National Agr. Chemicals Ass'n v. Rominger

• Decision Date: 19 September 1980
• Docket Number: Civ. No. S-80-85 LKK.
• Citation: 500 F. Supp. 465
• Court: U.S. District Court — Eastern District of California
• Parties: NATIONAL AGRICULTURAL CHEMICALS ASSOCIATION et al., Plaintiffs, v. Richard E. ROMINGER, Director, California Department of Food and Agriculture, Defendant. International Chemical Workers Union, AFL-CIO, an unincorporated association; American Federation of State, County and Municipal Employees, East Bay Parks Local 28, an unincorporated association; Ofelia Rico; Amelia Rodriguez; Porfirio Monteon, Intervenors.

500 F. Supp. 465

NATIONAL AGRICULTURAL CHEMICALS ASSOCIATION et al., Plaintiffs, v. Richard E. ROMINGER, Director, California Department of Food and Agriculture, Defendant.

International Chemical Workers Union, AFL-CIO, an unincorporated association; American Federation of State, County and Municipal Employees, East Bay Parks Local 28, an unincorporated association; Ofelia Rico; Amelia Rodriguez; Porfirio Monteon, Intervenors.

Civ. No. S-80-85 LKK.

United States District Court, E. D. California.

September 19, 1980.

COPYRIGHT MATERIAL OMITTED

Pillsbury, Madison & Sutro, San Francisco, Cal., Sellers, Conner & Cuneo, Washington, D. C., for plaintiffs.

Joel S. Moskowitz, Deputy Atty. Gen., State of Cal., Sacramento, Cal., for defendants.

Ralph Santiago Abascal, Calif. Rural Legal Assistance, Sacramento, Cal., for intervenors.

Edward C. Gray, Deputy Assoc. Gen. Counsel, Pesticide Division, EPA, Washington, D. C., for amicus curiae.

OPINION AND ORDER

KARLTON, District Judge.

INTRODUCTION

The National Agricultural Chemicals Association, Chemical Specialties Manufacturers Association and fifteen individual marketers of pesticides registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq., brought this five count action against the Director of California's Department of Food and Agriculture seeking declaratory and injunctive relief. Plaintiffs' complaint attacks the newly adopted California Pesticide Regulations, 3 Cal.Admin.Code, Ch. 4, sub 1, group 2 and Cal.Food & Agric.Code § 12811. They assert various grounds which in general reduce to two; namely that the state's power to regulate has been preempted by FIFRA and that the regulations are an unconstitutional burden on interstate commerce.

Plaintiffs have now moved for a preliminary injunction on the first three counts and defendant has moved to dismiss.

COUNT I

SECTION 24 OF FIFRA DOES NOT PREEMPT A STATE'S RIGHT TO REQUIRE ADDITIONAL DATA FROM MANUFACTURERS AND DISTRIBUTORS OF PESTICIDES. NOR DO THE STATE'S REQUIREMENTS CONSTITUTE AN UNCONSTITUTIONAL BURDEN ON INTERSTATE COMMERCE.

A. Preemption.

The first count alleges that the state registration procedure concerning so-called "restricted use" pesticides requires substantial additional data beyond that required by the Environmental Protection Agency (EPA) under FIFRA. Plaintiffs argue that this requirement is unlawful on two grounds. First, that the state has no power to require such additional information since Congress intended that the FIFRA provisions preempt all state registration procedures. Second, plaintiffs contend that state registration procedure, in requiring such additional data, constitutes an unreasonable and therefore unlawful burden on interstate commerce.

It is clear that prior to 1972 the federal government's role relative to the manufacture and sale of pesticides was limited and supplemental to each state's exercise of its authority in the area. This case arises from the broadened exercise of national power embodied in the 1972 amendments to FIFRA, the Federal Environmental Pesticide Control Act of 1972, 7 U.S.C. §§ 136-136y. In that statute Congress made intrastate as well as interstate uses of pesticides subject to federal regulation, established a system of pesticide classification, placed additional limitations on use designations and established a system to certify pesticide applicators. That statute also contained the first version of Section 24 (the statute upon which plaintiffs rely). The section in issue was amended in 1978 and now reads as follows:

§ 136v. Authority of States

(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.

