Legislative Update

By Bob Mann

The political season is just getting underway now that swearing-in ceremonies have been completed in Washington and the state capitals. Given the fractious tone of politics of late, we are expecting a great deal of legislation to be introduced that would negatively affect the green industry.

In the realm of pesticides, the recent jury decision to award Dewayne Johnson, a former groundskeeper that was exposed to glyphosate, $289 million (now reduced to $79 million) after finding that the herbicide caused his Non-Hodgkin’s lymphoma will prompt many state legislatures to consider banning the product.

Hundreds more lawsuits wait in the wings, however during the first week of January the judge overseeing the trials indicated that he was going to handle future trials differently by dividing them up into phases. First, in the causation phase, the plaintiff will have to prove that the Non-Hodgkin’s lymphoma was caused by exposure to glyphosate. If that is proven, the trial will move into a liability phase. This development is widely seen as a blow to the plaintiffs, as in the Johnson trial causation was discussed in unison with liability.

So far, and it’s still very early in the year, we have seen three bills introduced in the New York legislature about glyphosate, two that would ban the herbicide outright while the third would place a moratorium on use until a study committee reviewed the research to ensure the herbicide was safe. Doubtless more will follow in neighboring states.

Similarly, we expect legislation to be introduced that would either severely restrict or completely ban the use of neonicotinoid insecticides. Thus far we have been successful in turning back or toning down these efforts, but as we well know, environmental activists are nothing if not persistent.

Fallout from the complete pesticide bans enacted in the Portland, Maine area continue to be felt in neighboring states. Maine does not have state preemption of pesticide regulations; local governments are free to enact more stringent regulations if they so choose, a consequence of the home rule tradition in that state.

Environmental activists see state preemption as a focal point for their attacks against pesticide use. In 2018, we saw legislation in Massachusetts that would remove the state’s preemptive power. We anticipate the Massachusetts bill to be reintroduced and there are rumblings that similar measures will be introduced in other states as well.

Nutrient management continues to be a hot issue. While researchers continue to find ways for sports turf managers to do more with less, regulators continue to misrepresent turfgrass as an environmental negative in their quest to further restrict the use of fertilizer.

The latest battlefield is in New York. In 2018, a bill in the New York legislature that would have severely curtailed the use of fertilizer on Long Island, under the presumption that it eventually made its way into Long Island Sound, was turned back at the last moment under strong opposition from green industry groups. In the wake of that loss, the New York Department of Environmental Conservation formed the Long Island Fertilizer Workgroup to draft recommendations for Nitrogen Turfgrass Application.

As it stands right now, these recommendations do not apply to agricultural turf or athletic fields, and rates for golf courses are higher than those outlined for residential turfgrass. But, as was clear in the language of the 2018 nitrogen legislation, if what is tried on Long Island is seen to be working, it can be applied statewide in New York.

Most elements of the Long Island document are familiar, such as not applying when turf is dormant, clearing off-target product from impervious surfaces and setbacks from surface waters. What is interesting and concerning about the effort are the rates (0.6 # N/K per application and 1.8 # N/K annually irrespective of species and use) and an effort to restrict the nitrogen contained in the fertilizer to 12 percent.

A great deal of contentious debate centered on the inclusion of the low nitrogen language in the recommendations. Green industry advocates rightly pointed out that limiting the percentage was nonsensical and not part of any best management practice. Environmental activists insisted that it was widespread practice in other states (without submitting evidence that this is so) to limit nitrogen this way and that it was a safeguard against over application by professionals and homeowners after having already regulated the rates per application and per season. It was only in a communication from the DEC in late December that we noticed that the 12 percent nitrogen language had been removed from the recommendation. Hopefully common sense will prevail on Long Island because any bad idea that gets by suddenly becomes the new shiny object in a neighboring state.

Bob Mann is the Director of State and Local Government Relations for the National Association of Landscape Professionals. Reach him at Bob@ andscapeProfessionals.org.

Bob Mann