Amicus Curiae Brief — Wisconsin Public Intervenor v. Mortier

\“PicspD |

FILSD

| FEB 2 6 1991

No. 89-1905 OFFICE OF THE CALERA

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

WISCONSIN PUBLIC INTER VENOR, et ai,

Petiti

v.

RALPH MORTIER, et al,

Respondents.

BRIEF OF AMICI CURIAE VILLAGE OF MILFORD,

MICHIGAN, MAYFIELD VILLAGE, OHIO,

AND CITY OF BOULDER, COLORADO

Patti A. Goldman

(Counsel of Record)

Alan B. Morrison

Brian Wolfman

Public Citizen Litigation Group

Suite 700, 2000 P Street, N.W.

Washington, D.C. 20036

(202) 833-3000

Attorneys for Amici Curtae

February 199]

TABLE OF CONTENTS -c:cccsccsccecesecesceeeceeereeeenerneeves

TABLE OF AUTHORITIES 0..00..0.cccccsoeeoeeoeenenneeseem r

INTEREST OF AMICI CURIAE o..c.cccccosooesoovnnsnerneenen 2

STATEMENT OF THE CASE .scccsccsccsccsceeenersneesnerneeens s

A. Federal Pesticide Regulation 0.0.0... 5

B. State Pesticide Regulation 8

C. Local Pesticide Regulation ccc 10

SUMMARY OF ARGUMENT ........ccccoscosooeneeneeneenen 18

| cin cesees 19

| |. FIFRA DOES NOT PREEMPT LOCAL

| a icecnensees 19

| ll. ANY EVIDENCE OF A

CONGRESSIONAL INTENT TO

PREEMPT LOCAL AUTHORITY

EXTENDS ONLY TO MATTERS

THAT ARE ACTUALLY REGULATED

BY THE FEDERAL GOVERNMENT ..........25

kek W)

4 —_ —s eS ee

TABLE OF AUTHORITIES

Cases: Page:

Ames v. Smoot, 471 N.Y S.2d 128, 98 A.D.2d

216 (1983) 14

COPARR, Lid. v. City of Boulder, 735 F. Supp.

363 (D. Colo. 1989) 4,11

California Federal Savings & Loan Association

v. Guerra, 479 U.S. 272 (1979) 21

Central Maine Power Co. v. Town of Lebanon,

571 A.2d 1189 (Me. 1990) 12,14

D-Con v. Allenby, 728 F. Supp. 605 (N.D. Cal.

1989) 10

Deukmejian v. County of Mendocino, 3% Cal.

3d 476, 683 P.2d 1150, 204 Cal. Rptr. 897

(1984) 13, 21, 25

English v. General Electric Co., 110 S. Ct. 2270

(1990) 26

Fidelity Federal Savings & Loan Association v.

de la Cuesta, 458 U.S. 141 (1982) 21

Florida Lime & Avocado Growers, Inc. v. Paul,

373 US. 132 (1963) 19, 25

Hillsborough County, Florida v. Automated

Medical Laboratories, Inc., 471 U.S. 707

(1985) . 21, 26

Ingersoll-Rand Co. v. McClendon, 111 S. Ct.

A

Long Island Pest Control Association, Inc. v.

Town of Huntington, 341 N.Y.S.2d 93, 72

Misc. 2d 1031 (1973), aff'd, 351 N.Y.S.2d

945, 43 A.D.2d 1020 (1974) cccccccccccecsesnsseseeee

Maryland Pest Control Association v.

Montgomery County, Maryland, 646 F.

Supp. 109 (D. Md. 1986), aff'd, 822 F.2d

55 (4th Cir. 1987) ~~

National Agricultural Chemicals Association v.

Rominger, 500 F. Supp. 465 (E.D. Calif.

1980) | i

New York State Pesticide Coalition, Inc. v.

Jorling, 874 F.2d 115 (2d Cir. 1989) 0.0...

North Dakota v. United States, 110 S. Ct. 1986

A

Pacific Gas & Electric Co. v. State Energy

Resources Conserv. & Development

Commission, 461 U.S. 190 (1983) .00.........c0c0000+.

Pesticide Public Policy Foundation v. Village

of Wauconda, Illinois, 622 F. Supp. 423

(N.D. Ill. 1985), aff'd, 826 F.2d 1068 (7th

A

Professional Lawn Care Association v. Village

of Milford, 909 F.2d 929 (6th Cir. 1990),

Cert. pending NO. 90-382 ..........ccccceeeseseseeenenenenees

ecnmeansens 12

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

(1967) .2<.2..2ssassssssesssessscesessssssssesssessesssssssssssssessesetsenesnenenees 19

Schneidewind v. ANR Pipeline Co., 485 U.S.

FBS (2DBB) ocecvccccesceececsesrcsvecsvccnscscscssecsassssssssseeesescssosesesees 21

Silkwood v. Kerr-McGee Corp., 464 U.S. 238

(19B6) <2ccocre2c-sesssessesesesessesnsesensnssssnsessesensesessnseweseseesesenseees 26

Thompson v. Thompson, 484 U.S. 174 (1988) ......---s0-s00 25

Town of Salisbury v. New England Power Co.,

121 N.H. 983, 437 A.2d 281 (1981) ....cccccccceseeseeeenenes 13

Town of Wendell v. Attorney General, 394 Mass.

518, 476 N.E.2d S585 (1985) .....cccccecesevseserereneneneeneneeenes 12

Federal Statutes and Regulations:

Pub. L. No. 92-516, 86 Stat. 996 (1972) .....ccccccesenseeneereneneens 6

Federal Insecticide, Fungicide and Rodenticide |

Act, 7 U.S.C. §§ 136 ef 8€q. ....ccceceseseseeneneneneneneneees passim

7 USAC. § 1360p) 2..20ccceccoceccsossnsessvensessesessnseessesensnsessnseese 7

7 USC. § 136(OD) 2.220.0c0.ceccovscscscscsccsvscscscsnsssssensssnsesesenes 6

y RUE Tod nn 6

7 U.S.C. § 13GR(C) .nccccccocoscecseresesesesesssecscsosesessssssssenssoseees 6

7 USC. § 136000) 2.2.00cccereccrescscscscesesrssseesesesesensnsesosees 6, 8

) 7

7 USC. § 13666 fl) .2.1.0.cscccerecescsvsvsresesssessersesensssssesesesssssees 9

7 USAC. § 13GG(D) 2.2.cccccecscscscecssessscsscescsesesessscesensnsesneoses 6

7 U.S.C. § 136d(g)( 1) ......0.rcerescrerererereeenensessessssesessnsones 11

7 USC. § 13GB) 2cecncccceccccscecscscsccscscevscsssscsssssssssesonee 8, 11

7 U.S.C. § 136 g(a) ......c-cccscerescssereenrserenresensseesensosoressseees 8

i EE a 8

i ee 7

Ne 11

A Ee ee 11

LES 11

A | CN passim

Fe a dicivecernenicenienstionmnctenensenemmnneneseansinnssinns 7

IIT wcicitiediiaiitiiaiamicaiietrnininiitemiiiisinaade i)

0 eee TITUS itencitarcmesieiniabintitinstimintimiinstinaiisiay 8

Safe Drinking Water Act Amendments of 1986,

Pub. L. No. 99-339, 100 Stat. 642 ......cccccccscsesseeeeenee 8, 11

Ee 8, 11

Ee 8, 11

re 8, 11

To | ) ee 8, 11

te 8

i TN 7

State Statutes and Regulations:

