Bill to Protect Birds and Bees in New York Raises Political Challenges to Addressing Ecosystem Collapse
(Beyond Pesticides, January 25, 2024) Legislative efforts to curtail some life-threatening pesticides associated with birds and bees (and other pollinators) decline were weakened in New York State at the end of December 2023 as the governor negotiated and stripped elements of a bill relating to agriculture that had passed the legislatureâ€”again illustrating the grip of the agrichemical industry on public policy intended to begin to address the crisis in ecosystem collapse. (See â€śStudy Cites Insect Extinction and Ecological Collapse.â€ť) In passing the Birds and Bees Protection Act, New York joined New Jersey, Nevada, and Maine in banning most nonagricultural uses of neonicotinoid (neonic) insecticides, but, in last-minute changes to avoid the governorâ€™s veto, failed to phase out corn, soybean, and wheat seeds coated with these chemicals. [Pointing to an exemption in federal law that has been challenged by advocates, the U.S. Environmental Protection Agency (EPA) does not regulate treated or coated seeds as pesticides despite their toxic pesticidal properties.] In New York State, the governor can, in consultation with the leadership of the legislative branch, negotiate language changes (called Chapter Amendments)Â in legislature-passed legislation (originally enacted) before deciding to sign it into law or can simply choose to veto the legislation. In the case of S. 1856-A and A. 7640, the Birds and Bees Protection Act, the governor stripped out major legislative advances and crafted a negotiation process for determining the status of coated seed use that runs through 2029. [Note: The changes can be seen in the linked (above) line-edited version of the new lawâ€”green text is law and red text is the originally enacted legislation.]
â€śClearly, while the Senate and Assembly of New York State recognize the importance of removing from the agricultural market seeds coated with deadly pesticides that are wreaking havoc with the ecosystem at a crucial time when scientists have warned us about ecosystem collapse, the governor is playing politics with environmental systems essential to sustaining life,â€ť said Jay Feldman, executive director of Beyond Pesticides. â€śThe delay and waiver provisions for continued ecosystem-toxic chemical use through 2029 and beyond unfortunately do not meet the challenge of our time to eliminate petrochemical pesticides that are known to be harmful and unnecessary in light of the availability of productive and profitable organic agricultural practices,â€ť Mr. Feldman continued, saying, â€śThese chemicals are the poster children for a failed EPA pesticide regulatory process.â€ť Like New York, state and local governments are increasingly stepping in to restrict pesticides given what they view as inadequate protection from EPA.
Advocates note that the major difference between the originally enacted Birds and Bees Protection Act and the governor-amended law is the stripping out of unequivocal statutory mandates that are intended to force institutional change to meet a crisisâ€”and their replacement with language deferential to regulatory bodies with a history of advancing pesticide dependency. Agencies like these that are given broad discretionary power (and thus under pressure from those regulated) tend to maintain the status quo. The fact that the law signed by the governor opens the door to the regulation of seeds coated with ecosystem-toxic pesticides is in theory an important step. However, advocates argue that key to addressing the life-threatening petrochemical pesticide threats of the current day are statutory mandates that are unequivocal in eliminating known toxics without broad waiver provisions and are implemented in reasonable time frames with a serious investment in alternatives practices and products.
Starting January 1, 2027, New York will join Nevada, New Jersey, and Maine, with the strongest state laws that eliminate all outdoor (nonagricultural) uses of bee-toxic neonicotinoid (neonic) insecticides, except for outdoor uses around structures for structural pests. Previously, New York Department of Environmental Conservation (NY DEC) took action to limit certain products containing the neonicotinoid (neonic) insecticides imidacloprid, thiamethoxam, and acetamiprid by reclassifying their use to â€śrestricted use,â€ť meaning applications were limited to trained pesticide applicators in specific situations. In 2023, Minnesota banned neonicotinoid use on state lands and granted its home-rule subdivisions the authority to ban â€śpollinator-lethal pesticidesâ€ť (those with bee warning labels) under its state law, which otherwise preempts local authority to restrict pesticides.
