Amicus Curiae Brief — Wisconsin Public Intervenor v. Mortier

Supreme Court brief1991

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TABLE OF CONTENTS

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INTEREST OF THE AMICI CURIAE 2

SUMMARY OF ARGUMENT 6

ARGUMENT

II.

FIFRA AND ITS LEGISLATIVE

HISTORY SHOW THE CLEAR INTENT

OF CONGRESS TO PREEMPT LOCAL

REGULATION OF THE USE OF

PESTICIDES 8

FIFRA’s Language And

Structure Show That

Local Pesticide

Regulation Was To Be

Derived Only From

Express Delegation 9

The Legislative History

Of FIFRA Confirms The

Intent of Congress To

Exclude Local

Governments From

Pesticide Regulation 23

FIFRA IMPLIEDLY PREEMPTS

LOCAL REGULATION OF

PESTICIDE USE 32

The Coordinated

Federal-State Regulatory

System Covers The Field

To The Exclusion Of

Local Regulations 32

TABLE OF CONTENTS (continued)

Local Pesticide

Regulation Is

Unnecessary For

Protection Of Wellhead

Areas Under The Safe

Drinking Water Act

III. LOCAL PESTICIDE REGULATION

IS CONTRARY TO THE PUBLIC

INTEREST

CONCLUSION

APPENDIX

Local Pesticide

Regulation Involves

Economic And Social

Costs That Can Harm

The Quality Of Life

Local Efforts At

Pesticide Regulation

Have Impeded Research

Into Alternatives To

Conventional Pesticides

Page

iii

TABLE OF AUTHORITIES

Cases

Central Maine Power Co. v. Town

of Lebanon, 571 A.2d 1189

(Me. 1990)

City of Burbank v. Lockheed Air

Terminal, Inc., 411 U.S.

624 (1973)

English v. General Electric Co.,

110 S. Ct. 2270 (1990)

FMC Corp. v. Holliday, 111 S. Ct.

403 (1990)

Hillsborough County v. Automated

Medical Laboratories, Inc.,

471 U.S. 707 (1985)

Ingersoli-Rand Co. v. McClendon,

111 S. Ct. 478 (1990)

Maryland Pest Control Ass’n v.

Montgomery County, 646 F.

Supp. 109 (D. Md. 1986),

aff‘d without opinion,

822 F.2d 55 (4th Cir.

1987)

Medfly Consolidated Cases,

Judicial Council

Coordination Proceeding

No. 2487 (Super. Ct.

Los Angeles County

consolidated Aug. 22, 1990)

Page

46,

TABLE OF AUTHORITIES (continued)

Page

Mortier v. Town of Casey, State of California v. City of

154 Wis. 2d 18, 452 Fullerton, No. 625496

N.W.2d 555 (1990) 16, 17, 30 (Super. Ct. Orange

County filed May 22, 1990) 49

Northwest Airlines, Inc. v.

Minnesota, 322 U.S. State of California v. City of

292 (1944) 33 Los Angeles, No. BS002736

(Super. Ct. Los Angeles

People ex rel. Deukmejian v. County filed Aug. 29, 1990) 49

County of Mendocino,

36 Cal. 3d 476, 683 State of California v. City of

P.2d 1150, 204 Cal. Pasadena, No. C755032

Rptr. 897 (1984) 30 (Super. Ct. Los Angeles

County filed Mar. 12, 1990) 49

Pesticide Public Policy

Foundation v. Town of Wendell v. Attorney

Village of Wauconda, General, 394 Mass. 518,

622 F. Supp. 423 (N.D. 476 N.E.2d 585 (1985) 45

Ill. 1985), aff'd without

opinion, 826 F.2d 1068 Statutes

(7th Cir. 1987) 46

Clean Air Act, 42 U.S.C.

Pesticide Public Policy 7602 (e), (f) (1988) 15

Foundation v.

Village of Wauconda, Clean Water Act, 33 U.S.C.

117 Ill. 2d 107, 510 1362(4), (5) (1988) 15

N.E.2d 858 (1987) 46

Comprehensive Environmental

Professional Lawn Care Ass’n v. Response, Compensation,

Village of Milford, 909 and Liability Act, 42

F.2d 929 (6th Cir. 1996), U.S.C. Sec. 9601(21)

petition for cert. pending, (1988) 15

No. 90-382 18

Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984) ll, 33

TABLE OF AUTHORITIES (continued)

Page

Emergency Planning and

Community Right-to-

Know Act, 42 U.S.C.