California’s Safe Drinking Water and Toxic

Enforcement Act of 1986, Cal. Health &

Safety Code §§ 25249.5- 25249.13 ....cccccccenseessesseeeneeees 10

Colo. Rev. Stat. § 35-10-112 (1990) ..ccccccccccssessesssseeeseesen 9, 10

Conn. Gen. Stat. Ann. § 222-668 (1989) ......cccccccccssceseeseesee i)

lowa Code Ann. § 206.19(3), (3A) & (4)

[PD centennmsinenenstnienenenstnmnematnememenmemmmenanes 9, 10

lowa Code Ann. § 206.32 (1989) .......cccssessseseseeennnneeseenees 9

La. Admin. Code § 12.4 (1989) .........ccccsssssseeeeseseseemesesnenees 10

La. Rev. Stat. Ann. § 3:3225 (1989) .........cccccsssssesseneseeeeneeees 10

Mass. Ann. Laws ch. 94, § 192 (1991) .0......cccccccsesesesennenees 9

Md. Agric. Code Ann. § 5-208 (1989) .........cccccccccseseseesneennes 9

Md. Agric. Code Ann. § 5-210.5 (1989) .......ccccssseseeeseensees 9

Me. Rev. Stat. Ann. tit. 22, § 2157(14) (1989)... 10

ee 9

Wis. Stat. § 94.707( 1m) (1989) ..........ccccccscssseeserseseenenenesenes 9

Wis. Stat. § 94.707(a)-(b) (1987-1988) 0... cecccccseseeenensnees i)

118 Cong. Rec. 32,252, 32,256, 32,257-58 (1972) ....0.-s00«: 24

H. Conf. Rep. No. 1540, 92d Cong., 2d Sess.

(1972), reprinted in 1972 U.S. Code Cong.

B REED, TOD SEB cccscessccsssseseneemsesmensnnenee 24

H.R. Rep. No. 511, 92d Cong., Ist Sess. (1971) ...... 6, 22, 27

S. Rep. No. 838, 92d Cong., 2d Sess. (1972),

reprinted in 1972 U.S. Code Cong. &

PG 22, 23, 24, 27

vii

S. Rep. No. 970, 92d Cong., 2d Sess. (1972),

reprinted in 1972 U.S. Code Cong. &

Admin. News at 4092 .0........cccccccccccccccessceeseceseeeeceeees 23, 27

Miscellaneous:

C. Bosso, Pesticides & Politics: The Life Cycle

Of A Puublic Teste (1987) .........0.0c0cececeseseseseseseseevees 6, 23, 24

McCabe, Pesticide Law Enforcement: A View

from the States, 4 J. Env’t L. & Litigation

PD ecreceeerereresrecteemmmetnstnesenienesiennnermmenmanens passim

U.S. General Accounting Office,

Nonagricultural Pesticides: Risks and

Regulation (1986) sreuameasesonmcemmenmmeesmanenes 6

U.S. General Accounting Office, Pesticides:

EPA's Formidable Task to Assess and

Regulate Their Risks (1986) ...........c.cceceseceeererereseeneneees 7

On Writ Of Certiorari To

The Supreme Court Of Wisconsin

BRIEF OF AMICI CURIAE VILLAGE OF MILFORD,

MICHIGAN, MAYFIELD VILLAGE, OHIO,

AND CITY OF BOULDER, COLORADO

The Village of Milford, Michigan, Mayfield Village,

Ohio, and the City of Boulder, Colorado, file this brief as

amici curiae to urge the Court to reverse the judgment of the

Supreme Court of Wisconsin and to hold that the Federal

Insecticide, Fungicide and Rodenticide Act (“FIFRA”) does

not preempt all local authority to regulate pesticides. Allter-

natively, if the Court finds that FIFRA does preempt some

aspects of local pesticide regulation, amici urge the Court to

limit its holding to those local regulatory schemes that revisit

determinations that have been made by the federal govern-

ment under FIFRA, thereby preserving local authority to

regulate other aspects of pesticide use that are untouched by

federal regulation.

The three amici municipalities are filing this brief be-

cause each of them has a local pesticide ordinance that has

been challenged on federal preemption grounds similar to

those raised in this case. However, amici’s ordinances differ

from the ordinance at sue here in one important respect:

none of them seeks tu prevent the use of an approved

pesticide. Instead, as the descriptions below indicate, they

deal principally with assuring adequate public notice of pes-

ticide use and with other matters not regulated by the federal

government under FIFRA. They also represent the range of

local concerns over pesticides, aside from those dealt with by

the Town of Caszy ordinance, that are not currently being

addressed by federal authorities aad that will remain wholly

unregulated if the broad view of preemption urged by the

respondents prevails.

In 1986, the Village of Milford adopted an ordinance

that requires commercial pesticide applicators to inform the

Village of the chemical pesticides used in the Village, to pay

an annual $15 fee, and to notify the public of pesticide

applications in the Village. Village of Milford Ordinance No.

197 (1986) (“Comp.” 79).' In an action brought by the Pro-

fessional Lawn Care Association, a group of businesses that

provide commercial lawn care services, the district court set

aside the Ordinance on the ground that FIFRA preempts all

‘Where they are not fully set forth in published decisions, the

local ordinances discussed in this brief are being lodged with the

Court in a separate statutory compilation (“Comp.”).

71439-DT (E.D. Mich. Sept. 15, 1989). The Sixth Circuit

affirmed, holding that FIFRA precludes all local pesticide

regulation, including local notification schemes. Professional

Lawn Care Association v. Village of Milford, 909 F.2d 929 (6th

Cir. 1990). On August 31, 1990, the Village of Milford filed

apy on fora writ of certiorari, which isstll pending No. 90-

Care Association v. Mayfield Village, Ohio, No. 1:89 CV 0867

(N.D. Ohio filed May 8, 1989).

In 1987 and 1988, the City of Boulder, enacted

two ordinances concerning pesticide use in the City. Ordi-

nance No. 5129 requires pesticide users, ing commer-

all pesticide users, both commercial and non-commercial,

were required to (1) report spills or misapplications to the

City Manager and affected property owners and tenants; (2)

refrain from transporting, storing, disposing of, or using

pesticides in ways that cause injuries or contamination of

surface or ground water; (3) refrain from filling tanks used for

the water supply and the tank; (4) use an anti-siphon device

for any pesticide application method that connects to the City

water system; and (5) refrain from disposing of pesticides into

any City sewer, storm sewer, ditch, or lake. Comp. 1. Ordi-

nance No. 5083 also provided for local enforcement of FIFRA’s

requirements. Comp. 8.

An association of commercial pesticide applicators

challenged the Boulder Ordinances on federal preemption

grounds. In COPARR, Lid. v. City of Boulder, 735 F.Supp. 363

(D. Colo. 1989), the court held that FIFRA does not auto-

matically preempt all local pesticide regulation. Accordingly,

the district court upheld the local notification requirements

of Ordinance No. 5129. However, because the court con-

cluded that local enforcement of federal standards conflicted

with FIFRA, it struck down Ordinance No. 5083 on conflict

preemption grounds.

