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Daily News Blog

04
Oct

Court Strikes Down Aerial Pesticide Spray Ban in Lincoln County, Oregon — Challenging Local Rights to Protect Communities

(Beyond Pesticides, October 4, 2019) A Circuit Court judge in Lincoln County, Oregon has overturned a hard-won ban on aerial spraying of pesticides, citing preemption of state law over any local ordinance. In her late-September decision, Judge Sheryl Bachart wrote that Oregon’s Pesticide Control Act “expressly and conclusively displaces any local ordinance regarding pesticide use. The intention of the legislature is apparent and unambiguous.” She noted in her opinion that the Oregon Revised Statutes (the codified laws of the state of Oregon), Chapter 634.057 “prohibits local governments from making any ordinance, rule or regulation governing pesticide sale or use.”

Voters in the county approved the subject ban on the aerial spraying of pesticides (Measure 21-177) in 2017, the initiative having been spurred by the work of Lincoln County Community Rights (LCCR), a grassroots organization that “seeks to educate and empower people to exercise their right of local community self-government in matters that pertain to their fundamental rights, their natural environment, their quality of life, their health and their safety.” In its advocacy for the initiative, the group cited both the harm done by aerial pesticide spraying to people and ecosystems, and the injustice of laws — often drafted by corporations for approval by legislatures — that make it illegal for the people to protect their health and safety more stringently than state regulations allow.

Immediately after the 2017 vote — a “win” for the local community — commercial fisherman and timberland owner Rex Capri and Wakefield Farms, LLC, both of whom used aerial spraying on their properties (prior to the ban), filed a legal challenge to the ban ordinance, which has been largely in effect during the two years since the ordinance passed.

The basis of the lawsuit lay in their claims that Lincoln County (or any political subdivision of the state) lacks the authority to create such an ordinance, that local statutes cannot override state law, and that the ban is barred by state regulations governing the use of pesticides, forestry practices, and the “right to farm.” The group that formed back in 2017 to oppose the ban initiative, the Coalition to Defeat Measure 21-177, is pleased with the news. In response to the judge’s ruling, the coalition’s director, Alan Fujishin, said, “Pesticide use by Lincoln County’s farmers, foresters, fishermen, vegetation managers and pest control professionals is already carefully regulated by the Oregon Department of Agriculture and supporting agencies — as it should be.”

LCCR joined in the case of Rex Capri and Wakefield Farms, LLC vs. Dana W. Jenkins and Lincoln County as an intervenor-defendant. Rio Davidson, a member of LCCR, called the judge’s ruling “heartbreaking.” He noted that during the two-years-plus when the ban was in effect, most large companies shifted to ground application of pesticides; he now expects that most will revert to aerial spraying.

In an LCCR statement of September 30 — titled “Timber Corporations Have More Rights Than People of Lincoln County Says Court; Aerial Spray Ban Overturned” — Mr. Davidson added, “The fight for our legal, constitutional, and fundamental right of local self-government marches on, and it is going to take the political will of the people to make it a reality if we ever want to stop living under the thumb of corporate government.” LCCR plans to appeal the ruling.

The LCCR statement asserts that Judge Bachart had failed to consider the right of local self-government, and that this right must prevail against state preemption when exercised to protect health, safety, and welfare. LCCR also stated, “It is widely recognized that, under the Ninth Amendment to the U.S. Constitution, states have the authority to recognize and secure ‘unenumerated’ rights (rights not expressly stated in the Constitution), and thereby to establish greater rights at the state level than the protections provided under federal law.” This argument has been made by Beyond Pesticides, CELDF (Community Environmental Legal Defense Fund), and other advocates in laying groundwork for greater local authority over threats to communities.

In covering the Lincoln County case in 2017, Beyond Pesticides noted, “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.”

Again, from that 2017 Beyond Pesticides Daily News Blog piece: “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 1991, the U.S. Supreme Court ruled, in Wisconsin Public Intervenor v. Mortier, that the federal law known as FIFRA — the Federal Insecticide, Fungicide and Rodenticide Act — which regulates pesticide distribution, sale, and use, does not preempt local jurisdictions from creating more-stringent pesticide regulation. Thus, it was ruled that FIFRA nowhere expressly supersedes local regulationHowever, and critically, the court left intact the ability of states to preempt such regulations. The essential argument of localities, and of Beyond Pesticides in the many cases in which it has participated, is that state preemption laws effectively deny local residents and decision makers their democratic right to better protection when a community decides that minimum standards set by state and federal law are insufficient. Check out the Beyond Pesticides Fact Sheet on “State Preemption Law: The battle for local control of democracy.”

This tussle between “higher” and “lower” levels of government re: which claim authority to regulate factors in public health and safety, which has played out across communities in the U.S., goes to some of the fundamental principles on which the American democratic experiment is based. In 2012, Beyond Pesticides Executive Director Jay Feldman wrote, “This is a very interesting story in American democracy. How did we get to this point in the history of the [U.S.] that we have taken away the local police powers of our local jurisdictions to protect the local public health of our people? This challenges a basic tenet that this country is based on — local governance.”

Beyond Pesticides has covered many of the numerous efforts of localities to establish more-stringent controls over pesticide use than respective state laws allow. Among them: in 2012, Cuyahoga County banned most chemical insecticides, weed killers, and other pesticides on county property. In 2013, the Takoma Park, Maryland City Council passed a law that restricted use of cosmetic lawn pesticides on public and private property within the city. The Town of Ogunquit, Maine banned the use of synthetic pesticides and fertilizers on private property in 2014. Montgomery County, Maryland created a law similar to Takoma Park’s in 2015. South Portland, Maine, followed by Portland, Maine have adopted ordinances that stop the use of lawn and landscape pesticides. Also in 2015, Thurston County, Washington banned the use of neonicotinoid insecticides on county-owned and -managed lands.

All of these efforts represent the interest of the public in reducing the health and environmental threats of the use of toxic chemicals in their local communities. A study covered by Beyond Pesticides earlier in 2019 shows that “‘By eliminating the ability of local governments to enact ordinances to safeguard inhabitants from health risks posed by pesticides, state preemption laws denigrate public health protections [authors’ words].’” Track developments in municipal and county efforts to establish greater local protections with Beyond Pesticides’ Daily News Blog, and its journal, Pesticides and You.

All unattributed positions and opinions in this piece are those of Beyond Pesticides.

Source: https://www.klcc.org/post/judge-overturns-lincoln-county-ban-aerial-pesticides

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