Amicus Curiae Brief — Wisconsin Public Intervenor v. Mortier

TABLE OF CONTENTS

INTERESTS OF THE AMICUS CURIAE .......

STATEMENT OF THE CASE ..........

SUMMARY OF ARGUMENT .............

THE STRUCTURE OF FIFRA DEMON-

STRATES THAT LOCAL GOVERNMENTS

ARE PREEMPTED FROM REGULATING THE

USE OF PESTICIDES ................

. THE CONGRESSIONAL GRANT OF AUTHOR-

ITY TO THE STATES TO REGULATE PESTI-

CIDE USE WAS NOT A GRANT OF SUCH

AUTHORITY TO LOCAL GOVERNMENTS

. OTHER STATUTES THAT PERMIT STATES

TO ACT WITHIN A SCHEME OF FEDERAL

REGULATION HAVE BEEN INTERPRETED

TO PROHIBIT LOCAL REGULATION .....

. THE LEGISLATIVE HISTORY OF FIFRA

INDICATES THAT CONGRESS INTENDED

TO PREEMPT LOCAL REGULATION OF

PUTO 86 e6ccnsbvecwanrTks

PEE 66 es in6c kote doekene een

. .

10

12

TABLE OF AUTHORITIES

Cases:

Addison v. Holly Hill Fruit Products,

DTC ccocecccececsececes 11

Allis Chalmers Corp. v. Lueck,

DD scocseoeccocecccccscs 6

Chavez v. Sargent,

329 P.2d 579 (Cal. App. 1958) .......... 14

Chesapeake & Ohio Ry. Co. v. City of Bridgeman,

669 F. Supp. 823 (W.D. Mich. 1987) ...... 13

City of Burbank v. Lockheed Air Terminal Inc.,

DUPED seccoeeceocecoe sce. 6

Consolidated Rail Corp. v. Smith,

664 F. Supp. 1228 (N.D. Ind. 1987) ..... 11, 13

Donelon v. New Orleans Terminal Co.,

474 F.2d 1108 (Sth Cir.), cert.

denied, 414 U.S. 855 (1973) ............ 13

v. General Electric Co.,

jj cesses eececcecs s « 6

Grimes & Hauer, Inc. v. Pollock,

163 Ohio 372, 127 N.E.2d 203 (1955) ...... 14

Hillsborough County, Fla. v. Automated

Medical Laboratories, 471 U.S. 707 (1985) .... 6

Ingersoll-Rand Co. v. McClendon,

~~~ «oe e5 cece cece: sc 6

Johnson v. Southern Railway Co.,

654 F. Supp. 121 (W.D.N.C. 1987) ...... 11, 13

Kentucky State AFL-CIO v. Puckett,

391 S.W.2d 360 (Ky. App. 1965) ......... 14

Local 1564 v. City of Clovis,

735 F. Supp. 999 (D.N.M. 1990) ....... 11, 14

Maryland Pest Control Assoc. v. Montgomery County,

646 F. Supp. 109 (D. Md. 1986),

aff d, $22 F.2d 55 (4th Cir. 1987)....... 7,17

Mortier v. Casey,

452 N.W.2d 555 (Wis. 1990) ......... passim

National Agricultural Chemicals Association v.

Lormanger, 500 F. Supp. 456 (E.D. Cal.

PU RS ROH eee cero ccencerecereeen 7

Schneidewind v. ANR Pipeline Co.,

485 U.S. 293 (1988) ............0...... 6

Sisk v. National Railroad Passenger Corp.,

647 F. Supp. 861 (D. Kan. 1986) ......... 13

United Gas Pipeline Co. v. Terrebonne Parish Police

Jury, 319 F. Supp. 1138 (E.D. La. 1970),

aff d, 445 F.2d 307 (Sth Cir. 1971) ........ 14

Constitution, Statutes, and Regulations:

U.S. Const. Article VI, Clause 2

Federal Insecticide, Fungicide and Rodenticide

Act, 7 U.S.C. § 136 ef seg... 2.2... .. passim

National Labor Relations Act, 29 U.S.C. § 141

MG cece seer esrcccccccceesssecen 13

Natural Gas Pipeline Safety Act of 1968, 49 U.S.C.

§ 1671 et seq. .. 2... ee een 14

Federal Railroad Safety Act,

45 U.S.C. § 434 (1986) .......2..0.0.... 12

19 C-F.R. § 1970 ........02..0 20.2. .00000005. 14

Legislative Materials:

H.R. Rep. No. 511,

92nd Cong., Ist Sess. (1971) .. 2.2.00... 7, 15

5

lV

IN THE

S. Rep. No. 838, 92nd Cong., 2d Sess. (1972) SUPREME COURT OF THE UNITED STATES

reprinted in 1972 U.S. Code Ocroser Term, 1990

Cong. & Admin. News 3993 ............ 15

118 Cong. Rec. 32258 (1972) .............., 16 ae aw

WISCONSIN PUBLIC INTERVENOR, and

TOWN OF CASEY,

Petitioners,

Vv.

RALPH MORTIER and WISCONSIN FORESTRY/

RIGHTS-OF-WAY/TURF COALITION,

Respondents.

On Writ of Certiorari to the

Wisconsin Supreme Court

BRIEF OF AMICUS CURIAE

THE WASHINGTON LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

INTERESTS OF THE AMICUS CURIAE'

The Washington Legal Foundation (WLF) is a non-

profit, public interest law and policy center based in

‘Counsel for all parties have consented to the filing of all amicus

briefs in this case. Their consents are on file with the Clerk of this

Court.

2

Washington, D.C. with 120,0000 members nationwide.

