Legal Commentary

Letting the Bedbugs Bite

By Jonathan H. Adler

Once virtually eliminated in the United States, bedbugs are back with a vengeance.  Earlier this summer Environmental Protection Agency and Centers for Disease Control and Prevention reported the little pests had made an ?alarming resurgence,? possibly due to increased resistance to available pesticides and a decline in local pest control programs.   Some pesticides once used for bedbug control have been phased out from indoor use, if not altogether, and the blood-sucking insects have developed resistance to their replacements.  Lifestyle changes also play a role in the bedbug rebound.

As the Washington Post reports some state and local officials are seeking EPA approval for indoor use of chemicals that retain their effectiveness against the pesky parasites.  Ohio Governor Ted Strickland, for one, has sought approval for use of propoxur, a pesticide currently banned from residential use, but so far the EPA has said no.  Without a safe and effective indoor pesticide to use, bedbug infestations are spreading.  As the Columbus Dispatch reports, bedbugs are spreading to schools, fire departments, and group homes, among other places, and increasing burdens on charities that collect and sell used clothes and furniture.  There are also increasing reports of health problems caused by ill-advised efforts to use available outdoor pesticides indoors.

Health officials in Ohio and several other states believe that the risks posed propoxur are outweighed by the severity of the bedbug problem.  The EPA disagrees.  The EPA has the legal authority to preempt state preferences, and is often obliged to under existing statutes, but should it?  Why should the EPA?s assessment of the relevant risk-risk trade-offs override those of the states?

There is an unquestionable case for federal intervention where activities in one state cause spillovers into another.  Think of air pollution.  But there?s no risk of such spillovers here.  Indeed, if there?s any risk it operates in reverse ? jurisdictions that fail to control bedbugs can increase the risk of infestation for their neighbors.  By limiting local pest control options the EPA is protecting local jurisdictions from themselves, and some don?t want this protection.

If local communities wish to strike a different risk balance than the feds, the EPA should not stand in their way.  It is one thing for the EPA to inform local choices, and help clarify the relevant health trade-offs, quite another to impose one set of health preferences on the nation as a whole.  If EPA?s resistance to propoxur was motivated by spillover concerns, such as potential groundwater pollution that could cross state lines, the federal rule would make sense.   But it is not and does not.  This is precisely the sort of environmental problem which state and local preferences should control.

Full post as published by The Volokh Conspiracy on September 06, 2010 (boomark / email).