Tuesday, March 10, 2015

The Worms Play Pinochle On Your Snout

Meet Montgomery County, MD Bill 52-14. Introduced last October, but up for debate in council now, viddy well little brother, the gutty-wuts of the thing. Bill 52-14 will:

1) Require the posting of notice when a property owner applies a pesticide to an area of lawn more than 100 square feet, consistent with the notice requirements for when a landscaping business treats a lawn with a pesticide;
2) Require the Executive to designate a list of"non-essential" pesticides including:
• all pesticides classified as "Carcinogenic to Humans" or "Likely to Be Carcinogenic to Humans" by the U.S. EPA;
• all pesticides classified by the U.S. EPA as "Restricted Use Products;"
• all pesticides classified as "Class 9" pesticides by the Ontario, Canada, Ministry of the Environment;
• all pesticides classified as "Category 1 Endocrine Disruptors" by the European Commission; and
• any other pesticides which the Executive determines are not critical to pest management in the County.
3) Generally prohibit the application of non-essential pesticides to lawns, with exceptions for noxious weed and invasive species control, agriculture and gardens, and golf courses;
4) Require the Executive to conduct a public outreach and education campaign before and during the implementation of the Bill;
5) Generally prohibit the application of non-essential and neonicotinoid pesticides to
County-owned property; and
6) Require the County to adopt an Integrated Pest Management program.
Detailed background behind these measures can be found in the filler in the link. The basic idea is this: EPA restrictions on pesticide use are insufficient to satisfy clamorous and well-organized Montgomery County constituents, so they are in the midst of petitioning the county for redress of grievances.

I won't belabor the risk assessment or the implied cost-benefit analysis. after all, costs and benefits are subjective things, and who am I to judge on others' behalf whether an imperceptible reduction in the risk of cancer is worth the risk of grub or termite damage? What I do find interesting is that this bill is being pitched (at least on the radio during my morning commute) as a matter of externalities. When Smith seeks to slay the creepy-crawlies in his front lawn, runoff contaminates Jones's yard. Hey-presto, property rights violation!

Of course, this is classic Coase. It's a pairwise conflict, one where the grieved parties are clearly identified, easily organized, and in possession of well-established rights in land use. To strum a chord I've sounded before, lawn runoff conflicts are easily resolved in tort. Would you be willing to imprison your mother for the crime of lawn care?

There's a bit of common law jurisprudence that when applied to speech is called "prior restraint." Prior restraint is ex ante censorship, silencing speech before harm can be demonstrated. The intuition that leads the Supreme Court to roundly reject prior restraint is the same that governs tort law. Damages have to be substantiated (even if the methods to do so are a bit, well, let's be generous and call them "suspect") to be recovered. The precautionary principle is the legal antithesis of the presumption against prior restraint. The PP tells legislatures and regulatory agencies to prohibit activities that pose severe, uncompensated risks to the public. Judging by the public health language in the bill, this is exactly the regulatory principle being invoked by Montgomery County officials. What do you think, dear friends? Is the precautionary principle appropriate here? Why or why not? Should the presumption in the legislature be in favor of allowing private citizens to resolve their own disputes or to intervene ex ante?

Montgomery County residents must think carefully about how to address their noxious pest problem.

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Do you have suggestions on where we could find more examples of this phenomenon?