WLF is committed to advancing the free enterprise system

and to promoting the principles of judicial restraint. To

this end, WLF has appeared as amicus curiae before this

Court as well as other state and federal courts in

numerous cases affecting business. See, e.g., Mobil Oil

Exploration v. United Distribution, 111 S.Ct. 615 (1991);

Pacific Mutual Life Insurance Cos. v. Haslip, 59 U.S.L.W.

4157 (March 1, 1991); Kansas and Missouri v. Utilicorp

United Inc., 110 S.Ct. 2807 (1990); and Ingersoll-Rand

Company v. McClendon, 111 S. Ct. 478 (1990).

In addition to its interests in issues affecting the free

enterprise system, WLF devotes a substantial amount of

time to issues relating to the proper interrelationship

between the national and state govemments. WLF be-

lieves that both the national and state governments have

important roles to play in our federal system of govern-

ment. WLF has appeared as amicus curiae before this

Court on a number of occasions recently to urge that state

and local governments be granted greater autonomy in

their dealings with the national goverment. See, ¢.g.,

Gregory v. Ashcroft, No. 90-50 (decision pending 1991);

Howlett v. Rose, 110 S. Ct. 2430 (1990); Pennsylvania

Department of Public Welfare v. Davenport, 110 S. Ct.

2126 (1990); United States v. Spallone, 110 S. Ct. 625

(1990). In this case, however, WLF believes that a

proper balancing between the powers of the federal

government and local government requires that the

decision below be affirmed.

Because of the unique perspective of WLF in its

commitment to promoting a balance between state and

federal rights and powers, this brief will bring relevant

matter to the attention of the Court that may not be

brought to the attention of the Court by other parties.

3

STATEMENT OF THE CASE

WLF is, in the interest of brevity, omitting any

detailed statement of the facts of this case. WLF adopts

by reference the statement of facts contained in Respon-

dent’s brief.

In brief, in 1972 Congress enacted the Federal

Insecticide, Fungicide and Rodenticide Act (FIFRA), 7

U.S.C. §§ 136 et seq. That act provides a scheme of

federal regulation of pesticides including the sale, use,

storage, labelling, and export of pesticides. A portion of

that statute provides that FIFRA is not intended to deprive

a state of authority to regulate the sale or use of any

federally registered pesticide in the state. 7 US.C. §

136v.

The town of Casey, Wisconsin enacted an ordinance

which requires an individual to obtain a permit from the

town prior to engaging in certain types of pesticide

spraying. Mortier, a property owner in Casey, desired to

spray a portion of his own land located in Casey with a

pesticide. Mortier received a permit which precluded him

from aerial spraying and limited the area in which he

could spray. Mortier v. Casey, 452 N.W.2d 555, 556

(Wis. 1990).

Mortier joined with several organizations to challenge

the Casey ordinance in court, arguing that the ordinance

was preempted by FIFRA. The Circuit Court of Wash-

burn County upheld the challenge. The Supreme Court of

Wisconsin affirmed the decision of the Circuit Court,

ruling that the Casey ordinance was preempted by FIFRA.

Id. The Wisconsin Court found that while FIFRA does

not contain any express preemption language, it does,

however, contain language which is indicative of con-

gress’ intent to deprive political subdivisions, like the

4

Town of Casey, of authority to regulate pesticides.”

, icides." /d.

at 557. The court concluded that shi Ge Statutory

language alone did not clearly manifest congressional

intent to preempt local governments from regulating

pesticide use, such an intent was manifested in the

legislative history of FIFRA.

SUMMARY OF ARGUMENT

FIFRA preempts local regulation of ticide

FIFRA is a comprehensive federal re pede

controls the manufacture, distribution, labelling and use of

meaning of the word “state” i iti

subdivisions of states. Hmong ime an eae

