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Understanding State Preemption Laws

We’ve posted information here before about state preemption laws that inhibit the rights of cities and towns when it comes to regulating fertilizers and pesticides. In the words of our friends at Beyond Pesticides, “In general terms, preemption refers to the ability of one level of government to override laws of a lower level. While local governments once had the ability to restrict the use, sales and distribution of pesticides, pressure from the chemical industry led many states to pass legislation prohibiting municipalities from passing local pesticide ordinances that are stricter than state policy. These laws, called state preemption laws, effectively deny local residents and decision makers their democratic right to better protection when the community decides that minimum standards set by state law are insufficient to protect local public and environmental health. Today, as pesticide pollution and concerns over human and environmental health mount, states and municipalities are fighting to overturn preemption laws and return the power back to localities.”

Lobbyists from the chemical pesticide and fertilizer industry, however, fight fiercely to keep these preemption laws intact. Here are eight quotes that illustrate industry attitudes, as compiled by Canadian pesticide activists:

# 8. Karen Reardon, director of communications and public relations, told nearly 500 attendees at the combined Responsible Industry for a Sound Environment (RISE)/CropLife America meeting that, “We’re not Canada,” “We must fight these local issues before we’re stuck with municipalities banning pesticides the way so many cities in our northern neighbor has.”

(Source: September 25, 2006, Landscape Management, ‘Field Report: Grassroots efforts build momentum at RISE conference’ , by Frank H. Andorka Jr. http://tinyurl.com/gd3mp)

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# 7. “We can all relate to what is happening in Canada where the banning of pesticides in many communities for all users is fact, not fiction. Our counterparts there can only wish that they had been better prepared. The United States is not immune – there are many government entities in the states that are already making decisions for stringent regulations, or are doing outreach with negative or misleading information about pesticides, fertilizers and water use.”

(Source: September 19, 2008, Lawn & Landscape Magazine, ‘Monthly
Legislative Column’ , by Tom Delaney, http://www.lawnandlandscape.com/news/news.asp?ID=6728)

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# 6. “The activists plain outworked outworked us up there,” said Allen James, the president of the Responsible Industry for a Sound Environment. “We clearly have lost the battle in Canada for the most part. We cannot allow this to happen in the U.S.”

(Source: September 16, 2008, Landscape Management, It’s in da BAG, by Marty Whitford, http://tinyurl.com/7detxy)

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# 5. “Every local council in Canada has at some point looked at or has considered a pesticide bylaw,” said Jennifer Lemcke, the COO of WeedMan in Canada. “The activists have made the pesticide issue a political nightmare for city councils and most municipal councilors just want it to go away.”

“We’re faced with many obstacles when trying to service our customers because each municipality has the right to restrict or ban products,” she added. “There are times when we are servicing one side of the street that has one bylaw and on the other side of the street we are faced with another bylaw.

“It has been an extremely costly and frustrating process. Our company alone has devoted thousands of hours to attend council and committee meetings to help educate local government officials,” she added.

(Source: Sep 1, 2006, Landscape Management, ‘Lawn care — it’s all
grassroots by Ron Hall, http://tinyurl.com/l33wk)

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# 4. “Local communities generally do not have the expertise on issues about pesticides to make responsible decisions,” said Allen James, president of Responsible Industry for a Sound Environment, a pesticide-industry lobbying group. “Decisions are made much more carefully and the train moves much more slowly” at the state level.

(Source: February 24, 2005, Detroit News, ‘Lawn care industry in the U.S. fears pesticide bans will grow. Fearing Canada’s move to outlaw toxic chemicals, green businesses launch ad campaign to fight back.

http://tinyurl.com/65lxoo)

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#3. “We are watching the entire United States, but particularly the border states of New York, Connecticut, Maine, Wisconsin, Minnesota, and Washington for any activity relative to banning pesticides, especially for outdoor lawn care and parks,” Allen James stated. “I would like to remind industry associates that fortunately for those of us in the United States, most states have state preemption laws that override local bans. However, there is a growing effort among activists to overturn state preemption, and in some cases, to secure bans in
violation of state law in hopes that state legislators will change the law.”

(Source: January 18, 2005, Lawn and Landscape Magazine , ‘RISE
President Shares Industry Outlook for 2005′ http://www.lawnandlandscape.com/news/news.asp?ID=3044

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#2. Ahead of their Canadian counterparts, U.S. cities won the right to pass local ordinances restricting pesticide use as far back as the 1980s, says Jay Feldman, executive director of Beyond Pesticides. However, the widespread embrace of pesticide bans was subsequently thwarted by industry-sponsored “preemption” legislation, adopted in 41 states, forbidding localities to make laws more stringent than those of the state, he says.

As a result, U.S. activists have focused on banning pesticide use on land managed by public institutions such as schools, hospitals, and county governments, Feldman says. At the same time, local governments in California and New York have begun to test the strength of the preemption laws, and Canadian-style citywide pesticide bans may soon make a U.S. debut, he adds.

In response to growing challenges to preemption laws, the pesticide industry is engaging more heavily in grassroots action to help consumers speak up in favor of pesticide use, says Allen James, president of Responsible Industry for a Sound Environment, a trade association.

(Source: Jan. 18, 2006, Environmental Science & Technology (American Chemical Society), ‘Canadian cities successfully by-pass industry’s legal challenge to laws that keep pesticides off lawns and gardens, by
Janet Pelley)

#1. The ultimate solution, and one the industry continues to promote, is to take control out of the hands of the municipalities and deal with the pesticide issue on a provincial level. “If we can pre-empt the municipalities from being involved, then hopefully the decisions will be based on science and not on emotion,” explains DiGiovanni.

(Source: June 26, 2003, Landscape Ontario, ‘Playing a role in
pesticide theatre’, http://tinyurl.com/94r7ej)

DOES YOUR STATE HAVE PREEMPTION IN PLACE? CHECK HERE:
www.beyondpesticides.org/lawn/factsheets/Preemption%20Factsheet.pdf

About The Author

Paul Tukey

An international leader of the green movement, Mr. Tukey is a journalist, author, filmmaker, TV host, activist and award-winning public speaker, who is widely recognized as North America's leading advocate for landscape sustainability and toxic pesticide reduction strategies.

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