Rather than appeal the ruling with respect to Ordinance

No. 5083, the City of Boulder re-enacted Ordinance No. 5083

without the provision providing for local enforcement of

FIFRA. Ordinance No. 5250 (Nov. 14, 1989) (Comp. 16);

Ordinance No. 5266 (Jan. 23, 1990) (Comp. 29). The repeal

of the enforcement provision rendered moot the issue of

whether FIFRA preempted local enforcement of FIFRA's

provisions. However, the pesticide applicators appealed the

district court ruling with respect to the public notification

ordinance. After hearirg oral argument, the Tenth Circuit

held that appeal in abeyance pending the outcome of this

case. No. 89-1341 (10th Cir. Jan. 16, 1991).

The ¢ nici municipalities have an interest in this case

because the Court's decision will establish the principles that

will determine the viability of their pesticide ordinances. If

the Court determines that FIFRA leaves all local authority

intact, as we argue in Point I, that ruling will apply equally to

the Milford, Mayfield Village, and Boulder Ordinances.

However, if the Court decides that FIFRA preempts the

Town of Casey Ordinance, we argue in Point II that the ruling

should extend only to local laws that revisit federal regulation,

in which case the Milford, Mayfield Village, and Boulder

Ordinances would survive. Because the viability of their

ordinances would be jeopardized by a blanket preemption

ruling, amici file this brief to urge the Court to restrict any

preemption ruling to local regulations that directly conflict

with federal regulation.

STATEMENT OF THE CASE

Under the tripartite scheme of pesticide regulation in

the United States, federal, state, and local governments share

responsibility for controlling pesticide use. As the brief of the

United States as amicus curiae states, “FIFRA establishes a

regulatory partnership between federal, state and local gov-

ernments.” U.S. Amicus Br. on Petition for Writ of Certio-

rari, at 13 (“U.S. Br.”). In order to understand how the

combined efforts of these three regulatory authorities lead to

a workable regulatory scheme, it is necessary to review the

regulatory initiatives at each level.

A. Federal Pesticide Regulation.

The federal role in pesticide regulation is dictated largely

by the Federal Insecticide, Fungicide and Rodenticide Act

(“FIFRA”), 7 U.S.C. §§ 136 et seq. Congress originally

enacted FIFRA in 1947 as a labelling statute designed to

eliminate unwarranted manufacturer claims and to require

warning statements on product labels to prevent injury to

applicators and harm to crops. U.S. General Accounting

Office, Nonagricultural Pesticides: Risks and Regulation 9

(1986); C. Bosso, Pesticides & Politics: The Life Cycle of a

Public Issue 53-54 (1987). While FIFRA protected the farmer

from adulterated and ineffectual products, it did not require

the federal government to protect the public from adverse

health or environmental effects of pesticides. C. Bosso,

supra, at 58.

In 1972, Congress amended FIFRA to take into account

an increasing body of scientific evidence indicating that pes-

ticide use poses risks to human health and the environment.

See Pub. L. No. 92-516, 86 Stat. 996 (1972); ILR. Rep. No.

511, 92d Cong., ist Sess. 4 (1971). As amended, FIFRA

requires the Environmental Protection Agency (“EPA”) to

determine which pesticides can be safely used and for which

purposes. 7 U.S.C. § 136a(c).

Under this scheme, EPA decides whether to register and

how to classify a particular pesticide use, based on its review

of the scientific evidence of the pesticide’s safety and impact

on health and the environment. Jd. § 136a. If EPA deter-

mines that a pesticide use will have an adverse effect on

human health or the environment that outweighs its benefits,

EPA may prohibit that use. Jd. §§ 136a(c)(5)(C), 13Ha(c)(6),

136d(b) and 136(bb). Alternatively, EPA may classify a

pesticide as a “restricted use” pesticide because its unre-

stricted apphcation will have unreasonable adverse effects

on human health or the environment. Jd. § 136a(d)(1)(C).

Restricted use pesticides may be applied only by certified

applicators, or those working under their direct supervision,

and may be subjected to additional restrictions. Id.

The 1972 amendments also require EPA to review

pesticides that were already on the market vor adverse health

and environmental effects. However, EPA has encountered

numerous delays. For example, as of 1986, it had reregistered

none ot the 50,000 pesticides subject to reregistration and had

completed its review of none of the 600 pre-1972 active

EPA's Formidable Task to Assess and Regulate Their Risks 3

( 1986). In order to accelerate the process, Congress amended

FIFRA in 1988 to set deadlines for EPA's data collection and

its reregistration of existing pesticides, but even under the

1988 standards, it will be at least the mid- 1990's Lefore EPA

completes the reregistration process. See 7 U.S.C. § 136b.

Pesticide labels play an important role under FIFRA

since pesticides may not be used in ways that deviate from the

instructions on their labels. 7 U.S.C. § 134j(ay2"G). The

pesticide label contains information designed to protect

pesticide purchasers against fraudulent claims concerning a

pesticide’s composition, as well as instructions to ensure

proper application of the pesticide. See id. § IM p); 40

C.F.R. § 156.10. To ensure that manutacturers are subject to

one label requirement for pesticides that may be sold through-

out the United States, FIFRA preempts state labelling av-

thority in section 24(b), which provides that a “State shall not

Impose oF continue in effect any requirements for labeling or

packaging in addition to or different from those required

under this Act.” 7U.S.C.§ 1 Jéw(b).

FIFRA is far less pervasive in other areas of pesticide

regulation besides registration and labelling. Thus, FIFRA

does not direct EPA to require public notice of pesticide use

or its hazards, and EPA has not entered this field on its own.

The labels, which are attached to the pesticide container,

provide information about the pesticide and its hazards to the

purchaser and often to the applicator, but not to members of

it is applied. See 7 USC. § 136a(d\ IC); 40 CFR. §

152.175; New York State Pesticide Coalition, Inc. v.Jorling, 874

F.2d 115, 119 (2d Cir. 1989).

In addition, while EPA decides whether a pesticide may

be marketed, and, if so, for which uses, it does not consider the

possible effects of that pesticide use On groundwater con-

tamination in making its determinations. See McCabe. Pes-

acide Law Enforcement: A View from the States, 43. Env’t L.

«& Litigation, at 35, 42 & nn. 23 & 24, 43 & n.26 (1989).

Moreover, other statutes, such as the Safe Drinking Water

Act Amendments of 1986, Pub. L. No. 99-339, 100 Stat. 642.

Prescribe an active local role in protecting wellhead areas,

aquifers from pesticide contamination. 42 U.S.C. $§ 30086),

300g-3(e), 300h-6(c) & 300h-7( a1).

B. State Pesncide Regulation.

FIFRA envisions an active state role in the regulation of

pesticides. Thus, FIFRA allows states to assume primary

enforcement of pesticide use violations, to conduct inspec-

tons, and tocertify pesticide applicators. 7U_S.C. §§ 136f(b),

136g(a), 136i(a)(2), 136w-1. The states are not limited to

enforcement of federal law or to implementation of federal

does not undercut federal restrictions on the sale or use of

pesticides:

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 Act.

7 U.S.C. § 136v(a). A state may also register certain pesti-

cides for experimental uses or for additional uses to meet

special local needs, as long as the EPA has not previously

denied, disapproved, or cancelled that particular use. Jd. §§

136c(f), 136v(c)(1).

