A government jurisdiction exercises preemption when it prohibits law-making by a lower government jurisdiction. Very wide-ranging matters can be subject to preemption. Federal or state governments can preempt/prohibit local laws that are racially discriminatory. Currently, Florida and Texas have preempted laws that impose the use of masks to protect against the spread of COVID-19. State laws have preempted cities from raising the minimum wage.
In the case of Measure 21-177, the voter-approved 2017 ordinance that banned aerial pesticide spraying in Lincoln County, the state banned all local regulation involving pesticides. I want to address specifically how preemption laws are unconstitutional when they prohibit local legislation meant to protect people’s fundamental rights, such as the rights to health, safety, wellbeing, and the right to protect nature’s ecosystems, on which all life depends, including ours. Such is the case of Oregon’s Pesticide Control Act, based on which Measure 21-177 was invalidated by the Lincoln County Circuit Court.
Aerially sprayed pesticides and herbicides are used to enable the growth of huge monocultures. Left to grow on their own, monocultures succumb to invasive weeds and pests, a threat from which nature protects itself by growing diverse ecosystems, in which one species protects and/or competes with another and none can become invasive.
Industrial agriculture, seeking to increase profits, engages in clear-cut harvesting processes, which violate naturally enabled growth and succession of plants. Oregon law protects those practices by legalizing the use of poisons sprayed to kill the invasive species and pests promoted by unnatural cultivation practices. The result is that our environment, after decades of constant and ubiquitous spraying, has become increasingly toxic, and both animals and humans are suffering from diseases caused by that toxicity, as widely documented in scientific literature.
Oregon’s law, instead of protecting people from this toxicity, regulates the amounts of deadly poisons that people may be exposed to, thus allowing industry to pollute our air, water and soil while letting the public believe that it is being protected.
The ruling that invalidated Measure 21-177 on the grounds that local municipalities are preempted from regulating pesticides more stringently than the state is tantamount to a judicial statement that the right of corporations to protect their profits by poisoning the environment, including everything that lives in it, is greater than the right of people to protect nature’s and their own health, safety and wellbeing.
Lincoln County Community Rights is committed to defending the people’s constitutional rights from legalized corporate abuse, and filed an appeal to the invalidation of Measure 21-177 with the Oregon Court of Appeals. The Court of Appeals upheld the local ruling without issuing an opinion. Lincoln County Community Rights has filed a Petition for Review with the Oregon Supreme Court and is now waiting to see if the Supreme Court will hear the case, in the knowledge that only 10 percent of cases submitted to it are ever heard. Several people, aware of the importance of the issue being litigated, have filed statements (known as ”amicus briefs”) with the Supreme Court, expressing their understanding of what is at stake. One of these amicus briefs, written by Lincoln County resident Carol Van Strum (author of “A Bitter Fog”) says in connection with Oregon’s preemption law on regulating the use of pesticides:
“The very concept of regulating poisons — i.e. setting allowable levels of human exposure — is as great a folly as regulating a serial killer by setting allowable levels of murder.”
The way that preemption laws are used needs to be subjected to review and improvement. Each preemption law needs to pass a test that confirms whether or not it has been created with the intention to address important state interests that protect the rights of the whole population. In legal terms, preemption laws must show whether they are “narrowly tailored to serve an important state interest,” or formulated to increase the profits of a privileged few.
Maria Sause is a resident of Newport.