Sec. 11049(7) (1988) 15

Employee Retirement Income

Security Act of 1974

29 U.S.C. Sec. 1002(10)

(1988) 17

29 U.S.C. Sec. 1144(c)(2)

(1988) 17

Federal Environmental Pesticide

Control Act of 1972,

Pub. L. No. 92-516, 86

Stat. 973 (1972) ll, 23, 27

Federal Insecticide, Fungicide,

and Rodenticide Act,

7 U.S.C. Sections

136-136y (1988) passim

Section 2(p)(2), 7 U.S.C.

Sec. 136(p) (2) 13

Section 2(aa), 7 U.S.C. Sec.

136(aa) 15

Section 5(f), 7 U.S.C. Sec.

136c(f) 15

Section 6(g)(1), 7 U.S.C. Sec.

136d(g) (1) 19

Section 8(b), 7 U.S.C. Sec.

136£(b) 17, 19

Section 9(a), 7 U.S.C. Sec.

136g(a) 18

Section 11(a)(2), 7 U.S.C.

Sec. 136i(a) (2) 15

Section 18, 7 U.S.C. Sec. 136p 15

vii

TABLE OF AUTHORITIES (continued)

Page

Section 20(b), 7 U.S.C. Sec.

136r(b) 19

Section 20(c), 7 U.S.C. Sec.

136r(c) 19

Section 22(b), 7 U.S.C. Sec.

136t(b) 20, 23

Section 23(a), 7 U.S.C. Sec.

136u(a) 18, 19

Section 24, 7 U.S.C. Sec. 136v 12

Subsection 24(a), 7 U.S.C. Sec.

136v(a) 12, 14, 26

Subsection 24(b), 7 U.S.C. Sec.

136v(b) 13, 14

Subsection 24(c), 7 U.S.C. Sec.

136v(c) 12

Section 26, 7 U.S.C. Sec.

136w-1 14

Section 26(b), 7 U.S.C. Sec.

136w-1(b) 19

Section 27, 7 U.S.C. Sec.

136w=-2 14

Federal Insecticide, Fungicide,

and Rodenticide Act

Amendments of 1988,

Pub. L. No. 100-532,

Section 801(m)(2),

102 Stat. 2654, 2682

(1988) 13

Noise Control Act of 1972,

Pub. L. No. 92-574,

86 Stat. 1234 (1972) 32

viii

TABLE OF AUTHORITIES (continued)

‘Page

Resource Conservation and

Recovery Act, 42

U.S.C. Sections

6903(9), (13), (15)

(1988) 15

Safe Drinking Water Act,

42 U.S.C. Sec. 300£(10) (1988) 15

42 U.S.C. Sec. 300£(12) (1988) 15

42 U.S.C. Sec. 300h-7(a) (1988) 37

Safe Drinking Water Act

Amendments of 1986,

Pub. L. No. 99-339,

100 Stat. 642 (1986) 6, 7, 36

Sup. Ct. R. 37.5 17

Cal. Food & Ag. Code

Sec. 11501.1(a)

(West 1986) 30

City of Estell Manor,

N.J. Ordinance No. 87-8

(1987) 57

Monterey County, Cal.

Ordinance 3233 (1987) 52, 54

Monterey County, Cal. Code

Sec. 20.110.020 (1987) 54

N.J. Stat. Ann. Sec.

13:1F-13 (1985) 57

TABLE OF AUTHORITIES (continued)

Page

Town of Casey Ordinance

85-1 (1985) passim

Section 1.1(2) 41

Section 1.1(4) 42

Section 1.3 48

Township of Shamong, N.J

Ordinance 1988-1 56

Legislative Materials

H.R. 10729, 92d Cong., lst

Sess. (1971) 28

H.R. Rep. No. 511, 92d Cong.,

lst Sess. (1971) ll, 22, 24

H.R. Rep. No. 575, 99th Cong.,

2d Sess. (1986) 39

S. Rep. No. 838, 92d Cong.,

2d Sess. (1972) 22, 24, 34

S. Rep. No. 838, pt. II,

92d Cong., 2d Sess.

