Before they adjourned on May 6, the Colorado General Assembly sent a little warning to the city of Denver: Pesticide regulations are the purview of the state, not the city.
In March, the City of Denver’s Department of Environmental Health inspected 10 marijuana grow facilities. It required several growers to quarantine their plants based on pesticide use the department considered dangerous for human consumption. One grower had to quarantine 60,000 plants, which means they cannot be sold for people to consume. Losses for the growers could total in the millions, since some plants can be valued up to $1,000 each.
The pesticides at issue are Eagle 20EW and Avid. Neither is labeled for marijuana use, but that’s not surprising. No pesticide is labeled for marijuana use because the plant is still illegal under federal law.
The Colorado Department of Agriculture developed an 18-page list of pesticides that could be used for marijuana. If a pesticide isn’t listed, it’s better not to use it.
That’s the problem with Eagle 20EW and Avid. They don’t appear on that list. They don’t even appear on a one-page list, also from the Department of Agriculture, of pesticides not allowed for marijuana.
The Department of Environmental Health began doing inspections of marijuana grow facilities almost as soon as it was legalized, according to city spokesman Dan Rowland. The department’s authority regarding pesticides comes under its mission of public health and for consumer protection. It’s a fine line between that claim and that of the Department of Agriculture, which regulates pesticides under the state pesticide act and its mission of worker protection.
But at least one lawmaker isn’t buying that fine line. And he got the other 99 legislators to agree.
On the 119th day of the 2015 legislative session, the state Senate took up House Bill 15-1367. The bill as introduced would ask voters to allow the state to keep $58 million in marijuana tax revenue. Those dollars exceeded the TABOR (Taxpayers’ Bill of Rights) revenue limits and must be refunded unless voters say otherwise. That voter referendum would appear on the November ballot.
When the bill hit the Senate Appropriations Committee, its sponsor, Sen. Pat Steadman, D-Denver, added $314,000 to the Department of Agriculture’s budget. Those dollars would come from the state’s marijuana-tax cash fund. Steadman said it would be spent on pesticide inspections for marijuana. It also allows the department to hire four people to conduct those inspections.
The bill came up for second reading in the Senate on May 5. That’s when Sen. Jerry Sonnenberg, R-Sterling, attached a short half-page amendment, buried in the 33-page bill, that stated pesticide regulations are the purview of the state, including those related to marijuana cultivation.
Under the amendment, local governments are barred from adopting or to “continue in effect” any ordinance, rule, resolution or statute regarding the use of pesticides for marijuana.
Sonnenberg told The Colorado Independent he felt Denver had overstepped its authority on pesticides and wanted to make sure other municipalities didn’t get the same idea. He had been working on the issue for several weeks and originally planned to run a separate bill. But he abandoned that idea in part because he wasn’t sure the bill would get all the way through the legislature. And when he saw HB 1367, Sonnenberg said he found it was a much easier way to deal with the problem.
The amendment was approved; the Senate passed the bill on May 6 and the House adopted the Senate amendments. HB 1367 now awaits signing by Gov. John Hickenlooper. He has until the end of next week to sign or veto it.
But it’s unlikely that the amendment will change those Department of Environmental Health inspections.
Rowland told The Colorado Independent the department has the authority to protect consumer health and safety. “It’s a consumer protection issue. [The Department} keeps food that may be harmful from being served” to consumers, and in this case, the pesticide use raises concerns about the safety of marijuana for consumers, he explained.
Rowland and others also pointed to the collaborative work between the department and the state Department of Agriculture. That agency can sample a plant and test it at the request of the city, another place where the lines of authority come into play. The Department of Environmental Health cannot tell a grower to stop using a particular pesticide, but it can order the plants into quarantine. A grower then must decide whether to wait for the testing results from the Department of Agriculture, or the grower can decide to destroy the plant. Rowland said some growers have already gotten rid of affected plants.
On the other hand, the Department of Agriculture can order a grower or pesticide applicator to discontinue use of a particular pesticide, according to John Scott, pesticides section chief at the Department of Agriculture. Scott also acknowledges the fine line between the city’s authority and that of his agency.
Scott believes that the HB 1367 amendment won’t change how pesticides are regulated. “It clarifies state uniformity standards,” he said. He believes the amendment simply says local governments cannot regulate pesticide use. “We commended Denver for bringing to our attention” the application of pesticides to marijuana, Scott said.
“There is a fine line, but everyone has stayed on their side of the fence with communication and cooperation between agencies. Where our authority stops, theirs picks up [and vice versa]. The goal is that pesticides are used properly and public health is protected,” Scott said.
The amendment may still cause problems, either for municipalities, growers or even the state. After the March action by the city, one of the growers, Organic Greens, sought a court order to lift the quarantine. Even though the law had not been signed, the amendment to HB 1367 became part of the discussion. But Judge John Madden disregarded it and sided with the city in his ruling last week.
Once signed, more challenges to Denver’s authority and other local governments may be on the horizon. And there’s also a possibility of a challenge to the law itself.
Kevin Bommer of the Colorado Municipal League told The Independent that while they don’t plan a challenge, they strongly feel the amendment should never have gone into the bill. The CML’s concerns are two-fold. Something that important shouldn’t have been added to a bill on the 119th day of the session, he said this week. There’s also the matter of the bill’s subject title, which dealt with retail taxes for marijuana. Bommer said it could be challenged under the state’s single-subject law. It wouldn’t necessarily affect the rest of the law regarding the referendum, since the amendment could be judged strictly on its own merits, he said.
“It doesn’t do the proponents any good to tack [the amendment] onto the bill when it can be challenged on single subject,” Bommer said. By doing it the wrong way, he added, the sponsors set themselves up should anyone want to challenge it.
Sonnenberg said this week that he believed the bill title was broad enough to allow for his amendment. But if there’s a challenge, he said this is as good a thing to challenge on, and he looks forward to defending it.
The governor’s office has not looked at the amendment from a single-subject perspective, according to Andrew Freedman, who handles the office’s marijuana coordination. “We saw [the amendment] as a reaffirmation of powers granted in the pesticide applicators act,” he said. As to the single-subject issue, “we leave that to the parliamentarians.”
Photo credit: Mike Lewinski, Creative Commons, Flickr.
