30
Nov
Industry Challenges Local Maryland Restrictions of Lawn Pesticides as Preempted by State
(Beyond Pesticides, November 30, 2016) A landmark Montgomery County, Maryland ordinance, which protects children, pets, wildlife, and the wider environment from the hazards of unnecessary lawn and landscape pesticide use, is facing a legal challenge filed last week by the industry group Responsible Industry for a Sound Environment (RISE). The plaintiffs, which include local chemical lawn care companies and a few individuals, allege that the local ordinance is preempted by state law, despite the fact that Maryland is one of seven states that has not explicitly taken away (or preempted) local authority to restrict pesticides more stringently than the state. This challenge comes on the heels of a recent decision by the 9th U.S. Circuit Court of Appeals, which struck down local laws in Hawaii aimed at protecting the environment from toxic pesticide use. An industry victory in Maryland state court would significantly impact the ability of local communities in Maryland to exercise their democratic right to adopt local public health and environmental protections that go above and beyond state and federal regulations that are deemed inadequate.
The bill at issue, 52-14, which bans the cosmetic lawn care use of toxic pesticides on public and private land, protects over one million people, the largest number to be covered by any local jurisdiction to date. Passing the Montgomery County Council by a vote of 6-3, the bill allows time for transition, training, and a public education program over several years. In limiting the pesticides allowed to be used for turf management, the law define acceptable materials to those permitted for use in organic production, or identified by the Environmental Protection Agency (EPA) as “minimum risk pesticides” under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), Section 25(b). These restrictions effectively eliminate public exposure to hazardous pesticides on lawns and playing fields and in parks in the county, while still making available for use a wide range of pest-control products, creating a historic public health measure that serves as an example to localities across the country. The efforts of Montgomery County have been mirrored in several subsequent communities, including South Portland, ME.
The historic measure is being challenged by industry operatives who want to perpetuate the use of toxic pesticides within Montgomery County. The opponents argue that the ordinance is prohibited (preempted) under state law, even though preemption is not explicit. Legal history provides context on this issue, however, and it is clear that presiding law in the state of Maryland likely does not preempt local jurisdictions from passing laws stricter than those implemented by the state. The prevailing federal precedent was decided in 1991 when the U.S. Supreme Court, in Wisconsin Public Intervenor v. Mortier, ruled that federal pesticide law (FIFRA) does not preempt local jurisdictions from restricting the use of pesticides more stringently than the federal government. According to Mortier, however states do retain authority to take away local control. In response to the Supreme Court decision, the pesticide lobby immediately formed a coalition, called the Coalition for Sensible Pesticide Policy, and developed boilerplate legislative language that restricts local municipalities from passing ordinances on the use of pesticides on private property. The Coalition’s lobbyists descended on states across the country, seeking and passing, in most cases, preemption legislation that was often identical to the Coalition’s wording.
Although attempts at this form of “explicit” preemption were introduced in Maryland in the mid-1990s, industry was unsuccessful in gaining enough support, and the state legislature never passed legislation expressly preempting local pesticide legislation. Because of this, RISE and its affiliates argue that there is “implied” preemption on the part of the state that would prohibit a local jurisdiction like Montgomery County from taking action to protect its citizens. Their claim hinges on proving that Maryland law establishes a “comprehensive program of state level regulation and licensing of pesticide products and applicators” that implies that state meant to occupy the entire space of pesticide regulation, and left no door open for local jurisdictions to regulate above and beyond state statutes. The lawsuit focuses on Bill 52-14’s prohibition of pesticide use on private property, and does not challenged the ordinance provisions that apply to county-owned land.
During the original debate on the bill, Montgomery County City Council legislative attorney Josh Hamlin wrote a memo on the issue of preemption. In it he asserts that while a court could conclude that Montgomery County is preempted, that conclusion is far from certain, and that both Maryland case law and legislative history make a strong argument against implied preemption. He points out, “Indeed, given the existing Maryland case law, as well as the legislative history of the State pesticide law, staff believes that a very strong argument against implied preemption can be made.” The memo continues, “In Maryland, pesticides are regulated by the Maryland Department of Agriculture. . .Maryland law and regulations generally create a pesticide registration and labeling regime at the state level, and a licensing program for applicators of certain pesticides. Title 5 [of the Agriculture Article of the Maryland Code] does not include any express preemption language, nor does it expressly authorize the use of any particular pesticides. In 2011, the Office of the County Attorney opined that, as a general matter, the County may regulate a pesticide in a manner at least as restrictive as, and consistent with, federal and State law. Specifically, the opinion expressed the view that the County could enact a local ban on the use of the pesticide methyl bromide.” The issue of local authority regarding pesticide use is not a new issue for Montgomery County. The memo points out, “The County currently imposes certain notice, storage, handling, and consumer information requirements in Chapter 33B of the County Code, and Bill 52-14 would add certain additional notice requirements, and would prohibit the use of certain pesticides on County property and certain private property.”
According to the memo, case law in Maryland has long recognized a “concurrent powers theory, which allows local legislation in certain fields where the State legislature has acted as long as the local jurisdiction is otherwise empowered to legislate on the subject.” Under this rule, there have only been six distinct instances since 1969 where the Maryland court has found implied preemption and invalided a local law, none of which dealt with issues of pesticide regulation. While plaintiffs may look to other states, specifically the recent decision regarding local pesticide restrictions in Hawaii, to strengthen their argument in favor of implied preemption, those cases must be viewed in the context of the specific state legislation, legislative history, and case law. For more information on preemption, see Beyond Pesticides article, State Preemption Law: The Battle for Local Control of Democracy.
While the outcome of this lawsuit is currently uncertain, the challenge by industry groups highlights the importance of local action when it comes to tightening controls on cosmetic pesticide use. There is movement across the country right now to adopt ordinances that stop pesticide use on public property and, where allowed, private property, as people recognize more and more the dangers associated with toxic pesticide use on their homes and lawns. When used, pesticides move off the target site through drift and runoff, exposing non-target plants, wildlife, and people. Local control of pesticide regulations is crucial to the movement of pesticide reform, something Beyond Pesticides consistently supports through its work in local communities. Contact Beyond Pesticides to help support Montgomery County and similar communities across the country who are fighting to eliminate toxic pesticide use once and for all. For more information on organic lawn care, see Beyond Pesticides lawns and landscape program page.
More details about Bill 52-14 and related amendments are available to read here.
Source: Complete Lawn Care, Inc. v. Montgomery County
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