(1972), reprinted in

1972 U.S. Code Cong. &

Admin. News 26, 27

S. Rep. No. 970, 92d Cong.,

2d Sess. (1972) 13, 14, 22, 25, 26

117 Cong. Rec. 40,067 (1971) 11

118 Cong. Rec. 32,249-51 (1972) 28

TABLE OF AUTHORITIES (continued)

Page

118 Cong. Rec. 32,252 (1972) 28, 29

118 Cong. Rec. 32,257 (1972) 27, 29

118 Cong. Rec. 32,258 (1972) 28

118 Cong. Rec. 32,263 (1972) 29

Miscellaneous

40 Fed. Reg. 11,700 (Mar. 12,

1975) 34

51 Fed. Reg. 23313-36 (June 26,

1986) 51

U.S. Dep’t of Commerce,

Statistical Abstract of

the United States 1990

(110th ed.) 12

N.Y. Times, March 20, 1988,

Sec. 12 (N.J. Weekly),

at 4, col. 5 56, 57

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

WISCONSIN PUBLIC INTERVENOR AND

TOWN OF CASEY, PETITIONERS

Vv.

RALPH MORTIER AND

WISCONSIN FORESTRY/RIGHTS-OF-WAY/

TURY COALITION, RESPONDENTS

On Writ of Certiorari to the

Supreme Court of Wisconsin

BRIEF OF AMERICAN ASSOCIATION OF

NURSERYMEN, AMERICAN PULPWOOD

ASSOCIATION, ASSOCIATED LANDSCAPE

CONTRACTORS OF AMERICA, CHEMICAL

PRODUCERS AND DISTRIBUTORS ASSOCIATION,

INDUSTRIAL BIOTECHNOLOGY ASSOCIATION,

INTERNATIONAL APPLE INSTITUTE,

INTERNATIONAL SANITARY SUPPLY

PERTILIZER

NATIONAL FOREST

ROSES, INC., AND

SOCIETY OF AMERICAN FLORISTS AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE

The members of the amici

organizations are involved with

pesticides as producers, sellers or

users.* They have a direct, immediate

‘Counsel for all parties have consented to

the filing of this amicus brief. Their consents

are on file with the Clerk of the Court.

2The American Association of Nurserymen

represents 4,500 wholesale growers, garden center

retailers, landscape firms and mail-order nursery

businesses. The American Pulpwood Association

represents the nation’s pulp and paper mills,

wood dealers and independent logging contractors.

The Associated Landscape Contractors of America

represents more than 800 landscape contracting

firms. The Chemical Producers and Distributors

Association comprises more than 80 companies

manufacturing, formulating, distributing and

selling pesticides used to protect food, feed and

fiber crops, and for lawn, garden and turf care.

The Industrial Biotechnology Association ("IBA")

represents more than 100 small and large

companies engaged in the research and development

of biotechnology, including agricultural,

pharmaceutical, food and environmental

applications. The International Apple Institute

includes 24 state and regional organizations of

more than 10,000 producers who grow approximately

902 of the United States apple crop. The

International Sanitary Supply Association

consists of more than 3,400 companies engaged in

the manufacture, formulation, distribution and

sale of antimicrobial and general cleaning and

and substantial interest in whether the

Federal Insecticide, Fungicide, and

Rodenticide Act, as amended ("FIFRA"), 7

maintenance products, including disinfectants,

sanitizers and germicides used by hospitals,

nursing homes, schools, food processing plants

and institutional industrial establishments. The

Midwest Food Processors Association represents

members packing approximately 952 of the canned

and frozen vegetables and fruits produced in

Illinois, Minnesota and Wisconsin annually;

members also use antimicrobial products in their

plants. The National Agricultural Aviation

Association represents 2,031 businesses which

apply seed, fertilizer and crop protection

chemicals to approximately 300 million acres of

farm, ranch and forest lands annually. The

National Arborist Association represents the

mation’s tree care industry; its members use

pesticides carefully to protect the nation’s

urban and suburban trees. The National

Fertilizer Solutions Association represents

retail fertilizer and agrichemical dealers. The

National Forest Products Association and its

affiliate, the American Forest Council, represent

more than 500 forest products companies that

manage forestland and produce most of the

nation’s lumber and board products and rely on

the judicious use of pesticides to manage

competing vegetation and protect forestlands from

pests. Roses, Inc., represents commercial

greenhouses growing more than 802 of the

commercial fresh-cut roses‘in the United States

and Canada. The Society of American Florists

represents growers, wholesalers, retailers,

manufacturers and suppliers of floricultural and

related products.

U.S.C. Sections 136-l136y (1988), preempts

local government regulation of pesticide

use.

It is of paramount importance to all

of the amici and to the public for the

pesticide regulatory system in the United

States to emphasize uniformity and

predictability. The amici believe that

these are precisely the goals that

Congress intended when it amended FIFRA

in 1972.