reference to local governments in several provisions of

FIFRA. If Congress had meant to include subdivisions of

States within its understanding of the word States, there

would not have been any reason for Congress to make

separate references to states and | we

the rest of FIFRA. ocal governments within

5

While FIFRA is unusual in that it permits states to

regulate in an area comprehensively regulated by the

national government, it is not unique. Several other

federal statutes also involve comprehensive federal

regulation while tolerating continued regulation by the

states. Courts examining those statutes have not hesitated

to find federal preemption of local government regulation

despite the absence of any preemption of state regulation.

Finaily, the legislative history of FIFRA clearly

demonstrates that FIFRA was intended to preempt local

governments from regulating pesticide use. The

Petitioners claim that the legislative history only

demonstrates an "agreement to disagree" is premised upon

the erroneous notion that the legislative defeats of the

of local regulation are meaningless. The

legislative history indicates that both the proponents and

opponents of local regulation believed that, as enacted,

FIFRA preempted local governments from regulating

pesticide use and that amendments to FIFRA would be

necessary in order to change the preemptive force of

FIFRA. The proponents of local regulation did propose

such amendments, and those amendments were defeated.

ARGUMENT

Il. THE STRUCTURE OF FIFRA DEMONSTRATES

THAT LOCAL GOVERNMENTS ARE PRE-

EMPTED FROM REGULATING THE USE OF

PESTICIDES.

Local regulation of pesticides is preempted by FIFRA.

The structure of FIFRA demonstrates that it is a compre-

hensive federal regulatory statuie that has carved out

important areas for state regulation but does not permit

local governments to regulate pesticide use.

a particular field. City of Burbank v. Lockheed Air

Terminal, Inc., 411 U.S. 624 (1973). Furthermore, pre-

emption analysis is the same for local ordinances as it is

tor statewide laws. Hillsborough County, Fla. v. Auto-

mated Medical Laboratories, 471 U.S. 707, 713 (1985).

The touchstone in deciding whether federal preemp-

tion has occurred is Congressional intent. English v.

General Electric Co., 110 S.Ct. 2270, 2275 (1990);

Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299

(1988), Allis Chalmers Corp. v. Lueck, 471 U.S. 202, 208

(1985). Preemption is most clear when Congress

explicitly prohibits state and local governments from

enacting legislation in a given area. Ingersoll-Rand Co.

v. McClendon, 111 S. Ct. 478, 482 (1990). Even in the

absence of express statutory language, Congressional

intent to preempt state and local laws can still be inferred

oon So ee So a ee S aeeee &

a particular field. City of Burbank v. Lockheed Air

Terminal Inc., 411 U.S. 624, 633 (1973).

When Congress amended FIFRA in 1972, a House

committee reported to the full House of Representatives

that the amended statute would “change FIFRA from a

-

labelling law into a comprehensive regulatory statute that

will henceforth more carefully cuntrol the manufacture,

distribution, and use of pesticides.” H.R. Rep. No. 511,

92nd Cong., Ist Sess. at 1 (1971) (emphasis added). A

number of courts that have examined FIFRA have con-

curred that the 1972 amendments transformed FIFRA into

a comprehensive regulatory scheme. Maryland Pest Con-

trol v. Montgomery County, 646 F. Supp. 109, 110 (D.

Md. 1986) affd 822 F.2d 55 (4th Cir. 1987); National

Agricultural Chemicals Association v. Lormanger, 500 F.

Supp. 456, 468 (E.D. Cal. 1980). The Wisconsin

Supreme Court, while not basing it decision upon the

pervasiveness of the federal regulation, also found that in

amending FIFRA in 1972 Congress adopted a pervasive

scheme regulating pesticide use. Mortier v. Town of

Casey, 452 N.W.2d 555, 557 (Wis. 1990).

The structure of FIFRA, taken as a whole, demon-

