RISE Responds to Unfavorable Wisconsin Phosphorus Ruling

Despite months of legal challenges, Madison, Wis., and surrounding Dane County are entering into the first full season of lawn care without the use of fertilizers containing phosphorus. A Recent court ruling may make that situation permanent.

Per a ruling Wednesday by U.S. District Court Judge Barbara Crabb, plaintiffs including CropLife America, Responsible Industry for a Sound Environment (RISE), The Wisconsin Fertilizer & Chemical Association and the Wisconsin Landscape Federation, were denied an injunction against the City of Madison and Dane County that would have overridden 2004 ordinances regulating the use, display and sale of lawn fertilizers containing trace amounts of phosphorus. As it stands, such products – including fertilizer/pesticide combination products - that contain phosphorus are banned from use in the county.

THE RULING. RISE President Allen James spoke with Lawn & Landscape yesterday regarding the ruling and its impact on lawn care industry manufacturers. “We’re disappointed with the ruling for a number of reasons,” James said. “The judge’s decision was unfavorable on every point that we made, but there are contradictions in Judge Crabb’s own decision, which is very frustrating.”

James explains that RISE and the other seven plaintiffs named in the case were challenging Madison and Dane County’s attempts to regulate the fertilizer portion of fertilizer/pesticide combination products in which the fertilizers carry phosphorus. “Last year, the local governments decided they would regulate fertilizers, which they can do,” he says. “But they also decided they would regulate these combination products by saying that they were only regulating the fertilizer portion of the product. The problem with that is that federal law clearly states that if you register a combination product as a pesticide, all of it is a pesticide. The combination products that these ordinances ban are fully regulated as pesticides, which is against federal law and should be preempted by the state.”

At the base of the ban is an argument by Madison and Dane County that phosphorus runoff contributes to area water pollution. James says RISE was “shocked” when the local government proposed the bans using this theory. “This is a very unique situation - none of us have ever heard discussion of anything like this to prompt such an action,” he says. “The fact is that in testimony it was indicated that even if the local government was successful, it would probably improve the water condition for only one day per year.”

James says the plaintiffs used this and a number of other arguments to make their case. Beyond legal challenges to the ban, RISE noted the ban’s interference with the ability for manufacturers to do business in the state and that the ban gives an unfair advantage to locally produced biosolids in the marketplace. In the face of these efforts, James says much of his frustration about the ruling comes from the Judge’s own contradictory statements in her decision.

“Judge Crabb ruled that fertilizers were able to be regulated at the state level and that those rights prohibited local regulations,” James says. “She also acknowledged that the Wisconsin statute recognizes fertilizer/pesticide combination products as pesticides, but she allowed the bans to stand anyway. It just doesn’t make sense.”

INDUSTRY IMPACT & NEXT STEPS. Speaking on the part of fertilizer and pesticide manufacturers, James says the phosphorus bans could mean significant investments of time and money to accommodate the ordinances.

“If they formulators are providing products for consumers, they will have to reformulate those products so they don’t have phosphorus in them,” James says. “That means the product will have to be reregistered, the companies will pay more in fees, there will need to be new packaging and new labels – and all of that takes a good deal of time to do.”

University researchers say that a lack of phosphorus – a basic element in most inorganic fertilizers – will have an effect on lawns over time. "Phosphorus is one of the basic nutrients that all turf needs for growth and root development," James says. "For citizens in Dane County, their grass will not receive these phosphorus inputs and even though the county argues this will have no effect, we've been assured by turfgrass researchers at the University of Wisconsin that lawns will deteriorate over several years."

James says some companies have already reacted and are selling no-phosphorus fertilizers. RISE will be working with its formulator members to determine the next steps the group will take regarding the phosphorus issue in Wisconsin.

“The ruling can be appealed to the Seventh Circuit Court and we’re in the process of reviewing the entire case to determine if that’s the approach we want to take,” James says, noting that it’s possible that the case will not be appealed. “An appeal would be very expensive and because some companies already have non-phosphorus products on the market, so it may not be necessary to appeal. We’re going to talk to our members on the formulators side of the industry to evaluate our options with them.”

A third option is for RISE to work with other plaintiffs and industry supporters to gain fertilizer preemption in Wisconsin, which would leave decisions like these to the state, rather thank local governments. Forty-one states already offer pesticide preemption, including Wisconsin, and James says seven states have adopted fertilizer preemption as well.

“Fertilizer preemption is needed regardless of this case for the protection of agricultural and non-agricultural specialty fertilizer users,” James says. “We’re concerned that there will be an effort to continue these types of bans in other places in the state, though we haven’t heard any discussions about it in other areas of the country.”

The plaintiffs in the phosphorus case have 30 days to appeal the decision. Visit Lawn & Landscape Online for updates on this and other legislative issues in the green industry.