10. The False Promise of Federalization

Jonathan H. Adler¹

Coupled with other seminal environmental events of the 1960s, Silent Spring fueled the push for federal environmental regulation. Many hoped the federal government would be a more vigilant guardian of environmental concerns than the states had been. Shifting regulatory authority to the nation’s capital was not an unmitigated environmental advance, however. State and local environmental efforts preceded federalization and were often based on localized knowledge and ecological insight. Uncle Sam did not always have the greenest thumb, particularly when compared to alternative policies based on the concerns of those most affected by environmental problems.

Pesticide regulation began long before publication of Silent Spring. The first generation of laws governing “economic poisons,” as pesticides were called, focused on protecting producers from “unfair” competition and consumers (i.e., farmers) from mislabeled or ineffective products. There was little concern about health, beyond general concern for excessive residues or “impure” foods. Later efforts put increased attention on residues and potential threats to farm workers, but policymakers largely ignored environmental effects. Carson’s exposé helped change that, encouraging regulators, legislators, and citizen-activists to call for greater controls on agricultural chemicals in order to protect wildlife, ecosystems, and even human health. DDT, in particular, went from “miracle” to “menace” and began to symbolize the potential costs of uncontrolled pesticide use.²

Even before publication of Silent Spring, some state and local governments were attuned to the environmental effects of excessive pesticide use. Though far from perfect, state and local policymakers were often more environmentally protective than federal officials— and the federal government was not particularly protective until prodded by federal courts. Congress and much of the administrative bureaucracy were responsive, if not beholden, to agricultural interests, and the pesticide industry was more than happy to centralize greater regulatory authority in Washington, D.C. Increased federal regulation did not automatically translate into increased environmental protection. As Carson herself recognized, state officials could be more attuned than were federal regulators to the ecological consequences of unrestrained chemical use on local environments.

Origins

Federal regulation of agricultural chemicals began at the dawn of the 20th century. Early federal regulations did not target environmental concerns. If anything, they sought to encourage pesticide use.³ Early pesticides consisted of inorganic materials, such as copper sulfate or arsenic, which were relatively easy to produce.⁴ Larger manufacturers feared that fraud would discourage farmers from purchasing and using pesticides, and some farm groups wanted greater assurances the “economic poisons” purchased by their members were as advertised.⁵ As political scientist Christopher Bosso noted, “Farmers feared increasingly that their purchases might be ineffectual or outright dangerous, while chemical makers worried about ‘unbridled competition’ and less scrupulous competitors.”⁶ Federal regulation was a way to reduce the chaos of unbridled market competition to the benefit of incumbent firms.

In 1910, Congress passed the Federal Insecticide Act.⁷ The law prohibited the sale of any misbranded or adulterated insecticide or fungicide in interstate commerce. The act was neither a public health nor an environmental statute.⁸ It “made no specific reference to the possibility of injury to humans or domestic animals, nor did it require directions for use or caution statements.”⁹ In a similar vein, Congress had passed the 1906 Pure Food and Drug Act to protect the public from “impure” food and to protect food producers from “less scrupulous operators.”¹⁰ The Insecticide Act was not particularly controversial and prompted minimal debate, as it was directly responsive to the concerns of pesticide users and producers.¹¹

For the next 30 years, federal regulatory efforts focused on protecting industry and agricultural interests more than the public; the environment was not even a concern. The Department of Agriculture had been formed in 1862 for the express purpose of promoting agricultural development, and as Meiners and Morriss discuss in the previous chapter, it continued to operate in this vein with the support of its congressional patrons. It sought to protect farmers and so did not make public its enforcement actions or safety concerns. For example, the agency warned apple growers in 1925 about the threat of “British sanctions against excessive arsenic residues on American fruit” but did not inform the press, let alone the public, lest public concern have a “chilling effect” on sales. And a 1937 USDA appropriations bill barred the use of funds for “laboratory investigations to determine the possibly harmful effects on human beings of spray residues on fruit and vegetables.”¹²

Early State Action

The first state and local laws governing “economic poisons” predated federal efforts. In the late 19th century, some local health agencies policed food products and occasionally took action to remove adulterated or potentially harmful foodstuffs from the marketplace. In what may have been the first such action, the New York City Board of Health condemned 258 crates of grapes in 1891 after the discovery of pesticide residues sparked public concern.¹³ Other local health boards began inspecting grapes from New York to make sure they were pesticide-free, and the grape market suffered until USDA officials declared that the residues, a combination of lime and copper sulfate, posed no risk to the grape-consuming public.¹⁴