strates that Congress intended to permit the states and

local governments to regulate pesticides only in certain

areas where Congress explicitly permitted those govermn-

ments to do so. In the absence of such explicit permis-

sion, FIFRA so occupies the field of pesticide regulation

that all state and local regulations in that area would be

preempted.

The pervasiveness of FIFRA’s regulatory scheme is

shown by the comprehensiveness of its reach. FIFRA re-

quires registration of pesticides with the federal Adminis-

trator, 7 U.S.C. § 136a; requires the classification of

pesticides by the federal Administrator, 7 US.C. §

136a(d); requires the certification of applicators of

pesticides, 7 U.S.C. § 136b; requires registration of pesti-

cide producers, 7 U.S.C. § 136e; requires inspection of

establishments where pesticides are held for distribution or

sale, 7 U.S.C. § 136g; makes certain uses of pesticides

illegal, 7 U.S.C. § 136); regulates the import and export

of pesticides, 7 U.S.C. § 1360; and regulates the disposal

and transportation of pesticides, 7 U.S.C. § 136q.

The extensive federal regulation of the pesticide field

clearly qualifies as a comprehensive scheme for purposes

of preemption analysis. Furthermore, FIFRA provides for

no state or local role in many aspects of the regulatory

scheme. 7 U.S.C. §§ 136a, 136d, 136e, 136g, 1360, and

136q.

The total structure of FIFRA demonstrates that but

for the carefully drawn exceptions drafted by Congress,

the area of pesticide regulation would be totally

preempted by the national government. In some areas

Congress carved out important and extensive roles for

State governments and very limited roles for local

governments.

The roles of the states under FIFRA vary depending

on the subject matter of the pesticide regulation. FIFRA

grants the states some limited powers subordinate to the

national government as part of the federal regulatory

scheme. For example, the states may submit plans to the

federal administrator for approval of a state plan to certify

applicators of pesticides. 7 U.S.C. § 136b.

The potential for state governments to exercise more

far-reaching powers under FIFRA is contained in a provi-

sion of FIFRA which authorizes (but does not require) the

Administrator of FIFRA (head of the EPA) to enter into

cooperative agreements with the states in the enforcement

of the act and to assist State agencies in programs for the

certification of applicators consistent with the standards

the Administrator prescribes. 7 U.S.C. § 136n.

9

The final and most significant power the states have

under FIFRA is contained in § 136v, “Authority of

States." Part (a) of that section states:

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.

However, § 136v also contains limits on that autho-

rity of the states by prohibiting the states from imposing

labeling and packaging requirements on pesticides.

In a very limited number of situations FIFRA recog-

nizes a role for local governments. The Administrator is

obligated to cooperate with other federal agencies, the

states, and political subdivisions of states in carrying out

the provisions of the act and in “securing uniformity of

regulations.” 7 U.S.C. § 136t(b) (emphasis added). The

administrator may designate state or local governments to

conduct record inspections of pesticide producers. 7

U.S.C. § 136f. Local governments along with the states

also have one other minor role under FIFRA: _ the

Administrator is to cooperate with state and local agencies

in devising a national plan for monitoring pesticides. 7

U.S.C § 136r(b).

The role of states under FIFRA differs sharply from

that of local governments. In drafting FIFRA, Congress

carved out certain spheres of substantial power for the

states in pesticide regulation.

The role of local governments in pesticide regulation,

however, is extremely limited. Congress carved out only

a few narrow areas in which it permitted local

