Other Domestic Laws that Address
the Ecological Impacts of Pesticides
In addition to FIFRA, the comprehensive domestic law that governs a range of issues associated with the sale, distribution and use of pesticides, there are several other US laws that, while not specifically geared toward pesticides, address certain ecological risks associated with them. These include the Plant Protection Act, the Clean Water Act, the Endangered Species Act, the Migratory Bird Treaty Act, and the Organic Food Production Act. Each of these statutes, as well as common law remedies that apply to certain harms caused by pesticides, is discussed in relation to pesticides in this chapter.
The Common Law
As potential harmful substances that are released into the environment, pesticides can cause harm to third parties actionable under common law torts. Most of the common cases involving pesticides address claims by non-pesticide users against pesticide users, typically neighboring landowners or aerial pesticide applicators, alleging property damage, crop damage, harm to commercial bees and/or personal injury from the negligent use of the pesticides. The use of state tort common law to address harm from pesticide use dates back to the early half of the twentieth century.
For example, in Lenk v. Spezia,1 the court held that a defendant who is spraying a dangerous pesticide may be liable for damages to others if the spraying is done negligently, or if the pesticide drifts off the property. However, the court noted there is no duty to bees “trespassing” on the sprayed property other than to avoid malicious or wanton conduct. The Lenk court, while recognizing the importance of pesticides to agricultural productivity, nonetheless held that a pesticide user must act reasonably to avoid harming other landowner interests.2 Reasonable action would include action such as ensuring proper weather and wind conditions and following directions by the county agent as well as what was considered reasonable in the community regarding pesticide spraying.3
Other cases from this pre-1972 period, however, looked to evidence of reasonableness tied some what more closely to the particular characteristics of the pesticide itself, as set forth in manuals and “circulars” that described the uses and risks of the pesticide. In Lawler v. Skelton,4 the Mississippi Supreme Court held that the defendant aerial crop sprayer was liable for the plaintiff’s illness when he sprayed pesticides in close proximity to the plaintiff who was working in the area. The court looked to the pesticide labels and the state aerial applicators’ safety manual, which urged extreme caution in using pesticides because of the risk to human health, to support a finding that the defendant’s actions were negligent.5
Similarly, in Andreen v. Escondido Citrus Union,6 the court held that the defendants were negligent in fumigating a citrus orchard because they applied the fumigant when weather conditions were not appropriate and at excessive rates. The court further found that it was appropriate for the lower court to consider testimony showing that the defendants did not have the license required for engaging in fumigation services.7 The court concluded that the lack of the license was legitimate evidence tending to show negligence because the foreman in charge had testified that he was not familiar with the fumigation regulations adopted by the county horticultural commissioner nor with any of the documents or circulars on the subject issued by the US Department of Agriculture, or the University of California.8
Subsequent to the passage of the 1972 amendments to FIFRA, state courts continued to apply the law of negligence in cases involving harm from pesticides. Because of the existence of the regulatory requirements of FIFRA, however, these courts began to move toward a negligence per se analysis based on compliance with FIFRA or state pesticide laws. In J.L. Wilson Farms v. Wallace,9 one of the early, post-1972 FIFRA negligence cases, the court held it was proper to allow the jury to consider state plant board regulations restricting commercial aerial application of 2,4-D in determining whether the defendant was liable for using that pesticide without plant board authorization.10 In relying on state regulation to set the standard of care, the court in essence employed a negligence per se analysis in the context of a common law negligence claim.
Bennett v. Larsen 11 was the first significant case to include a true negligence per se analysis and focus on the interrelationship between FIFRA, the EPA-approved pesticide label, and state common law claims. Bennett is significant for several reasons. First, the court made a clear distinction between common law negligence and negligence per se, and concluded that the only duty of care a landowner owed to bees or other animals was a duty to follow the EPA-approved pesticide label, which established the standard of care in a manner “tailored to the effects and use of the individual pesticide.”12 Second, although not explicit in the court’s analysis, the court essentially held that the tort of negligence per se is the only negligence-based tort that is actionable where the FIFRA label provides a regulatory standard of care. Accordingly, the only other common law causes of action available for damages would be for intentional or wanton destruction of the bees or, presumably, other intentional torts such as trespass or nuisance.13
Three post-1972 cases from Minnesota have also used the FIFRA label as establishing a standard of care. In Red River Spray Service v. Nelson 14 the court noted that the label for the pesticide, Banvel, expressly prohibited aerial application if wind was in excess of five miles per hour whenever sensitive crops such as soybeans were in the vicinity.15 Based on evidence that wind speeds at the time of spraying were in excess of five miles per hour, the court found the defendant was negligent because the manner in which the pesticide was applied “was specifically forbidden by the EPA.”16 The court in Dosdall v. Smith,17 upheld a jury verdict of negligence where the defendant sprayer testified he did not read the pesticide label and applied the pesticide EVIK to corn during a stage of growth harmful to the corn and prohibited by the pesticide label. In contrast, in Honek v. Kovar 18 the court affirmed a verdict of no negligence on the part of the defendant and distinguishing Red River, because in Honek the evidence was that the defendant followed the pesticide label directions. More recently, in Anderson v. Minnesota Department of Natural Resources,19 the Minnesota Supreme Court departed significantly from the approach of earlier courts that had replaced common law negligence with negligence per se. The court held that while the label provides the standard of care for a negligence per se claim, pesticide sprayers and landowners owe an independent common law duty of care toward trespassing bees or other animals when the sprayer or landowner is on notice of their presence and the potential danger.20 Because the defendants had actual knowledge that there were bees in the area that might forage on their properties, “they may have come under a duty of reasonable care,” and summary judgment on the common law negligence claims was inappropriate.21 In reaching this decision, the court assumed, without explicitly deciding, that FIFRA did not preempt such claims.22
