(Beyond Pesticides, February 28, 2020)¬†State legislators in Boise, Idaho have advanced House Bill 487, An Act Relating to Pesticides and Chemigation, out of the House Agricultural Affairs Committee. If passed, the statutory alterations in this bill would, according to the Idaho Statesman, loosen some rules on aerial application by crop-dusting airplanes, and reduce state agricultural investigators‚Äô ability to regulate the spraying of pesticides. The legislation replaces sections of current rules and deletes language regarding drift, including ‚ÄúChemicals shall not be applied when wind speed favors drift beyond the area intended for treatment or when chemical distribution is adversely affected.‚ÄĚ
Such changes will exacerbate the already-significant issue of pesticide drift. In an overview of the pesticide dicamba, Beyond Pesticides recently reported on this legislative development, as well as on a precipitating exposure event in an Idaho hops field. Banning of aerial spraying, as has been attempted by some localities, would go a long way toward eliminating the harms of pesticide drift. The only conclusion that can be drawn from this is the following: As the problem of drift grows and farmers‚Äô crops and people are put at risk, this legislation attempts to define away serious problems and eliminate protections.
The Idaho legislation would appear to be on a fast track to approval: the bill moved very quickly out of the House Agricultural Affairs Committee (AAC) after testimony, mostly from the Idaho Agricultural Aviation Association. It will now go to the full House for consideration ‚ÄĒ despite grave warnings from the Idaho Attorney General‚Äôs Office that the legislation would constrain state enforcement of federal Environmental Protection Agency (EPA) pesticide regulations. Representatives and AAC members Sally Toone and Ryan Kerby requested that the bill be held in committee longer to give members time to read and consider the AG‚Äôs nine-page analysis, and to hear further testimony. The Idaho Statesman reports: ‚ÄúIt‚Äôs unclear whether lawmakers read the full report on the bill. . . . Instead, the committee voted to advance the bill without further testimony, sending it to the House floor.‚Äú
Back in 2004, Beyond Pesticides published a ‚Äúprimer‚ÄĚ on the phenomenon of pesticide drift that laid out the variety and scale of potential impacts. Drift negatively affects the health of farmworkers and the nearby public (especially children), as well as pollinators, non-target crops, plants, and organisms, and wildlife. Pesticides applied by spraying through the air ‚ÄĒ whether from an airplane, a drone, a backpack unit, or a truck ‚ÄĒ are all subject to some degree of drift. Spraying from aircraft presents the most extreme case: up to 40% of the pesticide volume can be lost to drift. Dicamba, alone or in combination with other compounds, is especially prone to it; as reported in February, ‚ÄúIt simply does not stay put, no matter how it is applied, but becomes airborne and travels.‚ÄĚ Such travel can result in several miles of displacement from the target sites.
The precipitating event in Idaho, in May 2019, was this: a couple of dozen workers in a Canyon County hops field were unexpectedly showered with an aerially delivered fungicide that was meant for a nearby onion field. Beyond Pesticides wrote, ‚ÄúOn the heels of this incident, the state agriculture department wrote a letter to the [responsible] crop dusting company, admonishing that ‚ÄĒ although they were technically not violating application rules ‚ÄĒ the pilot should have waited to give the farmworkers a chance to vacate the field before unloading the fungicide.‚ÄĚ A few months later, a crop dusting association complained to lawmakers that the letter ‚ÄĒ no fines, no license suspensions or other constraints were involved ‚ÄĒ amounted to ‚Äúexcessive oversight and regulation.‚ÄĚ Soon thereafter, rather than tighten protections for workers and the public through the state‚Äôs regulation of pesticide spraying, as public health advocates urged, the legislature chose to create HB487, which would appear to appease agrochemical interests in the state.
Among the bill‚Äôs features is the elimination of the terms¬†‚Äúfaulty‚ÄĚ and ‚Äúcareless‚ÄĚ from a provision of the state code that says aerial pesticide applicators should not spray in a ‚Äúfaulty, careless, or negligent‚ÄĚ manner. In response to one of Rep. Toone‚Äôs questions, Deputy Attorney General Katy DeVries wrote that the removal of those terms might expand protections for anyone accused of misuse of pesticides. She added, ‚ÄúThe situation could arise where members of the public either ignore or are otherwise unaware of posted pesticide spray notices. Members of the public (i.e., joggers, farmworkers, children) may be present in a spray area. Applicators may still choose to proceed with a spray operation even with people present near the spray area. This action may not necessarily be negligent, but it may fit into the realm of faulty or careless if the application results in human exposure.‚ÄĚ
The current statute allows the Idaho State Department of Agriculture to discipline crop-dusting pilots who apply pesticides in a ‚Äúfaulty‚ÄĚ or ‚Äúcareless‚ÄĚ way, even if the behavior does not meet the higher bar of ‚Äúnegligent.‚ÄĚ HB487 would eliminate that latitude. Ms. DeVries noted that the AAC, just weeks ago, struck down several existing rules that regulate aerial pesticide application ‚ÄĒ rules barring pilots from flying at low altitude over towns, schools, hospitals, or ‚Äúdensely populated areas‚ÄĚ without written agreements; flying low over occupied structures without prior notification; spraying pesticides under certain conditions related to wind speed and directions; and the banning of any spraying near designated ‚Äúhazard areas.‚ÄĚ HB487, Ms. DeVries asserted, would further constrain or eliminate the Department of Agriculture‚Äôs enforcement authority.
