Can a campaign for nature and community rights stop aerial spraying in Oregon?
The push for more local control upends the typical pattern of Westerners fighting against regulation.
With both hands in the pockets of his khakis, Loren Wand wavered nervously on a small stage at Bier One Brewing in Newport, Oregon. A gathering crowd milled about, some standing and chatting, others sitting in folding chairs in a few makeshift rows. As Wand started speaking, someone in the audience reminded him to talk directly into the microphone.
He did, telling the story of his wife, Debra Wand, who was 44 when she died from cancer. Wand attributes her illness, which started with respiratory issues, to aerially sprayed herbicides that drifted onto his wife on their rural property. At the 2015 kickoff for a campaign to ban aerial pesticide spraying in Lincoln County, Wand said it was time to put the rights of people and the environment over corporate profit.
Wand’s story was the first of many told during the campaign for the ballot initiative, which narrowly prevailed in May 2017. Almost immediately after the ban passed, however, a local timberland owner and farming corporation challenged it in court. This September, a circuit court judge struck it down, saying it violated a state law pre-empting counties and cities from regulating pesticides.
Anti-spray activists are appealing — and going after the pre-emption law itself. They say that the state and federal government shouldn’t be able to prevent locals from seeking greater protections for community and environmental health. It’s a new twist on long-running efforts by rural Westerners to gain more power. Traditionally, rural counties in Oregon and across the West have sought to undo state and federal environmental protections and open up land for logging and other industries. Now, Lincoln County residents want the power to create additional environmental protections, which they believe are necessary to end corporate political dominance and protect their health.
FIGHTS OVER AERIAL SPRAYING on the Oregon coast flared up during and after the Vietnam War, when the U.S. Forest Service and private timber companies aerial sprayed 2,4,5-T and other components of Agent Orange. The herbicides kill plants that compete with economically valuable Douglas fir trees. After a group of women in a small Coast Range logging town blamed their miscarriages on it, epidemiologists commissioned by the Environmental Protection Agency found a correlation between the seasonal spraying and their miscarriages. Following the release of the controversial preliminary report, in 1979 the EPA issued an emergency suspension of 2,4,5-T for forestry.
On the heels of that decision and the lawsuits filed by citizens and environmental groups, a court order put a temporary moratorium on all federal pesticide spraying in 1984. Today, the Forest Service can and does aerial spray, but hasn’t in Oregon for decades. The practice has continued unabated, however, on state and private timberlands. Large timber companies, which own expansive timberlands and account for the majority of trees cut in the state, typically clear-cut plantations and replant Douglas fir. Timber companies prefer aerial spraying because it is cheaper than paying people to spray on foot. They also cite the danger to workers, who must navigate steep and uneven terrain with backpacks full of herbicides.
Over the past decade, several high-profile cases have raised public concerns regarding aerial spraying. Residents of the Oregon Coast Range have complained of illnesses after being sprayed by pesticides that they say either leached into their drinking water in runoff from nearby clear-cuts or drifted onto them during spraying.
The outcry over spraying has increased as clear-cuts get closer to where people live and encircle the creeks, rivers and lakes they get their drinking water from, said Lincoln County Community Rights organizer Rio Davidson. Citizens in Lane County, just south of Lincoln County, launched a similar spray-ban initiative, but were stymied by a court decision that found the proposed law didn’t follow state laws limiting the scope of ballot measures. Statewide ballot initiatives to tighten standards on aerial spraying and forestry practices in general have also been proposed. But Oregon Secretary of State Bev Clarno, a recipient of significant campaign donations from the timber industry, is currently keeping those initiatives off the November ballot, citing similar concerns about their scope.
THE LINCOLN COUNTY AERIAL SPRAYING INITIATIVE didn’t just target pesticides, it took aim at the entire state and federal regulatory structure that permits aerial spraying in the first place. Language embedded in the voter-approved ballot measure conferred natural rights on ecosystems and asserted a constitutional right to local self-governance.
The initiative’s framers adopted this sweeping language in part to contend with a state law that prohibits local regulation of pesticide use. That law, which passed in 1996 as part of a bipartisan compromise to boost state funding for light rail, is copied almost word-for-word from legislation written by the American Legislative Exchange Committee (ALEC), an industry-sponsored group that pushes a conservative agenda at the state level.