Members of amicus IBA are at the

cutting edge of basic research in

creating new forms of pesticides through

genetic engineering. The revolutionary

breakthroughs which biotechnology

promises to achieve can transform the

very nature of agriculture in the United

States and provide novel pest control

products that are safe yet effective

substitutes for traditional chemical

pesticides.

The amici are concerned that a

growing number of subunits of state

government continue to enact pesticide

regulations and do not have the expertise

or the resources to administer or enforce

them properly. This is contrary to the

public interest. Local regulation does

not contribute additional significance to

pesticide safety; it offers only the

chaotic potential to misinterpret an

established system of regulation. It

impedes the efforts of society to

maximize the production of food and fiber

and the potential of the nation’s

forests. It imposes needless costs and

confusing, duplicative regulatory burdens

upon homeowners, businesses, healthcare

professionals and other pesticide users.

It burdens emergency efforts to eradicate

widespread infestations of voracious

pests such as gypsy moths and medflies.

It needlessly delays innovative research

and development of alternative pest

control products created through

biotechnology. Local regulation is a

demonstrable, Draconian inefficiency

within the established coordinated

Federal and State pesticide regulatory

system.

SUMMARY OF ARGUMENT

The comprehensive pesticide

regulatory regime which Congress created

in 1972 leaves no room for local

regulation. The language and structure

of FIFRA and its legislative history show

that Congress preempted local regulation,

which it deemed duplicative, burdensome

and inconsistent with the purposes of the

Act.

Wellhead protection under the Safe

Drinking Water Act Amendments of 1986,

Pub. L. No. 99-339, 100 Stat. 642 (1986),

is a State program in which each State is

given maximum flexibility to decide which

responsibilities, if any, to grant to

local governments and is consistent with

Federal preemption of local regulation of

pesticide use.

The amici have been and will

continue to be adversely affected by a

multiplicity of inconsistent and

uncoordinated local pesticide use

regulations. Such regulation creates

confusion for those who produce, sell and

use pest control products; places issues

involving technical considerations at the

whim of parochial political pressures;

exacts unnecessary costs upon homeowners

and commercial and other users; creates a

patchwork of conflicting restrictions

burdening commerce; and impedes local and

regional efforts to control widespread

pest infestations, particularly in

neighboring jurisdictions.

Finally, by frustrating research

into alternative pesticides, especially

nontoxic, biodegradable pesticides

created through genetic engineering,

local regulation moves the United States

away from the goal of reducing its use of

conventional pest control products.

ARGUMENT

I. FIFRA AND ITS LEGISLATIVE HISTORY

SHOW THE CLEAR INTENT OF CONGRESS TO

PREEMPT LOCAL REGULATION OF THE USE

OF PESTICIDES.

The issue in this case is whether

local government entities may enact their

own legislation regulating pesticide use.

It is not about delegating authority to

local governments to assist in carrying

out Federal and State regulatory

functions. FIFRA and its legislative

history show that Congress unambiguously

intended that local units of government

not possess autonomy over pesticide use.

Even local participation in protecting

wellhead areas is consistent with this

clearly expressed intention.

A. FPIFRA’s Language and Structure Show

that Local Pesticide Regulation Was

to Be Derived Only from Express

Delegation. |.

This Court’s recent: decisions on

preemption make clear that it is the

intent of Congress that controls whether

a federal statute has preempted state or

local regulation. Hillsborough County v.

Automated Medical Laboratories, Inc., 471

U.S. 707 (1985). The preemption analyses

of local ordinances are the same as those

for statewide laws. Id. at 713. Under

the Court’s preemption decisions, Federal

law or regulation can preempt State law

or local ordinances through explicit

Federal statutory provisions or the

structure and purpose of the Federal

statute; through implication if the

Federal role is pervasive and all-

encompassing; or through a conflict

between State and Federal law. English

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

2275 (1990). Inasmuch as-"(tjhe purpose

of Congress is the ultimate touchstone,"

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

Ct. 478, 482 (1990), the Court must

examine the statutory language and the

structure and purpose of FIFRA to

determine the ‘purpose of Congress.

Ingersoll-Rand, supra; FMC Corp. v.

Holliday, 111 Ss. Ct. 403, 407 (1990).

The inevitable conclusion is that

notwithstanding the absence of explicit

language specifically . forbidding

governments from regulating local

pesticide use, Congress intended

unambiguously to preempt pesticide

regulation by local governments. The

analysis further shows that independent

local regulation of pesticide use was not

to be a part of the "comprehensive

regulatory statute” enacted in 1972,

Ruckelshaus v. Monsanto Company, 467 U.S.

