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People ex rel. Deukmejian v. Mendocino, County of

Citation: 14 ELR 20767
No. No. S.F. 24588, 683 P.2d 1150/204 Cal. Rptr. 897, (Cal., 07/26/1984)

The court holds that a Mendocino County initiative ordinance prohibiting aerial application of phenoxy herbicides is not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) nor the California Food and Agriculture Code. The court begins its analysis of the state preemption question with an overview of applicable state and local law. The local initiative ordinance is clearly a proper local health regulation unless it is preempted, and preemption is not lightly found. The court holds that this ordinance passes the first two prongs of the state preemption test, since it neither duplicates nor contradicts the state law, despite the fact that it prohibits activities permitted by the state statute. The third prong, whether state law fully occupies the field, has its own tripartite test. Because the state statute requires compliance with all other laws as a condition of the permits, and local ordinances like this one are "laws;" because the statute gives county agricultural commissioners authority to issue or deny pesticide application permits with consideration for local conditions; and because among the other laws to be complied with are the air and water pollution control laws, which expressly allow stricter county air and water pollution standards; the ordinance at issue passes the first two legs of the test: use of agricultural chemicals is not a matter of exclusive state concern nor a paramount state concern that will not tolerate local regulation. The third leg is easily passed, since the ordinance has little effect on transient citizens of the state.

The court next addresses the question of federal preemption. FIFRA expressly allows supplementary state regulation of pesticides, and does not expressly prohibit local governments from regulating pesticides. The court recognizes language in a committee report stating that the bill should be understood as not authorizing local regulation; statutory language that would have expressly allowed supplementary local regulation as well as state was rejected. But the questions are whether Congress expressly preempted state authority or provided a scheme of regulation so pervasive as to warrant the inference that Congress left no room to supplement it. Congress clearly did not do the latter, since it expressly allows further state regulation. And it did not in express terms prohibit a state from authorizing its local governments to participate in its regulatory program. The maxim expressio unius est exclusio alterius does not apply since local governments are agents of the state, not alternatives to it. The committee report and other legislative history evinces an intent only that local governments should not be authorized to regulate pesticides, not that they are prohibited, which is consistent with the traditional view that it is for the states to determine whether the powers reserved to them are to be exercised exclusively by themselves or to be shared with their political subdivisions.

Justice Kay concurs in the majority's federal preemption analysis, but dissents from its state preemption analysis. The authority vested in county agriculture Commissions to issue peticide regulations is subject to approval by the State Director of Food and Agriculture. The instant regulation, though adopted by initiative rather than by county commissioner, was clearly disapproved by the state, and that should be dispositive.

Justice Kaus dissents from the majority opinion on both preemption issues. Given the pervasive state regulatory scheme, Justice Kaus sees no room for county regulation to prohibit a use of a pesticide that is specifically authorized by a state-granted permit. Justice Grodin concurs in the federal preemption portion of this dissent, which focuses on the legislative history and finds there a clear intent to prohibit local regulation of pesticides.

Counsel for Appellants
Laurens H. Silver
Sierra Club Legal Defense Fund, Inc.
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

Counsel for Respondent
M. Anne Jennings, Deputy Attorney General
6000 State Bldg., San Francisco CA 94102
(415) 557-0818

Counsel for Intervenors
Wesley R. Higbie
Hendrickson, Higbie, Mingst & Cole
Four Embarcadero Ctr., Suite 350, San Francisco CA 94111
(415) 434-1474

BIRD, C.J., and MOSK and REYNOSO, JJ., concur.