Early state laws required manufacturers to register and label their products. A few states had laws regulating the sale of particular poisons prior to 1910.¹⁵ California, for instance, adopted regulations governing Paris Green in 1901.¹⁶ While states took the lead in adopting measures to protect consumers, few focused on environmental protection any more than the federal government did. In some cases, state or local governments actually required pesticide spraying to ensure effective regional pest control.¹⁷ A few, however, adopted measures to control local spillovers from pesticide application.¹⁸ States also did relatively little to address emerging concerns about the risks posed by pesticide residues on foods.¹⁹

As has often been the case in environmental policy, California was a far more aggressive environmental regulator than the federal government. California began requiring pesticide registrations in 1911²⁰ and revised the law in 1921 to incorporate early environmental concerns.²¹ California’s law required manufacturers to register all pesticides sold within the state with the director of agriculture. Among other things, the law also authorized the director of agriculture to revoke a pesticide’s registration if the pesticide was found to be dangerous to public health or animals, even if used properly.²²

In 1927, California began regulating pesticide residues,²³ and in 1949, California adopted legislation requiring pest control specialists and pesticide applicators to obtain state licenses.²⁴ This licensing role had previously been filled by local governments. Imperial County, for instance, imposed a pesticide permitting system in 1938 to protect other farmers and beekeepers from those using pesticides.²⁵ Even before World War II, amid growing concern about localized effects of agricultural chemical use, some local governments enacted measures in response.

FIFRA and Federalization

The federal government made little effort to regulate pesticides between passage of the Insecticide Act (1910) and the Federal Insecticide, Fungicide, and Rodenticide Act (1947). Congress held only two hearings on pesticides between 1910 and 1945.²⁶ However, both the use and production of “economic poisons” exploded after World War II. An estimated 22,000 pesticides were registered with USDA between the end of hostilities and 1950, and pesticide production increased approximately three-fold between 1945 and 1950.²⁷ With the increase in pesticide use and production came increased demand for government regulation—particularly from pesticide manufacturers.

Manufacturers opposed comprehensive regulation but “had long supported the modest regulatory system enacted in 1910, which allowed the sale of any product, no matter how dangerous, as long as it was honestly labeled.” This regulatory system worked to the advantage of larger, more established producers and helped build confidence in the reliability of pesticide products. In the 1940s, the industry “had even lobbied Congress for increased appropriations so that the division could enforce the rules more effectively.”²⁸

One reason manufacturers sought greater federal regulation was to blunt state regulatory efforts. States were beginning to regulate “economic poisons” but not always in the same way. Industry found state regulations increasingly burdensome, particularly because the specific requirements or common law liability rules could vary from one state to the next.²⁹ By 1946, manufacturers claimed, pesticides were subject to 270 state laws across more than 30 states.³⁰ New federal legislation had the potential to relieve manufacturers of those burdens without imposing too many new requirements. Federal regulation could also further “screen out those fly-by-night operators who might sully the industry’s reputation” and could help convince farmers that agricultural chemicals were a good investment.³¹

Thus, in 1947, Congress enacted the Federal Insecticide, Fungicide, and Rodenticide Act. Like the Insecticide Act it replaced, FIFRA was largely the product of negotiations among farm and chemical interests and the U.S. Department of Agriculture.³² More than any other agency, USDA was concerned with promoting a single sector of the economy. USDA was “the farm community’s earth mother and government nanny” and worked aggressively to safeguard agricultural interests.³³ The relevant congressional committees and subcommittees were also fully aligned with the interests of agriculture. Environmental concerns, as such, were not a major issue. The environmental movement of the time, still largely a conservation movement, was focused on other concerns such as wildlife, wilderness protection, and sustainable resource use.³⁴ As noted in earlier chapters, there were always organic farmers who opposed the use of chemicals, but they were swamped by the dominant agricultural interests that favored increased yields in a market increasingly dominated by large-scale operations.

