Montgomery Cnty. v. Complete Lawn Care, Inc.

• Decision Date: 02 May 2019
• Docket Number: No. 1203, Sept. Term, 2017,1203, Sept. Term, 2017
• Parties: MONTGOMERY COUNTY, Maryland v. COMPLETE LAWN CARE, INC., et al.
• Court: Court of Special Appeals of Maryland

240 Md.App. 664

207 A.3d 695

MONTGOMERY COUNTY, Maryland

v.COMPLETE LAWN CARE, INC., et al.

No. 1203, Sept. Term, 2017

Court of Special Appeals of Maryland.

May 2, 2019

Argued by: Edward B. Lattner, Chief (John Markovs, Deputy County Attorney Marc P. Hansen, County Attorney on the brief) all of Rockville, MD, for Appellant.

Argued by: Anthony Michaels of Washington, D.C. & Timothy F. Maloney (Alyse Prawde, Joseph, Greenwald & Laake, PA, of Greenbelt, MD, and Catherine M. A. Caroll, Arpit K. Garg, Tiffany R. Wright, Wilmer, Cutler, Pickering, Hale and Dorr, LLP of Washington, D.C.) on the brief, for Appellee.

Panel: Wright, Beachley, Robert A. Zarnoch (Senior Judge, Specially Assigned), JJ.

Zarnoch, J.

From 1958-1962, Rachel Carson wrote Silent Spring from her home in Silver Spring.¹ Carson's examination of the health impacts of DDT and other pesticides galvanized the public, and the next decade saw Congress enact a broad range of statutes that are foundational to modern environmental law.²

Montgomery County claims, in essence, that it is following in these footsteps, but we must determine whether it has done so consistently with State law.

In 2015, the Montgomery County Council passed an ordinance restricting the use of certain pesticides for cosmetic purposes throughout the County. The Supreme Court held in 1991 that the principal federal law governing pesticides permits such local legislation. Wisconsin Public Intervenor v. Mortier , 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991). Here, we are asked to decide whether the County's legislation is impliedly preempted or in conflict with Maryland's Agriculture Article. We conclude that the ordinance does not run afoul of State law. Because the Circuit Court for Montgomery County found otherwise, we reverse both its injunction and declaratory judgment, and remand for an entry of a new declaratory judgment declaring the validity of the County ordinance.

To briefly summarize, we principally ground our decision on the following:

1) State law does not expressly preempt local government regulation of pesticides;

2) Following a 1985 published opinion of the Attorney General, which said that State law did not impliedly preempt local pesticide regulation, 70 Md. Att'y Gen. Op. 161 (1985), and the U.S. Supreme Court's 1991 decision in Mortier that federal law also did not preempt local regulation, the pesticide industry unsuccessfully sought passage of preemptive legislation in 1992, 1993, and 1994. In full recognition of existing local pesticide ordinances, the members of the House of Delegates by floor vote rejected each of the bills that sought to preempt more stringent local regulation. This "strongly suggests" under the Amendment Rejection Theory that there was no legislative intent to authorize or recognize preemption. Allied Vending, Inc. v. City of Bowie , 332 Md. 279, 304, 631 A.2d 77 (1993). No piece of legislation enacted subsequently undercuts that conclusion;

3) For decades, Maryland's Chesapeake and Atlantic Coastal Bays Critical Area Protection Program has authorized certain counties to regulate pesticides within the Critical Area without any record of chaos and confusion from multi-tiered regulation;

4) Despite the existence of a comprehensive federal statute desirous of "uniformity" of regulation, the Supreme Court said that federal law did not regulate pesticides "with[ ] regard to regional and local factors like climate, population, geography, and water supply" or oust local regulation with respect to such matters. Mortier , 501 U.S. at 614-15, 111 S.Ct. 2476 ;

5) Probably less comprehensive than federal law, see 501 U.S. at 613, 111 S.Ct. 2476, Maryland's pesticide statutes also reference uniformity with federal legislation. This is best regarded as an aspirational goal, rather than an obstacle to local legislation.

The language of State law and enactments of the General Assembly would authorize broader regulation than federal law both generally and specifically;

6) There is no pervasive administrative enforcement of State pesticide statutes by the Maryland Department of Agriculture, which receives federal funds to enforce federal law in Maryland and which has opposed tougher pesticide controls as "anti-agriculture"; and7) Appellees' contentions and the circuit court's conclusion that the County ordinance frustrates the purposes of State law run counter to County Council of Prince George's County v. Chaney Enters. Ltd. P'ship , 454 Md. 514, 541 n. 19, 165 A.3d 379 (2017) (Frustration of purpose has never been applied to resolve a conflict between State and local law).