986, 991 (1984). That statute, the

Federal Environmental Pesticide Control

Act of 1972 ("FEPCA"), Pub. L. No. 92-

516, 86 Stat. 973, created a "coordinated

Federal-State administrative system to

control the application of pesticides"?;

the unnecessary intrusion of myriad local

government units independent of Federal

and State control and bereft of the means

to undertake the complex scientific

evaluations necessary to make reasoned

regulatory decisions would frustrate that

3See H.R. Rep. No. 511, 92d Cong., lst Sess. 1

(1971); 117 Comc. Rec. 40,067 (1971) (statement of

Rep. Mizell).

systen. It is thus without merit to

assume that Congress intended to empower

more than 83,000 local units of

government‘ to impose multiple levels of

regulation in addition to those of the

Federal government and the States.

Section 24 of FIFRA, 7 U.S.C.

Section 136v, grants limited authority to

the States to regulate pesticides’, but

expressly preempts State labeling and

packaging and grants no authority to

local jurisdictions. Subsection (a)

provides that States can regulate the

“See U.S. Dep't oF Commence, STATISTICAL ABSTRACT OF THE

UniTep StaTes 1990, at 271-72 (110th ed.).

Salthough subsection 24(c) authorizes the

States to register additional uses of federally

registered pesticides to meet “special local

needs," the Administrator of the Environmental

Protection Agency ("EPA") may suspend that

authority if a State’s controls are inadequate to

"assure that State registration under this

section will be in accord with the purposes of

this Act.... "

sale or use of pesticides “but only if

and to the extent that the regulation

does not permit any sale or use

prohibited by this Act." Subsection (b)

provides that States “shall not impose or

continue in effect any — for

labeling or packaging in addition to or

different from those required under this

Act."® Congress has conferred primary

°» Labeling” is defined in subsection 2(p)(2),

7 U.S.C. Section 136(p)(2). Congress enacted

subsection 24(b) to ensure uniform nationwide

labeling and packaging of pesticides. In its

1988 amendments to FIFRA, Congress added the

heading “Uniformity” to subsection 24(b) without

changing the text. Federal Insecticide,

Fungicide, and Rodenticide Act Amendments of

1988, Pub. L. No. 100-532, Section 801(m)(2), 102

Stat. 2654, 2682 (1988). Accordingly, all State

and local government regulation of pesticide

labels, labeling and packaging, including but not

limited to warnings, precautionary statements,

directions for use and other EPA-required matter,

is expressly preempted by FIFRA. Even the Report

of the Senate Committee on Commerce states that

under the Committee’s proposed amendments to

Section 24, "Subsection (b) preempts any State or

local government labeling or packaging

requirements differing from such requirements

under the Act." S. Rep. No. 970, 92d Cong., 2d Sess.

enforcement responsibility for pesticide

use violations upon the States, but only

if the EPA Administrator determines that

they can perform this responsibility; and

such authority may be rescinded if a

State program is deemed to be inadequate.

Sections 26, 27; 7 U.S.C. Sections 136w-

1, 136w-2. The Administrator may

authorize States to issue Experimental

Use Permits pursuant to EPA-approved

centralized State plans subject to “such

terms and conditions as {the

Administrator] may by regulations

prescribe, and certify pesticide

applicators pursuant to EPA-approved

44 (1972).

The decision of the Supreme Court of

Wisconsin does not implicate the preemption of

labeling or packaging in subsection 24(b), but

focusee exclusively on whether local governments

can regulate pesticide use under subsection

24(a). Thus the scope of subsection 24(b) is not

at issue in this case.

centralized State plans. Sections 5(f),

ll(a)(2), 7 U.S.C. Sections 136c(f),

136i(a)(2). State agencies may also

petition the Administrator for exemptions

to FIFRA to deal with emergency

conditions. Section 18, 7 U.S.C. Section

136p.

The definition of "State" in Section

2(aa) of FIFRA, 7 U.S.C. Section 136(aa),

does not expressly include local

government units.’ Petitioners devote a

"Federal environmental statutes which provide

for independent local regulation frequently

contain definitions of ‘municipality" separate

from those of “State,* define the word "person"

to include political subdivisions, or do both.