Given the alignment of interests, it was no surprise the federal emphasis “remained almost entirely on providing economic protection for the commercial farmer, and reputable manufacturers.”³⁵ FIFRA’s express goals were to protect pesticide consumers by requiring useful and accurate labels, and “to protect the reputable manufacturer or distributor from those few opportunists who would discredit the industry by attempting to capitalize on situations by false claims for useless or dangerous products.”³⁶ It was also intended to “serve as a model for future state laws.”³⁷

The 1947 law was, in many respects, “self-regulatory.”³⁸ Pesticide manufacturers were required to label their products with the contents and use instructions, and those pesticides sold in interstate commerce had to be registered with USDA. Yet USDA lacked the resources or authority to investigate and analyze industry claims. Although registration was supposed to benefit consumers, pesticide manufacturers were not allowed to reference pesticide registration on product labels.³⁹ FIFRA authorized the federal government to deny pesticide registrations, but placed the burden of demonstrating the need for a rejection or cancellation on the federal government. Moreover, FIFRA specifically provided for “protest” registrations, under which manufacturers could continue to market pesticides the federal government had rejected unless the USDA sought criminal prosecution. Though rarely invoked, this provision almost certainly would have undermined USDA’s regulatory authority—had it sought to exercise any.⁴⁰

If the goal had been to protect public health or the environment, registration would not have been a particularly effective tool. As it was, the requirement’s primary purpose was to further standardize the national pesticide market. In 1980, the National Research Council described the act as follows:

The crucial assumption underlying FIFRA was that the major problem associated with the use of pesticides was their efficacy. The major basis for denying registration was that the label contained claims that differed from those made to the USDA. The only protection against undesirable effects of the pesticide to nontarget species and plants was afforded by the requirement that the label identify the pesticide as a poison. The USDA administered FIFRA on the assumption that efficacy was the major problem and, as a consequence, the bulk of the USDA’s regulatory activity was concerned with ensuring that pesticides were labeled accurately. Few chemicals were barred from the market.⁴¹

FIFRA was not much more controversial than the law it replaced, and its passage escaped widespread notice. The New York Times ran a short, “innocuous” Associated Press item on page 26, noting that pesticide powders would be colored to prevent accidental confusion with benign products, such as baking powder.⁴² The law was enacted by voice vote “without ‘significant comment or debate,’ reflecting the widely shared political perception that pesticide policy was mostly a matter of accommodating the interests of growers and the emerging chemical industry.”⁴³ The public was simply not much concerned with pesticide policy at the time. Industry, however, was concerned. Pesticide producers were encouraged by the law, and invested heavily to expand pesticide production—nearly $4 billion between 1947 and 1949.⁴⁴

Silent Spring

Awareness of the potential health and environmental costs of pesticide use was growing even before publication of Silent Spring. Yet Rachel Carson’s book served to concentrate and focus that awareness, seizing on the public’s sense of unease about emerging environmental concerns. Silent Spring challenged the prevailing, albeit waning, notions that pesticides were an unmitigated blessing and that the federal government invariably promoted the public good. Her writing prompted the creation of “a series of presidential commissions” and legislative hearings addressing concerns about the long-term health and environmental consequences of pesticide use.⁴⁵ Whereas public concern about pesticides had historically been confined to concerns about poisoned or “impure” foods, Carson’s work broadened that focus to include potential effects on ecosystems and other species.

The book provoked substantial public debate and prompted some local protests against federal spraying campaigns, but it had relatively little immediate impact on law or policy. According to historian Thomas Dunlap, “Neither Silent Spring nor the subsequent public controversy over Carson’s charges changed pesticide use and regulation in any significant way.”⁴⁶ USDA scaled back some of its aerial spraying campaigns, but farmers and government agencies continued to use DDT and other suspect chemicals. Some members of Congress were spurred into action by Carson’s call, but others—most notably those in charge of the relevant congressional committees, and the Agriculture Committees in particular—had little interest in revising federal pesticide law.

The controversy over DDT, to which Silent Spring contributed, may have helped build support for revising FIFRA in 1964, but the changes were exceedingly modest. The most meaningful change was the elimination of protest registrations. Pesticide manufacturers agreed to this reform in return for greater federal preemption of state regulation.⁴⁷ This was not much of a sacrifice on their part, as the protest provision was almost never invoked—in no small part because pesticide registrations were rarely suspended. It was a “symbolic change.”⁴⁸ Further, the 1964 revisions granted pesticide manufacturers an alternative means of challenging adverse regulatory decisions.

