Regulatory Update: Pesticides and Proposition 12

All farmers have an interest in a regulatory process that is transparent, fact-based and respects the will of Congress while observing the separation of powers in the Constitution. Federal regulations have a direct impact on farmers’ lives and livelihoods, and over the years, the extent of that regulatory landscape has increased. There has recently been action related to the availability of neonicotinoid pesticides, and California’s Proposition 12 which would impact the pork industry. Virginia Farm Bureau Federation (VAFB) and American Farm Bureau Federation (AFBF) continue to take a stand against regulatory overreach and are working to protect your ability to farm.

EPA has released its final biological evaluations (BEs) for several neonicotinoid pesticides (clothianidin, imidacloprid, and thiamethoxam), and the BE reflects a “likely to adversely affect” (LAA) determination for 67%, 79% and 77% for the products, respectively.

Unfortunately, the final BE does not reflect the refinements offered in comments on the draft biological evaluations. As with the draft BEs last August, the final BEs are overly conservative and in some instances fail to use important data. As a result, we are concerned the BEs drastically overstate the impact of the pesticides on endangered species and their habitats.

The BEs do not incorporate scientific and commercial data that could have provided a more realistic picture of the potential impact of the chemistries on species. For example, nearly all applications of neonicotinoids in soybeans are made as seed treatments, using a minuscule amount of pesticide buried underground where it is far less likely to impact species or habitat. However, the final BEs assume growers exclusively make foliar spray and soil applications using many times more active ingredient than is reflected by real-world USDA and market survey data. The BEs also continue to assume a species will be adversely affected if only one individual in a species is impacted, which greatly inflates effects assessments.

Despite groups like VAFB and AFBF highlighting these shortcomings in draft BE public comments, EPA doubled down on using inappropriate and overly cautious assumptions in its final BEs, which leads to significant overestimations on the impact on species.

Based on the BE, the next stage is formal consultation with the Fish and Wildlife Service and National Marine Fisheries Service in the development of a Biological Opinion. It is expected that this final BE will spur anti-pesticide organizations to call for restrictions on how these products can be used while the Biological Opinion is being developed. Farm Bureau and other grower groups will continue to advocate for complete data to be used in these evaluations, and to preserve valuable crop protection tools as this process moves forward.

Shifting focus to the courts: the U.S. Solicitor General, one of the highest ranking officials in the Department of Justice, filed a brief to the U.S. Supreme Court in support of a challenge to California’s Proposition 12. The state law seeks to ban the sale of products from veal calves, breeding pigs and egg-laying hens that don’t meet California’s arbitrary production standards, even if the livestock was raised on farms outside of California. The AFBF and National Pork Producers Council (NPPC) filed the challenge, arguing Proposition 12 violates the U.S. Constitution’s Commerce Clause.

In the amicus brief, Solicitor General Elizabeth Prelogar argues that AFBF and NPPC have stated a valid claim that Proposition 12 violates the constitution and will create burdens in interstate commerce.

“Other States might well condition in-state sales on even more square feet of space per hog, or on compliance with requirements concerning animals’ feed, veterinary care or virtually any other aspect of animal husbandry. The combined effect of those regulations would be to effectively force the industry to ‘conform’ to whatever State (with market power) is the greatest outlier.”

In addition to the amicus brief filed by the Biden Administration and the U.S. Solicitor General, Virginia Farm Bureau was proud to see Virginia Attorney General, Jason Miyares, join 25 other state attorneys general in filing an amicus brief urging the high court to overturn Proposition 12. The brief states

“California’s rules represent a substantial departure from current practices and standards in most States, yet the Constitution does not permit California to set a single, nationwide animal-confinement policy.”

 It is critical to remember that, because California has less than .15% of U.S. breeding hogs, their restrictions will almost exclusively apply to out of state producers. The brief further lays out concerns by noting, “Allowing the California law to stand would balkanize markets and lead to interstate conflict: precisely the problems under the Articles of Confederation that the framers sought to fix by assigning the interstate commerce power to Congress.”

The pork industry plays an important role in Virginia’s economy, with hogs ranking 13 in Virginia’s top 20 commodities and generating $58,647,000 in farm cash receipts. All producers share the goal of ensuring animals are well cared for, but Proposition 12 fails to advance animal health or food safety. Instead, it will make caring for animals more difficult and drive up the cost of food for families across America, and potentially eliminate Virginia producers’ access to the California market.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s