In 2010, two sisters—ages 1 and 4—died after licensed exterminators misapplied pesticides too close to their home. In 2011, roughly 60 dead mammals and migratory birds were found on and near a private hunting preserve after pesticides were unlawfully applied in hopes of killing coyotes. And in 2015, an entire family was hospitalized, and now suffers from neurological damage, following the improper pesticide fumigation of their house. Yet, the perpetrators in each of these cases were only charged with misdemeanors.
Congress passed the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) in 1976 to regulate production, sale, distribution, and use of pesticides in the United States. In the late 1980s through the mid-1990s, consecutive Republican and Democratic administrations sought to increase FIFRA’s penalties for criminal violations to the felony levels provided under the other major federal environmental laws. But in 1996, Congress abandoned this effort. More than 20 years later, this disparity remains, despite a series of incidents and criminal prosecutions that demonstrate the inability of misdemeanor penalties to effectively deter pesticide crimes.
In the September issue of ELR’s News & Analysis, Michael J. McClary and Jessica B. Goldstein provide an overview of the FIFRA criminal provisions, review the previous failed attempts to amend the statute to increase its criminal penalties, describe cases that EPA and DOJ have prosecuted since the failure of those legislative attempts, and discuss the consequent need today for stronger FIFRA criminal penalty provisions.
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The authors note that the most troubling FIFRA cases are those involving pesticides misapplied by commercial applicators who knowingly violate FIFRA’s safeguards, such as exterminators hired to fumigate residences ranging from single-family homes to hotels to multiunit condominiums. But the segment of the population most at risk from pesticide poisoning is farm workers. Between 1998 and 2005, there were approximately 51 pesticide poisonings per every 100,000 agricultural workers—25 times higher than the general population. This figure may be vastly underestimated given systemic underreporting and barriers that workers face in accessing health care.
A third, and the largest, category of recurring criminal FIFRA cases involves the intentional killing of bird and animal wildlife by means of baiting their food sources—a dangerous and illegal pesticide use. These offenders cause widespread harm and release poison on land where the landowner usually has no knowledge of the application. A fourth and final major category of FIFRA criminal cases involves a pattern of blatant subversion or circumventing of the FIFRA regulatory program, such as by falsifying FIFRA-required registrations or registration documents; formulating and selling unregistered pesticides; or consistently or repeatedly disregarding EPA pesticide label requirements or restrictions. The common thread in these cases is the defendants’ circumvention of the FIFRA registration process.
McClary and Goldstein conclude that misdemeanor penalties are not enough to deter pesticide crimes, and make a compelling case for reviving past bipartisan legislative fixes:
A misdemeanor should not be the maximum penalty when two little girls die due to an applicator’s failure to take essential safety precautions as stated on the pesticide’s label and instructions. A misdemeanor is insufficient when a whole family is hospitalized and suffers neurological damage from improper and illegal pesticide fumigation. A misdemeanor is insignificant to a multimillion-dollar corporation that continues to sell a misbranded pesticide, or misapplies pesticides, or lies to the government during the pesticide registration process. A misdemeanor does not deter a farmer who continues to spray pesticide on laboring farm workers, ignoring the pesticide label’s warning and the health consequences. A misdemeanor is not enough for defendants attempting to cover up their crimes by making false statements to law enforcement, even though a young child lies in the hospital and doctors need to know the specific pesticide that poisoned him in order to treat him. Felony penalties for FIFRA crimes are needed today, more than ever.
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