See, e.g., Clean Air Act, 42 U.S.C. Sections

7602(e), (£) (*municipality,"* “person"); Clean

Water Act, 33 U.S.C. Sections 1362(4), (5)

(*“municipality," “person"); Safe Drinking Water

Act, 42 U.S.C. Sections 300f£(10), (12)

( municipality," *person"); Resource Conservation

and Recovery Act, 42 U.S.C. Section 6903(9),

(13), (15) (*intermunicipal agency,"

"municipality," *person"); Comprehensive

Environmental Response, Compensation, and

Liability Act, 42 U.S.C. Section 9601(21)

("person"); Emergency Planning and Community

Right-to-Know Act, 42 U.S.C. Section 11049(7)

substantial portion of their Brief to

supporting the dissenting opinion of

Justice Steinmetz below that failure to

read local governments into the

definition of States achieves the

anomalous result of permitting

independent local regulation of pesticide

labeling and packaging. See Brief for

Petitioners at 30-31 & n.5, 33-40, 154

Wis. 2d at 48, 452 N.W.2d at 568. This

argument only suggests that local

governments, being mere creatures of the

State, have no greater authority than the

State itself. It does not follow, then,

that in areas where the States themselves

may regulate, local regulation perforce

is permitted. If Congress intended the

term “State” specifically to include

political subdivisions in addition to its

("person").

usual meaning, Congress could easily have

been explicit.®

Contrary to the dissents below (154

Wis. 2d at 35-36, 48, 452 N.W.2d at 562-

63, 568) and the Brief for Petitioners at

16-18, 30-39, 99 n.34, 102, those rare

instances in which FIFRA mentions

political subdivisions do not confer

regulatory authority upon them. Section

8(b), 7 U.S.C. Section 136f(b), deals

with inspections of records "upon request

of any officer or employee of the

Environmental Protection Agency or of any

State or political subdivision, duly

designated by the Administrator ...,"

such inspections to be made "[fjor the

®Compare the definition of "State" in 29

U.S.C. Section 1002(10) (similar to FIFRA) with

29 U.S.C. Section 1144(c)(2) ("State* includes

“any political subdivisions thereof, or any

agency or instrumentality of either... .").

Indeed, this Court’s own rules regarding amicus

briefs distinguish between States and their

political subdivisions. See Sup. Cr. R. 37.5.

purposes of enforcing the provisions of

this Act." (emphasis added).

Nonetheless, in Section 9(a), 7 U.S.C.

Section 136g(a), which provides for the

inspection of establishments, the

reference to officers or employees is

limited to those of EPA “or of any

State." It is thus apparent that even in

such a routine matter as inspection

authority, Congress distinguished between

States and their political subdivisions.’

*The reference to Section 23(a), 7 U.S.C.

Section 136u(a), in the concurring opinion in

Professional Lawn Care Ass'n v. Village of

Milford, 909 F.2d 929, 936-37 (6th Cir. 1990),

petition for cert. pending, No. 90-382, and the

Brief of the Solicitor General at 5, 12, is not

inconsistent with this conclusion. Section

23(a)(1) authorizes the Administrator of EPA to

enter into cooperative agreements with States to

“delegate to any State . the authority to

cooperate in the enforcement of this Act through

the use of its personnel or facilities, to train

personnel of the State... to cooperate in the

enforcement of this Act, and to assist States. .

- dm implementing cooperative enforcement

programs through grants-in-aid;* (emphasis

added). Although nothing in Section 23(a)

precludes a State from designating personnel or

The National Pesticide Monitoring Plan

referred to in Sections 20(b) and (c), 7

U.S.C. Section 136r(b) and (c), makes

clear that the National Pesticide

Monitoring Plan and pesticide monitoring

are EPA activities which are to be

carried out “in cooperation with other

Federal, State, or local agencies.”

Section 6(g)(1), 7 #4wU~.S.C. Section

136d(g)(1), merely requires notification

to the Administrator and “appropriate

State and local officials” of the

facilities of local governments to participate in

enforcing FIFRA, it strains the language of this

provision to conclude that "States" here also

includes local governments merely because Section

8(b) expressly confers upon the Administrator the

power to designate local officials to inspect

records to enforce FIFRA.

The limitation in Section 23(a) to "States”

is also significant because any State that enters

into a cooperative agreement with EPA for the

enforcement of pesticide use restrictions is

granted primary enforcement responsibility for

pesticide use violations. See FIFRA Section

26(b), 7 U.S.C. Section 136w-1(b).

possession of a cancelled or suspended

pesticide, the quantity possessed and the

place where it is stored. It grants no

independent authority to local officials

nor does it impose any responsibilities

upon them. The language of FIFRA makes

clear that local officers or employees

inspect records only as deputies of EPA.

Local governments are limited to

assisting EPA in carrying out certain of

its duties; they are not authorized to

exercise their own regulatory authority.