Under this partnership scheme, states have banned the

use of federally approved pesticides and have imposed re-

strictions on pesticides that EPA allows to be used without

restrictions. For example, the States of Massachusetts and

Wisconsin imposed restrictions on the use of daminozide on

apples after EPA determined that it was a carcinogen, but

before EPA took action to restrict its use. See Mass. Ann.

Laws ch. 94, § 192 (1991); Wis. Stat. § 94.707(1m) (1989).

Similarly, states have banned or restricted the use of other

pesticides that EPA had permitted to be used. See, e.g., lowa

Code Ann. § 206.32 (1989) (chlordane); Md. Agric. Code

Ann. § 5-210.5 (1989) (chlordane, heptachlor, aldrin and

dieldrin); Minn. Stat. § 18B.115 (1990) (chlordane and hep-

tachuor); Wis. Stat. § 94.707(a)-(b) (1987-1988) (2-4-5 trichlo-

rophenoxyacetic acid and silvex).

Other state laws fill voids in federal pesticide regulation.

Many such laws deal with public notification of pesticide use

and its hazards. See, e.g. , Colo. Rev. Stat. § 35-10-112 (1990);

Conn. Gen. Stat. Ann. § 22a-66a (1989); Fla. Stat. § 482.2265

(1989); lowa Code Ann. § 206.19(3), (3A) & (4) (1989): Md.

Agric. Code Ann. § 5-208 (1989); see also McCabe, supra, at

48 n.50. Similarly, a California voter initiative requires warn-

ings on all products containing carcinogens and reproductive

toxins, including products with pesticide residues that have

such effects. California's Safe Drinking Water and Toxic En-

10

forcement Act of 1986, Cal. Health & Safety Code §§ 25249.5-

25249.13; see D-Con v. Allenby, 728 F. Supp. 605 (N.D. Cal.

1989) (upheld against FIFRA preemption challenge). In

addition, the State of Maine requires that grocery stores post

signs informing consumers of the pesticides that are applied

on produce after harvest. Me. Rev. Stat. Ann. tit. 22, §

2157(14) (1989).

These additional state laws nonetheless leave large areas

of pesticide regulation untouched by federal or state law. See

McCabe, supra, at 8. Moreover, some states encourage

further local pesticide regulation, see lowa Code Ann. §

206.19(3) (1989) (provides role for municipalities in estab-

lishing public notification rules, determining schedules for

pesticide applications to minimize harm to people and ani-

mals, and reporting infractions and implementation); La.

Admin. Code § 12.4 (1989) (allows local notice requirements

for certain aerial applications), and others clearly do not

preempt such local supplementation. See, e.g, Colo. Rev.

Stat. § 35-10-112(3) (1990) (municipalities may impose noti-

fication requirements on private individuals, property own-

ers and the general public); La. Rev. Stat. Ann. § 3:3225

(1989) (procedure for establishing local requirements for the

sale or application of pesticides).

C. Local Pesticide Regulation.

Local governments have entered the field of pesticide

regulation to fill gaps in the federal-state regulatory scheme

and to address particular health problems suffered by their

residents. As the amicus curiae brief of the United States

recognizes, “a local governmental role furthers the overall

structure and purpose of the federal statuto’ program.”

U.S. Br. at 15.

FIFRA does not expressly preempt local authority to

regulate pesticides. On the contrary, several FIFRA provi-

sions invite local pesticide regulation. Thus, section 22 re-

quires EPA to “cooperate with. .. any appropriate agency of

any State or any political subdivisions thereof, in carrying out

the provisions of this Act, and in securing uniformity of

regulations.” 7 U.S.C. § 136t(b); accord id. § 136r(b) (re-

quires cooperation with local agencies in formulating and

revising national monitoring plan); id. § 136r(c) ( requires

cooperation with local agencies in monitoring activities).

Similarly, political subdivisions may inspect the records of

pesticide manufacturers and sellers for enforcement pur-

poses, id. § 136f(b), which indicates that FIFRA authorizes

political subdivisions to conduct at least some enforcement

activities. See U.S. Br. at 9; but see COPARR, Lid. v. City of

Boulder, 735 F. Supp. at 367 (striking down ordinance which

permitted the City to enforce FIFRA). In addition, pesticide

producers and distributors must notify local officials of the

quantities and locations of pesticides whose registrations

have been cancelled or suspended. 7 U.S.C. § 136d(g)( 1).

Moreover, other federal laws that have an impact on pesti-

cide use mandate a local role in the regulatory scheme. For

example, the Safe Drinking Water Act Amendments of 1986.

Pub. L. No. 99-339, 100 Stat. 642, prescribe an active local

role in protecting wellhead areas, sole source aquifers, and

drinking water from pesticide contamination. 42 U.S.C. §§

3001(6), 300g-3(e), 300h-6(c) & 300h-7(a)(1).

The range of local pesticide laws under this tripartite

system is vast. Some local laws, like the Town of Casey

Ordinance, enable the local government to restrict certain

uses of federally registered pesticides. Thus, the C asey

Ordinance requires commercial pesticide users to obtain a

local permit before all aerial sprayings of pesticides and

before applications of pesticides by any means on public

12

lands. Town of Casey Ordinance . 0. 85-1, § 1.2 (App. C to

Petition for Writ of Certiorari, at 6).

Similarly, in 1971, the Town of Huntington, New York,

established a pesticide control board that had the authority to

restrict or forbid the use of pesticides within the Town. Long

Island Pest Control Ass'n, Inc. v. Town of Huntington, 341

N.Y.S.2d 93, 72 Misc. 2d 1031 (1973), aff'd without opinion,

351 N.Y.S.2d 945, 43 A.D.2d 1020 (1974) (struck down on

State preemption grounds). The Town of Wendell, Massa-

chusetts, likewise required pesticide users to submit to a

hearing before a pesticide application, after which the Town

could impose restrictions on the use of the pesticide. Town of

Wendell v. Attormey General, 394 Mass. 518, 476 N.E.2d 585

(1985) (struck down on state preemption grounds, although

court indicated that some local laws would have survived). In

addition, the Town of Lebanon, Maine, has an ordinance that

requires a town meeting vote before pesticides can be sprayed

for non-agricultural uses within the Town. Central Maine

Power Co. v. Town of Lebanon, 571 A.2d 1189 (Me. 1990)

(upheld against federal preemption challenge).

In some cases, local governments impose these limita-

tions in their proprietary capacity. Thus, the Village of

Franklin Park, Illinois, prohibits the use of chemical sub-

stances on trees and shrubs located on publicly owned prop-

erty or public rights-of-way without the prior written permis-

sion of the Commissioner of Public Works, who determines

whether the pesticide will adversely affect vegetation, the

health and safety of area residents, or the environment.

Village of Franklin Park Ordinance No. 8889 MC 29

(1989)(Comp. 41); see also Town of Newburgh, Maine Ordi-

nance (1980) (Comp. 72) (prohibiting certain pesticide uses

on rights-of-way ); Town of Limerick, Maine Ordinance (1988)

(same) (Comp. 70). Similarly, the Casey Ordinance requires

13

permits for pesticide applications on public lands, Casey

Ordinance No. 85-1, § 1.2 (1985)(App. C to Petition for Writ

of Certiorari, at 6), and the Milford Ordinance mandates

postings of pesticide applications in public buildings. Milford

Ordinance, § 4 (Comp.81-82). Some local governments, such

as Montgomery County, Maryland, have likewise adopted

laws requiring the use of alternatives to toxic pesticides on

County property. See, e.g., Montgomery County, Maryland,

Resolution No. 11-1859 (1990)(Comp. 76).

