Feature

Legislative News: Pesticide Update from NALP

By Bob Mann – N.A.L.P Director of State and Local Government Relations

We live in interesting times, don’t we? On the one hand, there are environmental groups pushing initiatives to remove lawns from the American landscape altogether; simultaneously, federal regulators seeking to prevent pesticides from escaping agricultural fields are encouraging farmers to install buffer strips consisting of perennial, maintained groundcovers (otherwise known as a lawn). Similarly, we have people saying lawns use too much fertilizer, water, and pesticides, yet turfgrass breeders are churning out cultivars that look stunning with little to no inputs at all. It is in this policy space filled with incongruity, contradiction, and misinformation that we find ourselves today. In light of this, let’s review two of the most pressing pesticide-related issues facing the green industry today.

The Endangered Species Act & Pesticides

As turfgrass managers, we are always striving to reduce inputs; inputs are expensive and to the extent we can maximize turfgrass performance without them, those savings drop to the bottom line and into our back pockets. But if your golf green disappears overnight due to an outbreak of Pythium blight or your customer’s lawn is highlighter yellow because it’s been overtaken by crabgrass, you’ll soon be selling hotdogs at Nationals Park instead of growing grass for a living. Pesticides are an indispensable tool if you’re in the turfgrass management business.

Most turfgrass managers will recognize the acronym FIFRA as the federal law that governs pesticides, but it’s not the only one and may not even be the most important. Passed into law at roughly the same time as FIFRA, the federal Endangered Species Act (ESA) might not seem to have anything to do with pesticides. But buried deep in the fine print of the ESA is a requirement that any government action that could adversely affect a threatened or endangered species, or its habitat, must be evaluated by either the U.S. Fish & Wildlife Service or the National Marine Fisheries Service (together referred to as ‘The Services’). The registration of pesticides is a government action and there can be no argument that pesticides have the potential to adversely affect endangered species. The problem is that doing a biological evaluation of an individual pesticide is enormously complex and expensive. Despite numerous well-intentioned stops and starts over the past half century to comply with this requirement, the EPA has to date only completed ESA assessments of ten percent of the pesticides on the market.

Environmental groups successfully sued EPA for their noncompliance resulting in court orders requiring the agency to get their act together and quickly. This resulted in a novel approach to solving the problem by grouping pesticides together by type (herbicides, insecticides, etc.) and essentially doing the nuts and bolts of what the Services do in their biological opinion work for them but doing it en masse.

What this means for you as a turfgrass manager is that label directions will slowly change as new products are introduced and existing products are re-registered. You will be required to check for the presence of endangered species at the location of the pesticide application and follow specific directions to protect them. These protections focus on reducing drift, runoff, and erosion. If this sounds familiar to you it’s because we in the turfgrass industry have been eliminating off-target effects of pesticides for a long time. If our spray applications drift, for instance, we kill our customer’s ornamental plants. That is why we use low pressure spray systems and nozzles that develop large droplets to mitigate drift.

NALP has been working alongside other industry groups in the non-agricultural pesticide user space to educate federal regulators on how we use the pesticides that they register and the stewardship we employ to ensure that they stay where they’re supposed to be. As the first proposed labels are being released for comments by the EPA, we are encouraged that complying with these new requirements will not be a heavy lift for us, certainly not as onerous as we feared at the beginning of this process.

Preemption: Or, Who Gets to Make the Rules?

The doctrine of preemption states that laws at higher levels of government supersede those at lower ones, meaning that a city can’t pass a law or enact a regulation that is at odds with those at the federal or state level. This explains why you have a state driver’s license and not a local one as states preempt localities from issuing licenses of their own. The rationale behind this doctrine is simple enough. Some issues have broad implications that cannot be settled at the local level lest we have a confusing array of contradictory regulations that make it impossible to comply with them all.

Such is the case with pesticides. When FIFRA was amended in 1972 there was an unresolved question in Congress as to whether cities and towns should be able to engage in the regulation of pesticides. It was not until nearly two decades later that a Supreme Court decision, Wisconsin Public Intervenor v. Mortier, exposed that unresolved question. The court’s decision meant that every one of the 90,000 jurisdictions in the United States was free to regulate pesticides right along with the EPA.

To suggest that Mortier sent shockwaves through the green industry would be an understatement. We responded to this decision by joining with allied industries to introduce model legislation at the state level that plugged the hole caused by the Mortier decision. This effort was successful. Today, forty-six states have some flavor of state preemption of pesticide regulation. That means that in Virginia, only VDACS OPS has the authority under state law to regulate pesticides and their use.

If you want to see what life would look like absent state preemption of pesticide regulations, you need not look far. Maryland is one of the few states without state preemption. Anti-pesticide activists spearheaded an effort in Montgomery County to ban the use of any EPA registered pesticide on lawns. Only organic products or minimum risk products exempt under FIFRA section 25(b) are allowed. Make no mistake, this decision is purely political and has no basis in sound science, nor does it have a foothold in the realm of economics either. The very products banned under the ordinance are perfectly legal for anyone to purchase in the county. Further, the act of prohibiting a good or service does not squelch market demand. If the demand is great enough, there exists a perverse incentive that results in a black market. The professionals are pushed out of the marketplace by regulation, and because homeowners still want a nice lawn, less scrupulous parties step in to make illegal applications.

NALP has joined with our non-agricultural pesticides user groups to support language in the current Farm Bill that would amend FIFRA to clearly state that the federal government under the EPA and the lead state agencies (i.e., VDACS) co-regulate pesticides and their use and that political subdivisions have no authority.

In the end, we may moan and groan about it, but our industry is not antiregulation. We recognize that many of the things we do and products that we employ can be hazardous to humans and the environment if they are done or used incorrectly. As professionals, we take our responsibility to the environment and our customers seriously. Our job as advocates for our industry is to ensure that those who make political or regulatory decisions have a clear understanding of our stewardship.