A ban on the use of lawn care products containing phosphorus will remain intact in Madison and Dane County, Wis. A three-judge panel in the Seventh Circuit U.S. Court of Appeals last month upheld the ruling of U.S. District Judge Barbara Crabb that the local ordinance banning phosphorus is not preempted by state or federal regulations.
The ban, which has been in effect for nearly a year, was initiated by activist organizations arguing that phosphorus has a detrimental affect on lakes and the environment in the Madison area. When enacted by the local legislature in Madison, the ban was challenged by many green industry proponents, including fertilizer retailers, lawn care companies and trade associations on the grounds that state and federal laws preempt the local ordinance.
Ironically, an expert speaking for the City of Madison noted that the phosphorus restriction would have no impact on the quality of area lakes and only might have a favorable impact on algae blooms one day per season. Regardless, Judge Richard Posner wrote in the Court’s opinion that the lawn care industry had not known that it would be unfeasible or costly to sell products without phosphorus in Dane County.
Lawn & Landscape recently discussed the ruling with Allen James, president of Responsible Industry for a Sound Environment, an industry organization that was involved in bringing the ban to the attention of the Courts. James explains that RISE and the primary litigant CropLife America have the option of appealing their case to the U.S. Supreme Court, but will not be moving in that direction.
“We believe very strongly that this is a bad decision by the District Court and the Federal Court, but there are a number of reasons for not making a request for the Supreme Court to hear our case,” James says, “The time and expense of the litigation are the primary reasons, but we’ve also lost our case at two lower courts, but right now the bad decision is limited to the Seventh Circuit. If we were to appeal to the Supreme Court and the decision were upheld, it would turn into a nationwide issue.”
With the phosphorus ban in place, lawn care operators (LCO) have a couple of options. The first would be to have soil tests done for all of their clients’ properties to determine whether or not applying phosphorus is necessary. A test showing the nutrient is needed would allow the LCO to purchase and apply phosphorus to the lawn. However, James points out the impracticality of this approach “What we’ve learned over the years is that it’s impractical to soil test for very small lawns and also the state is not equipped to handle the number of soil tests that would be required, even in a small city like Madison,” he says.
The other option is to stop using phosphorus in lawn care applications, which will ultimately cause lawns to deteriorate and increase customer complaints.
Rather than appealing the recent ruling, James says RISE will continue to work on educating state lawmakers about the value of preemption and hopes that the Wisconsin legislature will be favorable to taking a statewide stance that would keep local communities from gaining too much control. “The industry is interested in gaining state fertilizer preemption in as many states as possible and we’ve already been successful in 10 states,” James tells Lawn & Landscape. “State leaders are realizing that local communities are trying to unreasonably restrict fertilizers – just as they did with pesticides in the 1990s – and that they need to bring those regulations back to the state level.”