03
May
State Court Upholds the Right of Local Governments in Maryland to Restrict Pesticides on All Lawns in Their Jurisdiction
(Beyond Pesticides, May 3, 2019) A Maryland Court of Special Appeals yesterday ruled that Montgomery County, Maryland has the right to restrict pesticides, under a 2015 landmark law, on all lawns and landscaped property in its jurisdiction more stringently than the state. This decision reverses a lower Circuit Court decision and upholds local democratic decision making in the face of a challenge by the industry groups representing lawn care companies and chemical manufacturers. Nine organizations, including Beyond Pesticides, filed an Amicus brief in support of the county law.
The chemical industry has fought for nearly three decades to suppress the right of local governments in the U.S. to protect public health and safety with pesticide law, having successfully lobbied 43 states to preempt their local political subdivisions’ authority. Seven states uphold local authority, including the state of Maryland, which has affirmed in its legislature the rights of localities by rejecting preemption legislation on numerous occasions.
According to Jay Feldman, executive director of Beyond Pesticides, “This is an important win for the local organic land management movement sweeping the country, as local elected officials embrace practices that protect the health of people and the environment.” The attorneys for the county expect that industry groups will file a petition for a writ of certiorari (judicial review) and request a stay of enforcement with the Court of Appeals.
“This important state court decision affirms local democratic decision making to protect health and the environment, upholding the first U.S. county law to ban toxic pesticides used on lawns on both private and public property,” said Mr. Feldman.
In the Court’s words:
From 1958-1962, Rachel Carson wrote Silent Spring from her home in Silver Spring. Carson’s examination of the health impacts of DDT and other pesticides galvanized the public, and the next decade saw Congress enact a broad range of statutes that are foundational to modern environmental law. Montgomery County claims, in essence, that it is following in these footsteps, but we must determine whether it has done so consistently with State law.
In 2015, the Montgomery County Council passed an ordinance restricting the use of certain pesticides for cosmetic purposes throughout the County. The Supreme Court held in 1991 that the principal federal law governing pesticides permits such local legislation. Wisconsin Public Intervenor v. Mortier, 501 U.S. 597 (1991). Here, we are asked to decide whether the County’s legislation is impliedly preempted or in conflict with Maryland’s Agriculture Article. We conclude that the ordinance does not run afoul of State law. Because the Circuit Court for Montgomery County found otherwise, we reverse both its injunction and declaratory judgment, and remand for an entry of a new declaratory judgment declaring the validity of the County ordinance. To briefly summarize, we principally ground our decision on the following:
1) State law does not expressly preempt local government regulation of pesticides;
2) Following a 1985 published opinion of the Attorney General which said
that State law did not impliedly preempt local pesticide regulation, 70 Md. Att’y Gen. Op. 161 (1985), and the U.S. Supreme Court’s 1991 decision in Mortier that federal law also did not preempt local regulation, the pesticide industry unsuccessfully sought passage of preemptive legislation in 1992, 1993, and 1994. In full recognition of existing local pesticide ordinances, the members of the House of Delegates by floor vote rejected each of the bills that sought to preempt more stringent local regulation. This “strongly suggests” under the Amendment Rejection Theory that there was no legislative intent to authorize or recognize preemption. Allied Vending, Inc. v. City of Bowie, 332 Md. 279, 304 (1993). No piece of legislation enacted subsequently undercuts that conclusion;
3) For decades, Maryland’s Chesapeake and Atlantic Coastal Bays Critical Area Protection Program has authorized certain counties to regulate pesticides within the Critical Area without any record of chaos and confusion for multi-tiered regulation;
4) Despite the existence of a comprehensive federal statute desirous of “uniformity” of regulation, the Supreme Court said that federal law did not regulate pesticides “with[] regard to regional and local factors like climate, population, geography, and water supply” or oust local regulation with respect to such matters. Mortier, 501 U.S. at 614-15;
5) Probably less comprehensive than federal law, see 501 U.S. at 613, Maryland’s pesticide statutes also reference uniformity with federal legislation. This is best regarded as an aspirational goal, rather than an obstacle to local legislation. The language of State law and enactments of the General Assembly would authorize broader regulation than federal law both generally and specifically;
6) There is no pervasive administrative enforcement of State pesticide statutes by the Maryland Department of Agriculture, which receives federal funds to enforce federal law in Maryland and which has opposed tougher pesticide controls as “anti-agriculture”; and
7) Appellees’ contentions and the circuit court’s conclusion that the County ordinance frustrates the purposes of State law run counter to County Council of Prince George’s County v. Chaney Enters. Ltd. P’ship, 454 Md. 514, 541 n. 19 (2017) (Frustration of purpose has never been applied to resolve a conflict between State and local law).
By passing the Healthy Lawns Act, 52-14, the Montgomery County Council acknowledged growing demand within the community for natural and organic lawn care practices and compatible products. These cost-effective lawn care methods have been shown to eliminate the need for toxic pesticide use through improvements in soil biology that support more resilient plants. Pro-pesticide plaintiffs challenging the restrictions were led by Complete Lawn Care, and supported by the pesticide industry lobby group, Responsible Industry for a Sound Environment (RISE).
Communities across the U.S. are considering legislation similar to Montgomery County. In states that preempt, ordinances are focused on the management of public lands within the jurisdiction. See model ordinance, as adopted by the City of South Portland, Maine, here.
Beyond Pesticides’ Map of U.S. Pesticide Reform Policies lists over 150 communities in 23 states that restrict chemical pesticide use. In Maine, over 20 policies address both public and private pesticide applications. Eight of ten Canadian provinces, and over 170 Canadian municipalities have laws with a similar structure to Montgomery County’s Healthy Lawns Act.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Source: Special Court of Appeals decision (May 2, 2019)
