Professional Lawn Care Ass'n v. Village of Milford

• Citation: 909 F.2d 929
• Decision Date: 01 August 1990
• Docket Number: No. 89-2141,89-2141
• Parties: , 59 USLW 2111, 20 Envtl. L. Rep. 21,245 PROFESSIONAL LAWN CARE ASSOCIATION, Plaintiff-Appellee, v. VILLAGE OF MILFORD, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 929

909 F.2d 929

31 ERC 1825, 59 USLW 2111, 20 Envtl.

L. Rep. 21,245

PROFESSIONAL LAWN CARE ASSOCIATION, Plaintiff-Appellee, v. VILLAGE OF MILFORD, Defendant-Appellant.

No. 89-2141.

United States Court of Appeals, Sixth Circuit.

Argued June 14, 1990.

Decided Aug. 1, 1990.

Kenneth A. Flaska, John J. Ronayne, III, Kasiborski, Ronayne & Flaska, Detroit, Mich., Joseph D. Lonardo (argued), Vorys, Sater, Seymour & Pease, Columbus, Ohio, for plaintiff-appellee.

Patti A. Goldman (argued), Public Citizen Litigation Group, Washington, D.C., Paul V. Groth, Connelly, Crowley & Groth, Walled Lake, Mich., for defendant-appellant.

Before MILBURN and NELSON, Circuit Judges, and ENGEL, Senior Circuit Judge.

MILBURN, Circuit Judge.

The defendant-appellant, Village of Milford, Michigan, enacted Ordinance No. 197, which imposes registration, posting and notice requirements upon commercial "users of pesticides." The district court enjoined the village from enforcing the ordinance on the ground that it was impliedly preempted by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C Secs. 136-136y. The village then filed this timely appeal. For the reasons that follow, we affirm.

I.

A.

Defendant-appellant Village of Milford is a political subdivision of the State of Michigan. Plaintiff-appellee Professional Lawn Care Association of America is a national organization that represents approximately 1,400 commercial lawn care companies, including seven that are located in the village.

On January 27, 1986, the village enacted Ordinance No. 197, entitled

AN ORDINANCE TO PROVIDE FOR THE PUBLIC HEALTH AND SAFETY BY REQUIRING REGISTRATION OF PERSONS APPLYING PESTICIDES FOR HIRE WITHIN THE VILLAGE OF MILFORD AND PUBLIC NOTICE OF THE USE OF PESTICIDES; TO PROVIDE THE PUBLIC THE OPPORTUNITY OF AVOIDING CONTACT WITH THESE PESTICIDES: AND TO IDENTIFY THE LOCATION OF FLAMMABLE PESTICIDES.

The ordinance defines a "user of pesticide" as:

(1) Any person who applies or causes pesticides to be applied to property by any means where such person is engaged in applying pesticides for hire to trees, lawns, shrubs, plants, or the atmosphere; or

(2) Any person who applies or causes pesticides to be applied in commercial businesses and public buildings.

The ordinance requires all users of pesticides who use and apply pesticides for hire within the village to register with the village and pay an annual registration fee of $15.00. Users of pesticides who store, mix or otherwise handle pesticides within the village must provide the village fire department with a copy of their registration forms.

The ordinance requires users who apply pesticides to commercial businesses or public buildings to supply the building operators with decals that indicate the date the pesticides were applied. The decals must be posted at the building entrances until the time of the next application or ninety days, whichever occurs first.

Village residents whose physicians declare them to be "sensitive" to pesticides may, for an annual fee of $15.00, be placed upon the village's list of chemically sensitive residents. The village updates the list monthly. The ordinance requires all commercial users of pesticides to obtain current copies of the list and to notify the chemically sensitive residents at least twenty-four hours in advance of an outdoor application. The ordinance permits written notice where oral notice is not possible. In addition, users of pesticides must also place yard markers containing the words "Chemically Treated Lawn--Keep Children and Pets Off for 72 Hours" on the property where an outdoor application has been made. The ordinance provides that violations of its terms shall be penalized by assessments of fines ranging from $25 to $100, depending upon the number and type of violations.

The association initiated this action by filing a complaint seeking declaratory and injunctive relief on May 5, 1989. The association alleged that FIFRA preempts the local regulation of pesticides, such as Ordinance No. 197. The village answered the complaint on June 5, 1989, and soon thereafter the parties filed cross-motions for summary judgment.

On August 24, 1989, in a ruling from the bench, the district court granted the association's motion for summary judgment and enjoined the village from enforcing Ordinance No. 197. The district court filed an order memorializing its decision on September 15, 1989.

B.