governments to participate in the federal scheme of pesti-

10

cide regulation. Regulating the use of pesticides is not

one of those areas. The regulation of pesticide uses is

reserved to the national government and state govern-

ments.

While it is true that FIFRA does not affirmatively

state that local governments are prohibited from regulating

pesticide use, that prohibition is clear by looking at the

total structure of the statute. Had Congress not intended

some preemption of local government pesticide regulation,

it would not have found it necessary to explicitly permit

local governments certain limited roles in other areas of

pesticide regulation. Furthermore, if the regulation of

pesticide use by local governments is not preempted by

FIFRA, the grant of authority to the states to regulate

pesticides would be meaningless. Congress explicitly

granted to the Administrator and the states the power to

regulate pesticide use, nowhere is that authority granted to

local governments. Clearly, the doctrine of expressio

unius est exclusio alterius (expression of one thing is the

exclusion of another) applies in this case. Otherwise

much of the statute is meaningless.

fl. THE CONGRESSIONAL GRANT OF AUTHOR-

ITY TO THE STATES TO REGULATE PESTI-

CIDE USE WAS NOT A GRANT OF SUCH

AUTHORITY TO LOCAL GOVERNMENTS.

The Petitioners have equated the term “state” with the

political subdivisions of a state, thereby hoping to avail

themselves of FIFRA’s accommodation of state regulation

of pesticide use. Petitioners argue that when Congress

permitted the states, pursuant to § 136v, to regulate the

use of pesticides, it also granted such permission to local

governments and other subdivisions of local governments.

However, such a reading of the term “state” is inconsis-

1564 v. City of Clovis, 735 F. Supp. 999, 1004 (D.N.M.

1990); Consolidated Rail Corp. v. Smith, 664 F. Supp.

1228, 1237 (N_D. Ind. 1987); Johnson v. Southern Ry

Co., 654 F. Supp. 121, 122 (W.DNC. 1987).

12

The intent of Congress in its use of the word "state"

1S manifested by Congress's explicit references to

local governments under FIFRA, then

been no reason for Congress ever to

mention local governments.

fil. OTHER STATUTES THAT PERMIT STATES TO

ACT WITHIN A SCHEME OF FEDERAL REGU-

LATION HAVE BEEN INTERPRETED TO PRO-

HIBIT LOCAL REGULATION.

The tension between federal and state powers is a

continuing one. However, as discussed above there is no

question that short of a Tenth Amendment infringement,

regulations are not totally incompatible with federal regu-

lations. Federal Railroad Safety Act, 45 U.S.C. § 434

13

In interpreting the railroad safety statute, numerous

courts have held that the statutory provision that permits

state regulation does not permit regulation by local gov-

ermments. Chesapeake & Ohio Ry. Co. v. City of Bridge-

man, 669 F. Supp. 823 (W.D. Mich. 1987) ("since munic-

ipalities are not included in this preemption exception,

municipalities are preempted fr»m passing more stringent

train speed limits"); Johnson v. Southern Railway Co., 654

F. Supp. 121, 122-23 (W.D. N.C. 1987) ("[the act] says

a State may adopt the law, rule, or regulation. It does not

say the State may delegate to the cities and towns in the

State the power to do so"); Consolidated Rail Corp. v.

Smith, 664 F. Supp. 1228, 1237 (N.D. Ind. 1987); Sisk v.

National Railroad Passenger Corp., 647 F. Supp. 861, 865

(D. Kan. 1986). An earlier version of that legislation was

similarly interpreted by the courts to deny local govern-

ments the power to enact railroad safety ordinances.

Donelon v. New Orleans Terminal Co., 474 F.2d 1108,

1112 (Sth Cir. 1973), cert. denied, 414 U.S. 855 (1973).

Another statute under which Congress has

pervasively regulated an area of law, but still carved out

a limited role for the states, is the National Labor

Relations Act (NLRA), 29 U.S.C. §§ 141 et seg. The

NLRA is a comprehensive statute regulating the conduct

