19
Mar
Vermont Committee Recommends Mosquito Spray Program Needs Special Permit to Operate
(Beyond Pesticides, March 19, 2021) As reported by VTDigger, Vermont’s Endangered Species Committee recently took action to uphold the state’s endangered species law. The committee announced that a mosquito control program in the Champlain Valley, which uses the toxic pesticides malathion and permethrin, is threatening five species of endangered bats — all of which are on Vermont’s list of threatened and endangered species. The committee voted unanimously to recommend to the state Secretary of the Agency of Natural Resources that the spraying program in the Brandon, Leicester, Salisbury, Goshen, Pittsford Insect Control District be allowed only via special permit. Learn about safer mosquito management and insect-borne diseases at Beyond Pesticides website pages.
The bats inhabit the Insect Control District’s five towns, which are host to important feeding habitat for these creatures, as well as maternal roosting colonies where baby bats are born and raised during the months when the pesticides are typically sprayed. In addition, the nighttime spraying of these compounds along 190 miles of road in these communities hangs in the air for hours, putting nocturnally active bats — who fly through the toxic mist or consume insects contaminated with the chemicals — at risk.
Mason Overstreet of Vermont Law School’s Environmental Advocacy Clinic asserts that the mosquito spraying violates the state’s Protection of Endangered Species Act, saying: “The Act prohibits activities that create a ‘risk of injury’ to wildlife. It also allows for a permitting process for economically important activities to continue — albeit with modifications to mitigate the risk to endangered species. The legal conclusion is that the district must apply for this ‘incidental take permit’ to continue spraying in order to minimize risk to wildlife.”
The committee benefitted from a report it received from a coalition of environmental organizations, including the Center for Biological Diversity and the National Wildlife Federation (NWF). The report from experts concludes that the insect control district’s spraying of these chemical pesticides is extremely likely to result in exposures and injury to these vulnerable bat species. NWF Northeast Regional Center’s Zach Cockrum commented, to VTDigger, “The committee’s vote is not only an important step in upholding Vermont’s endangered species law. These pesticides are used throughout the country, often with the side effect of harming bats and other wildlife we cherish. Vermont could set a national example of strong leadership in wildlife protection.”
Pushback against the report and the committee’s recommendation has come from the state’s Department of Fish and Wildlife, whose staff biologists and lawyers maintain that there is insufficient evidence to prove that the pesticides harm the bats. But one town has already taken action to opt itself out of the mosquito spraying this season: Salisbury voted at its recent Town Meeting to defund the BLSG Insect Control District.
The action by Vermont’s Endangered Species Committee is an encouraging example of proactive, state-level initiative to protect threatened floral and faunal species, and critical habitats (within its jurisdiction) beyond the dictates of the 1973 federal Endangered Species Act (ESA), which is carried out through the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS). The FWS is responsible for listing specific threatened and endangered species across the entire nation, and for monitoring protection and species status over time.
To achieve the restoration and preservation goals of the ESA, FWS works with a huge variety of entities: states, private landowners, tribal entities, non-governmental organizations, and other federal agencies. The Endangered Species page of the FWS website asserts: “The ESA provides a broad and flexible framework to facilitate conservation with a variety of stakeholders. We have many tools to help our agency work with, leverage, and expand our existing network of conservation partnerships to produce effective conservation practices and conservation strategies on-the-ground.”
Elsewhere on the FWS site is this: “The Services recognize that, in the exercise of their general governmental powers, States possess broad trustee and police powers over fish, wildlife, and plants and their habitats within their borders. Unless preempted by Federal authority, States possess primary authority and responsibility for protection and management of fish, wildlife, and plants and their habitats.”
As “on the ground” entities empowered by FWS, states have historically played a critical role as primary stewards of animals, plants, and habitats within their borders. The Center for Biological Diversity (CBD) has noted that the “role of the states in endangered species protection was recognized from the outset, as the ESA authorized the Secretary of the Interior to enter into cooperative agreements with states that established ‘adequate and active’ programs of protection.”
State laws to protect species, and the agencies tasked with enacting them, vary from state to state — from simple prohibitions against “takings” of, or trafficking in, endangered species, to comprehensive regulations that involve listing species of concern, and actively managing and protecting such populations and their important habitats. An (outdated) chart from Michigan State University’s Animal Legal and Historical Center shows the variety of state agencies tasked with enforcing state endangered species laws nearly two decades ago. (A search for an analogous and updated version was unsuccessful.)
The role of the state, in many jurisdictions, has traditionally skewed toward protection and regulation of game animals, but increasingly, states are expanding focus to engage in more “non-game” management. Nearly all states have gone beyond specific federal ESA protections to list and protect rare, endangered, native, or other special categories of organisms, as well as habitats crucial to a species’ survival. “Listing” an organism is the first step and primary tool in state protective regulations; states can list species not included in the federal ESA listings, pursuant to the 1970 decision in Nettleton v. Diamond. In that case, a New York State Court of Appeals found that “because scientific uncertainty sometimes exists as to whether an animal should be classified at the federal level as threatened or endangered, states can step in and list species that the federal government decides not to list. Further, the court in Nettleton stated that this state authority applied not only to species indigenous to the state, but to nonindigenous species, as well.”
