Report Offers Recommendations to Help States Address Invasive Forest Pests, Pathogens

When a new forest pathogen or pest like the Asian long- horned beetle, Dutch Elm disease, or hemlock woolly adelgid is discovered, there is an assumption that state agricultural and or natural resources agencies are ready and able to respond. However, according to a new report by the Environmental Law Institute (ELI)—Strategies for Effective State Early Detection and Rapid Response Programs for Plant Pests and Pathogens—the state laws that enable early-detection and rapid-response authorities to address terrestrial plant pathogens and pests may hinder the exercise of those response powers. ELI produced the report with funding and guidance from The Nature Conservancy (TNC),a group that, according to TNC's senior policy representative Faith Campbell, seeks to bolster the laws and regulations pertaining to the detection and control of forest pests.

"When something new gets into the country, it's clear that there's supposed to be a coordinated federal—state response," said Campbell. "We felt that things are not going as well and as effectively as we would like, so we thought that one aspect of that might be limitations of what the state laws provide, so we chose to analyze the laws in 14 states that have had problems with forests pests." To that end, some of the recommendations in the report focus on what it refers to as "agriculture-centric response laws," which, according to Read Porter, ELI staff attorney and author of the report, may not be appropriate for controlling the spread of forest pests.

"It's imperative that laws enable state agencies to respond to this growing threat," he said. "Most of the agricultural laws seem to be aimed at things like boll weevils and your typical crop pests rather than forest pests like the Asian long-horned beetle. We wanted to look at whether the agricultural laws apply in a forestry context, and if they do apply, then how."

Porter added that the report also examines how the laws, which often were written with rural areas in mind, apply to more urban areas. "It seems like there is a trend toward invasive plant pests and pathogens becoming established in urban and suburban areas rather than in more rural settings. So we were also looking at how these laws apply in different geographic areas."

In writing the report, Read and his colleagues collected information on the relevant laws pertaining to the detection and response to invasive pests and pathogens in 14 states that have had to face such challenges. They also performed case studies on the performance of early-detection and rapid-response laws as they pertained were used in response to the Asian long-horned beetle and gypsy moth infestations in New York and Texas.

Among the report's conclusions, said Porter, are that states must enact laws that balance the need for broad state agency authority to act against the need to preserve private-property rights, respect landowners' privacy, and sustain public support. He also said that states can take some rather simple actions to enhance their early-detection and rapid-response programs, such as enact laws that broadly define the term pest and clearly identify which agency will take the lead in response efforts.

"An agency's authority to respond to a particular pest depends on whether it's classified as a pest under state law. So, having broad definitions of what constitutes a pest are essential," said Porter. "Also, the clearer inter-agency cooperation and goals are defined, either by indicating a lead agency to guide the effort, or by creating a cooperative office, or even by establishing clearer lines of who is responsible for what is beneficial to getting response programs off the ground."

Invasive forest pathogens and pests may damage trees in urban and suburban areas as much as they do in rural areas. However, a new report by the Environmental Law Institute—Strategies for Effective State Early Detection and Rapid Response Programs for Plant Pests and Pathogens— suggests that the state laws regarding their control may not be well suited to controlling infestations outside rural areas.
Among the report's other recommendations are:

Commitment to rapid action and recourse to direct agency action when landowners fail to respond and broad agency authority to treat and destroy both infested and potentially infested plants or articles.

The most effective provisions recognize the importance of allowing the responsible agency to delineate the quarantine area to include some un-infested areas and to permit some activities within the quarantine area.

Compensation allocation requires careful consideration of equity issues and a proper incentive structure to encourage both rapid landowner disclosure of infestations and rapid responses to infestations.

Authority to inspect is always beneficial when prepared with authority to enter private lands ... although unbound entry authority to noncommercial lands may run afoul of private property concerns.

The most effective early-detection and rapid-response programs recognize the importance of providing response authority in both public and private forests and general or emergency exceptions from restrictive forestry laws to protect against accidental limitations on tree-cutting authority, even in otherwise pristine areas.