The case of Hall v. Phillips 23 is one of the few cases relying on private nuisance theory, rather than negligence. In this case, the court focused on whether the claim of private nuisance was actionable and whether the defendant’s action was both intentional and unreasonable. On the issue of whether it was intentional, the court found that, based on the Restatement (Second) of Torts and state law, a nuisance is “intentional” if the actor: (1) acts for the purpose of causing the interference; or (2) knows that it will result or is substantially certain to result from his conduct.24 As to whether the spraying was unreasonable, the court framed the question with reference to both the Restatement (Second) of Torts and Nebraska law and said the question was whether the gravity of the harm outweighs the utility of the defendant’s conduct, or whether the defendant’s conduct causes serious harm but payment of damages would render the defendant’s continued conduct unfeasible.25 The court then remanded the case to the trial court to determine whether the blowing of Atrazine on the plaintiff’s property was substantially certain to follow from its application (i.e., intentional) and whether the invasion was unreasonable.26
As can be seen from the discussion of the cases above, common law negligence, and in some cases nuisance, has been used to address economic harm caused by pesticides for many decades. In many of these cases, the harms at issue include human illness and impacts to property such as commercial bees and neighboring crops. In determining liability, the courts have tended to rely heavily on whether the pesticide user complied with FIFRA or applicable state law and took appropriate precautionary measures to reduce the likelihood of harm. The courts in these cases have not been asked to address harm to non-commercial natural resources, and thus they have not had to engage in any real ecological assessment.
The National Environmental Policy Act
The National Environmental Policy Act (NEPA),27 one of the earliest federal environmental laws, establishes a national policy of environmental protection and requires, among other things, that any major federal action significantly affecting the quality of the environment undergo an environmental impact assessment.28 Although an EPA decision on whether to register a pesticide under FIFRA is a major federal action that could significantly affect the environment, the courts have found that a NEPA environmental impact assessment is not required for such action, because the environmental analysis required under FIFRA amounts to what is in essence the functional equivalent of a NEPA review.
In Merrell v. Thomas 29 the court found that the FIFRA unreasonable adverse effects determination is the functional equivalent of NEPA. In that case, the plaintiff filed suit against EPA for its failure to undertake environmental impact studies (EIS) when it registered pesticides under its FIFRA authority.30 The district court granted summary judgment for the defendant, and the plaintiff appealed to the Ninth Circuit. The issue confronting the court was whether the 1970 NEPA and its subsequent requirements applied to FIFRA registrations that had been amended in 1972.31 The court first noted that the 1972 FIFRA amendments did not address preparation of the environmental impact studies that are required of administrative agencies under NEPA. Of particular importance, the court noted the extensive nature of the FIFRA amendments, including a separate provision requiring EPA to consider environmental impact in its registration process, thereby making “NEPA superfluous.” Provisions permitting limited public notice and participation in the registration procedure further influenced the court that these amendments indicated an intention on the part of Congress to not apply NEPA to FIFRA registrations. In assessing the relevance of the 1972 amendments, the court cited the limited notice requirements for registration, the limited timeframe requirements for registration and the restrictions on publicly released information regarding test data on pesticides as materially distinct from NEPA.32 Furthermore, when EPA interpreted FIFRA’s provisions in light of the 1972 amendments, the agency determined that it need not comply with NEPA. The court held Congress’ failure to legislatively mandate a change in interpretation signaled an intention to permit that agency’s interpretation and that application of NEPA’s time-consuming requirements would “sabotage the delicate machinery” that Congress designed to register new pesticides.33 In fact, in 1978, Congress amended FIFRA to encourage quicker registrations. FIFRA’s registration standards for environmental impacts differed from NEPA’s standard in terms of scope and balancing factors.34 This balance between agricultural interests and environmental impact as sought by Congress further persuaded the court that NEPA and its corresponding EIS requirements did not apply to pesticide registrations under FIFRA. The Ninth Circuit’s position that NEPA does not apply to pesticides registered under FIFRA has been taken by other courts as well. These courts have concluded that formal compliance with NEPA would be wasteful and redundant.35
The Plant Protection Act
Although biological pesticides, including living plants and animals, fall within the definition of pesticide under FIFRA, EPA has, by regulation, exempted all macroorganisms from FIFRA regulation.36 EPA’s rationale for this exemption is that these organisms are already adequately regulated by another federal agency, USDA APHIS, which regulates the introduction of non-indigenous species into the environment pursuant to the Plant Protection Act (PPA). The 2000 Plant Protection Act consolidated the authorities of two previously existing statutes under which APHIS asserted its regulatory jurisdiction over GMOs, the Plant Pest Act,37 and the Plant Quarantine Act.38 APHIS’s mandate under the PPA is to prevent the release and spread in the environment of “plant pests,” which are defined broadly as organisms which can directly or indirectly injure or cause disease or damage in or to any plants or plant parts.39