FIFRA was originally enacted in 1947 as a pesticide labeling statute. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991, 104 S.Ct. 2862, 2866-67, 81 L.Ed.2d 815 (1984). In 1972, in response to concerns about the safety of pesticide use, and "because of a growing perception that the existing legislation was not equal to the task of safeguarding the public interest," id. at 991-92, 104 S.Ct. at 2867, Congress rewrote FIFRA through amendments that transformed it into a comprehensive regulatory statute. See id. As amended, FIFRA "establishe[d] an elaborate framework for the regulation of pesticide use in the United States." Love v. Thomas, 858 F.2d 1347, 1350 (9th Cir.1988), cert. denied; --- U.S. ----, 109 S.Ct.1932, 104 L.Ed.2d 403 (1989); see also Defenders of Wildlife v. Administrator, EPA, 882 F.2d 1294, 1296 (8th Cir.1989).

FIFRA contemplates various levels of interaction between the federal, state and local governments in the regulation of pesticides and their use. FIFRA defines a "state" as "a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Trust Territory of the Pacific Islands, and American Samoa." 7 U.S.C. Sec. 136(aa). FIFRA does not define "political subdivisions" or "local authorities." Some sections of FIFRA, however, refer explicitly to "political subdivisions" and "local agencies" as distinct from "states." See 7 U.S.C. Secs. 136f(b); 136r(b); 136t(b).

FIFRA expressly permits states to regulate the use of federally registered pesticides, "but only if and to the extent the regulation does not permit any sale or use prohibited by" the federal statute. 7 U.S.C. Sec. 136v ¹. FIFRA does not contain any provisions that authorize or prohibit political subdivisions or local authorities from regulating pesticides or their use.

Pursuant to the grant in section 136v, the State of Michigan enacted the Pesticide Control Act of 1976. Mich.Comp.Laws Ann. Secs. 286.551--.581. The state largely adopted the federal standards, including FIFRA's certification standards for commercial applicators of pesticides. As a result, commercial pesticide applicators are subject to extensive federal and state regulation in Michigan.

In making its decision, the district court turned first to FIFRA's legislative history, which reveals that the pesticide legislation President Nixon proposed in 1971 included provisions that expressly gave local governments the power to regulate pesticides and their use. However, nearly every congressional committee that passed on the proposed legislation deleted those provisions in the belief that the state and the federal governments could regulate pesticides adequately without subjecting the pesticide industry to thousands of regulatory jurisdictions. See Maryland Pest Control Ass'n v. Montgomery County, Maryland, 646 F.Supp. 109, 111-13 (D.Md.1986), aff'd without published opinion, 822 F.2d 55 (4th Cir.1987), further related proceedings, 884 F.2d 160 (4th Cir.1989) (per curiam) ("Maryland Pest Control "). As a result, the legislation that Congress enacted contained no provisions granting local governments the power to regulate pesticides and their use. The district court concluded that when Congress amended FIFRA in 1972, it occupied the entire field of the regulation of pesticides "and then it specifically gave states [and not their political subdivisions] the right to operate within the field...." J.A. 33.

The district court also noted that the question of the preemption of local regulations of pesticides and their use had been decided in two reported opinions, with each court reaching different results. The United States District Court for the District of Maryland found a county ordinance nearly identical to the village's to be preempted in Maryland Pest Control, while the California Supreme Court found a voter-enacted ban on the aerial application of certain pesticides not to be preempted. See People ex rel. Deukmejian v. County of Mendocino, 36 Cal.3d 476, 683 P.2d 1150, 204 Cal.Rptr. 897 (1984) ("Mendocino County "). ² The district court adopted the analysis in Maryland Pest Control and concluded that FIFRA preempted Ordinance No. 197.

II.

A.

In determining whether Congress has exercised its power to preempt state or local regulations, we give primary emphasis to ascertaining the congressional intent underlying the statute in question. See R. J. Reynolds Tobacco Co. v. Durham County, North Carolina, 479 U.S. 130, 140, 107 S.Ct. 499, 506-07, 93 L.Ed.2d 449 (1986). Congress may preempt a state or local law expressly or by passing a statute that is "sufficiently comprehensive to make reasonable the inference that Congress 'left no room' for supplementary ... regulation." Hillsborough County, Florida v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). Where the federal statute is not so large that it occupies the entire field, state and local law may still be preempted where it conflicts with the federal law by standing as an obstacle to Congress' purposes, see Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300-02, 108 S.Ct. 1145, 1151, 99 L.Ed.2d 316 (1989), or where " 'the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state [or local] laws on the same subject.' " Hillsborough County, 471 U.S. at 713, 105 S.Ct. at 2375 (quoting Rice, 331 U.S. at 230, 67 S.Ct. at...