The Maryland Court of Special Appeals has rejected an argument that local governments are impliedly preempted from regulating the use of pesticides and upheld a Montgomery County pesticide regulation. The case is another in a of a string of decisions by the Maryland Courts that set the regulatory authority of local governments under the doctrine of implied preemption.
There are two types of preemption – express and implied. Express preemption is where the General Assembly has clearly stated in statute that only the state is allowed to legislate in a particular policy area. Implied preemption, which is at the heart of this case, is where the General Assembly has acted with such force that an intent by the State to occupy the entire field must be implied. Maryland Courts have developed a multi-factor test when reviewing implied preemption.
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, which accepted the case.
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. A panel of three judges, including Donald Beachley, Alexander Wright, and Robert Zarnoch (retired), heard the case on September 11, 2018. Their decision was released on May 2, 2019.
The Court of Special Appeals held that the County was not impliedly preempted from regulating pesticides. Here is an excerpt of the Court’s decision and rationale:
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 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:
- State law does not expressly preempt local government regulation of pesticides;
- 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;
- 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;
- 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;
- 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;
- 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
- 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).
Judge Zarnoch wrote the opinion.
Complete Lawn Care and the other plaintiffs in the case must now decide whether they will appeal the decision to the Maryland Court of Appeals.
Implied local preemption remains an ongoing concern of county governments and the issue will likely be considered as a MACo 2020 Legislative Initiative.
Montgomery County v. Complete Lawn Care Case (Maryland Court of Special Appeals, 2019)
Complete Law Care v. Montgomery County Case (Maryland Circuit Court, 2017)