This is not a substitute for legal advice.
In 2015, the Montgomery County Council passed a bill prohibiting the use of certain pesticides on private and county-owned properties. The law limited the use of pesticides registered with the Maryland Department of Agriculture (MDA), allowing pesticides listed by the county for non-essential cosmetic purposes, and exempting agricultural applications. In 2017, the Montgomery County circuit court found that Maryland state law preempted the ordinance; click here to see my overview of this ruling. The Court of Special Appeals of Maryland recently issued an opinion overruling the circuit court. The Court of Special Appeals found that federal and state laws in Montgomery County v. Complete Lawn Care, Inc. do not preempt the ordinance.
Montgomery County Ordinance
The ordinance, which Montgomery County passed in 2015, created a new set of restricted pesticides and banned 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, broadly defining a registered pesticide to include any pesticide registered by EPA and with MDA. Listed pesticides are limited to those with active ingredients recommended by the National Organic Standards Board. Pesticide applications on agricultural property, golf courses, and in other limited cases were exempt under the ordinance. Municipalities in the county could opt-in to the ordinance.
Court of Special Appeals Opinion
The court reviewed the similar federal and state pesticide laws as mentioned in the prior post; click here. The court highlights a U.S. Supreme Court decision in Wisconsin Public Intervenor v. Mortier (1991) holding that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) allowed for local governments regulating pesticides. After this ruling, the Maryland General Assembly did not approve legislation expressly preempting counties from regulating pesticides in 1992, 1993, and 1994.
The court rejected arguments that state law expressly preempted the county’s ordinance. The court also rejected the circuit court’s findings that the ordinance is preempted by conflict. Conflict preemption occurs when the lower level law makes it impossible to comply with both the lower level law and the higher-level law or when lower-level law creates an obstacle to achieve the higher-level law.
The state’s pesticide laws did not create preemption by conflict. To the court, the pesticide laws created a floor with counties being able to provide further health and safety restrictions. The county is also not banning the use of state-approved pesticides, and a total ban potentially might have caused a different outcome.
The ordinance fits within other state environmental schemes, such as the Chesapeake and Atlantic Coastal Bays Critical Area Protection Program. In that program, Maryland requires counties to develop agricultural programs to reduce runoff and enhance water quality. To the court, the state could actively ask counties to develop pesticide controls to improve water quality. At the same time, the ordinance potentially helps the state achieve water quality goals related to the Clean Water Act. To the court, all of this ruled out conflict by preemption.
The court also rejected preemption by implication, a situation where the higher authority law (in this case, the state’s) acts to occupy the entire field and leaves no room for the county to act. The court disagreed with arguments that the state law gave MDA full authority to act in the area of pesticides. The court pointed to a 1985 Attorney General’s opinion concluding state law was not comprehensive enough for a court to find preemption by implication. The court also pointed to three failed attempts in the General Assembly to limit local authority in regulating pesticides. This failure to pass demonstrated that state law did not occupy the entire field, because the General Assembly was never able to pass a law limiting local authority to preempt the county ordinance.
The court also rejected arguments that state pesticide laws created uniformity in the regulation of pesticides. The court looked to language in the state law showing uniformity is desirable but not mandatory. The court pointed to new neonicotinoid restrictions which conflict with federal law. The court also highlighted the Chesapeake and Atlantic Coastal Bays Critical Area Protection program giving counties the authority to pursue best management practices related to pesticides to enhance water quality. All this demonstrated that the ordinance was not preempted by implication.
I need to note that this latest decision could still be appealed, but there is no guarantee that the Court of Appeals would hear it. This decision highlights precisely how broad Maryland counties’ authority is. Based on this ruling, counties may potentially have more power to regulate pesticides inside their boundaries than the circuit court’s decision initially considered.
How broad is this authority, which is still unclear? The Montgomery County ordinance provided exceptions for agriculture and other services and allowed county municipalities to opt into the ordinance. The courts might not permit another county banning the use of all pesticides; at this time, we only have this ordinance, and no other data points to consider.
Across the country, counties have restricted pesticide use and in some cases, the usage of certain crop varieties, because of citizen concerns. In some states, these ordinances are overturned for being preempted by state law. In cases such as in Montgomery County, state law does not preempt these ordinances. As with many areas of the law, it may not always be clear when preemption applies.
Montgomery County v. Complete Lawn Care, Inc., No. 427200V, 2019 WL 1950756 (Md. Ct. Spec. App. May 2, 2019)