Superfund, Pesticide Regulation, and Spray Drift: Rethinking the Federal Pesticide Regulatory Framework to Provide Alternative Remedies for Pesticide Damage

• Author: Daniel L. Moeller
• Position: J.D. Candidate, The University of Iowa College of Law, 2019; B.A., Lawrence University, 2011
• Pages: 1523-1550

1523

Superfund, Pesticide Regulation, and

Spray Drift: Rethinking the Federal

Pesticide Regulatory Framework to

Provide Alternative Remedies for

Pesticide Damage

Daniel L. Moeller*

ABSTRACT: The use of pesticides in agriculture is increasing and creating

environmental, health, and economic problems. Simultaneously, the nature

of the American farm is changing from small, family-owned and operated

entities to large industrial-like operations with a separation of ownership and

labor. The current legal framework is not equipped to deal with the changing

structure of the farm and the damage caused when their pesticide use harms

neighbors’ health and property. The system of using state law tort remedies for

pesticide abuses must be expanded to include more federal remedies. The

government should be allowed to seek damages and require pesticide cleanup

using two federal statutes, Comprehensive Environmental Response,

Compensation, and Liability Act (“CERCLA”) and Federal Insecticide,

Fungicide, and Rodenticide (“FIFRA”). To better utilize the statutes already

in place, the definition of farming should expand to reflect the realities of

modern farms, and the statutes should be interpreted to include both pesticides

and farms within their definitions for liability. The change in the legal

framework and thinking will provide additional and complete remedies

against pesticide drift abusers and will relieve some of the burden on farmers

and those affected by drift. The political and legal timing is ripe to incorporate

these modest changes that will benefit the livelihood and viability of rural

agricultural communities.

I.INTRODUCTION ........................................................................... 1524

II.BACKGROUND ............................................................................. 1527

A.PESTICIDE USE ...................................................................... 1527

*

J.D. Candidate, The University of Iowa College of Law, 2019; B.A., Lawrence University,

2011.

1524 IOWA LAW REVIEW [Vol. 104:1523

B.THE TRADITIONAL DEFINITION OF ‘FARM’ .............................. 1532

C.REGULATIONS AND RECOVERY ................................................ 1533

1.Regulation at the State Level ...................................... 1534

2.Regulation at the Federal Level ................................. 1536

III.PROBLEMS AND ANALYSIS ............................................................ 1540

A.STATE TORT LAW AND STATUTES DO NOT PROVIDE

ADEQUATE REMEDIES ............................................................ 1540

B.APPLICATION OF FEDERAL STATUTES DOES NOT PROVIDE

COMPLETE REMEDY ............................................................... 1542

1.Pesticide Exemption ................................................... 1542

2.Farmer Exemption ...................................................... 1544

3.No Private Right of Action .......................................... 1545

4.Practical Problems ....................................................... 1545

IV.RECOMMENDATIONS ................................................................... 1547

A.THE NEED FOR AN UPDATED DEFINITION OF ‘FARM’ ................ 1547

B.CERCLA APPLICATION ......................................................... 1548

V.CONCLUSION .............................................................................. 1550

I. INTRODUCTION

In most ways, the communities along the northeastern Arkansas border

are like any other agricultural community in rural America. The small towns

are inhabited by hardworking, neighborly people who tend to the green crops

that border isolated gravel roads, and nothing out of the ordinary ever seems

to occur. However, in 2016, a small community in Arkansas was shocked after

one local farmer met a neighboring farmer on a back road and shot him

dead.1 As shocking as the killing was to the town, few were surprised to learn

that a dispute over drifting pesticides, which had caused severe crop damage

to nearby farms, had led to the murder.2 For years, pesticide use on farms in

the surrounding community had increased substantially and damage to

neighboring crops from wrongful pesticide use had become common as well.3

The disputes over farming practices, pesticide use, and property damage in

the town had reached an irreconcilable point and the only available remedy

seemed to be the confrontation that occurred on the gravel road.4 The tragic

1. Marianne McCune, Planet Money: The Pigweed Killer, NAT’L PUB. RADIO (June 2, 2017, 9:32 PM),

https://www.npr.org/sections/money/2017/06/02/531272125/episode-775-the-pigweed-killer.

2. Id.

3. Id.

4. The situation seemed irreconcilable because this was an issue that had arisen before and

the only punishment was to go before an administrative board and pay a small fine. Based on

experience, this was not an adequate solution and resulted in repeat offenders. Id.