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From June 20, 2005 - updated December 23, 2005

Federal Judge Upholds Local Weed and Feed Ban, Preemption Laws Do Not Apply
(Beyond Pesticides, June 20, 2005)
On June 14, 2005, Judge Barbara Crabb, of the Western District of United States Federal Court (Madison, WI) issued an order upholding a local ban of "weed and feed" products. The lawsuit, brought by the chemical lawn industry, unsuccessfully argued that state preemption law precludes Dane County and the City of Madison from restricting herbicide-based products that contain phosphorus fertilizers. Activists applaud the decision and encourage municipalities across the country to follow Madison's lead in passing fertilizer-pesticide product bans in order to protect local water supplies. Beyond Pesticides and the National Coalition for Pesticide-Free Lawns has called for a national ban of "weed and feed" products.

The lawsuit was filed in December of 2004 by CropLife America and Responsible Industry for a Sound Environment (RISE), two Washington, DC-based trade organizations with a record of twisting the science to favor industry profits over public health and safety, as well as the Wisconsin Fertilizer and Chemical Association, the Midwest Hardware Association and the Wisconsin Landscape Federation.

Madison-Dane County, Wisconsin Executive Kathleen Falk, Madison Mayor Dave Cieslewicz and Dane County Lakes and Watershed Commission Chair Brett Hulsey praised the federal court ruling throwing out the lawsuit that had been filed against Dane County and the City of Madison's phosphorous ban.

Judge Crabb held that the county and city of Madison may legally ban phosphorus, even where it is mixed with pesticides in "weed and feed" products. She stated that because the ordinance was created to "maintain and improve the water quality in the area's lakes and rivers" and will keep additional phosphorus from entering the county's rivers and lakes by diminishing manufacturers' incentive to add phosphorus to their products, they do not violate any constitutional rights held by the fertilizer industry.

The plaintiffs argued that the state of Wisconsin has passed a preemption law, which means localities are not permitted to pass policies regulating sales of pesticide products more stringently than state regulations. Because the fertilizer in weed and feed products is formulated with pesticides, they argued, it would fall in this category and could not be banned. In January 2005, Allen James, President of RISE, made the following statement in RISE's 2005 Outlook, "We are watching the entire United States, but particularly the border states of New York, Connecticut, Maine, Wisconsin, Minnesota, and Washington for any activity relative to banning pesticides, especially for outdoor lawn care and parks...The City of Madison and Dane County have overstepped their boundaries. If we allow these bans to be instituted, we are completely ignoring preemption and what it stands for."

Judge Crabb disagreed and ruled in favor of healthy water supplies. “Healthy lakes are vital to making Madison a healthy city," said Mayor Cieslewicz. "This ruling is a major victory for our regional efforts to improve the quality of our lakes, and protect the health of our citizens."

In general terms, preemption refers to the ability of one level of government to override laws of a lower level. While local governments once had the ability to restrict the use, sales and distribution of pesticides, pressure from the chemical industry led many states to pass legislation prohibiting municipalities from passing local pesticide ordinances that are stricter than state policy. These laws, called state preemption laws, effectively deny local residents and decision makers their democratic right to better protection when the community decides that minimum standards set by state law are insufficient to protect local public and environmental health. As pesticide pollution and concerns over human and environmental health mount, states and municipalities are fighting to overturn preemption laws and return the power back to localities.

The Madison, WI case was a major victory against preemption laws and a win for democracy and the freedom of localities to pass policies to protect public health and the environment. "This is a great victory for Dane County's lakes and streams," said Brett Hulsey, Chair of the Dane County Lakes and Watershed Commission. "We all understand that we each have to do our part to keep our lakes and streams clean."

UPDATE (12/23/05) The ruling was upheld again when the U.S. Court of Appeals for the Seventh Circuit ruled December 23, 2005 that ordinances enacted by the City of Madison and Dane County, do not violate a Wisconsin state law forbidding a city or country to "prohibit the use of or otherwise regulate pesticides." Read the ruling.

TAKE ACTION: The Madison case affirms that citizens do have the right to protect their wayways from chemical-based lawn treatments. Join the National Coalition for Pesticide-Free Lawns and encourage your community to pass similar bans on phosphorous-containing fertilizers, especially weed and feed products, which are formulated with toxic pesticides. For more information on this issue visit Beyond Pesticides Lawns and Landscapes webpage. For help launching a campaign in your community, contact Beyond Pesticides.