The most effective early-detection and rapid-response programs that provide for the emergency uses of some pesticides with time-limited notice and application restrictions that provide for community input while still protecting against the spread of pests.

Although the report does identify the advantages and disadvantages of specific state laws, Porter said that the association did not set out to identify particular state programs that could serve as a model for others.

"We didn't necessarily find a single state that had all of the elements that we recommend," he said. "As it turns out, every state had some potential weaknesses and potential strengths. It was pretty clear that there was a pretty wide variety and that states are experimenting with the regulatory tools that are available."

In addition, as he writes in the report, "the robustness of state authority to detect and respond to infestations differs among states due to political, geographical, biological, and cultural factors. As a result, each state requires individualized policy analysis that addresses both its explicit invasive pest regulatory authority and other laws that may limit state agencies' powers to use certain response strategies."

Among those strategies, said Porter, may be compelling absentee landowners to manage pest outbreaks via the threat of granting state agencies access to private land. "In a lot of cases, the landowner will get the first crack at responding to an infestation. That's an area in which industrial landowners might be better equipped to take action and respond appropriately," said Porter. "Most of the states have actually recognized that landowners won't be equipped or will be absent and won't be assisting in an effective response. I think in every state that uses that sort of model, the agency is permitted to go on the land after a certain amount of time if no action has been taken. Even the threat of that may stimulate more active responses by landowners."

Given that the optimal program for detecting and responding to forest pests and pathogens may vary greatly from one state to another, Campbell admits that the report isn't the last word on establishing effective detection and response programs.
Nevertheless, she is hopeful that the issues the report raises will help states be better prepared for the next emerald ash borer or sudden oak death.

"We never thought that this report was going to provide all the answers to all the problems," said Campbell. "However, having a better understanding of what the various states are and are not allowed to do, and their various approaches, will help us work toward a better, more coordinated program when the next invasive pest shows up."

Read agreed and said that the key to being prepared is the implementation of effective laws and regulations. "If there's a take-home message here, it's that it's important to recognize the need for laws that address early-detection and rapid response programs for forest pests because current programs don't necessarily allow effective responses," said Porter. "We need laws and regulations that are clear and that allow agencies to work together to prevent establishment of these pests."

Campbell was more blunt. "States as a whole are not really set up to deal with this problem. Part of it has to do with jurisdiction, part of it has to do with the fact that the folks who wrote the state statutes in the past were really thinking about acting in non-commercial settings—that's a very obvious gap—when you're dealing with the need to work quickly in cities and suburbs on street trees and backyard trees," said Campbell. "It's also quite clear that states with different legal frameworks—Michigan, Ohio, New York—have managed to respond to pest outbreaks, so I don't think that anybody would ever argue that having a standardized legal framework solves all your problems." Funding and commitment and even an organism's host species can be issues of concern as well, she said.

"There are also issues of funding, as well as issues of commitment to dealing with these organisms that may not pose threats to the traditional constituencies of state agencies; whether an out-break is located in the city or the suburbs—places not traditionally considered to be places of concern to agricultural agencies; or if the organism shows up in a host tree not considered to be an important species," she said.

Although the ELI report does not mention the role that foresters may be able to play in a state's early-detection or response effort, Read acknowledged that their expertise and perspective would to be of benefit to control the spread of forest pests and pathogens. "I think that the inspection aspect is really important. Early detection is key to preventing the establishment of pests, and agencies often are under funded, and it's difficult for them to keep an eye on what's happening in forests—especially on private land," he said. "Foresters have that on-the-ground perspective and have the expertise to evaluate tree health and recognize developing problems."

This article was published previously in The Forestry Source, in August of 2007.

The full report is available free of charge from ELI's website, here.

For more information, contact Read Porter, staff attorney,
Environmental Law Institute, 2000 L Street, NW, Suite 620,
Washington, DC20036; (202) 939-3810; porter@eli.org;
www.eli.org.

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