On January 26, 1995, under the authority of the precursor to the PPA, APHIS published a proposed rule in the Federal Register relating to the introduction of non-indigenous organisms into the environment.40 The proposal would establish comprehensive regulations on the importation, interstate movement, and release into the environment of certain non-indigenous organisms.41 APHIS stated that it believed this action was necessary because the plant pest regulations that regulated the movement of certain non-indigenous organisms at the time did not adequately address the introduction of the non-indigenous organisms that may potentially be plant pests.42
The proposed regulations would provide a means of screening current non-indigenous organisms prior to their introduction to determine the potential plant pest risk associated with the particular introduction.43 The pre-1995 regulations for non-indigenous organisms were limited to the movement of known plant pests and did not address either the movement of non-indigenous organisms not previously known to present a plant pest risk or the release of such organisms into the environment.44 A 1993 US Congress Office of Technology Assessment (OTA) report cited the loss of billions of dollars due to the negative effects of certain non-indigenous organisms and suggested that APHIS should revise its regulation to more adequately address such risks.45 Accordingly, under the 1995 proposed regulations, persons wishing to import or move interstate a regulated non-indigenous organism would be required to obtain a permit from APHIS.46 As part of its permit review process APHIS would be required to seek input from appropriate state agencies, as well as other federal agencies, such as the US Fish and Wildlife Service and Environmental Protection Agency.47
Under the proposal, a regulated organism of concern would fall into one of the following categories: (1) an organism of foreign origin that is not present in the United States; (2) an organism of foreign origin that is present in the United States but is capable of further expansion beyond its present established range; and (3) an organism of foreign origin that has reached its full range of potential establishment in the United States but is sufficiently biologically different from the organism that is present in the United States to warrant concern.48
The new regulation also proposed data requirements to assess the plant pest and environmental risks involved in a proposed introduction. Information required to be provided as part of the permitting process would include a description of the life cycle, biology, and ecology of the regulated organism.49 In addition, information would be required on whether the regulated organism had been genetically modified, and if so, a description of the genetic modification would also be required.50 If the regulated organism had been genetically modified through sexual recombination and selection for traits not typical of the organism in nature, through induced mutation and selection for special traits, or other classical techniques, APHIS would require a description of the modification in order to assess the biology of the modified regulated organism insofar as it differs from that of an unmodified organism of the same species.51 If, on the other hand, recombinant DNA techniques have been used to affect the modification, the permit application would be handled under the regulations for the genetically modified organisms.52 Other information that would be required includes information on the geographic location where the regulated organism was originally collected and information on the established range of the regulated organism in the United States.53 In addition, the permit applicant would be required to submit detailed information on the procedures, processes, and safeguards that would be used at the destination facility to prevent the escape and dissemination of the regulated organism and any material accompanying the regulated organism for a permit involving either the importation or interstate movement of a regulated organism.
Permits for the release of a regulated organism into the environment would require more information than permits involving importation or interstate movement with no intended release into the environment.54 For release permits, information would be required regarding all testing and reviews that have been conducted to assess the effects of the regulated organism and the environment, the effect of the regulated organism on the environment in its established range, and the host specificity of the regulated organism under both artificial and natural conditions.55 If APHIS issued a permit, the permit would specify the applicable conditions for the introduction of the regulated organism.56 The proposal also provided a process for obtaining an exemption from regulation for organisms that are found not to present a significant plant pest risk.57
On June 16, 1995, less than six months after proposing the rule, APHIS withdrew the proposal.58 APHIS stated that the reason for the withdrawal was that it had received numerous comments from a variety of stakeholder groups on the proposal, none of which supported the proposal. APHIS maintained that it would be impossible to reconcile the diverse views expressed in the comments regardingthe proposed rule without making substantial changes to the proposal on which the public had an opportunity to comment. In the notice of withdrawal, APHIS stated that it intended to develop a new proposed rule to “address the inadequacies in our current plant pest regulation and to provide a means of screening organisms prior to their introduction ….”59 To date, APHIS has not proposed the new rule and continues to rely on existing regulations under the PPA60 for the introduction of non-indigenous species including biocontrol agents.
As described above, one of the most significant environmental concerns associated with pesticide application is pesticide residues getting into water bodies and harming aquatic life. The Clean Water Act (CWA) is the primary federal statute designed to address environmental impacts from discharges into waters of the US.61