Legal and Policy Proposals to Achieve Ecologically Based Pest Management

Chapter 15
Legal and Policy Proposals to Achieve Ecologically Based Pest Management1

A variety of regulatory and incentive-based approaches have been proposed to reduce chemical pesticide use. For example, more stringent regulation and/or taxes can be used to internalize the negative environmental externalities of pesticide use. Imposing stringent regulations to minimize the environmental impacts of pesticide use, or taxing pesticides, will discourage farmers from using chemicals unless absolutely necessary; and even when necessary, they will be required to use the pesticides in ways that minimize harms. However, these approaches alone are unlikely to achieve long-term fundamental change. First, as discussed in detail in previous chapters, large-scale monoculture production is conducive to pest outbreaks and is antithetical to encouraging natural predator and parasitic controls. Thus, simply making it difficult or costly for farmers to use pesticides is not a viable solution. Farmers will still need to make money and civilization will still need food no matter how expensive it is to use pesticides. Instead, it will be necessary to find ways to develop and encourage agricultural production approaches that are not as heavily reliant on pesticides, but that still produce food for society and income for farmers. As described in detail in earlier chapters, to reduce dependence on chemical inputs it will be necessary to develop more ecologically based farming systems. Of course, stringent regulatory programs, pesticide taxes and/or pesticide release reporting requirements can all play a role in encouraging a shift. However, our agricultural system is unlikely to undergo major transformation without a number of other societal changes. First, the public must be educated about the shortcomings of our current industrial agriculture system and must be willing to accept certain changes such as, for example, fruits and vegetables that may not be as attractive or as “perfect” in appearance. Consumers and local communities will have to support local farmers through farmers’ markets, community supported agriculture, or other forms of support to shift away from the long-distance shipping and long-term storage of agricultural products that demand increased pest protection. Equally important, more money must be made available for research and development of non-chemical or lower-risk pesticides and sustainable agriculture technologies, including biointensive IPM and eco-agriculture, and to incentivize farmers to switch to these less-pesticide-dependent methods. A revamping of our current subsidy system will be necessary to funnel subsidies away from industrial commodity production to other crops and more sustainable growing practices. As described in more detail below, this could be accomplished through a combination of simply shifting subsidies to other crops, shifting subsidies to crops grown under some type of “sustainable” criteria, compensating farmers for the ecosystem services provided by growing in an ecologically based manner and/or providing additional funding for working land conservation programs that incentivize sustainable growing approaches.

Proposals for Regulatory Changes

Changes to FIFRA

Despite its early successes in protection of ecological resources at the beginning of the environmental movement in the United States, until recently FIFRA has virtually lain dormant with regard to protection of ecological resources. Ironically, if any area of environmental law should be tailored specifically to address ecological concerns, it is pesticide law, where substances that are intended to kill and disrupt species and natural systems are intentionally released into the environment in large quantities. Moreover, pesticide law has failed to keep pace with recent advances in ecological study and the field of conservation biology. Any regulatory or policy system designed to address the ecological impacts of pesticides and pest management must incorporate a number of ecological concepts and ecologically based management tools.

Modification of the Cost/Benefit Standard

Several changes are necessary for FIFRA to become more ecologically based.2 As described above, one of the shortcomings of FIFRA is that it relies on cost/benefit analysis rather than more protective feasibility or risk-based standards. A more environmentally sustainable approach that would still allow the use of pesticides needed for agriculture and public health protection would be to revise the standard for registering pesticides under FIFRA to make it clear that pesticides that pose significant risk to human health or the environment may only be registered if there are overriding public health, social, or economic benefits that justify registration. Such a revision would in effect force EPA to apply the standard originally contemplated by the Congress in enacting the 1972 FIFRA. Under such an approach, although economic and social costs would be factors to be considered in determining whether to allow a pesticide to be sold or distributed in the US, they would not be used to “balance” away significant human health or environmental risks. Such risks would only be permitted in cases where there were overriding benefits of the pesticide, taking into account a number of specified considerations in the open-ended balancing.

