18 ELR 20585 | Environmental Law Reporter | copyright © 1988 | All rights reserved

Maryland Pest Control Association v. Prince George's County

Nos. 86-3633; 86-3639 (4th Cir. June 16, 1985)

The court affirms a district court decision, 17 ELR 20511, holding that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts Maryland county regulations requiring commercial pesticide applicators to post sprayed areas and provide notification of pesticide hazards because FIFRA allows only states and not subdivisions of states to regulate pesticides.

Counsel for Appellants
Steven M. Gilbert, Associate County Attorney
14741 Gov. Oden Bowie Dr., Upper Marlboro MD 20772
(301) 952-4124

Counsel for Appellees
Steven Paul Resnick
Bereano & Resnick
195 Duke of Gloucester St., Annapolis MD 21401
(301) 267-0410

Before Phillips, Russell, and Sprouse, JJ.

[18 ELR 20585]

Per Curiam (before Phillips, Russell, and Sprouse, JJ.):

This is a consolidated appeal by Prince George's County, Maryland, and Montgomery County, Maryland, as well as their county executives, Charles W. Gilchrist and Parris N. Glendening, from the district court's summary judgment in favor of the Maryland Pest Control Association and Maryland Alliance for the Responsible Regulation of Pesticides (the Associations). The court held that the counties' ordinances, which require public notice and consumer disclosure when pesticides are used, are invalid under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. We affirm.

The Prince George's County ordinance was passed December 10, 1985, and became effective February 1, 1986. It requires "custom applicators" to post notices on property before and after applying pesticides and to provide customers with written statements listing the contents of pesticides and other information. The Montgomery County ordinance was passed February 16, 1986, and became effective that day. It requires "custom applicators" to post signs after applying pesticide and to provide customers information about the pesticide used. In addition, retailers of pesticides must make available "notice signs" and information sheets on the contents of pesticides they sell.

The Associations filed this action on May 30, 1986, seeking declaratory and injunctive relief. They contended that FIFRA preempts local regulation of the use of federally registered pesticides. The district court entered a temporary retraining order against the enforcement of the Prince George's ordinance on May 30, 1986 (the day the action was filed). It entered a preliminary injunction against its enforcement on July 17, 1986. Both sides moved for summary judgment, which the court granted in favor of the Associations with respect to both ordinances on September 30, 1986. The counties' appeals were consolidated for argument.

The relevant section of FIFRA is 7 U.S.C. § 136v entitled "Authority of States," which provides:

(a) A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.

(b) Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.

(c)(1) A State may provide registration for additional uses of federally registered pesticides formulated for distribution and use within that State to meet special local needs in accord with the purposes of this subchapter and if registration for such use has not previously been denied, disapproved, or canceled by the Administrator. Such registration shall be deemed registration under Section 136a of this title for all purposes of this subchapter, but shall authorize distribution and use only within such State.

This section was added by the comprehensive 1972 amendment to FIFRA, included in the Federal Environmental Pesticide Control Act of 1972, Pub. L. No. 92-516, § 2, 86 Stat. 997. Prior to the amendment, state and local subdivisions had exercised regulatory powers over pesticides. Section 136v defines the extent to which they may continue to exercise regulatory authority. It expressly grants a state limited authority to regulate pesticide use. The counties argue that Congress intended them to have the same authority as the state, provided the state properly delegated that authority to them. The Associations, of course, argue otherwise.

The district court agreed with the Associations' position and held that the legislative history indicated Congress intended to restrict the authority to regulate to states and not extend it to their political subdivisions. It concluded:

[T]his legislative history could not be more clear. Both the House and the Senate expressly considered the question of whether local governments should be authorized to regulate pesticides and, although there was an interim disagreement between two Senate committees on the issue, the legislation [18 ELR 20586] as finally enacted by the Senate and the House did not include the proposed language, clearly focused upon in both chambers, which would have authorized local pesticide regulation. Principled decision-making and respect for the integrity of the legislative process compel the conclusion that Congress knew and meant what it was doing.

We agree and affirm on the well-reasoned opinion of the district court. Maryland Pest Control Association v. Montgomery County, Maryland, C.A. No. JFM-86-1688 [17 ELR 20511] (Sept. 29, 1986).


18 ELR 20585 | Environmental Law Reporter | copyright © 1988 | All rights reserved