Other local restrictions on pesticide use seek to protect

the interests of its residents, much in the way that trespass,

nuisance, and zoning laws do. Thus, the Town of Salisbury,

New Hampshire, adopted an ordinance that prohibited the

use of chemical! defoliants by individuals other than the owner

or those acting with the owner's written consent. Town of

Salisbury v. New England Power Co., 121 N.H. 983, 437 A. 2d

281 (1981) (struck down on state preemption grounds). In

addition, that ordinance prohibited such pesticide applica-

tions altogether, if they destroyed any vegetation that pre-

vents erosion or that produces a useful crop, unless the

applicator replaced the vegetation. /d.

Another area of repeated local concern is aerial pesti-

cide applications. In 1977, the drift from phenoxy herbicides

spread nearly three miles to cover school buses in Mendocino

County, California. The public outcry led the Mendocino

County voters to approve an initiative banning aerial spray-

ing of certain pesticides, which was subsequently upheld by

the California Supreme Court in the face of state and federal

preemption challenges. People ex rel. Deukmejian v. County

of Mendocino, 3% Cal. 3d 476, 683 P.2d 1150, 204 Cal. Rptr.

897 (1984) (en banc). The City of Boulder requires prior

notice of airborne sprayings to those on adjacent properties

because the city council found “that the unique wind condi-

14

tions in the city cause drift to occur during airborne applica-

tions of pesticides and that absent pre-application notifica-

tion, airborne applications of pesticides constitute a nui-

sance.” Boulder Ordinance No. 5250, § 6-10-1(b) (Comp.

17). The Town of Casey also found that “aerial spraying of

pesticides increases the risk of injury or damage to persons,

property and the environment, due to the increased likeli-

hood of pesticide drift and pesticide overspray.” (App. C to

Petition for Certiorari, at 2-3). Out of a similar concern for

the adverse effects of drift, the Village of Wauconda, IIlinois,

required prior notice to abutting neighbors of fogging pesti-

when the wind velocity exceeded ten miles per hour. Wau-

conda Ordinance §§ 7-12-4, 7-12-5(C) (Comp. 58, 63-64, 65-

66); Pesticide Public Policy Foundation v. Village of Wau-

conda, Illinois, 622 F. Supp. 423 (N.D. Ill. 1985), aff'd without

opinion, 826 F.2d 1068 (7th Cir. 1987) (struck down Wau-

conda Ordinance on state preemption grounds because Vil-

lage was not home rule jurisdiction); see also Central Maine

Power Co. v. Town of Lebanon, 571 A.2d 1189 (Me. 1990

(town meeting approval required for certain herbicide

sprayings ); Ames v. Smoot, 471 N.Y.S. 2d 128,98 A.D.2d 216

(1983) (local law making aerial spraying of pesticides disor-

derly conduct preempted by state law); Town of New Swe-

den, Maine, Art. 37 (1990) (Comp. 72) (ban on aerial spray-

ing); Town of Wellington, Maine, Art. 12 (1988) (Comp. 75)

(same ); Town of Lebanon, Maine Ordinance (1980) (Comp.

69) (same); Town of Rangeley, Maine Ordinance (1989)

(Comp. 73) (requiring drift management plan and notifica-

tion of neighbors for certain aerial! applications and banning

spraying in specified area ); Town of Limerick, Maine Trafton

Lake Ordinance (1970) (Comp. 70) (banning certain aerial

spraying).

Local governments have been most concerned about

15

to convey information to the public about the pesticide’s

application and its hazards. Such requirements have been

imposed because the federally approved labels that are af-

fixed to the containers do not inform members of the public

that an area has been sprayed or that a particular pesticide is

hazardous.

Local notification lav.s take several forms. First, some

maiion to the individuals who hire them to apply pesticides.

See, e.g., City of Aurora, Illinois, Ordinance No. 090-59, § 21-

33 (1990) (Comp. 32); Oak Park, Illinois, Village Code, § 20-

10-3 (1989) (Comp. 44); Montgomery County Code, § 33B-2

(1986); Prince George's County Code, § 12-161.4 (1985).2 In

some of these cases, the laws impose obligations on individu-

als who contract with commercial applicators for pesticide

applications to provide further notification of the applica-

tions to the public. Boulder Ordinance No. 5129 (Comp. 9,

16).

Second, many local laws require that the pesticide appli-

cators notify neighbors of pesticide applications, while others

extend such notice to individuals with particular pesticide

sensitivities. Mayfield Village Code ch. 763 (Comp. 78)

(notice to neighbors ); Boulder Ordinance No. $129, §6-10-11

(Comp. 10, 24) (notice to neighbors of airborne sprayings ):

Wauconda Ordinance, § 7-12-5(C) ( Comp. 65-66) (notice to

*The Montgomery County and Prince George County Ordi-

mances are discussed in Marviand Pest Control Ass'n v. Montgom-

ery County, Marviand, 646 F. Supp. 109 (D. Md. 1986), effad

without published op..ion, 822 F.2d SS (4th Cir. 1987), which

invalidated them on [ederal preemption grounds

16

neighbors of fogging applications); Aurora Ordinance No.

090-59, § 21-33(e) (Comp. 37) (notice to neighbors); Town of

Rangeley Ordinance (1988) (Comp. 74) (notice to landown-

ers within 500 feet of the perimeter of certain treated areas);

Milford Ordinance, § 5(A) (Comp. 82) (notice to individuals

who are medically certified as being chemically sensitive to

pesticides).

Third, numerous local laws mandate the posting of

public notices in areas where pesticides have been applied.

Most of these laws apply only to outdoor pesticide applica-

tions, Boulder Ordinance No. 5129 (Comp. 9, 24-28); Village

of Schaumberg Ordinance No. 2952, § 16-8.1 (1988) (Comp.

56); Montgomery County Code, ch. 33B-3; Prince George's

County Code, § 12-161.3, but some also require public noti-

fication to the general public of indoor applications in public

or commercial buildings. See,e.g., Wauconda Ordinance, § 7-

12-5(A) (Comp. 64); Milford Ordinance, §§ 4, 5(B) (Comp.

81-82). Others mandate that notice be given to residents of

multiple-unit residential structures, Boulder Ordinance No.

5083, § 6-11-7(a) (Comp. 7, 22-23); Aurora Ordinance, § 21-

34(b) (Comp. 38); Oak Park Ordinance, § 20-10-4(B) (Comp.

49), or to employees of nonmanufacturing establishments.

Boulder Ordinance No. 5083, § 6-11-7(b) (Comp. 7, 23).

Many of the Iccal laws also require commercial pesticide

applicators to pay a nominal fee in order to do business in the

jurisdiction and to supply the locality with information about

pesticide applications. Thus, the Milford Ordinance calls for

an annual licensing fee of $15 and directs commercial pesti-

cide applicators to supply the Village with the names and

chemical ingredients of pesticides used in the Village to

enable Milford to prepare for, and to inform its residents of,

any potential risks presented by the pesticide applications.