In addition to the economic considerations that the statutory standard directs EPA to consider in conducting this balancing, FIFRA should be revised to explicitly direct EPA to take into consideration additional factors aimed at ensuring that ecological concerns are adequately valued in the balancing. For example, considerations such as the degree of uncertainty regarding risks, the level of probability or risk, the degree of harm that could occur, the likelihood of a pesticide to spread or reproduce in the environment, either through biological means as in the case of GMOs or physical means, are all factors that should be given serious consideration in any open-ended cost/benefit balancing. Physical means of environmental dissemination include the tendency of a pesticide to move great distances through soil, water, or air, and the tendency of a pesticide to bioaccumulate.

On the “ecological costs” side of the equation, it is critical that the regulations and policies are mindful of all ecosystem organization levels including population and ecosystem levels. Thus, ecological risk assessment used to evaluate risks must not be limited to acute toxicological effects on individuals, but must also include assessment of subacute effects, such as reproductive effects, and other physiological and behavioral effects that could impact the ability of individuals to find food, grow, find mates, and successfully reproduce. In other words, all toxicological effects that could impact the fitness of the species should be considered. In particular, special consideration should be afforded to species that are threatened, endangered, or rare, or play a special role in ecosystem function, such as keystone species, umbrella species, and highly interactive species. Moreover, indirect impacts to the food sources, predators and parasites, and habitat requirements of the species must also be taken into account. EPA must not limit its inquiry to the direct impacts to the species of concern, but must also consider indirect impacts to that species that occur because of harm caused to its food sources, predators and parasites, and other species it interacts with.

Moreover, to be able to fully understand and consider the ecological risks associated with pesticides, EPA must engage in, at a minimum, population-level, if not ecosystem-level risk assessment. EPA’s current environmental risk-assessment focus on acute and reproductive effects at the individual level fails to reveal the true ecological costs of pesticide use, and thus does not provide a meaningful accounting on the “cost” side of the cost/benefit equation. At the highest level of organization, EPA must look at impacts to ecological resilience of ecosystem to ensure impacts to one or more species or ecological processes won’t destabilize the system. The primary way to protect ecosystem resilience is to ensure the maintenance of species diversity. This will be particularly important for the protection of rare or imperiled ecosystems or for those ecosystems that provide important ecosystem services. Regulations and policies should seek to preserve ecological integrity through preservation of ecosystem diversity and resilience. Tools that could be used to accomplish these goals include adaptive management, which can be employed to create a system that can adapt to new information and changed circumstances.

In addition to population and ecosystem level consideration, some species warrant particular protection. For example, threatened, endangered, or rare species may warrant species protection due to their imperiled status. A level of loss of individuals that may be acceptable in a healthy population of a species may be completely unacceptable from both an ecological and a legal standpoint, and may in fact be directly linked to extinction or extirpation of a threatened or endangered species. Similarly, individuals of certain species that play particularly important roles in ecosystem health, such as keystone species, umbrella species, or highly interactive species, may warrant special consideration. Under EPA’s current strict cost/benefit balancing analysis, there is no clear mandate to afford special protection or to give more weight to certain species based on the health of their populations or the role they play in overall ecosystem function.

Concerns with rare or sensitive species or ecosystems can be addressed by an open-ended balancing approach, where the agency is directed to consider costs, but not in a strict cost/benefit monetized balancing. Under such an approach, although costs would be taken into consideration, the agency could be directed to afford greater weight in its balancing to other specified factors, such environmental justice concerns, risks to threatened or endangered species, risks to rare species, or risks to vulnerable ecosystems. It should be noted, however, that under this proposal the analysis would not end with the open-ended balancing. A second step, described more fully below, would require the consideration of local factors, such as the presence of threatened or endangered species, which could be affected by the use of the pesticide in that location. Although the possibility of harm to threatened or endangered species should be considered and afforded weight in the open-ended balancing analysis, it should be noted that under the ESA, jeopardy to listed species cannot be “balanced” away by cost considerations.

