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In 2015, the Montgomery County Council passed a bill prohibiting the use of certain pesticides on private and county-owned properties. The bill limited the use of pesticides registered with the Maryland Department of Agriculture (MDA), only allowing pesticides listed by the county for non-essential cosmetic purposes. The bill exempts agricultural applications. The court found that Maryland state law preempted the bill, but the county may appeal this decision.
Current Federal and Maryland Pesticide Laws
When it comes to pesticides, the EPA regulates pesticide use in the United States under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). While states also regulate pesticides, those regulations must conform with FIFRA. Maryland’s General Assembly entrusted MDA with authority to enforce the Maryland Pesticide Registration and Labeling Act and the Pesticide Applicator’s Law. Maryland requires that all pesticides sold be registered with MDA and carry an EPA-approved label. According to state and federal law, a pesticide must be used according to its label.
Maryland divides pesticides into two classifications of usage: general and restricted. General pesticides are widely available for the public to use, but restricted pesticides are only available to certified applicators or a licensed business meeting certain qualifications.
At the same time, state law also restricts usage of pesticides on school property. Schools are required to warn parents, students, teachers, and staff before applications occur. The schools must also look at using integrated pest management systems to control pests.
Montgomery County Ordinance
Montgomery County passed the ordinance in 2015, creating a new set of restricted pesticides and banning usage on private and county-owned properties. The ordinance prohibits a resident from using a registered pesticide other than a Montgomery County “listed pesticide” on any privately owned or county-owned property. In Montgomery County, a registered pesticide is broadly defined to include any pesticide registered by EPA and registered with MDA. Listed pesticides are limited to those with active ingredients recommended by the National Organic Standards Board. The ordinance did not restrict the use of pesticides on agricultural property, golf courses, and in other limited cases. The ordinance has a provision allowing municipalities in the county to opt-in to the ordinance.
Circuit Court’s Opinion
The plaintiffs argue the county ordinance directly conflicts with state law and is preempted by state law. Montgomery County, on the other hand, argued the county has the power under the Expressed Powers Act which gives charter counties expressed powers to legislate in certain areas.
The circuit court first determines if implied preemption applies to the ordinance. Implied preemption is when the higher government (here, the state of Maryland) acts with the intent to occupy the entire field of legislation and leave no room for the lower government (Montgomery County) to legislate in the field. To the court, the state of Maryland has moved to occupy the entire field of pesticide and power was expressly given to the MDA Secretary, with no area left for a local government to occupy.
The court applies seven factors to verify that implication preempts the ordinance: 1) No local law existed before the state law, 2) nothing in the pesticide laws give the counties explicit power to regulate, 3) ordinance is not in an area traditionally regulated by counties, 4) MDA has not recognized a county’s ability to regulate in this area, 5) the state has comprehensive legislation on point with what the county is trying to regulate, 6) this new two-tiered system would create chaos and the county officials have admitted this. One factor, a state law providing a county with shared authority, potentially weighed in favor of the county since the Expressed Powers Act could be read to give the county authority to regulate pesticides to protect the health of residents. To the court, all these factors weighed in favor of implied preemption by state law.
The court does not stop at finding that implication preempts the law. The court continues to determine if the ordinance is preempted by conflict with existing state laws. The court finds the ordinance conflicts with state law by prohibiting a person from conduct allowed under state law (here, using a registered pesticide). The ordinance also creates chaos compared to the uniformity that federal law and state laws related to pesticides. To the court, the opt-in provision in the ordinance also creates more chaos and could create additional chaos if other counties followed Montgomery County’s course.
Complete Lawn Care, Inc. v. Montgomery County, No. 427200-V (Md. Cir. Ct. Aug. 3, 2017).