The Long Road to Marijuana Regulation

October, 2013







Since the height of the timber wars in the 1990’s, no environmental issue in this part of the world has caused such concern, or such support for measures to reduce the impacts of an industry as the Green Rush.

Since the 1996 passage of Proposition 215 gave marijuana growers a shield against prosecution, the dramatic expansion of marijuana cultivation across Northwestern California, including much of the 3700 square mile Eel River watershed, has entailed significant impacts to our landscapes and fisheries. Water diversions, sediment from roads and clearings, and use of poisons have grown from appalling examples of a few jerks’ monumental disregard for nature to systemic problems that seem to be popping up everywhere we look.

While these impacts are almost impossible to pin down with hard numbers, they add up to real trouble for watersheds that as recently as the last couple of falls saw really heartening salmon runs. Far from theoretical, the reality is that they are driving species like coho salmon in the South Fork Eel River, already listed as a threatened species under both the state and federal Endangered Species Acts, closer to the brink of extinction.

There’s certainly no realistic possibility of the marijuana industry going away, even if the County wanted it to. No government will ever be able to shut down a set of practices so pervasive, with such a history of thriving in these rugged mountains under decades of intense law enforcement pressure. And California has realized that. Not only have citizens passed Prop 215; the state has substantially defunded in recent years its part of what used to be the Campaign Against Marijuana Production.

But in the gray area between Prop 215 and federal criminalization, marijuana cultivation has a huge economic and environmental footprint, where health and safety standards, fair labor practices, and environmental sideboards that every other business is bound to respect seemingly can’t be made to apply.

So we are left with the need to regulate the marijuana industry. As a society, we need regulation to protect our public trust resources—clean water, flowing streams, and the healthy fisheries that depend on both. As a community, we need regulation to ensure we respect the rights of people who meet reasonable standards and don’t anger their neighbors. Consumers and patients need regulation to know the product they’re buying isn’t tainted with pesticides or stained with reprehensible growing practices. To our knowledge, there’s no practicable way to do that without a chain of custody and the transparency that requires.

We need regulation to provide clear, bright-line measures by which law enforcement can readily size up whether a given operation is or is not playing by the rules. We need regulation to make sure the marijuana industry pays its own way, with fees and fines proportional to potential harms and adequate to the need for vastly increased enforcement actions to keep black market producers from continuing to wreak destruction on sensitive environments.

The questions raised by the impacts of marijuana cultivation are in some ways even more complicated than fights over timber regulation were. We don’t, for example, have a federal ban on logging to complicate state and local efforts to define workable ways of regulating logging practices. And while the timber industry certainly resisted every effort to reduce its impacts on water quality and habitat by tightening regulations, there was never any real dispute about the legitimacy of the industry or the necessity of regulation by the government to protect public trust values like watersheds and wildlife.

For marijuana cultivation, in the world of legislation at least, we are still some distance from that kind of clarity. It bears highlighting that while Washington and Colorado have moved to legalize the non-medical possession and use of marijuana, both states did so via ballot initiatives, not through the legislatures.

It is telling that the California Assembly and its Democratic majority refused to pass a bill providing a robust framework for at least medical marijuana regulation only a few weeks after US Attorney General Eric Holder announced new Department of Justice policy on marijuana. Under the latest so-called Cole memo, US Attorneys are directed to avoid marijuana prosecutions where there is a regulatory system in place that will keep pot away from kids, out of interstate commerce, and out of the hands of criminal organizations, among other specific measures. Of course, California does not yet have such a system; it will be at least another year before the legislature is likely to be able to act to create one.

Until then, both the burden of action and the opportunity to define the parameters of a functional system of marijuana regulation rest squarely in the laps of the counties where the impacts are being felt the most. If Humboldt County steps up to the plate with a system that sets reasonable limits on grow sizes, requires growers to store water and forgo the use of harmful or untested substances like pesticides, and ensures consent to reasonable inspections, that program would be likely to be taken up by the assembly and plugged into a bill that reinforces dispensary regulations to meet the new federal standards.

The time is long past to debate the validity of environmental concerns regarding marijuana cultivation, or to continue passing the buck. 

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