Although a detailed analysis of discounting environmental benefits is beyond the scope of this book, as described in previous chapters, many risks of pesticides are long-term risks. For example, the tendency of certain pesticides to bioaccumulate as they work their way up the food chain poses risks that may not be realized for many years after the initial release of the pesticide into the environment. Similarly, the harms from certain pesticides that pose reproductive effects, such as the endocrine disruptors, may not be to the animals exposed, but may instead be to the offspring, or even subsequent generations of the animals exposed. Moreover, many of the potential harms to ecological systems and ecological services that pesticides pose, including disruptions of predator/prey relationships, harm to pollinators, and harm to microorganisms that perform decomposition and nutrient cycling services, may not be evident in the short-term, but may have significant long-term impacts. Accordingly, any pesticide regulation that reduces these long-term harms may not demonstrate immediate benefits. Consequently, as Daniel Farber suggests in his book, Eco-Pragmatism,3 it is important to ensure that the long-term benefits of pesticide risk-reduction measures are adequately valued through the use of low discount rates. The idea of intergenerational equity further supports this notion. To ensure that future generations inherit functioning ecosystems, including functioning agricultural systems, it is incumbent upon this generation to ensure that the long-term benefits of pesticide risk-reduction measures are properly valued through appropriate low discounting.

Improved Consideration of Benefits

Another important revision to FIFRA would be to require EPA to consider benefits in its registration decision making. For example, registration applicants should be required to demonstrate that the pesticide they are seeking to register is efficacious and will provide overriding benefits. As discussed above, FIFRA does not mandate, and EPA has opted not to require, that efficacy data be provided when registering a pesticide. As discussed above, FIFRA currently allows EPA to waive efficacy data and allows pesticides to be registered without a showing of necessity or a consideration of whether lower-risk alternatives are available. On the benefits side of the equation, EPA must change its current approach and begin to consider the efficacy of pesticides. However, this consideration must not be limited to merely evaluating the ability of the pesticide to kill the target species, but must also consider efficacy from a broader perspective. For example, if a broad-spectrum pesticide not only kills the target species, but also kills the predators and parasites that otherwise could help to keep the target species population in check, this could result in “flarebacks” of the pest species population, as well as outbreaks of new pests. EPA should consider these secondary effects in its overall efficacy assessment.

Consideration of the availability of lower-risk alternatives should be required not only when deciding whether to cancel a registration, but also at the time of registration and reregistration. EPA’s Reduced Risk policies, which are described in previous chapters, do not include the consideration of lower-risk alternatives in the registration decision-making process. Instead, they merely encourage the development of reduced-risk pesticides, by providing an expedited registration process.

The lack of a requirement for efficacy data is in contrast to other licensing statutes, such as the licensing provisions of the FFDCA governing the approval of new drugs, which explicitly require a finding that a drug is “effective” as part of the premarket review process.4 A new drug is considered to be “effective” if there is a general recognition among experts, founded on substantial evidence, that the drug in fact produces the results claimed for it under prescribed conditions.5

In addition to requiring efficacy data, EPA should require that applicants for pesticide registration provide data showing that there are no cost-effective alternative pest control methods available. Likewise, EPA should require applicants to provide information demonstrating that their proposed pesticide is relatively beneficial, either environmentally or economically, over other existing pesticides or pest control methods that are available to address the target pest. Currently, EPA merely assumes that a pesticide manufacturer would not incur the costs of developing and marketing a pesticide if it was not efficacious and did not have benefits, and that any pesticides that are not beneficial will be eliminated through market forces. Consequently, a manufacturer could obtain a registration for a pesticide without ever having to show that the pesticide works for its intended purpose, let alone that the pesticide is necessary for combating particular pests or that existing chemical or non-chemical alternatives are not available. Virtually no chemical pesticide is without at least some risk. Thus, it is at least possible, if not likely, that pesticides are being registered that pose some risks, but have not been demonstrated to have any significant environmental, economic or societal benefit.