PROCEDURAL AND REGULATORY BACKGROUND

In October 2015, the Montgomery County Council enacted Bill No. 52-14 ("the County ordinance"). Among its other provisions, the bill amended the Montgomery County Code to restrict certain pesticide use on private and County-owned property. Appellees³ challenged the ordinance in the Circuit Court for Montgomery County, seeking a declaratory judgment that the bill was preempted by State law and a permanent injunction before the County ordinance was scheduled to take effect in January 2018. The County and Appellees waived discovery, stipulated as to the facts, and filed cross motions for summary judgment.

In an August 2017 written opinion, the circuit court concluded that the County ordinance was preempted by State law, both by implication and by conflict: "[t]he County's Ordinance flouts decades of State primacy in ensuring safe and proper pesticide use, undermines the State's system of comprehensive and uniform product approval and regulation, and prohibits products and conduct that have been affirmatively approved and licensed by the State."⁴ Accordingly, the circuit court granted Appellees' motion for summary judgment, issued a declaratory judgment that Bill No. 52-14 was unlawful and preempted by Maryland law, and ordered that the bill "as it regards the use of pesticides on private property, shall not take effect, and [Appellees] are entitled to permanent injunctive relief from the enforcement of these sections." The County's appeal followed.

To properly evaluate whether the General Assembly has intended to preempt local pesticide regulation, we must first consider how the County ordinance fits within the interweaving structures of federal and State law.

Montgomery County's Pesticide Ordinance

The County ordinance amended existing language in the Montgomery County Code⁵ to require that retailers, among other requirements, make available to pesticide purchasers (1) notice signs, (2) federally-approved product labels, and (3) County-approved materials that explain both the potential dangers of pesticide use and the availability of alternative products. Montgomery County Code § 33B-3(a). The ordinance further amended existing language in the County Code to require that commercial pesticide applicators provide new customers with certain notice before and after pesticide application. Montgomery County Code § 33B-7(b). Additionally, the ordinance specified that applicators must place certain notice markers in areas near the site of application. Montgomery County Code §§ 33B-8—33B-9.

Most pertinent to Appellees' challenge here, the ordinance specifies that only "listed pesticide[s]"⁶ may be applied to (1) lawns, (2) playgrounds, (3) mulched recreation areas, (4) children's facilities, or (5) the grounds of a children's facility when those areas are located on "County-owned property and private property"—which by definition would exclude public schools. Montgomery County Code § 33B-10(a). However, the law then specifies numerous exceptions to those use restrictions: a person may apply any pesticide that is registered with the Environmental Protection Agency ("EPA")⁷ to those same surfaces if applied to (1) control weeds, (2) control invasive species, (3) control disease vectors, (4) control biting or stinging insects or stinging plants, (5) control organisms that threaten the health of trees or shrubs, (6) maintain property as part of a public utility's efforts to comply with regulations, (7) control indoor pests, (8) control pests while engaged in agriculture, or (9) control a pest outbreak that poses an imminent threat to human health or prevent significant economic damage. Montgomery County Code § 33B-10(b). The law then stipulates that if a pesticide is applied pursuant to the exception concerning imminent threats to human health or preventing significant economic damage, the person applying the pesticide must inform the County of the application. Montgomery County Code § 33B-10(c).⁸

Federal Regulatory Scheme

Any County or State pesticide law is subject to applicable regulatory provisions of the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136 – 136y. Congress first enacted FIFRA in 1947, then comprehensively amended the law in 1972.

1947 FIFRA

In 1947, Congress enacted FIFRA to replace 1910's Federal Insecticide Act. Public Law 104, Chapter 125. When FIFRA was originally enacted in 1947, it was similar to other early federal laws concerning adulterated products⁹ in that it was "primarily a licensing and labeling statute." Mortier , 501 U.S. at 601, 111 S.Ct. 2476.¹⁰ 1947's FIFRA authorized the U.S. Department of Agriculture ("USDA") to issue pesticide licenses and registrations; the law then prohibited the distribution or sale of unregistered, misbranded, or mislabeled pesticides. Chapter 125, § 3. Even though 1947's FIFRA characterized pesticides as "economic poisons," it was not until 1964—after Silent Spring heightened the public's awareness that pesticides could, for instance, accumulate in human body tissues and breast milk—that Congress authorized USDA to take pesticides off the market by canceling their registrations. Alexandra B. Klass, Bees, Trees, Preemption, and Nuisance: A New Path to Resolving Pesticide Land Use Disputes , 32 ECOLOGY L. Q. 763, 771 n. 28 (2005) ; John Wargo, Our Children's Toxic Legacy 72 (1998). By 1970,...