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Daily News Blog

23
Jan

Crusade for Local Democracy; The Saga of State Preemption Continues Into 2024

State preemption efforts persist at the state level as Farm Bill negotiations continue.

(Beyond Pesticides, January 23, 2024) Earlier this month, a coalition of over 140 local and state elected officials from over 30 states sent a letter to ranking members of the House and Senate Agriculture committees to reject the proposed Agricultural Labeling Uniformity Act (H.R. 4288), which would preempt local governments’ authority to protect their constituents from toxic pesticides. Members of Congress are negotiating language in the Farm Bill that would preempt local and state authority to restrict pesticides.

“We write to express our strong opposition to any efforts to limit longstanding state and local authority to protect people, animals, and the environment by regulating pesticides,” says the signatories. “As Congress considers legislation related to agriculture, including the reauthorization of the Farm Bill and Fiscal Year 2024 appropriations bills, we urge you to ensure that state, county, and local governments retain the right to protect their communities and set policies that best suit our local needs.”

The question of local rights to adopt more stringent restrictions on pesticide use has historically been left to the states. However, after the U.S. Supreme Court (Wisconsin v. Mortier, 1991) affirmed the rights of local communities under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), most states stepped in to take away local pesticide control authority. However, multiple state legislatures have been grappling with state preemption reform with mixed results, including in Colorado, Illinois, Wisconsin, and West Virginia, underscoring what advocates see as an important citizen-led advocacy movement to hold elected officials in state legislatures accountable to the local democratic process.

In 2023, Illinois successfully passed SB 171, establishing the Pesticide Application at Schools Act (PASA). PASA prohibits schools “serving students grades kindergarten through 8th grade… from scheduling pesticide applications on school grounds during the school day, including during a partial day, when students are in attendance at school for instructional purposes.” This is a big change to state policy that did not enforce any requirements for pesticide spraying within school zones. PASA will enter into force starting July 1st, 2024.

Last year, the Wisconsin legislature deliberated over several legislative items that would expand exemptions to state law that currently prevent local pesticide ordinances. Senate Bill 359 and Assembly Bill 358 would provide an additional exemption permitting local governments to prohibit pesticide spraying “for the purpose of protecting pollinator or pollinator habitats.” Senate Bill 322 and Assembly Bill 289 would permit local governments to ban pesticide use on private lawns. These bills did not get to a vote and expired as the 2024 legislative session begins, but they both represent a decades-long commitment by local elected officials to regulate pesticide use under their jurisdictions. Pesticide industry group Responsible Industry for a Sound Environment (RISE), an agrichemical industry-aligned association, sued Dane County back in December 2005 (See court finding.) over its decision to institute a ban on the use of synthetic lawn fertilizers that contain phosphorus due to its pollution of local lakes—what is considered the restricted the use of “weed and feed” products that combine synthetic fertilizers and herbicides. The U.S. 6th Circuit Court of Appeals upheld Dane County’s fertilizer ordinance in December 2005, finding that the law does not preempt local authority to regulate fertilizers containing pesticides. Jurisdictions in states that preempt local authority to restrict pesticides can in most cases institute synthetic fertilizer restrictions that limit “weed and feed” products containing pesticides.

Colorado legislators recently failed to reverse state preemption when enacting Senate Bill 192, allowing the state to continue preventing counties from issuing pesticide ordinances, rules, and actions through 2034. A similar move had previously failed to authorize local governments to regulate pesticides at the county level in 2020.  

Democracy is under attack in West Virginia with the rushed passage of SB 171, which would prevent county commissions from setting more stringent standards, ordinances, rules, or other actions that “prohibits the purchase, or alters the permissible use or application, of any federally or 40 state-registered pesticide, herbicide, or insecticide product.” The Senate Bill was initially introduced in the 2023 legislative session but failed because it was held up in the House of Delegates Judiciary Committee. State senators reintroduced the bill on the first legislative day of the 2024 calendar year and voted unanimously in favor just two days later without going through the Senate Agriculture and Natural Resources Committee, disregarding any input from local elected officials. The Charleston Gazette-Mail interviewed Hardy County officials, including Commissioner Steven Schetrom, who expressed his concerns “about the implications of this bill.” Mr. Schetrom hopes to continue discussions with state elected officials before the next vote so “that the key decision makers are able to make choices that lead to the best health outcomes for West Virginians.” West Virginia had previously adopted preemption of local pesticide control authority in its state pesticide law.

Was Congress not supposed to pass the Farm Bill in 2023? History seems to repeat itself as yet another continuing resolution (CR) passed last week to keep the government from shutting down in March. This has significant implications for the fate of the preemption regulatory paradigm that stifles community ownership of their own health outcomes. Please see “Pesticide Lobby Pushes Farm Bill Amendment to Strip Localities and States From Restricting Pesticides” on the legacy of federal deference of pesticide management to state agencies through the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This article discusses the impact of state preemption language on the longstanding legacy of local governments to regulate related issues, including dog waste and trash cleanup.

Local governance of pesticide regulation has been vital to community health because of concerns such as pesticide drift from private to public land. Beyond Pesticides has extensively explored the heightened impact of chemical exposure to sensitive populations, including children, pregnant women, and immunocompromised individuals. There is a history of studies tying pesticide drift to increased rates of childhood leukemia, neurodevelopmental challenges, and various forms of cancer. Pesticide drift into riverways, groundwater, and soil has also jeopardized the health of birds, amphibians, and tropical mammals.

Beyond Pesticides has provided numerous resources on the history of insidious state preemption efforts conducted by the petrochemical industry. Some of these resources include a detailed map of distinctions between all 50 states and their relevance to state lawn pesticide notification laws. There are also many ways to act that are proven to mobilize grassroots momentum. The recently released letter represents the culmination of community leaders such as you who successfully reached out to public officials through a previous call to action to protect local democracy in the upcoming Farm Bill. You can still share these resources with your elected officials in the lead-up to the Farm Bill.

There is still time to contact your U.S. Representative or Senator directly to oppose inclusion in the Farm Bill of the Agricultural Labeling Uniformity Act (H.R. 4288), which would amend FIFRA to mandate, “uniformity in national pesticide labeling, and prohibit any State, instrumentality or political subdivision thereof, or a court from directly or indirectly imposing or continuing in effect any requirement… different from the labeling or packaging approved by the Administrator.” Rather than treat FIFRA as the minimum level of protection guaranteed by the federal government, H.R. 4288 provisions would alter the standards to treat FIFRA language as a ceiling for pesticide management under the guise of concern over labeling consistency.

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

Source: Environmental Working Group

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