No one from the State Department of Agriculture attended the AAC hearing; the department did submit a bill analysis to the committee outlining the agency‚Äôs responsibility to enforce laws regulating pesticide use through a cooperating agreement with the EPA. That document also noted that ‚ÄúState agriculture officials have taken 17 enforcement actions ‚ÄĒ warning letters, regulatory letters, violations notices or consent agreements ‚ÄĒ against pesticide applicators in the past five years. . . . Not all resulted in fines or license suspensions. . . . The ISDA [Idaho State Department of Agriculture] has the responsibility to ensure that the use of pesticides will not cause unreasonable adverse effect to human health or the environment.‚ÄĚ
At the hearing, approximately 15 people related to the crop-dusting industry testified in support of the bill; exactly one person ‚ÄĒ Jonathan Oppenheimer of the Idaho Conservation League ‚ÄĒ testified in opposition. Mr. Oppenheimer ‚Äúcautioned the committee to consider whether the law was really being inappropriately enforced, noting that the Idaho Attorney General‚Äôs Office found the state had issued only one violation notice under one of the sections the Idaho Agricultural Aviation Association wanted lawmakers to remove.‚ÄĚ
Those aligned with the crop dusting companies asserted that state agriculture investigators have excessive latitude in assessing violations and fines, and that accused crop-duster pilots have little recourse to appeal such actions. The testimony of two pilots stood out as particularly creative: they claimed that ‚Äúthe stress of adhering to complicated regulations could distract pilots and endanger their lives while flying. ‚ÄėIt‚Äôs a good recipe to get dead,‚Äô said one of the men.‚ÄĚ The crop dusting constituency had a vocal supporter in State Representative Gary Marshall, who expressed his displeasure at the mild slap state agriculture officials delivered to the company after the exposure incident in the hops field: ‚ÄúWhat you‚Äôve described is the very essence of tyrannical government. I can hear James Madison very loudly in my mind. This is the very essence of tyranny.‚ÄĚ As the Idaho Statesman coverage of this hearing said, ‚ÄúLawmakers seemed eager to assist the crop-duster association members.‚ÄĚ
Marielena Vega, of the Idaho Organization of Resource Councils, has expressed concern that the bill‚Äôs changes will ‚Äúunreasonably limit‚ÄĚ the ability of the state to deal with incidents such as the Canyon County hops field incident. She said, ‚ÄúBy eliminating ‚Äėfaulty‚Äô and ‚Äėcareless,‚Äô this legislation makes it more difficult to prove an individual or company misused pesticides. Striking these from the statute would expose workers and the public to greater harm because there are greater legal hurdles to demonstrate negligence.‚ÄĚ
Ms. Vega is rightly concerned about HB487. Farmworkers, who labor under very demanding conditions, are very often exposed to pesticides and other chemicals in the course of their work ‚ÄĒ never mind the other stresses they endure, such as low wages, hard physical labor, injuries, long hours, all manner of weather conditions, and increasingly, threats from U.S. immigration officials. Indeed, the average life expectancy of farmworkers is 39 years, as compared with 78 for the general U.S. population. Beyond Pesticides monitors and evaluates developments in, and advocates for, agricultural justice for those who work to put food on the tables of Americans.
Pesticide drift is among the risks farmworkers, and members of the public, face in nearly any agricultural area. Lawmakers and government agencies at both the state and federal levels ought to be working to protect people from the harms of pesticide use generally, and aerial spraying in particular, given the ‚Äúreach‚ÄĚ of such applications to areas far beyond the intended targets. When lawmakers and agencies fail to protect, the onus is necessarily on the public and civic organizations to insist that they do.
That can be a challenging task, as residents of Lincoln County, Oregon learned when they secured a hard-won local ban on aerial spraying, only to have a circuit court judge strike down the ban on the basis of state pre-emption. (Read more about that case here and here.) Certainly, as in this Idaho case, lawmakers‚Äô prioritizing the ability of crop dusters to deliver their chemical loads over the health of those on the ground, is a particular affront to both common sense and legislative responsibility to constituents.
Beyond Pesticides supports organic agriculture as the solution that protects farmworkers, public health, ecosystems, and natural resources ‚ÄĒ water, air, and soil ‚ÄĒ on which all human activity depends. The public can become informed on these issues, and mobilize its influence, with state and local elected officials, and through engagement with and support of non-governmental and civic organizations (such as Beyond Pesticides) that advocate for laws and policies that reduce the risk of pesticide use. One great way to do both of those is to join Beyond Pesticides!
Take Action: Residents of Idaho are encouraged to contact their elected officials. Contact your Idaho state legislator: Click here.