As Lincoln County activists appeal the judge’s ruling, they’re joining a broader grassroots movement fighting industry and political machines like ALEC. Their goal is to redefine the political and judicial norms that govern community and environmental rights.
FIGHTING AGAINST INDUSTRY, and for stricter local environmental protections, is a new twist in the long-standing feuds over government overreach in the rural West. Counties and movements like the Sagebrush Rebellion have long sought to wrest control away from state and federal governments in order to circumvent environmental protections.
This new local-control uprising, however, wants to build upon state and federal regulations rather than destroy them. Organizer Kai Huschke said the idea is to change the power structure so local protections can act as “a one-way valve that can only lead to greater protection and securing more rights.” Huschke works for the Community Environmental Legal Defense Fund, which organizes community-rights and rights-of-nature campaigns around the world. Basically, activists argue that state and federal laws should serve as a foundation for environmental protection — a foundation that local laws can then build on in order to increase protections.
A version of this concept is currently being tested in Colorado with SB 181, which passed earlier this year. Under it, the state will still regulate and permit oil and gas drilling, but communities will have the authority to set local standards for development, including residential setbacks. The law overrides a 1990s Colorado Supreme Court ruling that limited the ability of cities and counties to ban or regulate oil and gas development.
“State pre-emption is a weapon of corporate special interests, which can more easily control state legislatures rather than deal with counties and local governments that are closer to the people.”
There’s been a similar effort in Oregon to undo the pesticide pre-emption law. Earlier this year, State Rep. Marty Wilde, D, proposed legislation that would give counties and cities the authority to ban aerial spraying. But getting it through the Oregon Legislature is a battle Wilde doesn’t expect to win anytime soon, because, he said, “The logging industry has too much say in Oregon politics.” No state sees more timber industry political contributions than Oregon, where campaign finance laws allow unlimited donations. Aerial spray bans have also rattled national agrichemical interests, who have poured money and resources into fighting the local initiatives.
Instead of relying on the Legislature, lawyers for Lincoln County Community Rights are appealing the September circuit court decision and hoping for a different legal interpretation of the role and rights of local government. “Our argument is that the local government exists to protect public health and safety and should be immune from pre-emption laws that prevent them from doing so,” said Lindsey Schromen-Wawrin, one of the attorneys involved. “State pre-emption is a weapon of corporate special interests, which can more easily control state legislatures rather than deal with counties and local governments that are closer to the people.”
AS LINCOLN COUNTY’S ADVOCATES CAMPAIGN for a stronger say in community environmental protection, they’re joining a national and global movement to recognize nature’s legal rights. Earlier this year, the Yurok Tribe declared that the Klamath River has inherent rights, while voters in Toledo, Ohio, granted legal rights to Lake Erie. Nationwide, 71 communities from across the political spectrum have passed either rights-of-nature or community-rights statutes, said Craig Kauffman, a professor of political science at the University of Oregon, whose research focuses on legal and political arguments for the rights of nature.
Part of the motivation behind the campaign is to put ecosystems on an equal footing with corporations, which already have personhood rights under federal law. “Where we often see these campaigns is in rural communities that don’t want outside corporations coming in and destroying the ecosystems and watersheds,” Kauffman told me. With the twin pressures of climate change and biodiversity loss mounting, people are looking for new ways to fight back on the local level, he said.
Ecuador, for example, added rights of nature to its Constitution after about a decade of advocacy. But Kauffman doesn’t anticipate these legal concepts being adopted quickly in the United States. In the Lincoln County case, Carol Van Strum, an author and activist who’s been fighting aerial spray since the 1970s, petitioned on behalf of the Siletz River, citing natural rights voted on in the initiative. Although the judge didn’t allow Van Strum and the river to join the case, Kauffman said getting these arguments into courts is still important, because it raises awareness of the legal concept and gives proponents a chance to test their arguments in court.
“Back in the 1970s, we were the lunatic fringe,” Van Strum said. Now, the county she lives in has voted to ban aerial spraying, and citizens continue to fight to uphold that vote. “There’s a lot of people that are saying what we were saying then,” she said. “The community rights people and the young people, who are saying, ‘No, we can’t live this way,’ give me hope.”
Carl Segerstrom is an assistant editor at High Country News, covering Alaska, the Pacific Northwest and the Northern Rockies from Spokane, Washington. Email him at [email protected] or submit a letter to the editor. Follow @carlschirps