Technology-based approaches, which have worked well in other areas of pollution control law,6 may not work as well where the goal is to release substances into the environment with the intent to kill living organisms. Thus, a different approach may be necessary. FIFRA differs from many other environmental laws in that the environmental risks that are sought to be reduced by other such laws are by-products of activities that are intended to produce some other product or service (e.g., air pollution from energy production), whereas, with FIFRA, the pesticide that poses the risk is the intended product. Accordingly, under FIFRA, the imposition of technology to reduce risks would take a different form than with other technological controls that seek, for example, to reduce air pollution emissions. The FIFRA analogue of the technology-based standard, therefore, is an alternative reduced-risk method of pest control. Such an alternative can be either a lower-risk chemical pesticide, or other non-chemical methods of pest control, such as biological control or cultural control.

Adaptive Management through More Localized Decision Making

For a pesticide regulatory system to be ecologically sound, it must be flexible and able to adapt to new information and changed circumstances. One of the cornerstones of an ecologically based environmental law is the use of an environmental baseline. A baseline based on ecological integrity can provide a standard by which any action taken under FIFRA can be measured against the reference point of the baseline. As with any baseline, however, such comparisons cannot be made without good data and ongoing monitoring. To ensure that pesticide usage does not undermine ecological integrity, a number of revisions to the FIFRA program are necessary.

Transferring some decision-making authority to a local level is one way to accomplish this goal. An interesting example of turning regulatory control of pesticides over to local governments took place in Canada starting in 1991, when the small town of Hudson, Quebec passed a local law prohibiting the non-essential application of lawn and garden pesticides on public and private property within the town.7 In 2001, Canada’s Supreme Court upheld the municipality’s authority to issue local pesticide bans and severe restrictions.8 That decision opened the door for widespread local government bans of pesticides and since the time of the decision, 171 of Canada’s municipalities have passed municipal by-laws restricting the use of pesticides, such that approximately 79 percent of Canada’s total population currently benefits from protection under these laws.9

Although, pursuant to the Mortier decision, the US could follow this model and allow local governments to make decisions about whether to ban some or all pesticide use within their jurisdictional boundaries or whether to impose some type of permitting system on pesticide use, events that have taken place since the decision in Mortier suggest this is unlikely to happen, at least without a major cultural shift. Prior to the Mortier decision, only a small number of states had in place laws that preempted local governments from regulating pesticide use. After Mortier, all but 11 states have laws preempting local regulation of pesticides.10 In other words, although federal law does not preempt local governments from regulating pesticides use, most states have chosen to preempt local government regulation of pesticides.

The most significant change to FIFRA necessary to be more ecologically protective would be to amend the statute to create a mechanism for localized decision making. Such decision making can take into account geographic factors to protect wildlife, natural resources, and ecosystem services. This could be carried out by a permitting system for large-scale releases of pesticides into the environment wherein permit conditions could be imposed to maximize protection of natural resources and ecosystem services. For example such permit conditions could include buffers around habitat, buffers around water bodies, buffers around nests, restrictions on spraying certain pesticides during certain times of year to avoid species migration, breeding or nesting, restrictions on spraying under certain weather conditions (e.g., high winds or heavy rain), and any other condition that would reduce the risk of harm to listed species or migratory birds.

The consideration of local factors in making the determination of whether or how to use a specific pesticide in a specific location is of particular import. The benefit of local control over pesticide use is that decisions can be made based on local factors. Such factors could include the presence of threatened, endangered, or otherwise rare species, presence of sensitive species, soil conditions, climatic conditions, proximity to environmentally sensitive lands, types of crops grown, types of farming practices used, severity of pest infestations, or other relevant site-specific factors. Because ecological impacts are necessarily contextual and local, whereas human health impacts are not, EPA’s historical failure to adequately address local ecological effects of pesticides may be further evidence of an institutional bias in favor of human health protection and away from ecological protection.

In addition to amending FIFRA to include a pesticide application permitting program, there are a variety of other potential mechanisms available for achieving local decision making regarding actual pesticide use. One mechanism is to provide better training to certified applicators in IPM and non-chemical controls and better information regarding endangered species, ecological processes, the role of predators and parasites, and other local environmental conditions. Similarly, better training could be provided to local agricultural extension agents. A variation on this theme would be to empower local officials—whether they be local government officials or extension agent officials—to make case-by-case or season-by-season decisions on the actual use of pesticides. For example, a local official could be required to evaluate the local conditions, including the particular pest concerns, the climatic conditions and a wide variety of local environmental factors, before “prescribing” that a particular pesticide be used.

