The Legislative Landscape
A Government Update of the Green Industry from the Professional Landcare Network
By Tom Delaney

The lawn and landscape industry is at one of its most critical economic and legislative junctures in decades. The green industry is faced with challenges, drought, financial downturn and rising costs of fuel and health care. In addition, critical shortages in labor threaten the industry with the H-2B returning worker exemption not passing Congress and being on the brink of having federal authorities implement requirements for employers to validate the legal status of workers with social security numbers.

States and local governments are concentrating on environmental issues like those of water quality and quantity and are making detrimental judgments on the value of maintaining green spaces with pesticides, fertilizers and equipment in Canada and in the United States. Not only are activists and legislators pushing these issues, but other trade industries are trying to protect their turf. Some proactive industry bills are written as protection for a group to carve out their industry’s work, while preventing other groups from being able to do their kind of work unless they get a special state license or certification. Other times, the bill or regulation will require a standard (e.g., a certain number of years in the business, a college degree or having worked for a period of time for a state-licensed business) before someone can take a test or apply for a license.
Recently, landscape architecture and irrigation contractor groups have been proactive in introducing bills for their benefit. For example, the irrigation legislation in some states will require all companies to have an irrigation contractor license if irrigation construction or contracting price of all contracts for labor, material and other items for a given jobsite for 12 consecutive months is more than $1,500.

Some state restrictions (e.g., state boards of licensed plumbers and electricians limiting the kind of work that only a licensed individual can do) have been in place for many years. In recent years, however, new industry products have evolved such as low-voltage outdoor lighting that was not considered when these old laws were passed. Therefore, for example, the New Jersey Green Industry Council introduced legislation to change that old restriction in its state. The landscape architect groups also have some state-introduced bills or have existing laws that allow only licensed landscape architects to do landscape designs for government contracts.

With diminishing tax revenue, state sales tax on services is becoming popular in some states. A few states already have it, but others will try to add it. In Pennsylvania, a bill was introduced to rollback the tax on lawn and landscape services. So keep watching your state legislature on taxation issues.

Another area of proactive legislation which the Professional Landcare Network (PLANET) welcomes and supports is the passage of state preemption laws to stop local governments from being permitted to pass ordinances regulating fertilizer application. Similar state laws were pushed by the industry and passed years ago doing the same thing with pesticides. PLANET members and staff have worked together with the Responsible Industry for a Sound Environment (RISE) and others to pass such state laws preempting local regulation of fertilizer in 11 states since 2004. This has resulted in a total of 16 states with fertilizer preemption. Hopefully, several more states will pass these bills in 2009.

H-2B Program and Immigration

There are both positive and negative aspects associated with the slow pace at which the U.S. Congress and some state legislatures operate. The slow process has created the negative effect of H-2B legislation not being passed as quickly as the industry would like. In addition, the U.S. House of Representatives has started to conduct hearings on several topics related to the H-2B program and other areas of immigration policy, including employee verification.

The reality of an H-2B long-term fix seems to be proving more and more unrealistic. Allegations of program abuse by labor unions and other groups as well as the Congressional Hispanic Caucus’ concerns about passing immigration reform “piecemeal” have clouded the congressional debate over the program. Unfortunately, these concerns could potentially result in some changes to the program in exchange for an extension of the returning worker exemption. On May 15, the Senate Appropriations Committee voted 23 to 6 for a three-year extension of the H-2B returning worker provision, but it was killed with the objection of one Senator on a procedural move in the full Senate.

The upside of Congress’ slow pace is that legislation that could negatively affect the industry, such as changes to the Clean Water Act and the definition of wetlands, has not been passed.

Health Care

There are two newly introduced health care bills in the Senate. Senators Richard Durbin (D-Ill.), Blanche Lincoln (D-Ariz.), Olympia Snowe (R-Maine) and Norm Coleman (R-Minn.) introduced the “Small Business Health Options Program” (SHOP) bill (S. 2795). Sens. Michael Enzi (R-Wyo.) and Ben Nelson (D-Neb.) introduced the “Small Business Health Plans Act of 2008” (S. 2818) that addresses the idea of offering health care plans to pooled groups of individuals to make the plans more affordable. Several groups, such as the U.S. Chamber of Commerce, the National Federation of Independent Businesses, the American Society of Association Executives and the International Franchise Association have differences of opinion as to what type of plan is best for their members or which one may have the best chance of getting support in Congress. The health care plan issue will be addressed at Legislative Day on the Hill.

State Support

Many state green industry associations had challenges this year but, on the whole, some of the things PLANET expected to surface did not and the amount of bad legislation passed nationwide was not extensive. This being the end of the two-year cycle of federal and most state legislatures, all bills that did not get resolved will have to be reintroduced in 2009.

We owe a great deal of thanks to those state green industry associations that are active in their state capitols with well organized lobbyists, volunteer members and professional association executives. For example, in Maryland the industry had a scare with a proposed tax on landscape services, which was stopped. Tennessee had a revised bill to exempt those using glyphosate from needing a pesticide license, which was sidelined. Florida had an industry bill that tried to limit local governments from passing fertilizer ordinances, which did not move. Ontario, Canada, will be banning the application of cosmetic pesticides province wide.

Minnesota introduced a bill requiring licensed applicators to send in pesticide records. That bill then quickly turned into a pesticide pre-notification bill, which hopefully will be killed in the Senate. New Hampshire had a bill introduced that restricted the placement of fertilizer within 250 ft of the reference line of any property. The bill died in the House of Representatives. New Jersey once again introduced the Pesticide Use Reduction Recognition Act.

Additional bills in New Jersey include a certified tree expert bill that is supported by the industry, and a landscape lighting bill that allows green industry companies without an electrician license to install low voltage lighting. Illinois introduced a bill, which is still pending, to create the “Phosphorous Turf Fertilizer Use Restriction Act.” Georgia had an industry bill passed to prevent local government from enforcing more stringent watering restrictions than the state restrictions. Iowa had a bill introduced relating to pesticide application within schools and on school grounds, athletic fields and playgrounds. New York had many reoccurring bad bills. Overall, a stunning 1,955 bills were introduced in the states with the word immigration in them.

On July 20-22, 2008, PLANET will hold Legislative Day on Capitol Hill in Washington, D.C. It is our hope that this event will help to raise visibility of our industry and our issues and allow for members of Congress to meet with industry professionals from their jurisdictions and personally hear how these issues are impacting PLANET members.

Tom Delaney is the director of government affairs for the Professional Landcare Network, based in Herndon, Va.