Perhaps more significantly, Congress revised the definition of what constituted a “misbranded” pesticide to include substances that could injure nontarget species “when used as directed or in accordance with commonly recognized practice.” This was a dramatic, if unintended, expansion. As one commentator noted, the new definition, if applied literally, “would have precluded the use of most pesticides,” as virtually all such substances could have negative effects on nontarget species, even when used as intended. “Congress had never anticipated such a strict translation.”⁴⁹

The elimination of protest registrations did not sate the demand for increased environmental action. Newly formed environmentalist groups juxtaposed Carson’s warnings with those made by other environmental authors and pointed to apparent environmental disasters to encourage greater legislative action, particularly at the federal level. Although Congress would not enact greater federal pesticide regulation, it could mandate other changes. For example, Congress authorized federal controls on air emissions from new motor vehicles (also supported by industry) and enacted the National Environmental Policy Act in 1969.

Relatively early in his presidency, Richard Nixon decided to burnish his environmental credentials. So, in 1970, he created the federal Environmental Protection Agency by Executive Order, relocating various environment-related responsibilities from other parts of the federal government. Among other things, responsibility for enforcing FIFRA was transferred from USDA to the newly formed EPA. This was potentially significant, as USDA had developed a reputation for being quite the lax regulator and for failing to review industry registration submissions with any diligence.⁵⁰ Nixon also proposed new federal pesticide legislation in 1971.

The debate prompted by Silent Spring largely ignored the state role in pesticide regulation, even if Carson herself did not. The book detailed numerous instances in which state and local officials or experts were more attuned to ecological concerns and the consequences of excess pesticide use than was the federal government. State conservation officials protested USDA’s aggressive campaign to eradicate fire ants, while local forestry officials questioned federal encouragement of pesticide spraying to control Dutch elm disease.⁵¹ “Effective and inexpensive methods of local control have been known for years,” wrote Carson of the fire ant campaigns. USDA’s “mass control program” was “the most expensive, the most damaging, and the least effective program of all.”⁵²

Testifying before Congress, Carson encouraged greater consultation with state officials and concurred with Senator Ribicoff that “local people” were often more knowledgeable about local needs and ecological conditions than federal authorities were.⁵³ Even before publication of Silent Spring, some local communities opposed the widespread spraying of DDT.⁵⁴ Some were even able to stop it. Nonetheless, most federal policymakers assumed solutions had to be found in Washington, D.C. The Mrak Commission, ignoring the fact that state environmental regulation often preceded federal action, simply asserted that “in all probability most State regulation will follow Federal guidelines and will likely be less demanding.”⁵⁵ In fact, many states had enacted more stringent pesticide regulations than those in place at the federal level, and states were substantially ahead of federal efforts to account for the potential environmental effects of pesticide use.

Back in the States

As concern about the broader environmental impacts of pesticide use increased in the wake of Silent Spring, California again acted ahead of the federal government. The Golden State’s pesticide registration law specifically imposed restrictions on the use of pesticides that had uncontrollable adverse environmental effects.⁵⁶ At the local level, officials in Imperial County imposed severe limitations on DDT use in 1961, and state-wide limitations were imposed in 1970.⁵⁷ California was hardly alone, however. By 1968, 47 states had registration laws, many of which were modeled on the Council of State Governments’ “Uniform State Pesticide Act.”⁵⁸ Even after the adoption of federal registration requirements, state regulators continued to argue that state registration was necessary “to permit consideration of local conditions and to impose more stringent requirements for the protection of public health and the environment.”⁵⁹ California, for instance, barred the registration of any pesticide determined to endanger the environment.⁶⁰ Thirty-six states also had statutes governing pesticide use or application.⁶¹

States also began to act on DDT while the federal government pondered the problem. Many local communities objected to excessive and indiscriminate pesticide spraying, often conducted with federal encouragement. “Bans on DDT began to dot the national landscape,” worrying industry.⁶² Local activists in Wisconsin convinced officials in some towns to stop using DDT.⁶³ Eventually, attorneys from the newly formed Environmental Defense Fund joined them in seeking an end to DDT spraying. In 1969, the Wisconsin Department of Agriculture announced it would no longer recommend DDT use for control of Dutch elm disease.⁶⁴ Shortly thereafter, the Wisconsin Natural Resources Board decided it would no longer issue permits for DDT use during growing season.⁶⁵ That year the Michigan Department of Agriculture also cancelled most DDT registrations, largely in response to fears about high concentrations of DDT residues in fish.⁶⁶ Arizona also imposed a one-year ban on the agricultural use of DDT.⁶⁷