States have often lacked the legal and programmatic ability to carry out comprehensive protection programs, but advocates endorse such efforts. As CBD points out, “States not only can increase their ability to manage threatened and endangered species as an extra safety net but, more important, can fulfill their trust responsibility for all wildlife species in a way that supplements and complements irreplaceable federal protections.”
The federal government — through its Constitutional authorities — retains primary responsibility for and authority over the protection of national natural resources. Concurrently, states act as the primary “on the ground” enactors of federal protections. In this Vermont instance, the state’s authority is “layered” over the federal — via the authority of FWS to “delegate” functions to states, and via judicial actions permitting states to “enhance” federal pesticide regulations, for example. (See Mortier decision, below.) Ultimately, federal law is “supreme” and can supersede laws of “lower” levels of government.
That supremacy derives from a fundamental feature of the U.S. Constitution — the Supremacy Clause (Article VI, paragraph 2). The Congressional Research Service explains: The “Supremacy Clause provides that federal law is ‘the supreme Law of the Land” notwithstanding any state law to the contrary. This language is the foundation for the doctrine of federal preemption, according to which federal law supersedes conflicting state laws. The Supreme Court has identified two general ways in which federal law can preempt state law. First, federal law can expressly preempt state law when a federal statute or regulation contains explicit preemptive language. Second, federal law can impliedly preempt state law when Congress’s preemptive intent is implicit in the relevant federal law’s structure and purpose.”
The Supremacy Clause is the basis of federal ability to override, or pre-empt, state laws and regulations. The supremacy principle is also enacted at the state level, providing states the ability to quash attempts by counties or municipalities to establish local ordinances that may contravene state law or attempt to “overstep” local authority. In the pesticide universe, localities’ efforts to enact stronger protections against pesticides are frequently struck down by courts that cite pre-emption of state over local laws as the basis for the decision. Many states forbid local pesticide laws by state statute; the Mortier decision (see below) confirmed the authority to do so.
Often, such local regulations are challenged in court by the chemical industry and/or pesticide applicators, or by a state itself (often influenced by industry interests). A recent example from Oregon is illustrative. Read more about pre-emption in Beyond Pesticides’ factsheet, State Preemption Law: the Battle for Local Control of Democracy.
Nevertheless, there are bases for “lower” governments to be able to act protectively. The Vermont Endangered Species Committee’s action to protect these bat species is an example of two kinds of recognized authority of states: to protect its resident species, and to enact pesticide regulations that go beyond those of the federal government. Federal pesticide rules are derived, primarily by the U.S. Environmental Protection Agency (EPA), under the authority of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA). In 1991, the U.S. Supreme Court case, Wisconsin Public Intervenor v. Mortier, established the rights of states and localities to enact laws that are stricter than those established by federal agencies under FIFRA.
Beyond Pesticides is not aware of significant instances of FWS exercising its preemptive authority over states that enact local protections of species and habitat. There is, however, considerable grousing and controversy, particularly in Western states, over impacts of the ESA on ranching, logging, tourism and recreation, and extractive and petrochemical activities, among others. Some consider federal enforcement of the ESA to be overreach and harmful to regional interests, and argue for an enhanced role for states.
Others believe that leaving too much to the states would be detrimental to the goals of the ESA. In 2018, for example, The Conversation wrote, “We concluded that relevant laws in most states are much weaker and less comprehensive than the federal Endangered Species Act. We also found that, in general, states contribute only a small fraction of total resources currently spent to implement the law. In sum, many states currently are poorly equipped to assume the diverse responsibilities that the U.S. Fish and Wildlife Service . . . handle[s] today. In our view, therefore, devolving federal authority over endangered species management to the states will almost certainly weaken protections for those species and undermine conservation and recovery efforts.”
The Center for Biological Diversity has argued that states are “unready and ill equipped” to meet the task of recovering the nation’s endangered species and habitats. CBD conducted an evaluation of every state’s legal and regulatory authority to protect endangered plants, wildlife, and habitats. It compared state laws to the key criteria that have made the ESA successful, and found that “not a single state has a law in place that is as protective for imperiled wildlife and plants as the federal Endangered Species Act. More troublingly, only three states currently provide a reasonably high level of funding to ensure the conservation and recovery of these species. As a result, transferring management to states would put hundreds of threatened and endangered species at far greater risk of extinction.”
The last federal administration caused untold damage to the environment and its inhabitants. There is hope that the damage of that period will now be undone, and protections for endangered and threatened species and habits restored, but the public must remain vigilant to ensure this. Beyond Pesticides will do its part by covering impacts of pesticides on wildlife and ecosystems, and advocating for the reduction and elimination of the use of toxic pesticide compounds that threaten vulnerable plant and animal species and habitats.
Sources: https://vtdigger.org/press_release/vermont-endangered-species-committee-votes-to-protect-endangered-bats/ and https://www.biologicaldiversity.org/publications/papers/StateEndangeredSpeciesActs.pdf
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