Finally, the dissenting opinion of

Justice Abrahamson and the Briefs for

Petitioners and the Solicitor General

make much of the language in Section

22(b), 7 U.S.C. Section 136t(b), which

requires the EPA Administrator to

cooperate with “any appropriate agency of

any State or any political subdivision

thereof, in carrying out the provisions

of this Act, and in securing uniformity

of regulations." Petitioners construe

the last phrase in this very general

section of the Act as negating all

contrary legislative indicators and

contradicting the structure of FIFRA by

“contemplat[ing] there would be authority

in municipalities to adopt pesticide

regulations . . . ." Brief for

Petitioner at 32.

Petitioners read far too much into

this language. They would have the Court

believe that uniformity is best achieved

multilaterally. This is, very simply, an

overstatement of the intent of Congress.

It is also illogical. Even the Solicitor

General’s Brief did not argue that local

jurisdictions should have regulatory

autonomy. That Brief stated:

Some [environmental problems}

may more appropriately be

addressed by a regulatory

system characterized by a set

of basic federal standards that

States may supplement, either

by their own regulations or by

local regulations adopted

within the framework of

appropriate state delegation.

Brief for the United States as Amicus

Curiae at 22 (emphasis added).

Moreover, the legislative history of

FIFRA is unanimous in stating that the

purpose of this provision is to

“provide, ] for cooperation by the

Administrator with other Federal agencies

and with agencies of State and local

government in carrying out the Act." H.R.

REP. NO. 511, supra, at 28 (1971); S. REP.

NO. 838, 92d Cong., 2d Sess. 29; S. REP.

NO. 970, supra, at 43. (emphasis added).

Even if the issue of local regulation was

as contentious as Petitioners assert, it

is fanciful to conclude that Congress

either granted or reserved through the

back door of Section 22(b) any autonomy

to local governments to regulate

pesticide use.

FIFRA thus provides powerful

evidence that Congress intended only a

derivative role for local governments in

pesticide regulation. Preemption of

local governments from enacting their own

regulation of pesticide use is the only

construction of FIFRA that is faithful to

the intent of Congress to create a

comprehensive system of primary Federal

and coordinated supplementary State

regulation.

B. The Legislative History of FIFRA

Confirms the Intent of Congress to

Exclude Local Governments from

Independent Pesticide Regulation.

The legislative history of FEPCA

confirms what the language of FIFRA

already shows: Congress never intended

to permit pesticide regulation by local

governments.

Certain conclusions from the

legislative history are apparent. The

House Committee on Agriculture assumed

that “the 50 States and the Federal

Government should provide an adequate

number of regulatory jurisdictions,"

effectively precluding independent local

regulation. See H.R. REP. NO. 51l, supra,

at 16. The Senate Committee on

Agriculture and Forestry added express

preemptive language to its Report. Ss.

REP. NO. 838, supra, at 16. Efforts by

the Senate Committee on Commerce to place

amendments explicitly permitting local

government regulation were rejected.

The Senate Committee on Commerce

concluded that without an explicit

reference to local governments, their

power could be preempted under the

measure reported by the Senate Committee

on Agriculture and Forestry and the

language contained in its Report. The

Report of the Committee on Commerce

noted:

While 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. Many local governments

now regulate pesticides to meet

their own specific needs which

they are often better able to

perceive than are State and

Federal regulators. The

amendment of the Committee on

Commerce is intended to

continue the authority of such

local governments and allow

them to protect their

environment to a greater degree

than would EPA.

S. REP. NO. 970, supra, at 27 (emphasis

added).

Further, the Committee on Commerce’s

specific analysis of its amendments to

Subsection 24(a) states:

This section specifies the

authorities retained by the

States and local governments

under the Act. Generally, the

intent of the provisions is to

leave to the States and local

governments the authority to

impose stricter regulations on

pesticide use than that

required under the Act.

Id. at 44 (emphasis added).

Notwithstanding the concerns

expressed by the Committee on Commerce,

the Senate Committee on Agriculture and

Forestry filed a Supplemental Report

which stated its opposition to the

amendments of the Committee on Commerce

and twice reiterated that any local

pesticide regulation should be totally

preempted. See S. REP. NO. 838, Part II,

92d Cong., 2d Sess., reprinted in 1972

U.S. CODE CONG. & ADMIN. NEWS 4026, 4066.