New state efforts to control pesticide use were not limited to DDT. In the late 1960s and early 1970s, states continued to tighten regulation of pesticide sale and use. In 1971 alone, more than a dozen states enacted pesticide laws of varying scope and strength, including several statutes that included controls on pesticide application and otherwise sought to control the environmental effects of pesticides. New Hampshire, for instance, authorized its Pesticide Control Board to regulate or ban the use of pesticides that could harm non-targeted species, and Georgia imposed detailed reporting requirements to enable local officials to monitor environmental effects.⁶⁸

While both the federal and state governments enacted registration laws, in the 1960s, laws governing the use and application of agricultural pesticides were still “peculiar to the states.”⁶⁹ The precise requirements of these laws varied greatly from state to state. Some commentators found this “lack of uniformity” to be “disturbing,” echoing the concerns of industry, even though some of the variation could explained “by the varying needs and desires of the people in different areas.”⁷⁰

One reason to be suspicious of early state regulation was that regulatory authority was typically bestowed upon state agricultural departments—as was true at the federal level. No federal environmental agency regulated the potential environmental effects of pesticides until President Nixon created the EPA in 1970. And while federal courts pushed EPA to take a more aggressive stance toward those pesticides with potentially harmful environmental effects, Congress did not mandate such measures until it amended FIFRA with the 1972 Federal Environmental Pest Control Act. Yet that act further limited state regulatory authority and, by some accounts, called for less stringent regulation than had been demanded by the courts. State regulators, some of whom had been working to control the harmful effects of pesticide use for decades, were not happy.⁷¹

State common law also provided remedies for improper or negligent use of pesticides, particularly by aerial spraying.⁷² As a general rule, farm owners were liable for damage to others and others’ property caused by negligent aerial spraying of their land.⁷³ Tort suits were successfully filed in various states for damage to crops, and even for harm to animals or wildlife.⁷⁴ Tort suits were not a perfect source of protection and did relatively little to sanction broader environmental damage, but liability seemed to “do a reasonably adequate job of protecting persons and property from injury” resulting from pesticide use.⁷⁵ State-level litigation was sometimes successful at stopping the use of DDT. Lawsuits filed by EDF halted the spraying of DDT in several Michigan municipalities.⁷⁶ Lawsuits in Long Island, on the other hand, failed, as Rachel Carson chronicled in Silent Spring.⁷⁷

Taking DDt to Court

Litigation was a relatively new weapon in the environmentalists’ arsenal. The Sierra Club had filed the occasional lawsuit in the 1950s and 1960s, but few yet saw the courts as a partner in programmatic policy change. That changed in the 1970s as new environmentalist groups emerged to bring legal actions against polluting industries and recalcitrant government agencies. Among these new groups was the Environmental Defense Fund, mentioned above, which grew out of failed local anti-DDT-spraying efforts on Long Island. EDF began a legal and publicity campaign against DDT and other agricultural chemicals shortly after it was formed.

EDF’s actions began in the states, where it challenged local pest eradication programs and administrative support for DDT use. Most significantly, EDF arranged for an administrative proceeding in Wisconsin to consider whether DDT was a water pollutant. In effect, EDF put DDT on trials and was able to make its case in public. Ultimately, however, unsatisfied with state-level actions—which were unpredictable and could only help one region at a time—EDF turned to the federal government.

In October 1969, EDF petitioned USDA to cancel all pesticide registrations for DDT, notice of which would trigger a series of administrative proceedings, and to immediately suspend all authorized DDT use pending the outcome of such proceedings. The Secretary of Agriculture initially refused to rule on the petition and instead issued a notice of cancellation for nonessential DDT uses. EDF sued and won, forcing the secretary to rule on the petition. He then denied the request for suspension, and EDF sued to overturn that decision in 1970.

