communities should be able to protect themselves may seem obvious on the surface, but doing so in the face of inevitable challenges is a legal minefield that involves state constitutions, legal “authority,” precedent, and corporate influence. CELDF approaches these issues from a stance of establishing both the rights, and the legal authority, to protect. The group says, “We assist communities to develop first-in-the-nation, groundbreaking laws to protect rights — including worker, environmental, and democratic rights, and rights of nature. . . . [We do so] because the existing structure of law ensures that people cannot govern their own communities and act as stewards of the environment, while [it protects] corporate ‘rights’ and interests over those of communities and nature.”
The tension between states’ preemptive authority, and the emerging insistence on greater local control to protect its residents, goes to the very heart of not only how governments at state and local levels derive their authority in a democratic system, but also, how that authority is shared — or not. The Supremacy Clause of the U.S. Constitution (Article VI, Clause 2) clearly establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. At the state level, things can become a bit less clear. Each state has its own Constitution, of course, its own interpretive history of the document, and its own assignations of authority regarding the host of issues with which governments concern themselves.
In the collage of various state approaches to pesticide regulation, Beyond Pesticides notes that 43 states currently exercise some form of preemption vis a vis local statutes; 14 have no explicit preemption language, but assign the authority for pesticide regulation to an agriculture department, commissioner, or pesticide board; and only seven states have no preemption laws. It is noteworthy that 29 states that set out preemptive provisions use virtually the same language in their statutes. This is evidence of industry influence on legislatures, wherein lobbyists create “model legislation” that corporations want adopted, lobbyists meet with legislators with template laws in hand, and legislators — some of whose bread is considerably buttered by industries — then push for adoption of the legislation.
This is precisely the method for which ALEC, the American Legislative Exchange Council — a consortium of conservative state legislators and private sector representatives (aka corporate lobbyists) — has become infamous. Ms. Kneeland said that state lawmakers try to limit localities’ constitutional ability to create stronger protections “‘at the behest of well-funded corporate interests. . . . We find ourselves in a legal system where corporations consistently have greater rights than the people.’”
A 2017 National League of Cities report, City Rights in an Era of Preemption: A State-by-State Analysis, points out that. “State legislatures have gotten more aggressive in their use of preemption in recent years. Explanations for this increase include lobbying efforts by special interests, spatial sorting of political preferences between urban and rural areas, and single party dominance in most state governments. . . . This loss of local control means that cities cannot curtail laws to fit their needs.”
A bit of history on preemption in the realm of pesticide regulation: In 1991, the U.S. Supreme Court (SCOTUS) ruled in Wisconsin Public Intervenor v. Mortier, that the federal law known as FIFRA — the Federal Insecticide, Fungicide and Rodenticide Act — does not preempt local jurisdictions from creating more-stringent pesticide regulation. Thus, it was ruled that FIFRA nowhere expressly supersedes local regulation. However, and critically, the court left intact the ability of states to preempt such regulations.
The pesticide industry has been very active in seeking federal legislation that preempts the ability of states to adopt more stringent standards, and has tried repeatedly to preempt the rights of states to adopt more-stringent regulations under FIFRA. After the SCOTUS Mortier decision, the Coalition for Sensible Pesticide Policy (comprising pesticide industry lobbyists) formed and drafted model legislation that would restrict municipalities from creating ordinances that would regulate use of pesticides on private property, and advocated for it methodically — and successfully — in many states.
In the face of this preemption hurdle, there have been numerous efforts on the parts of municipalities to enact stronger-than-the-state’s protections from pesticides (including herbicides and fungicides). Early on, in 1979, Mendocino, California tried to prevent aerial application of phenoxy herbicides through local statute; a California Supreme Court upheld it in 1984, and then the legislature passed a law to preempt the action.
In 2013, Kaui County, Hawaii attempted to regulate GMOs and pesticide application by requiring notification before pesticide use and mandating buffer zones. Paul Goeringer writes in his Maryland Risk Management Education blog, “Because state pesticide law enables the state Department of Agriculture to establish regulations regarding pesticides, the court found that the Kuai County effort to regulate ‘touched upon’ the same subject matter as Hawaii’s pesticide law, and therefore, should be preempted; when the county argued that, essentially, there were matters unaddressed by the state law, the court found that the ‘depth’ of the state statute demonstrated that it was comprehensive and thus, functionally ‘impenetrable’ to local control.”
In 2015, Montgomery County, Maryland established an ordinance which could require posted notice of some lawn applications of pesticides, prohibit certain pesticides on lawns and county-owned property, and require the county to adopt integrated pest management (IPM) on certain county-owned properties. This past August, a Montgomery County Circuit Court struck down components of the ordinance, eliminating pesticide use restrictions on private property, but left intact provisions limiting toxic pesticides used on public, county-owned land.
Beyond Pesticides executive director Jay Feldman said of the Maryland case, “The court should have recognized that, in restricting lawn pesticides throughout its jurisdiction, Montgomery County is exercising a local democratic principle under Maryland and federal law to ensure the safety of the community, including children, pets, and the environment, from a known hazard not adequately regulated by the U.S. Environmental Protection Agency or the state. . . . After extensive hearings and study, the county council understands that toxic chemicals are dangerous and not needed to have beautiful lawns and landscapes. Just like big tobacco’s attacks on local smoking restrictions to control secondhand smoke, the chemical industry is attempting to head off a growing movement asking for common-sense measures that protect public health from pesticide exposure.” Montgomery County is appealing the Circuit Court ruling.
In its State Preemption Law factsheet, Beyond Pesticides has further noted that, “Numerous studies by the U.S. Government Accountability Office and scientific studies indicate that federal and state governments alone are not adequately protective of health and the environment. There is no evidence that the prospect of local democratic decision making is a threat to agriculture or other business interest[s] in local communities. In fact, those closely aligned with these interests are well represented in local decision making bodies. Finally, local legislators know that restricting pesticides is no different from other environmental and neighborhood stewardship laws, including restrictions on littering, recycling, noise, picking up after pets, and smoking. These local laws all act on values associated with living in a community where contaminant-free air, water, and land are shared resources.”
Beyond Pesticides has long maintained the importance of the rights of local governments to protect public health and the environment — particularly when federal and state government are not adequately protective. State preemption often denies people their democratic right to better protection when a community decides that minimum standards set by state and federal law are insufficient. Localities across the country continue the work to pass statutes that would better protect residents and resources. A snapshot of the status of local policies on pesticide use is provided by the Beyond Pesticides and Organic Consumers Association in the map of U.S. Pesticide Reform Policies.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.