As described above, one of the cornerstones of ecologically based environmental law is adaptive management. Because of the complexity and changing nature of ecological systems, as well as our ever-increasing understanding of those systems, it is necessary that any system designed to address ecological risks be flexible and able to adapt to changed circumstances and new information. Accordingly, a prescription approach, whereby a prescription for pesticide use is written based on a feasibility analysis for each large-scale application (or perhaps series of applications during a growing season), could serve as an adaptive management approach. Each time a localized decision must be made to determine what pesticide to prescribe, current local conditions can be evaluated to determine the pest control that would maximize ecological protection to the extent feasible. Moreover, as new pesticides and non-chemical pest control techniques are developed they can be considered when determining what to prescribe. For example, if in year two, an American Bald Eagle or other listed species builds a nest near the field to be sprayed, it may not be appropriate to prescribe the same pesticide that was used on the field in year one if that pesticide is toxic to avian species. Likewise, if a listed species is no longer present near the field, it may be appropriate to go back to the more toxic pesticide. The prescription approach is much more amenable to imposing RPAs set forth in BiOps than EPA’s current approach of imposing RPAs through a combination of generic labeling language and direction to consult with bulletins on the internet. The prescription approach would allow the specific RPAs that are relevant to the particular pesticide application to be implemented. For example, if the RPA requires that the pesticide not be applied during breeding season, a prescription would not be given for application of the pesticide during that time. Similarly, if the RPA requires a wildlife survey to be conducted, the entity writing the prescription can ensure that such a survey is conducted and take into consideration the results of that survey prior to writing the prescription. Similarly, if new information about the surrounding ecosystem is discovered, it could affect the decision of what pesticide to prescribe. Moreover, as new pesticides and non-chemical pest control techniques are developed, they can be considered when determining what to prescribe.

The prescription idea is similar to that of a medical doctor prescribing that a patient take a particular medication. Prior to issuing such a prescription the doctor would consider a number of factors, such as the patient’s overall health, other medical conditions, other medications the patient is taking, any allergies or sensitivities the patient may have to certain types of medications, the patient’s age, the patient’s health and lifestyle objectives, and the patient’s willingness to accept certain risks to achieve such goals. Moreover, the doctor would adjust the type or amount of medication over time to fine-tune the treatment in accordance with changing circumstances or new information. A prescription-type approach to pesticide application could similarly be adjusted over time to take into consideration changed local conditions, or new information about local environmental factors. Of course, the physician-prescribed pharmaceutical system is not without its shortcomings. High pressure sales tactics by representatives of the pharmaceutical industry, glossy advertisements on television and in magazines promising a wonderful life that can be achieved merely by popping a pill, the public’s desire for an “easy fix” in the form of a pill, and industry-sponsored research all may contribute to the trend of physicians over-prescribing medications. It is likely that even with a pesticide prescription system in place, pesticide manufacturers will be able to convince decision makers to prescribe their pesticides. Nevertheless, such a system, if properly instituted, could result in at least some level of informed decision making prior to the release of large amounts of pesticides into the environment.

The likely criticisms of such a system would be that to institute it could entail high costs and possibly the creation of a new bureaucracy. However, the possibility exists of relying on existing infrastructure to facilitate such a system without the need for a completely new institution or significant additional personnel. The existing agricultural extension services could potentially be used to administer such a system. Alternatively, existing state requirements for certified applicator training and certification could be expanded to better educate applicators on local environmental factors that should be taken into account and on lower-risk and non-chemical alternative pest control management approaches that are relevant to particular crops in the particular geographic areas. Such an approach might also rely on existing extension infrastructure and resources.