By the time the U.S. Court of Appeals for the D.C. Circuit issued its opinion in EDF v. Ruckleshaus,⁷⁸ authority over pesticide registrations had shifted to EPA. This placed regulatory authority in the hands of a bureaucracy more willing to challenge agricultural interests. More important, the lawsuit had landed in a court willing to reinterpret FIFRA “to impose a major reassessment of pesticide policy.”⁷⁹ For the first time, FIFRA was interpreted as a public health statute. Judge David Bazelon interpreted the 1964 FIFRA revisions to require EPA to initiate cancelation proceedings “whenever there is a substantial question about the safety of a registered pesticide.”⁸⁰ In effect, Judge Bazelon’s decision shifted the burden of proof to a pesticide’s manufacturer to demonstrate that a pesticide was safe and effective once a question about a pesticide’s safety had been raised.⁸¹ As such questions had been raised about DDT, the court held, EPA was required to initiate cancellation proceedings for all remaining uses of DDT.

After the court’s decision, EPA held several months of hearings, reviewing the relevant scientific evidence on DDT. The hearing examiner, Edmund Sweeney, initially concluded that the threat to humans or wildlife from DDT had not been demonstrated and that ample reasons remained to continue DDT use. EPA Administrator William Ruckleshuas disagreed with this conclusion, however, and cancelled DDT registrations for all agricultural and other non-health-related uses. Industry groups appealed, but to no avail.

From FIFRA to FEPCA

The decision in EDF v. Ruckleshaus increased the pressure for further legislative revisions to FIFRA. Agricultural interests and their congressional sponsors recognized that FIFRA reform was “inevitable.”⁸² Industry was unhappy with the way federal regulatory requirements under FIFRA had been tightened by the courts and found judicial mandates too unpredictable.⁸³ A federal court had given environmental advocates a set of legislative controls that would not have passed Congress—at least not yet. The court had, in effect, given EPA authority to ban pesticides on the basis of unproven environmental risks; Congress intervened to ensure that such risks were balanced against the potential benefits of pesticide use.⁸⁴

Congress enacted the Federal Environmental Pesticides Control Act to amend FIFRA in October 1972. The revisions extended federal authority to cover pesticides sold in intrastate commerce and explicitly instructed EPA not to register pesticides that posed unreasonable adverse environmental effects, though framing this standard in a way that ensured EPA would also consider a pesticide’s benefits. Specifically, FEPCA defined “unreasonable adverse effects on the environment” as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.” It further authorized EPA to impose additional restrictions on the use of some pesticides, mandated additional recordkeeping requirements, and called for EPA review of existing registrations. At the same time, FEPCA provided indemnification for pesticide manufacturers and applicators should they be stuck with unusable supplies after a decision to cancel or suspend a previously registered pesticide.

Although FEPCA was more explicitly directed at environmental effects than FIFRA had been, at least as written by Congress, it was not clearly more regulatory or precautionary than the D.C. Circuit’s interpretation in EDF v. Ruckleshaus. Though often characterized as the result of a “republican moment” in Congress, motivated by Silent Spring and broader environmental concerns, FEPCA also represented a compromise and retrenchment, as it did not meaningfully enhance the federal government’s regulatory authority at the expense of pesticide producers. FEPCA included language authorizing broader environmental regulation, but EPA was not given the funding necessary to implement such requirements.⁸⁵ As William Reukauf, a senior attorney who dealt with pesticides at the EPA explained, the General Accounting Office concluded in the 1976 that EPA lacked the data to fulfill its statutory mandates to regulate agricultural chemicals.⁸⁶

FEPCA was not the last revision to FIFRA. In 1975, Congress amended FEPCA to address state and agribusiness dissatisfaction with EPA’s attempts to take effective, forceful action to protect public health and the environment.”⁸⁷ The legislative revisions of 1975 and 1978 were intended to force EPA to give more attention to the economic consequences of limitations on pesticide use and to restore some state flexibility.

Federalism Lessons

The rash of federal regulations adopted between 1969 and 1976 is often seen as an overdue federal response to the failure of state and local governments to provide adequate environmental safeguards. This is the standard fable of federal environmental regulation.⁸⁸ The historical record tells a different story. State and local regulations addressing environmental concerns ranging from urban air pollution to wetland development predated federal efforts—and were sometimes superior. Fear of stringent and potentially variable state standards often led national industry groups to support the centralization of environmental policymaking in Washington, D.C., particularly where federal action could preempt state legislative initiatives or common law tort liability.

