No Local Preemption – Court of Appeals Declines to Hear Montgomery County Pesticide Case

In a victory for local governments, the Maryland Court of Appeals has denied a petition to hear an appeal of a lower court decision finding that local governments are not impliedly preempted from regulating the use of pesticides. The decision likely forecloses any further judicial action on the matter. The case is another in a of a string of decisions by the Maryland Courts that concern the regulatory authority of local governments under the doctrine of implied preemption.

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.

Case History

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, and found that the County was not impliedly preempted from regulating pesticides.

The plaintiffs then filed a petition for writ of certiorari with the Court of Appeals, requesting that the Court hear the case. They also requested a stay on the ruling of the Court of Special Appeals. Anne Arundel County submitted an amicus brief arguing against granting the petition for cert on June 26, 2019. The Court initially denied the stay and then denied the petition for cert without comment on July 11, 2019.

While the Court of Appeals’ decision makes further judicial challenges under implied preemption unlikely, it is possibly that the plaintiffs will seek legislation to expressly preempt local governments during the 2020 Session.

Useful Links

Maryland Court of Appeals Denial of Petition for Writ of Certiorari (without comment)

Anne Arundel County Amicus Curiae Brief for Petition for Cert for Court of Appeals

Montgomery County v. Complete Lawn Care Case (Maryland Court of Special Appeals, 2019)

MACo and MML Amicus Curiae Brief for Court of Appeals

Complete Lawn Care v. Montgomery County Case (Maryland Circuit Court, 2017)

Prior Conduit Street Coverage of Local Preemption Issues

Learn more about implied preemption issues at the 2019 MACo Summer Conference. The panel “Don’t Be Tempted to Be Preempted” will highlight the Complete Lawn Care case as well as other recent issues involving local preemption, such as the citing of solar facilities. The panel will take place on August 15, 2019, from 2:00 pm – 3:00 pm.

Learn more about MACo’s Summer Conference:

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