Professor J.B. Ruhl has also noted that one of the most significant shortcomings of FIFRA is its lack of an adequate mechanism for regulating pesticide use.11 Ruhl describes the regulatory schemes for various environmental laws, and the variety of exemptions and exceptions built into these statutes for agriculture.12 As a result, Ruhl notes how the core pesticide statute, FIFRA “does little to regulate farm applications of pesticides and leaves fertilizers untouched.”13 FIFRA does not regulate the farm applying the pesticide, but simply how the pesticide itself is made or sold. Contrasting this regulatory system with those found under the Clean Water Act and Clean Air Act, Ruhl argues that the system, with its lack of permits, performance standards, public reporting requirements, or pesticide monitoring system, lacks any comprehensive framework for the regulation of agricultural pesticide use.14 Ruhl proposes a new statutory scheme, tailored to the specific features of the agricultural industry.15

Another component of Ruhl’s proposal would be to adopt a “Farm Release Inventory,” an approach similar to the Toxics Release Inventory (TRI) under Emergency Planning Community Right-to-Know Act (EPCRA), which would require farms to publicly report releases of agro-chemicals.16 Experience with the TRI has shown that simply requiring industrial operations to report to the public the types and amount of toxic releases from industrial facilities results in significant reductions of toxic releases, in part because industry will voluntarily reduce its emissions to avoid being seen as the “bad neighbor,” and in part because citizens often use the information to put political pressure on industry to find ways to reduce releases or substitute less toxic materials.17 This reporting requirement could serve to discourage excessive pesticide use. Tied into the release report, Ruhl advocates a taxation system that would begin at certain pre-set levels pursuant to the eco-toxicity of the chemical.18 The author stresses that these reforms alone are not sufficient in the absence of state regulatory vigilance and a continued vigorous federal role in the fight against air and water degradation.

Other Ecological Considerations

Another change necessary to ensure species protection is a reevaluation of pesticide registration data requirements to address more wildlife and ecological effects. FIFRA should also be amended to promote IPM and less risky pesticides. For example, section 11 of FIFRA should be amended to require that certified applicators receive training on lower-risk alternatives to chemical pesticides, IPM and other sustainable pest management approaches. FIFRA should also be amended to make clear that lower-risk and non-chemical pest management alternatives be considered when evaluating the benefits of a pesticide in both the registration process and the cancellation process.

Another change to either FIFRA or EPA’s implementation of the statute would be for EPA to require “resistance management” plans to be developed and adopted for all large-scale agricultural pesticide registrations. As described in previous chapters, one of the greatest harms of chemical pesticide use is that it leads to the development of pest resistance, which puts farmers on a “pesticide treadmill,” where newer and stronger chemicals are continually needed to suppress pest populations. Currently, EPA requires resistance management plans when it grants FIFRA registrations for Plant Incorporated Protectants (PIPs). EPA also frequently requires resistance management plans when it grants Experimental Use Permits even for chemical pesticides. Resistance management plans typically require untreated refugia near or within the fields in which the pesticides are applied. These refugia provide a safe haven for a population of pest insects, thereby allowing a significant number of individuals of the pest species that are susceptible to the pesticide being used to survive and reproduce. Without such refugia, most susceptible individuals will be killed by the pesticide and eventually only the non-susceptible individuals will survive and reproduce, thereby resulting in resistant pest populations.

