Groups Defend Local Right to Protect Children and Community from Pesticides; Lawn Care Industry Attacks Local Authority
(Beyond Pesticides, June 25, 2018) Ten organizations filed an Amicus brief last week in support of a 2015 landmark Montgomery County, Maryland ordinance that restricts the use of toxic pesticides on public and private land within its jurisdiction. The law, intended to protect children, pets, wildlife, and the wider environment from the hazards of lawn and landscape pesticide use, is on appeal from a Circuit Court ruling in August 2017 which struck down aspects of the ordinance that apply to private property. The Montgomery County Council decided to appeal the Circuit Court ruling based on an outpouring of public support, and the advice of its legal team that the County has a reasonable chance of prevailing. The case will now be heard in front of the Court of Special Appeals of Maryland.
The plaintiffs in the case, which include the pesticide industry group Responsible Industry for a Sound Environment (RISE), local chemical lawn care companies, and a few individuals, allege that the local ordinance is preempted by state law, despite the fact that Maryland is one of seven states that has not explicitly taken away (or preempted) local authority to restrict pesticides more stringently than the state.
The law at issue, 52-14 (the Healthy Lawns Act), which restricts the cosmetic lawn care use of toxic pesticides on public and private land, protects over one million people, the largest number to be covered by any local jurisdiction to date. Passing the Montgomery County Council by a veto-proof majority 6-3, the bill allows time for transition, training, and a public education program over several years. In limiting the pesticides allowed to be used for turf management, the law defined acceptable materials as those permitted for use in organic production, or identified by the Environmental Protection Agency (EPA) as â€śminimum risk pesticidesâ€ť under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), Section 25(b).
â€śIn the absence of federal and state pesticide restrictions that adequately protect children, pets, families, and the environment, and given the availability of sustainable organic practices to manage parks, playing fields and lawns, Montgomery County has exercised its fundamentalÂ right, under Maryland and federal law, to limit pesticide use on public and private property within its jurisdiction,â€ť said Jay Feldman, executive director of Beyond Pesticides.
Although attempts to adopt â€śexplicitâ€ť preemption were introduced in the Maryland legislature in the mid-1990s, industry was unsuccessful in gaining enough support, and the state lawmakers never passed legislation expressly preempting local pesticide legislation. Because of this, RISE and its affiliates argue that there is â€śimpliedâ€ť preemption on the part of the state that would prohibit a local jurisdiction like Montgomery County from taking action to protect its citizens. Although Circuit Court Judge Terrence McGann ruled in favor of the pesticide industry, advocates say the ruling ignores historical precedent set by Maryland counties in leading the way on health and environmental laws, including bans on plastic bags and coal-tar sealants. In the face of an EPA that is increasingly political in its decisions regarding public health, advocates say local laws like Montgomery Countyâ€™s are more important than ever, and are hoping for a favorable ruling by the Court of Special Appeals.
The groups filing the Amicus include Beyond Pesticides, Center for Food Safety, Central Maryland Beekeepers Association, Chesapeake Physicians for Social Responsibility, Food and Water Watch, Maryland Pesticide Education Network, US PIRG, Maryland PIRG Foundation, Organic Consumers Association, and Safe Grow Montgomery.
Quotes from amici curiae
“It is not just a longstanding right, but a responsibility, of counties in the state to exercise their powers to the fullest to protect the health and wellbeing of their citizens. This lawsuit unfortunately seeks to strip Montgomery, and other counties in the state, of their critical role in the protection of public health,” said Chris Nidel, partner at Nidel & Nace, PLLC, which represents the amici.
“People’s concern about pesticides continues to increase, while their confidence in the EPA’s regulation continues to erode.Â Instead of fighting communities’ democratic right to local legislation, the landscaping and pesticide companies could grow their business in response to the high demand for pesticide-free services that don’t harm neighbors, children, pets, and pollinators. Thousands of county residents voiced support for the Healthy Lawns Act, and demand is growing outside the county as well,â€ť said Alex Stavitsky-Zeineddin, Safe Grow Montgomery.
“Montgomery County did the right thing in passing this law. In children, there is increasing evidence that exposure to these pesticides is especially damaging, even at low, chronic levels,” said Tim Whitehouse, executive director of Chesapeake Physicians for Social Responsibility.
“Regular people in Montgomery County worked hard to pass a law that would protect their families’ health. But now a giant pesticide group, with big industry backing, is trying to come in and take that away. That’s not right. That doesn’t reflect the fighting spirit of Maryland. And that’s why we had to join in this brief,” said Kara Cook-Schultz, Toxics Director, Maryland PIRG Foundation.
â€śMontgomery County chose to protect its children, pollinators, all wildlife and Maryland’s waterways by its passage of an ordinance restricting the use of hazardous pesticides on public and private land. Safer landcare practices allow for a healthier, attractive county environment,â€ť said Ruth Berlin, executive director of Maryland Pesticide Education Network.
â€śLike many communities around the country, the people of Montgomery County decided to exercise their right to protect their environment and loved ones from the harmful impacts of pesticides. Instead of respecting that right, the chemical industry is once again trying to trump the democratic process with their deep litigation pockets. CFS stands with the communitiesâ€™ right to demand a cleaner environment,â€ť said George Kimbrell, Legal Director at the Center for Food Safety.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.