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Montgomery County v. Complete Lawn Care, Inc.

Court of Special Appeals of Maryland

May 2, 2019

MONTGOMERY COUNTY, MARYLAND
v.
COMPLETE LAWN CARE, INC., ET AL.

          Circuit Court for Montgomery County Case No. 427200V

          Wright, Beachley, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.

          OPINION

          ZARNOCH, J.

         From 1958-1962, Rachel Carson wrote Silent Spring from her home in Silver Spring.[1] 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.[2] 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).

         PROCEDURAL AND REGULATORY BACKGROUND

         In October 2015, the Montgomery County Council enacted Bill No. 52-14 ("the County ordinance"). Among its other provisions, the bill amended the Montgomery County Code to restrict certain pesticide use on private and County-owned property. Appellees[3] challenged the ordinance in the Circuit Court for Montgomery County, seeking a declaratory judgment that the bill was preempted by State law and a permanent injunction before the County ordinance was scheduled to take effect in January 2018. The County and Appellees waived discovery, stipulated as to the facts, and filed cross motions for summary judgment.

         In an August 2017 written opinion, the circuit court concluded that the County ordinance was preempted by State law, both by implication and by conflict: "[t]he County's Ordinance flouts decades of State primacy in ensuring safe and proper pesticide use, undermines the State's system of comprehensive and uniform product approval and regulation, and prohibits products and conduct that have been affirmatively approved and licensed by the State."[4] Accordingly, the circuit court granted Appellees' motion for summary judgment, issued a declaratory judgment that Bill No. 52-14 was unlawful and preempted by Maryland law, and ordered that the bill "as it regards the use of pesticides on private property, shall not take effect, and [Appellees] are entitled to permanent injunctive relief from the enforcement of these sections." The County's appeal followed.

         To properly evaluate whether the General Assembly has intended to preempt local pesticide regulation, we must first consider how the County ordinance fits within the interweaving structures of federal and State law.

         Montgomery County's Pesticide Ordinance

         The County ordinance amended existing language in the Montgomery County Code[5] to require that retailers, among other requirements, make available to pesticide purchasers (1) notice signs, (2) federally-approved product labels, and (3) County-approved materials that explain both the potential dangers of pesticide use and the availability of alternative products. Montgomery County Code § 33B-3(a). The ordinance further amended existing language in the County Code to require that commercial pesticide applicators provide new customers with certain notice before and after pesticide application. Montgomery County Code § 33B-7(b). Additionally, the ordinance specified that applicators must place certain notice markers in areas near the site of application. Montgomery County Code §§ 33B-8-33B-9.

         Most pertinent to Appellees' challenge here, the ordinance specifies that only "listed pesticide[s]"[6] may be applied to (1) lawns, (2) playgrounds, (3) mulched recreation areas, (4) children's facilities, or (5) the grounds of a children's facility when those areas are located on "County-owned property and private property"-which by definition would exclude public schools. Montgomery County Code § 33B-10(a). However, the law then specifies numerous exceptions to those use restrictions: a person may apply any pesticide that is registered with the Environmental Protection Agency ("EPA")[7] to those same surfaces if applied to (1) control weeds, (2) control invasive species, (3) control disease vectors, (4) control biting or stinging insects or stinging plants, (5) control organisms that threaten the health of trees or shrubs, (6) maintain property as part of a public utility's efforts to comply with regulations, (7) control indoor pests, (8) control pests while engaged in agriculture, or (9) control a pest outbreak that poses an imminent threat to human health or prevent significant economic damage. Montgomery County Code § 33B-10(b). The law then stipulates that if a pesticide is applied pursuant to the exception concerning imminent threats to human health or preventing significant economic damage, the person applying the pesticide must inform the County of the application. Montgomery County Code § 33B-10(c).[8]

         Federal Regulatory Scheme

         Any County or State pesticide law is subject to applicable regulatory provisions of the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136 - 136y. Congress first enacted FIFRA in 1947, then comprehensively amended the law in 1972.

         1947 FIFRA

         In 1947, Congress enacted FIFRA to replace 1910's Federal Insecticide Act. Public Law 104, Chapter 125. When FIFRA was originally enacted in 1947, it was similar to other early federal laws concerning adulterated products[9] in that it was "primarily a licensing and labeling statute." Mortier, 501 U.S. at 601.[10] 1947's FIFRA authorized the U.S. Department of Agriculture ("USDA") to issue pesticide licenses and registrations; the law then prohibited the distribution or sale of unregistered, misbranded, or mislabeled pesticides. Chapter 125, § 3. Even though 1947's FIFRA characterized pesticides as "economic poisons," it was not until 1964-after Silent Spring heightened the public's awareness that pesticides could, for instance, accumulate in human body tissues and breast milk-that Congress authorized USDA to take pesticides off the market by canceling their registrations. Alexandra B. Klass, Bees, Trees, Preemption, and Nuisance: A New Path to Resolving Pesticide Land Use Disputes, 32 Ecology L. Q. 763, 771 n. 28 (2005); John Wargo, Our Children's Toxic Legacy 72 (1998). By 1970, when federal regulatory authority over pesticides was transferred from USDA to the newly-created EPA, USDA had issued nearly 60, 000 pesticide registrations.