of labor relations for employers and employees engaged

in interstate commerce. However, Section 14(b) of that

act (29 U.S.C. § 164(b)) permits the states to prohibit

union security agreements by enacting night-to-work laws.

In at least four states where there were no right-to-

work laws, local governments enacted ordinances to

attempt to prohibit union security agreements. Faced with

challenges to those ordinances, three courts found that the

grant of power to the states to enact “right-to-work” laws

does not permit local governments to enact right-to-work

14

ordinances. Local 1564 v City of Clovis, NM, 745

F Supp. 999 (DNM_ 1990), Kentucky State AFL-CIO v

Puckett, 391 SW 2d 460 (Ky. App. 1965); Grimes &

Hauer, Inc v Pollock, 163 Ohio 372, 127 N-E.2d 203

(1988S), but see, Chavez v Sargent, 329 P.2d 579 (Cal.

App. 1988) (holding that local right-to-work ordinance

was not preempted by federal law but was preempted by

state law) .

Finally, at least one federal court has interpreted the

regulations unplementing the Natural Gas Pipeline Safety

Act of 1968, 49 USC. §§ 1671 ef seq. as prohibiting

local governments from taking actions that Congress

authonzed states to perform. The implementing

regulations of that act, 19 CFR. § 1970, authorized:

(a) any state agency of any state having authority

under the laws of that state to exercise safety

yunsdiction over interstate transmission

facilities...

A gas pipeline company challenged a Louisiana parish

which attempted to impose safety regulations on the

construction of a pipeline. The court held that the parish

could not exercise that authority but must “seek the

remedy to the ils about which they complain through an

appropnate state agency to insure compliance with ail!

federal laws and regulations.” United Gas Pipeline Co. v.

Terrebonne Parish Police Jury, 319 F. Supp. 1138 (E.D.

La 1970), affd, 445 F.2d 307 (Sth Cir. 1971).

These federal court decisions provide models of how

creative federalism can accommodate the exercise of regu-

latory powers by state govemments without causing

reguiatory chaos that would occur if local governments

were also permutted to regulate areas already subject to a

comprehensive scheme of tederal regulation. That model

15

of creative federalism has worked well in the above areas

and is appropriate for the regulation of pesticides.

IV. THE LEGISLATIVE HISTORY OF FIFRA

INDICATES THAT CONGRESS INTENDED TO

PREEMPT LOCAL REGULATION OF

PESTICIDE USE.

The legislative history of FIFRA provides further

evidence that Congress intended to preempt local govern-

ments from regulating pesticide use. It is clear from the

legislative history of FIFRA that Congress believed that

it was excluding local governments from having a role in

the regulation of pesticide use.

The House Committee on Agriculture was the first

Congressional committee to report FIFRA to the full

House. That Committee rejected an amendment that

would have permitted local governments to regulate

pesticides. H.R. Rep. No. Sil, 92nd Cong., Ist Sess.,

p. 16.

In the Senate, the Senate Committee on Agriculture

and Forestry concurred with the decision of the House

Committee to deprive local governments of the authority

to regulate pesticide use. S. Rep. No. 92-838, 92nd

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

Admin. News, Vol. 3, pp. 3993, 4008. The Senate

Commerce Committee then reported out a bill allowing

local governmental regulation of pesticides. /d. at 4066.

When the two Senate Committee met to iron out

differences in the two Committee bills, the Commerce

Committee was defeated in its attempt to permit local

government regulation of pesticides. /d. at 4091. Ina

full vote of the Senate, the Senate defeated an amendment

to permit local governments to regulate pesticides 115

Cong. Rec. 32258 (1972).

16

It is clear from the legislative history that the

proponents of local preemption were victorious. However,