Milford Ordinance, § 3 (Comp. 81); accord Wauconda Ordi-

17

nance, §§ 7-12-2 & 7-12-3 (Comp. 63). State or federal law

generally requires that such records be maintained, and some

of the local laws simply require that copies be submitted to

the locality. See Boulder Ordinance No. 5083, § 6-11-4

(Comp. 5, 20-21, 30); Aurora Ordinance, § 21-33 (Comp. 36-

37); Oak Park Ordinance, § 20-10-3 (Comp. 48). In other in-

stances, the local law mandates additional recordkeeping ot

pesticide applications in order to assist the locality in under-

taking corrective measures. See Boulder Ordinance No.

5083, § 6-11-5 (Comp. 5-6, 21, 30-31) (spills and misapplica-

tions must be reported to the City Manager and to affected

property owners and tenants). Neither the notice nor the

recordkeeping requirements described above prohibit or

restrict the use of any federally approved pesticides or other-

wise second-guess determinations made by the EPA or state

regulators. Rather, they supplement federal and state regu-

lation by requiring pesticide users to give local governments

and local residents important information that they need to

protect themselves from the hazards of pesticide applica-

tions.

Finally, some local governments have adopted laws that

regulate pesticide use in order to protect their water supplies.

Thus, the City of Boulder prohibits the disposal of pesticides

into city sewers, ditches, and lakes, as well as storage, trans-

port, or disposal practices that contaminate surface or ground

water. Boulder Ordinance No. 5083, § 6-11-6(a), (b), (e)

(Comp. 6, 21-22, 31). Moreover, the City of Boulder requires

the use of an anti-syphon device whenever a pesticide appli-

cation requires a connection to the city water system, and it

has established a minimum distance between any such con-

nection and the pesticides. Jd. § 6-11-6(c)-(d) (Comp. 6, 21-

22). Similarly, the Village of Schaumberg prohibits vehicles

carrying chemical spraying materials from using fire hydrant

water to fill their tanks and from flushing, dumping, or

18

disposing of any pesticide residue in Village sanitary sewers,

storm sewers, or ditches. Schaumberg Ordinance, § 16-8.3

(Comp. 57); accord Wauconda Ordinance, § 7-12-6 (Comp.

67). These laws also do not revisit or conflict with federal

regulation under FIFRA since that statute does not deal with

surface or ground water contamination, and EPA does not

take such contamination into account in its registration

decisions. See McCabe, supra, at 41-42 & n.23.

SUMMARY OF ARGUMENT

FIFRA has not stripped local governments of all author-

ity to regulate matters related to pesticide use. Instead, it

“establishes a regulatory partnership between federal, state

and local governments.” U.S. Br. at 3. Thus, FIFRA’s anti-

preemption provision, which expressly permits more strin-

gent state regulation, negates any inference that Congress in-

tended to leave no room for supplementation by other juris-

dictions. In addition, while there is some evidence that

Congress entertained the notion of preempting local author-

ity, there is no evidence in the statute or its legislative history

that Congress arrived at a final decision to do so. Moreover,

preemption of local authority is inappropriate because, as

the United States puts its, local regulation “furthers the

overall structure and purpose of the federal statutory pro-

gram.” U.S. Br. at 15.

Alternatively, even if there is preemption of some local

authority, there is no basis for finding preemption of all local

authority. Rather, any preemption must be limited to those

matters that are actually regulated by the federal government

because the concerns expressed by the relevant congres-

sional committees favored preemption only of such matters.

Thus, those congressional committees sought to avoid local

duplication of federal standards and local determinations

19

that require complex scientific expertise that local govern-

ments rarely possess. Since these concerns come into play

with local laws that revisit federal registration determina-

tions, but not with those that deal with matters that are left

untouched by federal regulators, at most they support only

limited preemption of local authority.

ARGUMENT

I. FIFRA DOES NOT PREEMPT LOCAL

AUTHORITY.

This Court has refused to find preemption in the ab-

sence of “an unambiguous congressional mandate to that

effect,” Florida Lime & Avocado Growers, Inc. v. Paul, 373

U.S. 132, 146-47 (1963), particularly where, as here, the

federal scheme would supplant state or local health and

safety regulation. See Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230 (1947) (historic police powers are not super-

seded by federal law “unless that was the clear and manifest

purpose of Congress”). There is no such clear intent here, let

alone one that extends to all local control over pesticides.

As the district court and the concurrence in the court of

appeals in the Milford case recognized, this issue presents “a

very close question,” the proper resolution of which is “by no

means free of doubt.” Village of Milford, No. 90-382, Petition

for Writ of Certiorari, App. 26a, 28a; 909 F.2d at 935, 941.

Thus, it is not surprising that the six courts that have ad-

dressed the issue have split evenly on the result. Compare

Central Maine Power Co., COPARR, Litd., and County of

Mendocino, with Milford, Mortier, and Maryland Pest Control

Ass'n. These conflicting results underscore that Congress

failed to evince an unmistakable and unambiguous congres-

sional intent to preempt local authority to regulate pesticides.

20

FIFRA does not expressly preempt local authority be-

cause it contains no explicit restrictions on the authority of

local governments to regulate pesticides. Indeed, the only

express preemption provision in FIFRA is limited to labelling

authority. 7 U.S.C. § 136v(b). Since Congress adopted an

express preemption provision, but confined it to labelling

authority, the Court should not imply any greater preemption

than that prescribed by Congress when it directly considered

the issue of preemption, unless it is impossible in a particular

case to comply with both the federal and the local require-

ment.

Congress further underscored its intent to give FIFRA

only a limited preemptive effect in the statute’s “anti-preemp-

tion” provision, which expressly authorizes supplemental

state regulation. 7 U.S.C. § 136v(a). While this provision

does not speak directly to local authority, it shows that

Congress did not intend the federal government to occupy

the field of pesticide regulation completely and that supple-

mental regulation would further, rather than undermine, fed-

eralinterests. Because of this provision, a state could pass any

of the ordinances adopted by the amici municipalities, and

thus the only question is whether Congress disabled the

municipalities from also dealing with these issues.*

The anti-preemption provision serves two related pur-

poses. First, it makes it clear that Congress did not intend to

occupy the field or to forbid state requirements that are

stricter than EPA’s, thereby negating any possible argument

that Congress intended to preempt state authority in this

3Because section 136v(a) authorizes rather than preempts supple -

mental state regulation, FIFRA’s failure to include local govern-

ments within its definition of ‘state’ does not answer the

question before the Court.

21

area. National Agricultural Chemicals Association v. Romin-

ger, 500 F. Supp. 465, 469 (E.D. Calif. 1980); County of

Mendocino, 36 Cal.3d at 491; accord California Federal Sav-

ings & Loan Association v. Guerra, 479 U.S. 272, 281-82

(1979) (plurality opinion); id. at 295-96 (Scalia, J., concur-

ring). Second, section 136v(a) limits EPA’s power to adopt

regulations that preempt states from supplementing federal

pesticide regulation, which EPA would otherwise have the

power to do. See Fidelity Federal Savings & Loan Ass'n v. de

la Cuesta, 458 U.S. 141, 153-54 (1982). Since local govern-

ments are not the direct beneficiaries of the anti-preemption

provision, it does not answer the question of whether some

local authority may be preempted by implication.