Changes to the CWA

A change that could go a long way to reduce pesticide runoff into surface waters would be to impose stormwater treatment requirements on agricultural discharges that are not currently subject to CWA regulation because they are not defined as point sources. As described above, significant groundwater and surface water impacts are directly linked to agricultural activities. Although it may not be possible to impose the same “end-of-pipe” technologies that are typically imposed on traditional point source dischargers, appropriate technology-based standards could be imposed on agricultural stormwater discharges. Many states have voluntary “Best Management Practices” programs that provide assistance and incentives for farmers who agree to build stormwater treatment ponds or employ other practices to reduce pollutant discharges from their operations. These types of BMPs could be imposed through a federal agricultural permitting program as technology-based “best available” technology. Alternatively, additional funding and technical assistance could be provided to encourage more farmers to implement BMPs. Another major tool available to reduce water pollution from farming operations is through the implementation of TMDLs. As described above, although the federal NPDES permitting system does not apply to non-point source agricultural discharges, TMDLs include both point source and non-point source discharges.19 TMDLs are allocated to agricultural operations as well as to traditional point sources. Unfortunately, under the existing CWA there is not a federal “regulatory hook” to impose TMDLs on non-point sources. Aside from through the NPDES permitting program, TMDLs are implemented primarily by the states. Some states have developed approaches to, in essence, require farmers to comply with BMPs in order to demonstrate compliance with TMDL allocations. In Florida, for example, the Florida Watershed Restoration Act of 1997 establishes a “safe harbor” for agricultural operations that comply with specified BMPs designed to reduce water pollution.20 If a farmer complies with the BMP, she is considered to be in compliance with TMDLs and Water Quality Standards and has a safe harbor from enforcement action.21 If the CWA were to be amended to impose regulatory requirements on agricultural discharges, the Florida approach could be used as a model for implementation.

The issue of localized decision making regarding pesticide use is also of significance with regard to pesticide contamination of water. As described above, the issue of whether NPDES permits are required for the application of pesticides to water came to head with the 2002 case of Headwaters, Inc., v. Talent Irrigation District. 22 Historically, EPA had not required NPDES permits for such pesticide applications. As described above, EPA’s proposed Pesticide General Permit for pesticide application to waters of the US is very generic. It merely reiterates that discharges must not cause or contribute to a violation of water quality standards and requires applicators to use IPM and have pesticide plans. To provide the type of localized decision making that is needed to protect water bodies and aquatic life from pesticides, EPA should revise the Pesticide General Permit to exclude large scale applications of pesticides and applications of certain pesticides in geographic areas inhabited by protected species. These types of applications should be subject to individual NPDES permits that take into consideration local ecological concerns.

Other scholars have made similar suggestions for regulatory reform to provide additional environmental protections from agricultural practices, including pesticide use. For example, David Adelman and John Barton have suggested a number of revisions to existing environmental regulatory programs to ensure that agricultural impacts to the environment are regulated “to the same extent and with the same standards as other industrial operations.”23 The authors argue in favor of technology neutral standards that consider the comparable risks and benefits of each technology. J.B. Ruhl has set forth a mix of regulatory, information reporting, tax-based, and incentive-based changes that could help to elevate many of the environmental harms resulting from agriculture.24 Ruhl’s regulatory proposals, while not dramatic, could result in significant improvements. Specifically with regard to water contamination, Ruhl argues in favor of eliminating certain agricultural exemptions from the NPDES program and using a traditional industrial regulatory approach for large agricultural operations.25

As can be seen from the discussion above, mere tinkering with existing environmental statutes will not be sufficient to achieve the reductions in synthetic pesticides and changes in agricultural practices necessary for long-term sustainability and minimal ecological harm. To achieve these goals, it will be necessary to transform our agricultural system to be more sustainable and ecologically based. Imposing more stringent or different regulatory requirements in itself will not lead to such a transformation. However, the fact that environmental regulatory changes alone are not sufficient does not mean that there is no role for policy changes and governmental intervention. In fact, governmental intervention will play a critical role in encouraging such transformation.

Although the proposed changes to FIFRA and the CWA could have significant ecological benefits, they are not sufficient to lead to the type of transformation of farming practices that is called for in the previous chapter. Even if environmental laws were modified to eliminate agriculture exemptions and impose more stringent standards, this would not be enough, because these laws are not designed to discourage industrial agriculture or to promote more sustainable forms of agriculture.

Although the types of regulatory changes described above can help to minimize the harms caused from pollution from agricultural operations and wetlands impacts, they do not go far enough to address the fundamental systemic problem with modern industrial commodity production. To address fully the energy and environmental implications of modern agricultural practices, we must make a dramatic shift to a more sustainable system of agriculture. To accomplish such a transformative shift, mere tinkering with existing regulatory regimes will not be sufficient. A complete overhaul of existing agricultural policy is warranted; and a significant component of such an overhaul would be a complete rethinking of commodity subsidy programs.