USDA Takes Heat on Wooden Pallet Rule

Date: Oct 01, 2005

In September 2004, the U.S. Department of Agriculture (USDA) promulgated a final rule (effective September 2005) requiring wooden pallets and other wooden packaging materials that are imported into the United States to be either heat treated or fumigated prior to importation. The purpose of the rule is to prevent continued infestation of the U.S. by non-native invasive pests, such as the Asian long-horned beetle. In issuing this rule, USDA considered both how it could best protect the U.S. from these pests, while taking into account the economic and political factors that are inherent to trade and the shipment of goods.

Now, the Attorneys General from four states-California, Connecticut, Illinois and New York-have filed suit against USDA to stop implementation of the rule and to force USDA to consider banning wooden pallets altogether as an alternative.

The lawsuit alleges that USDA failed to fully consider the requirements of the National Environmental Policy Act (NEPA) in issuing the final rule. Before undertaking any significant action, federal agencies are required to consider the environmental impact of that action, and consider all feasible alternatives which could lessen the effect of the impact.

The suit alleges that USDA violated NEPA by issuing an environmental impact statement that was inadequate. The lawsuit alleges that the agency failed to consider or evaluate "the reasonable and feasible alternative" of phasing out the use of wood packaging. The Attorneys General view this as a better alternative because it would eliminate the need for this use of methyl bromide as a wood fumigant. (Methyl bromide has been targeted for phase-out as an ozone depleting chemical under the Montreal protocol, but is still widely used in many agricultural applications because of the lack of an effective alternative.)

The suit further alleges violation of the Plant Protection Act, which requires the agency to prohibit or restrict the entry of any plant product into the U.S. if necessary to prevent the dissemination of a plant pest.

The suit requests the court to remand the rule to USDA for further consideration, require USDA to issue an environmental impact statement that takes into account the issues raised in the suit and re-issue a final rule that is appropriate based on the allegations raised.

In the role of environmentalist and agriculture protector, New York Attorney General Eliot Spitzer says, "It is difficult to understand why the states must resort to a lawsuit in this matter when both the law and commonsense dictate that the USDA seek more effective and less environmentally damaging alternatives to thwarting these invasive pests."

And California's Attorney General, Bill Lockyer, who has already had his share of run-ins with the federal government over such matters as medical marijuana and Proposition 65 labeling requirements, says that "Methyl bromide is a potent and dangerous chemical," which is why the "Unites States agreed to an international treaty to phase out its use. It simply does not follow that USDA officials would ramp up its use, and endanger air quality and public health, especially when there are proven non-chemical alternatives."

Lockyer fails to mention that California, the country's leading agricultural state, has the highest level of use of methyl bromide in the country, and that the U.S. government has gone to bat many times over the years for California to delay the phase-out of the product to protect the state's agricultural base.

Clearly, the suit has as much to do with politics as with the merits of USDA's decision.

Used with permission. Copyright FOOD & DRUG PACKAGING, October, 2005.

For further information about this article, please contact George G. Misko at 202-434-4170 or by email at misko@khlaw.com.