         The 1947 law also stated that for the purpose of "securing uniformity of regulations," USDA was authorized "to cooperate with . . . the [appropriate] regulatory agency of any State, or any State, Territory, District, possession, or any political subdivision thereof, in carrying out the provisions of this Act," Chapter 125, § 13 (Emphasis added). To this day, when EPA develops policies that have federalism implications, the agency's internal policies require that EPA consult with ten organizations that are deemed to be representative of state and local officials. See EPA's Action Development Process, Guidance on Executive Order 13132: Federalism 45-46 (2008), available at https://www.govexec.com/pdfs/111908rb1.pdf.

         1972 FIFRA Amendments

         Spurred by the response to Silent Spring, Congress transformed FIFRA, via 1972's amendments, from a licensing and labeling law into "a comprehensive regulatory statute." Mortier, 501 U.S. at 601. In doing so, Congress situated expanded regulatory authority over pesticides within the (recently-created) EPA. Currently, under FIFRA:

• Subject to exceptions, a pesticide must be registered with EPA to be sold or distributed in the United States. 7 U.S.C. § 136a(a).
• EPA shall register a pesticide if it determines, among other findings, that the pesticide "will perform its intended function without unreasonable adverse effects on the environment[.]" 7 U.S.C. § 136a(c)(5).
• Once EPA registers a pesticide (thereby approving the pesticide's labeling), it is unlawful "to use any registered pesticide in a manner inconsistent with its labeling." 7 U.S.C. § 136j(2)(G).
• Pesticides that pose heightened risks to the environment (including potential injury to applicators) are classified as "restricted use pesticides," and are subject to further restrictions. 7 U.S.C. § 136a(d)(1)(C).
• EPA must review pesticides' registrations every 15 years. 7 U.S.C. § 136a(g)(1).
• As a part of the reregistration review process, EPA issues a Reregistration Eligibility Decision (RED) document in which it can require, as a prerequisite for reregistration, the adoption of risk mitigation measures. Such measures can include: the reclassification of pesticides as restricted use; use-site restrictions; the implementation of buffer zones; mandatory good agricultural practices; fumigant management plans; and training programs. See, e.g., U.S. Envtl. Prot. Agency, Reregistration Eligibility Decision (RED) Document for Methyldithiocarbamate Salts - Metam Sodium/Potassium and MITC at 8 (2008).
• EPA may cancel a pesticide's registration, or impose other use restrictions, if the pesticide "when used in accordance with widespread and commonly recognized practice, generally causes unreasonable adverse effects on the environment." 7 U.S.C. § 136d(b).

         In addition to these provisions, § 136v(a) of FIFRA ("Authority of States") expressly allows a state to "regulate the sale or use of any federally registered pesticide[.]"[11] Also, FIFRA still provides that the EPA Administrator shall cooperate with "any appropriate agency of any State or any political subdivision thereof . . . in securing uniformity of regulations." 7 U.S.C. § 136t(b).

         Wisconsin Public Intervenor v. Mortier, 501 U.S. 597 (1991)

         In Mortier, the Supreme Court determined that the express grant of authority to "States" in § 136v of FIFRA does not thereby preempt local regulation: "[the section] plainly authorizes the 'States' to regulate pesticides and just as plainly is silent with reference to local governments." Id. at 607. The Court reasoned: "the more plausible reading of FIFRA's authorization to the States leaves the allocation of regulatory authority to the 'absolute discretion' of the States themselves, including the option of leaving local regulation of pesticides in the hands of local authorities."[12] Id. at 608. Furthermore, the Court was unequivocal that-despite the comprehensiveness of the federal regulatory scheme established by the 1972 amendments-FIFRA did not intend to preempt the field of pesticide regulation. Id. at 613. Rather, the Supreme Court said that FIFRA "leaves substantial portions of the field vacant":

FIFRA nowhere seeks to establish an affirmative permit scheme for the actual use of pesticides. It certainly does not equate registration and labeling requirements with a general approval to apply pesticides throughout the Nation without regard to regional and local factors like climate, population, geography, and water supply. Whatever else FIFRA may supplant, it does not occupy the field of pesticide regulation in general or the area of local use permitting in particular. Id. at 613-14.

         Maryland's Regulatory Scheme

         Two subtitles within Title 5 of the State Agriculture Article pertain to pesticides: the Maryland Pesticide Registration and Labeling Law (Subtitle 1, §§ 5-101 - 5-114), and the Pesticide Applicator's Law (Subtitle 2, §§ 5-201 - 5-211).[13] These measures, largely enacted in 1957 and 1969, respectively, were later incorporated into the Agriculture Article in a 1973 Code Revision.[14] Laws of 1973, 1st Sp. Sess., Chapter 6.