As I explain, I do not find that Section 24 preempts the state's power to require that prior to distribution of pesticides within the state the manufacturer and/or distributor supply data additional to that required to be supplied to EPA pursuant to the regulations implementing FIFRA.

The preemptive effect of the exercise of power by the federal government results from the provisions of Article 6, clause 2 of the Constitution.¹ Federal preemption of state regulation may occur in one of two ways-either Congress has "occupied the field," or the structures of state and federal statutes conflict. Note, The Preemption Doctrine, 75 Columbia L.Rev. 623, 624 (1975).

"Conflict preemption" exists where the state and federal statutes (or regulations) cannot operate simultaneously. The Preemption Doctrine, supra, at 626. Plaintiffs do not assert that this is such a case. Rather, they argue congressional "occupation of the field." Thus, the central question to be resolved entails determination and application of the standards for resolution of the issue of when Congress has occupied a particular field.

The Supreme Court has taught that congressional intent to preempt requires a "clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). In Florida Lime and Avocado Growers v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), the Court described the required showing as being a demonstration of "an unambiguous congressional mandate." Id. at 147, 83 S.Ct. at 1219.

As with any question of congressional intent, inquiry begins with the terms of the statute. See Consumer Product Safety Commission v. GTE Sylvania, Inc., ___ U.S. ___, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980); Smith v. Califano, 597 F.2d 152, 155 (9th Cir. 1979). Section 24 is divided into three subsections. Upon analysis, each subsection simply lends no support to plaintiffs' position as to this count. Subsection (a) by its terms clearly provides that the state may impose stricter regulations than those imposed under federal law. Indeed it is difficult to perceive what else Congress could have said to negate preemption by implication (see infra). Subsection (b) provides that no differing requirements are permitted in the limited areas of labeling and packaging (See "Count II," infra). Finally, subsection (c) permits state registration for use which is not ordinarily permitted by the federal regulations when the state can show a particular local need. To put it bluntly, except as to labeling and packaging, a congressional intent to prohibit any registration which differs from the federal requirements is simply not to be found on the face of the statute.

Given the plain terms of the statute it may be that no resort to legislative history for interpretation is necessary or proper. See, e. g., Church of Scientology of California v. U.S. Department of Justice, 612 F.2d 417, 421 (9th Cir. 1979). However, even if we turn to the legislative history, no clear mandate is found. While, as plaintiffs suggest, there is indeed some indication that Congress may have intended to occupy the field of pesticide registration, the history may just as easily be read to indicate an intent to leave the states with great latitude in this area.

Thus support of preemption may be read in Senate Report 95-334 at p. 29: "Federal registration has preempted State registration except for `special local needs'." Likewise we find a statement of Environmental Protection Agency Administrator Costle before the Senate Agricultural Committee:

"The Congress, through its enactment of the 1972 amended FIFRA, specifically transferred jurisdiction over intrastate pesticides, in the areas of registration, experimental use permits and emergency exemptions, from the States to a single Federal agency, EPA."

Conversely, House Report 92-511, p. 16 lists its version of the preemptive effects of the section: "In the case of `restricted use' pesticides the States are left free to impose whatever restrictions they may wish (other than labeling and packaging). The States could also completely prohibit the use of these `restricted use' pesticides within their jurisdictions." Senate Report 92-838 at p. 30, U.S.Code Cong. & Admin.News 1972, pp. 3993, 4128 reports on Section 24: "This section specifies the authorities retained by the States under the Act. Generally, the intent of the provision is to leave to the States the authority to impose stricter regulation on pesticides use than that required under the act."

Lastly, the April 1, 1976 Federal Register, Vol. 41, No. 64, p. 13986 describes the administrative agency's interpretation of the authority remaining in the states:

It is important to note that section 24(a) of FIFRA expressly authorized State regulation of the sale or use of pesticides, provided that such regulation does not permit any sale or use prohibited by FIFRA. This authority clearly permits a State to register or otherwise regulate the distribution or use of pesticide products which have been registered pursuant to FIFRA.

The legislative history (together with the more or less contemporaneous administrative interpretation) provides the Court with something less than a "clear congressional mandate." Absent a clear indication of congressional intent to occupy the field on the face of the statute or in the legislative history, the courts have turned to other factors to...