Jeff Bausch publishes article in the Lewis & Clark Animal Law Review
Volume 26 of the Lewis & Clark Law School’s Animal Law Review includes an article by UKS Attorney Jeff Bausch. The Regulatory Vacuum: How Marijuana’s Schedule I Status Imperils Endangered Species in the Emerald Triangle, 26 Animal L. 125 (2020) (“Article”). The Lewis & Clark Animal Law Review is “the nation’s oldest law journal devoted entirely to the discussion of legal issues involving animals.”
The Article examines a rare intersection between the Controlled Substances Act (“CSA”), the Endangered Species Act (“ESA”), and the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). More specifically, it demonstrates that the U.S. Fish and Wildlife Service (“USFWS”) is unable to adequately address ESA petitions because marijuana’s status as a Schedule I controlled substance creates a regulatory vacuum.
Marijuana growers use pesticides, many of which are lethal at certain concentrations. Typically, these pesticides are highly regulated by the Environmental Protection Agency (“EPA”), which implements FIFRA. Under FIFRA, farmers may only use pesticides specifically prescribed for use on a certain plant or crop; they cannot go “off-label” and use pesticides regulated for different plants or crops.
EPA has been unable to research or register pesticides for use on marijuana plants because the CSA prohibits the research of Schedule I substances. This results in a regulatory vacuum because growers lack guidance and regulation. Wildlife in northern California and Oregon—the heart of the Emerald Triangle region—are directly harmed because some growers resort to using pesticides (sometimes even banned pesticides) at abnormally high concentrations. Researchers have found that one pesticide in particular, anti-coagulant rodenticide, has bio-accumulated in the food chain. Environmental groups believe that the rodenticide exposure is a direct result risk for two endangered species in the Emerald Triangle, which are the Humboldt marten and the Pacific fisher.
The Humboldt marten. Picture credit indybay.org.
The ESA is implicated because the USFWS cannot adequately assess the threat of rodenticide due to the regulatory vacuum. Environmental groups have filed numerous petitions to protect the Humboldt marten and Pacific fisher under the ESA. Only recently—after nearly a thirty year delay between the first ESA petition—has the USFWS properly recognized the threat facing these species. The best solution to the regulatory vacuum is that Congress removes marijuana from Schedule I or carve out an exception for pesticide research on marijuana, notwithstanding its Schedule I status. This solution may eliminate the regulatory vacuum. In the absence of this solution, the USFWS must adopt a deferential standard under which it reviews ESA petitions in similar scenarios. This standard should recognize the scientific uncertainty regarding the bio-accumulation of marijuana related pesticide exposure in certain areas of the United States, such as the Emerald Triangle.
The integrity of the ESA relies on sound judgment from the USFWS, but the current regulatory environment hinders the USFWS’s ability to protect endangered species. The regulatory vacuum is truly deadly for endangered species like the Humboldt marten and the Pacific fisher.
If you would like to read the full copy of the Article, you can request a hardcopy from the Lewis & Clark Animal Law Review or from the Author. An electronically published version of Volume is 26 has not yet been released, but will be forthcoming.
More Information: The Medical Marijuana Practice Group of Updike Kelly & Spellacy, P.C. is a multidisciplinary team, with members providing legal advice on an array of related matters, including, regulatory compliance, corporate governance, venture capital and financing transactions, tax, real estate, zoning and land-use, commercial leasing, employment, HIPAA, privacy, and insurance. We are a full-service law firm committed to helping our clients understand the complex issues facing them, and take pride in assisting clients succeed in this new and emerging medical field. For more information, please contact our Practice Group leaders Richard D. Carella, at firstname.lastname@example.org or Jennifer Groves Fusco, at email@example.com.
Disclaimer: The information continued in this material is not intended to be considered legal advice and should not be acted upon as such. Because of the generality of this material, the information provided may not be applicable in all situations and should not be acted upon without legal advice based on the specific factual circumstances. The Article is the sole product of the Author and UKS does not adopt any opinions or conclusions therein.