         The Maryland Pesticide Law of 1958

         The Maryland Pesticide Registration and Labeling Law that is now codified as Subtitle 1 of Title 5 of the Agriculture Article was enacted in 1957 (although it was titled "The Maryland Pesticide Law of 1958"). The 1957 law repealed and amended an earlier law from 1939 that had regulated the registration, sale, and handling of insecticides and fungicides.[15] Laws of 1957, Chapter 536. Like the earlier law from 1939, and like 1947's FIFRA, the Maryland Pesticide Law of 1958 regulated the distribution, sale, or transportation of adulterated or misbranded pesticides. An amendment to the Maryland Pesticide Law of 1958 added an uncodified provision to the law that provided that jurisdiction in those matters would be vested exclusively in the State Chemist:

And be it further enacted, that jurisdiction in all matters pertaining to the distribution, sale and transportation of pesticides is by this act vested exclusively in the State Chemist and all acts and parts of acts inconsistent with this act are hereby expressly repealed. Sec. 3 of Chapter 536, Laws of 1957.

         We additionally note that, at that time in 1957, the State Chemist was an officer appointed by the University of Maryland's Board of Regents; prior to the creation of the Maryland Department of Agriculture in 1972, the Board of Regents assumed an ex officio role as the State Board of Agriculture.

         The Pesticide Applicator's Law

         The provisions regulating pesticide use that are currently codified as the Pesticide Applicator's Law, Subtitle 2 of Title 5 of the Agriculture Article, were first enacted in 1969. Laws of 1969, Chapter 593. The 1969 law originated as proposed legislation from a Governor's Commission on Pesticides; the Commission itself had been created by a joint resolution of the General Assembly in 1967. Report to the Governor of Maryland and Maryland General Assembly from the Commission on Pesticides, September 1, 1968 ("Commission Report"). The Commission Report, issued in September 1968, recommended adopting legislation to "[e]stablish a center for control of the use of pesticides in Maryland . . ." and to "[p]rovide certain essential definitions and guidelines for the [State Board of Agriculture]." Commission Report at 8-9. The law that was enacted by the General Assembly in 1969 largely mirrored the Commission's proposed legislation.

         In 1985, the Attorney General's office issued an opinion as to whether State or federal law would preempt a proposed Montgomery County ordinance requiring lawn care businesses and pesticide dealers to warn the public of dangers concerning pesticides before and after application. 70 Md. Att'y Gen. Op. 161 (1985). The bulk of the opinion's analysis focused on why federal law would preempt such an ordinance (an analysis later superseded by Mortier), but on the State law issue, the opinion said: "existing State law [] does not preempt the County's authority to regulate pesticides[.]" Id. at 164 n. 5. The opinion reasoned: (1) "[a]bsent a prohibition by State or federal law, Montgomery County generally has authority to regulate the sale and use of pesticides"; (2) State law does not "oust[] local jurisdictions of authority to act" in the field of pesticide regulation; and (3) "State law neither contains express preemption language nor so comprehensively regulates in this area that a court would be compelled to find preemption by implication." Id. at 163-64. The opinion explained that, as a charter county, Montgomery County's express powers include the ability to "legislate for the benefit of the health, safety and general welfare of the local community." Id. at 163 (quoting Ritchmount P'ship v. Bd. of Supervisors of Elections for Anne Arundel County, 238 Md. 48, 57 (1978)). The opinion further noted that the Express Powers Act grants a charter county "broad authority to regulate conditions detrimental to health and to provide for the health and welfare of the County." Id. at 163 (Internal quotation marks omitted). The opinion then stated: "County regulation concerning the safe use of pesticides is plainly within these grants of authority." Id.

         Later Amendments

         In 1987, the Legislature amended the Pesticide Applicator's Law to require licensees to provide certain pesticide information to customers and to the Department of Agriculture and to post signs on treated property indicating that a pesticide had been applied. Laws of 1987, Chapters 301 and 302. The Legislature also conferred upon the Department the authority to impose civil penalties and seek injunctive relief for those violating the notice and posting requirements. The 1987 legislation also provided that "[f]or purposes of uniformity and in order to enter into cooperative agreements," the Agriculture Secretary was authorized to "adopt use classifications and other pertinent pesticide regulation provisions that are established by the U.S. Environmental Protection Agency[.]"

         In 1998, the General Assembly required county boards of education to adopt integrated pest management systems for public schools and required public schools to provide certain notification and information regarding pesticide application. Laws of 1998, Chapter 461. The following session, the Legislature made some modifications to this statute, including requiring the Department of Agriculture to develop "uniform standards and criteria" for implementing integrated pest management for school grounds.[16] Laws of 1999, Chapter 327.

         Other enactments in 1999 and later were more singular in their operation. See, e.g., Laws of 1992, Chapter 120 (increasing Department fines and penalties) and Laws of 1994, Chapter 550, (addressing certification and training requirements). But no enacted legislation clearly or expressly ...


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