the Petitioners’ reading of the legislative history of FIFRA

is like an excerpt from Alice in Wonderland. The Peti-

tioners attempt to turn legislative defeats into judicial

victories. The Petitioners argue that “the preemption

proponents failed to obtain from the full Congress an

express provision or other amendatory language in

FIFRA’s preemption section to clearly limit or qualify the

authority already possessed by municipalities to act in the

field." Pet. Brief at 46-47. That interpretation of the

legislative history of FIFRA is fundamentally flawed.

Preemption opponents did nor fail to obtain from the full

Congress an express provision on local preemption. As

is clear from the legislative history, the preemption

proponents understood that FIFRA would preempt local

regulation of pesticides. There is nothing to indicate that

Proponents believed that a provision expressly limiting

local governments was necessary. The proponents did not

believe that any express limitation was needed and hence

took no action.

Perhaps more significantly, the opponents of local

preemption apparently had the same understanding of

FIFRA. If the opponents of local preemption thought that

FIFRA permitted local regulation of pesticide use, they

would not have had to do anything. But they did not

view FIFRA as permitting local regulation; instead, on

three occasions (in the Senate Commerce Committee, in

the joint Senate Committee deliberations, and in the full

Senate) opponents of local preemption attempted to amend

FIFRA so as to permit local regulation.

The Solicitor General's amicus curiae brief supporting

Petitioners also takes an Alice-in-Wonderland approach to

legislative history. The Solicitor points out that the

17

Commerce Committee in its report noted that “although

the Agriculture Committee bill does not specifically

prohibit local governments from regulating pesticides, the

report of that committee states explicitly that local

governments cannot regulate pesticides in any manner.

Solicitor’s Brief at 18 citing S. Rep. No. 970, 92nd

Cong., 2d Sess. 27 (1972). According to the Solicitor’s

brief the “Commerce Committee therefore proposed,

among numerous other amendments, an amendment

explicitly authorizing local regulation of pesticides. . Id.

(emphasis added). Apparently, even the Solicitor

recognizes that the Commerce Committee believed that

such explicit authorization of local regulations was

necessary in order to overcome the preemption of local

governments. However, the Commerce Committee

amendment was defeated.

The Solicitor, faced with the apparently insurmount-

able problem of how to turn a legislative defeat into a

legislative victory, argues that the legislative defeat of the

Commerce Committee amendments makes “entirely plausi-

ble" the “agreement to disagree” interpretation of the

legislative history of local preemption. Solicitor’s Brief

at 19-20.

The interpretation of legislative history espous:d by

the Wisconsin Supreme Court in Mortier and by the

district court in Maryland Pest Control Assoc. v. Mont-

gomery County, 646 F. Supp. 109 (D. Md. 1986), aff,

822 F.2d 55 (4th Cir. 1987), is consistent with the plain

and ordinary meaning of the words of the text of the

statute, is consistent with the entire structure of the

statute, and recognizes that winners in legislative battles

carry more weight than losers. When an amendment is

defeated, it is not an “agreement to disagree” as character-

ized by Petitioners but is a defeat. This Court should not

18

assist the Petitioners in attempting to turn that defeat into

a victory by permitting the local regulation of pesticides.

CONCLUSION

For these reasons, the judgment of the court below

should be affirmed.

Respectfully submitted,

DANIEL J. POPEO

PAUL D. KAMENAR

JOHN C. SCULLY*

WASHINGTON LEGAL

FOUNDATION

1705 N Street, N.W.

Washington, D.C. 20036

(202) 857-0240

*Counsel of Record

Date: March 29, 1991