An analysis of the Birds and Bees Protection Act can be divided into two parts, its restrictions on residential and agricultural use. In the area of typical residential use, the bill incorporates language, adopted in numerous states across the U.S., that prohibits people generally from applying five neonicotinoids and related compounds (clothianidin, imidacloprid, thiamethoxam, acetamiprid, and dinotefuran). A provision added by the governor exempts from the law â€ťstructural commercial applications within one foot of a building foundation perimeter to manage structural pests provided that the application is not conducted on any blooming plant.â€ť Because the neonicotinoids are systemic pesticides that move through the vascular system of plants and because of the adverse impact of the chemical on soil organisms, this provision has broad implications for destructive ecosystem exposure. The language contains a one-year (without restrictions on renewals) use exemption for an â€śenvironmental emergency,â€ť which is defined as â€śan occurrence of any pest which presents a significant risk of harm or injury to the environment. . . , including, but not limited to, any exotic or foreign pest.â€ť The Department of Environmental Conservation (DEC) is required to determine efficacy of the neonicotinoid to be used and make a finding that â€śno other, less harmful pesticide or pest management practice would be effective in addressing the environmental emergency.â€ť Certified applicators, or those operating under their supervision, are permitted to use the chemicals on â€śinvasive species affecting woody plants.â€ť
On the agricultural provisions, delayed until 2029, DEC, in consultation with the Department of Agriculture and Markets, is given broad mandated authority to promulgate any appropriate regulationsâ€ť in implementing a two-year renewable waiverÂ â€śto sell, offer for sale or use, or distribute within the state any corn, soybean or wheat seeds coated or treatedâ€ť with clothianidin, imidacloprid, thiamethoxam, or any other neonicotinoid as determined by the department in regulation. The originally enacted legislation included two related compounds, acetamiprid and dinotefuran, whose uses in agriculture will continue under the law. Prerequisites for the waiver include: farm owners must complete an integrated pest management (IPM) training and complete a â€śpest risk assessmentâ€ť and report. Agricultural uses are also covered by the â€śenvironmental emergencyâ€ť provision cited above in the case of â€śsignificant harm, injury, or loss to agricultural crops.â€ť Advocates point out that chemical-intensive agriculture that ignores ecosystem services leads to crops threatened with â€śsignificant harmâ€ť from pests and disease and a cycle of chemical dependency to sustain yields. In this context, statutory support is needed to assist farmers in getting off the chemical treadmill to eliminate reliance on neonicotinoids and other pesticides. Otherwise, emergency provisions like that in the law will be triggered repeatedly.
Recordkeeping for coated seed use is required and subject to DEC review. This waiver process dramatically changes the originally enacted version of the bill, which provided for a temporary one-year waiver period only in the case of a finding by the DEC and Department of Agriculture and Markets that untreated seeds are not commercially available or the purchase of untreated seeds â€śwould result in undue financial hardship to agricultural producers.â€ť Commercial availability clauses in law tend to incentivize the market to increase availability of the alternative to the banned chemical, so the expectation is that the language jettisoned by the governor would have increased the market for untreated seed.
The fingerprints of the agrichemical industry on this bill, although obvious throughout, is especially clear in the deletion of the â€śState University of New York College of Environmental Science and Forestryâ€ť (according to their website: â€śfocused on the study of the environment, developing renewable technologies, and building a sustainable futureâ€ť) from the list of consultants on a mandated alternatives study. The law requires the DEC and Department of Agriculture and Markets â€śto identify practicable and feasible alternativesâ€ť to the use of clothianidin, imidacloprid, thiamethoxam, dinotefuran, or acetamiprid, only with the New York stateâ€™s land grant university.
As reported in the Wellsville Sun, New York State Farm Bureau President David Fisher lauded Governor Hochul for the changes she negotiated to the legislation, stating that â€śthe new legislation is a product of good faith negotiations between NY agricultural interests and the Governor.â€ť Despite scientific findings of no benefit associated with treated soybean seed (see here and here), the ranking member of the Senate Agriculture Committee said the bill â€śdealt another blow to struggling New York farmers,â€ť saying that seed treatment technology has â€śhelped farmers optimize crop yield and quality.â€ťÂ
The longest-runningâ€”four-decadeâ€”investigation comparing organic and conventional grain-cropping approaches in North America is reporting impressive results for organic. The Rodale Instituteâ€™sÂ Farming Systems Trialâ€”40-YearÂ Report, released in 2022, highlighted these outcomes: (1) organic systems achieve 3â€“6 times the profit of conventional production; (2) yields for the organic approach are competitive with those of conventional systems (after a five-year transition period); (3) organic yields during stressful drought periods are 40% higher than conventional yields; (4, 5, and 6) organic systems leach no toxic compounds into nearby waterways (unlike pesticide-intensive conventional farming), use 45% less energy than conventional, and emit 40% less carbon into the atmosphere. Beyond Pesticides reported in 2019 on similar results, from the instituteâ€™sÂ 30-year project mark, which have been borne out by another three years of trials. (See Daily News.)
For additional discussion on the importance of ecosystem health and organic agriculture, view a talk by David Goulson, PhD, and AndrĂ© Leu, DSc, at the 40th National Forum, Forging a Future with Nature.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.