The standard fable miscomprehends the history of pesticide regulation as well. State and local efforts were variable and inconsistent, but they largely preceded federal efforts to confront the potential environmental consequences of agricultural chemical use. Federal regulation was initially driven by industry concerns, not the protection of public health or the environment, and that history was hard to shake. Congress showed little inclination to adopt broad environmental controls on chemicals until well after state governments and the courts had taken substantial steps—and even then the legislative efforts were inconsistent.

That states were often ahead of federal regulators—and even more often ahead of federal legislators—at addressing the environmental consequences of pesticide use is not surprising. Local officials have greater access to local knowledge about ecological conditions and may be more attuned to emerging evidence of environmental harm. Particularly before policymakers became aware of the potential latent effects of pesticide spraying and the bioaccumulation of chemicals within humans and other organisms, state and local officials were likely to be more attuned to the practical effects of different approaches to pesticide use. As Carson herself noted, state and local officials often resisted federal spraying initiatives. Further, the potential consequences of pesticide use vary from place to place based upon a wide range of factors, including local geographic and environmental conditions, land-use patterns, and types of crops or produce grown in a given area.

The rationale for federal regulation of pesticide residues is strong and long-acknowledged, as even a half-century ago food products were distributed and marketed nationally.⁸⁹ A national regulatory framework for residues is particularly good for larger, national companies. Historian Thomas Dunlap notes, “Some of the most serious complaints about the contamination of food by insecticide residues came from officials of the Beech-Nut Packing Company.”⁹⁰ Yet the FDA was not particularly proficient at setting pesticide residue tolerances, and it is possible Congress wanted it that way.⁹¹

The environmental justification for federal pesticide regulation was relatively weak so long as the environmental effects at issue were localized. Once scientists and environmentalists began to express concern about the accumulation of residues and the potential for pesticide use in one area to impact ecosystems elsewhere, a clear rationale for federal involvement to control such interstate spillovers became evident. Yet when Congress enacted legislation authorizing the environmental regulation of pesticide use, it did not focus on addressing such spillovers and complementing preexisting state and local efforts. Instead, Congress created a broad, untargeted regulatory structure and then failed to appropriate the resources necessary to enforce the newly created scheme. The result was by no means ideal. Though subsequent reforms sought to expand state-level flexibility, it is difficult to provide a sound institutional rationalization of the current regulatory structure.

While current federal regulation adopts a cooperative federalism model that offers states some flexibility to adopt more stringent regulations or policies tailored to local conditions, the federal regulatory structure imposes “significant constraints” on states’ abilities to “develop new, potentially more effective forms of handling the environmental problems pesticide use creates.”⁹² States retain the ability to obtain special local needs registration, but this has not led to significant state-level policy innovation.

The federalization of pesticide regulation may have itself discouraged greater state and local efforts and crowded out more finely tuned approaches to environmental protection. As Carson observed, federal officials do not often consider local conditions or effects. At the same time, federal intervention may discourage greater policy investments by state and local policymakers. Why should they devote time to an issue once the federal government has entered the field, enacted the easiest policies, and taken credit for solving the problem? Even non-preemptive federal regulation may discourage the adoption or maintenance of more stringent state-level regulation and reduce the benefits of attempting policy experimentation.⁹³ Insofar as the environmental regulation of pesticide use is best when it accounts for local effects and ecosystem properties, premature federalization can produce less optimal environmental regulation.

Conclusion

Intentionally or not, Silent Spring contributed to a broader political push for the federalization of environmental regulation in the 1970s. It initially spurred state and local efforts, then it reinforced growing concerns about the environmental consequences of agricultural chemicals and a latent demand for greater federal regulation. Even though Carson herself was somewhat skeptical that much environmental wisdom would be found in Washington, D.C., her book contributed to the federalization of pesticide regulation and the tightening of federal rules—first by the courts and then by Congress. “The first casualty of the battle over DDT was the old system of federal regulation of pesticides and the interest-group control over that policy.”⁹⁴ Yet the new system still had some things in common with the old. If the old system was too dominated by agricultural interests, the new was too inflexible and overly centralized—in part because of the continuing legacy of agricultural interests used to plowing ground in Washington, D.C. Ecological harms may have been an unintended consequence of uncontrolled pesticide use. Overly centralized and inflexible pesticide regulation may have been an unintended consequence of Silent Spring.