Implied preemption can arise in three circumstances:

(1) where the federal scheme is so pervasive that it leaves no

room for supplementation; (2) where the local regulation

stands as an obstacle to accomplishment of the federal pur-

poses; or (3) where there is a conflict between a particular

local and federal regulation. See Schneidewind v. ANR Pipe-

line Co., 485 U.S. 293, 299-300 (1988); Hillsborough County,

Florida v. Automated Medical Laboratories, Inc.,471 U.S. 707,

713 (1985). The first basis is inapplicable because FIFRA

does not completely occupy the field of pesticide regulation

but instead leaves much to the states and specifically invites

a local role in a number of areas. See supra at 7-8, 10-11. The

second basis is also unavailing because local regulation poses

no serious obstacle to the accomplishment of FIFRA’s pur-

poses. Indeed, the United States takes the position that “a

local governmental role furthers the overall structure and

purpose of the federal statutory program.” U.S. Br. at 16.

Finally, it is inappropriate to issue an across-the-board preemp-

tion ruling on the basis of conflict preemption. Rather, the

Court should determine whether a specific local provision,

makes compliance with the federal requirement impossible

22

by reviewing the particular conflict, especially where, as here,

the statute tolerates a great deal of conflict by expressly

allowing more stringent state regulation. See, e.g., Ingersoll-

Rand Co. v. McClendon, 111 S. Ct. 478, 486 (1990).

Instead of relying on one of the traditional bases for

implied preemption, the supporters of broad preemption

argue that the Court should infer a congressional intent to

preempt all local pesticide ordinances from the debates

leading to the passage of the 1972 FIFRA amendments.

However, the only evidence of a such an intent is found in a

few statements favoring preemption that represent no more

than one side of a congressional debate that was never

definitively resolved one way or the other.

The bill passed by the House, where those amendments

originated, would have authorized supplemental state regu-

lation of restricted but not general use pesticides. H.R.

10729, § 24(a), in H.R. Rep. No. 511, 92d Cong., 1st Sess. 64

(1971). The report of the House Committee on Agriculture

describes why the Committee rejected a variation of this

authorization provision:

The Committee rejected a proposal which would have

permitted political subdivisions to further regulate pes-

ticides on the grounds that the 50 States and the Federal

Government should provide an adequate number of

regulatory jurisdictions.

H.R. Rep. No. 511, supra, at 16.

After the House passed the bill, the Senate Committee

on Agriculture and Forestry agreed that local governments

should not supplement state and federal pesticide regulation.

S. Rep. No. 838, 92d Cong., 2d Sess. (1972), reprinted in 1972

23

U.S. Code Cong. & Admin. News 3993, 4008. In addition to

endorsing the reasons given by the House Committee, the

Senate Committee also emphasized that “few, if any, local

authorities whether towns, counties, villages or municipali-

ties have the financial wherewithal to provide necessary

expert regulation comparable with that provided by the State

and Federal Governments.” /d. The Committee also sug-

gested that local regulation would impose undue burdens on

interstate commerce, but it never explained the nature of

such burdens or how this rationale differs from those previ-

ously mentioned. Jd.

The Senate Committee on Commerce, which also had

jurisdiction over the bill, proposed numerous amendments,

including one that would have expressly permitted local

governments to regulate the sale and use of pesticides. S.

Rep. No. 838, supra, 1972 U.S. Code Cong. & Admin. News

4023, 4026. Adhering to its original position, the Senate

Agriculture Committee rejected this amendment and re-

ported its version of the bill. Jd. at 3993, 4029.

Objecting vigorously to the Agriculture Committee's

bill, Members of the Commerce Committee threatened a

floor fight. In order to avert such a battle, the Chairman of the

Agriculture Committee re-referred the bill to the Commerce

Committee for its consideration. 1972 U.S. Code Cong. &

Admin. News 4027-29, 4086-88; see generally C. Bosso, supra,

at 171. After holding hearings, the Commerce Committee

reported the bill with a series of amendments, including one

that would have expressly permitted local governments to

exercise regulatory authority over pesticides. S. Rep. No.

970, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S. Code

Cong. & Admin. News 4092, 4111-12. The Agriculture

Committee then issued a supplemental report laying out its

opposition to the Commerce Committee’s amendments,

24

including the one authorizing local regulation. S. Rep. No.

838, supra, 1972 U.S. Code Cong. & Admin. News 4023, 4026,

4066. In order to resolve the major differences between the

two bills, the two subcommittee chairmen spent two months

ironing them out. /d. at 4086-88; C. Bosso, supra, at 171-72.

These negotiations produced a compromise bill that

expressly resolved many of the disputes, but not the one

pertaining to local authority. On this matter, the explanation

of the compromise stated only that “Commerce Committee

amendment... 10 (authority of local governments to regulate

the use of pesticides) . . . [is] not included in the substitute.”

1972 U.S. Code Cong. & Admin. News at 4089, 4091. The

explanation did not adopt the gloss placed on the anti-

preemption provision by the Agriculture Committee’s report

language, which would have excluded local authority. Nor did

it endorse the Commerce Committee’s desire to continue

such authority.

Thereafter, the full Senate considered the measure.

During the course of the Senate’s deliberations, Senator

Allen, the chairman of the pertinent subcommittee of the

Agriculture Committee, inserted the joint explanation of the

compromise bill and the Agriculture Committee’s initial

report into the Congressional Record. 118 Cong. Rec. 32,252,

32,256, 32,257-58 (1972). While the Agriculture Commit-

tee’s report contained the committee’s views on preemption

of local authority, Senator Allen did not highlight this discus-

sion in any way. The Senate then voted on the bill without any

discussion of the content of these reports or the effect of the

compromise bill on the authority of local governments. /d. at

32,263. Since there was no local preemption language in the

bills adopted by either the House or the Senate, the House-

Senate conference made no statement regarding the effect of

the bill on local authority. H. Conf. Rep. No. 1540, 92d Cong.,

25

2d Sess. (1972), reprinted in 1972 U.S. Code Cong. & Admin.

News 4130.

It is impossible to glean any single congressional intent

from this legislative history, much less one that is clear,

manifest, and unambiguous, as is required for a finding of

implied preemption. See Florida Lime & Avocado Growers,

Inc. v. Paul, 373 U.S. at 146-47. To the contrary, the public

record demonstrates that Congress did not definitively re-

solve the dispute over whether to authorize or preempt local

regulation of pesticides. In other words, the two Senate

committees agreed to disagree, leaving the matter up in the

air. There can be little question that “[c]ommittee reports,

floor speeches, and even colloquies between Congressmen

are frail substitutes for bicameral vote upon the text of a law

and its presentment to the President.” Thompson v. Th-

ompson, 484 U.S. 174, 191-92 (1988) (Scalia, J. concurring)

(citations omitted). Therefore, neither the statute itself nor

its legislative history evinces a clear enough intent to warrant

a finding of preemption of all local authority.

ll. ANY EVIDENCE OF A CONGRESSIONAL

INTENT TO PREEMPT LOCAL AUTHORITY

EXTENDS ONLY TO MATTERS THAT ARE

ACTUALLY REGULATED BY THE FEDERAL

GOVERNMENT.

Not only is the evidence of a congressional intent to

preempt local authority far too meager to support such a

finding, but, even if it were clearer, it would not support a

finding that all local pesticide regulation is preempted. In-

stead, what congressional intent exists supports preemption

of only those matters that are actually regulated by EPA

under FIFRA.

