A panel of Maryland Court of Special Appeal judges will determine whether state law preempts counties from regulating pesticide applications after hearing oral arguments in the case of Montgomery County v. Complete Lawn Care on September 11, 2018. MACo and the Maryland Municipal League, concerned about the broader local preemption issues involved in the case, submitted an amicus brief to the Court of Special Appeals on June 21, 2018. The brief argued that local governments should not be preempted in enacting public health and safety measures that go beyond state minimums.
As previously reported on Conduit Street, the Montgomery County Council passed a ban on the use of EPA-registered lawn-care pesticides for public and private property. The ban covered areas such as lawns, playgrounds, recreation areas, and child care centers but exempted agricultural usage. The ban also contained exceptions for treating noxious or invasive weed species, addressing human health concerns, or preventing significant economic damage.
In response, Complete Lawn Care and other several other businesses and county residents filed suit in Maryland Circuit Court challenging the ban. Circuit Court Judge Terrence McGann issued a decision on August 3, 2017, finding that state law preempted the Montgomery County ordinance. The County appealed the Circuit Court’s decision to the Maryland Court of Special Appeals.
The three judges hearing the case included Donald Beachley, Alexander Wright, and Robert Zarnoch (retired). Edward Lattner from the Montgomery County Attorney’s Office argued that the County’s law was not impliedly preempted by state law as state law was primarily concerned with registration and labeling of pesticides and the licensing of applicators while the County law focused on putting further safety requirements on pesticide usage. Lattner noted that the General Assembly has three times previously considered and rejected legislation to explicitly prohibit local regulation of pesticides.
Plaintiff’s attorney Timothy Maloney and the counsel for Complete Lawn Care jointly argued that the County was impliedly preempted because there was a “very comprehensive state occupation” of the pesticide field, noting that the Maryland Department of the Environment also conducts numerous enforcement and inspection actions. They also argued that the County ordinance essentially prohibited the use of pesticides approved for use in the state by both the United States Environmental Protection Agency and the Maryland Department of Agriculture.
Based on questions by the judges, Zarnoch appeared the most sympathetic to the County’s argument, noting that even an approved and registered pesticide could still harm humans. Wright appeared the most skeptical, questioning whether the General Assembly’s three rejections of express preemption legislation constituted an argument against the broad regulatory authority already possessed by the State through statute.
A decision in the case could come within several months. The case could be appealed by either party to the Court of Appeals. Additionally, the federal Farm Bill currently before Congress contains a provision that would expressly prohibit all local government regulation of pesticides across the nation. If the provision were to pass, the Montgomery County case would be rendered moot.
MACo remains extremely concerned about the broad and somewhat subjective common law test used by Maryland courts to determine implied preemption. As previously reported on Conduit Street, MACo has tentatively adopted addressing implied preemption as one of its 2019 Legislative Initiatives (the Initiatives will be formally adopted in January of 2019 after new and returning county elected officials are sworn in).