26

In deciding whether a particular field has been fully

occupied by the federal scheme, this Court has carefully

analyzed the extent of federal regulation and the reasons why

Congress favored excluding states or localities from the field.

Based on this analysis of the statute and its purpose, the Court

has narrowly defined the preempted field, and struck down

only those regulations that undermine the federal scheme.

See, e.g., Hillsborough County, 471 U.S. at 717-18 (the mere

existence of comprehensive federal regulation does not auto-

matically preempt state and local supplementation).

Thus, in Pacific Gas & Electric Co. v. State Energy Re-

sources Conserv. & Dev. Comm’n, 461 U.S. 190, 205, 212-13

(1983), the Court held that the Atomic Energy Act occupied

only that portion of the field of nuclear power regulation that

is based on radiological safety, leaving states free to regulate

in pursuit of other interests, even where the state regulation

has an incidental effect on safety. Furthermore, in Siikwood

v. Kerr-McGee Corp., 464 U.S. 238, 249-56 (1984), the Court

held that the preempted field of nuclear safety regulation did

not bar state punitive damages awards, even where the

defendant had complied with federal safety standards, be-

cause there is no irreconcilable conflict between the two and

because state punitive damages awards would not frustrate

the purposes of the federal law. Just last Term, the Court

again rejected a claim that all state regulation bearing some

relation to the field of nuclear safety is preempted by the

Atomic Energy Act. English v. General Electric Co., 110S. Ct.

2270 (1990). Instead, the Court concluded that a state

infliction of emotional distress lawsuit was not preempted

because it had only a remote connection to the preempted

field of nuclear safety. Id. at 2277-78.

Against this backdrop, if the Court finds some implied

preemption, it should limit FIFRA’s preemptive effect to the

27

field that it actually occupies -- pesticide registration. Thus,

the federal government (in conjunction with the states in

some instances, see 7 U.S.C. § 136v(a)) decides which pesti-

cides can be sold and used, for which purposes, and with what

restrictions. Given the cost and complexity of such determi-

nations, Only a small portion of local pesticide laws, such as

local bans on the use of particular pesticides or local permit-

ting decisions that ha ve the same effect, revisit these determi-

nations, and thus only those laws would be preempted on the

ground that they enter this field or conflict with federal

regulation. Most other local laws, such as public notice

ordinances and record requirements, will have at most an

incidental effect on federal pesticide regulation. Accord-

ingly, under this Court’s precedents, there is no basis for

finding preemption of local public notice, recordkeeping, or

groundwater regulations on the ground that the federal gov-

ernment has occupied that field or that the local regulations

conflict with, or are inconsistent with, federal law. See North

Dakota v. United States, 110 S. Ct. 1986, 1997-98 (1990)

(federal liquor procurement law designed to ensure lowest

prices does not preempt state reporting and labeling require-

ments because they have only an incidental effect on cost).

The concerns that animated the proponents of local

preemption in 1972 also support only limited preemption.

The principal reason, given by both the House and Senate

Agriculture Committees, was that the fifty states plus the

federal government would provide an adequate number of

regulatory jurisdictions. H.R. Rep. No. 511, supra, at 16; 1972

U.S. Code Cong. & Ad. News at 4008. That rationale would

apply only where the federal government had actually taken

some regulatory action. The second concern was that local

governments would be incapable of making judgments that

require scientific expertise that they do not have and cannot

afford to acquire. 1972 U.S. Code Cong. & Ad. News at 4008.

28

This concern applies only to the very few local regulations

that require complex scientific determinations, such as ban-

ning or restricting the use of a pesticide.

Under these rationales, local governments would be

precluded from making registration decisions -- the core

activity of EPA under FIFRA. Thus, local laws that ban or

restrict the use of certain pesticides would be preempted.

although local governments could still impose limitations in

their proprietary or contracting capacity on pesticide use on

public lands, in public buildings or pursuant to local govern-

ment contracts. See supra at 11-12.

In any event, neither the desire to avoid local duplication

of federal and state standards, nor the concern that local

governments lack scientific expertise, would support preemp-

tion of most other forms of local regulation. For example,

laws restricting aerial spraying do not ban the use of a

federally registered pesticide, but rather control its applica-

tion in order to address drift problems resulting from local

weather conditions and geography. Accordingly, they will

rarely duplicate federal standards, and whatever scientific

expertise they require is readily available to the local govern-

ment and, because of its uniquely local nature, is less likely to

be in the hands of the EPA.

Local public notification requirements are even further

removed from the articulated congressional concerns. There

is nothing in the 1972 legislative history to suggest that

Congress was concerned about local notice regulations. FIFRA

is silent with respect to public notice, and the EPA has never

adopted any such requirements. Thus, local notification laws

neither duplicate federal regulation nor require scientific

expertise. Moreover, they impose no more of a burden on

interstate commerce than hundreds of other local conditions

29

of doing business in many jurisdictions.

Local record requirements involve even less scientific

expertise and redundancy, particularly since most of them

simply direct pesticide users to supply copies of federally or

state mandated records to the locality. Moreover, since

FIFRA itself allows local governments to inspect such rec-

ords, 7 U.S.C. § 136f(b), and in some cases, requires pesticide

users and distributors to provide information to local

governments, id. § 136d(g)(1), such local record require-

ments dovetail, rather than conflict, with FIFRA’s require-

ments.

Local regulations that are designed to prevent contami-

nation of ground or surface water are also far afield from

federal registration decisions. Often they impose restrictions

on the use of the municipal water supply or sewer system.

Certainly, local governments can ‘mpose restrictions on the

use of city services. Moreover, any notion of implied preemp-

tion by FIFRA would be negated by the expressed federal

desire for a local role in preventing surface water contamina-

tion expressed in the Safe Drinking Water Act Amendments

of 1986. See supra at 8.

A blanket preemption ruling would preclude local regu-

lation of a wide range of other matters that have, at most, an

incidental effect on federal regulation under FIFRA. For

example, it would prohibit local rules that bar the application

of pesticides in schools and child care facilities when children

are present, or that require landlords to notify tenants before

spraying pesticides in common areas. It migiit even ba- local

governments from closing food establishments that serve

food contaminated by rat poisoning, or from mandating that

trucks refrain from carrying open containers of pesticides on

residential streets. Local governments might also be pre-

30

cluded from requiring separate garbage pickups for pesticide

containers to ensure that pesticide residues do not contami-

nate municipal dumps or seep into ground water. Certainly,

there is no basis to conclude that Congress intended to curtail

all local regulation that concerns the use of pesticides in some

way. Instead, for preemption to occur, the local regulation

must, at the very least, involve a matter that is actually

regulated or specifically exempted from regulation by the

federal government under FIFRA. Under that test, amici’s

ordinances must be upheld.

CONCLUSION

For the foregoing reasons, the Court should reverse the

judgment of the Supreme Court of Wisconsin and hold that

FIFRA does not preempt local authority or, alternatively,

that FIFRA preempts only those local laws that revisit deter-

minations actually made by the federal government.

Respectfully submitted,

Patti A. Goldman

Counsel of Record

Alan B. Morrison

Brian Wolfman

Public Citizen Litigation Group

Suite 700, 2000 P Street, N.W.

Washington, D.C. 20036

(202) 833-3000

Attomeys for Amici Curiae

February 1991