From August 1, 1972, to September

22, 1972, the staffs of the two Senate

Committees hammered out an amendment in

the nature of a substitute. This

substitute, with changes agreed to in

Conference (none of which involved local

regulation) became FEPCA. The

Supplemental Report of the Committee on

Agriculture and Forestry stated that the

substitute, which was supported by all of

the members of that Committee and most of

the members of the Committee on Commerce,

"met essentially all of the objections

raised in this report.” Id., reprinted

in 1972 U.S. CODE CONG. & ADMIN. NEWS at

4088. The Explanation of the Compromise

Substitute stated that the substitute

“has been prepared resolving all of the

differences." 118 CONG. REC. 32,257

(1972). The Explanation further stated

pointedly that "Commerce Committee

amendments . . . {including amendment] 10

(authority cf local governments to

regulate the use of pesticides) .. . are

not included in the substitute." Id. at

32,258.

When H.R. 10729 was taken up on the

Floor of the Senate, the amendments of

the Committee on Commerce were

introduced, including Amendment 10. Id.

at 32,249-51. Thereafter, Senator Allen

asked for and received unanimous consent

that “notwithstanding the fact that the

committee [on Commerce] amendments have

not been agreed to, it be in order to

offer a complete substitute for the whole

bill; and that if the substitute should

be agreed to all of the committee

amendments be considered as having been

withdrawn.” Id. at 32,252. The

explanation of H.R. 10729 that appeared

in the Report of the Committee on

Agriculture and Forestry and the

Explanation of the Compromise Substitute

were ordered printed in the Congressional

Record. Id. at 32,252, 32,257. All of

the Senators who participated in the

debate lauded the substitute, and none

noted the absence of the amendments

authorizing local regulation. The Senate

then approved the substitute unanimously.

Id. at 32,263.

As the majority opinion below and

the opinion in Maryland Pest Control

Association v. Montgomery County, 646 F.

Supp. 109 (D. Md. 1986), aff'd without

opinion, 822 F.2d 55 (4th Cir. 1987)

demonstrate, the intent of Congress could

hardly have been more apparent. All

concerned assumed that failure to include

local governments deprived them of

regulatory authority. This was not an

instance where a compromise papered over

disagreements. The parties did not

“agree[] to disagree,” as stated in the

dissent by Justice Abrahamson below, 154

Wis. 2d at 43, 452 N.W.2d at 565, and the

majority in People ex rel. Deukmejian v.

County of Mendocino, 36 Cal. 3d 476, 492-

93, 683 P.2d 1150, 1160-61, 204 Cal.

Rptr. 897, 907-08 (1984).*° The position

of the Committee on Agriculture and

Forestry clearly prevailed over that of

the Committee on Commerce, and no dissent

Within weeks after the decision of the

Supreme Court of California in County of

Mendocino, the California Legislature enacted a

statute overruling it. Accordingly, regulation

of pesticide registration, sale, transportation

or use was declared to be of “statewide concern,"

and *(e)xcept as otherwise specifically provided

in this code, no ordinance or regulation of local

government, including, but not limited to, an

action by a local governmental agency or

department, a county board of supervisors or a

city council, or a local regulation adopted by

the use of an initiative measure, may prohibit or

in any way attempt to regulate any matter

relating to the registration, sale,

transportation, or use of economic poisons, and

any of these ordinances, laws, or regulations a.e

void and of no force or effect." Cal. Food & Ag.

Code Section 11501.1(a) (West 1986).

was raised on the Senate Floor. The

House likewise was in accord.

The legislative history of FEPCA

thus reinforces the conclusion that

Congress intended to create a

comprehensive and coordinated system

involving only the Federal government and

the States to regulate the use of

pesticides, and that a separate role for

local governments was expressly

considered and unequivocally rejected.

It is impossible to believe that in the

face of this intensive Congressional

attention to the role of local

governments, which resulted in the merely

derivative functions Congress provided

them in FIFRA, the absence of explicit

preemption language would result in

myriad local jurisdictions having

independent, conflicting and overlapping

authority over this very difficult and

contentious regulatory activity.

Ii. FIFRA IMPLIEDLY PREEMPTS LOCAL

REGULATION OF PESTICIDE USE.

It is noteworthy that in City of

Burbank v. Lockheed Air Terminal, Inc.,

411 U.S. 624 (1973), the Federal statute

contained “no express provision of pre-

emption" of local regulation.'' Id. at

633. Yet "“{ijt is the pervasive nature

of the scheme of Federal regulation” that

led the Court to conclude that preemption

was implied. Id.

A. The Coordinated —_ gon

Regulatory Covers Field

en ye -

of Local

Regulations

“although the Senate version of the Noise

Control Act of 1972, Pub. L. No. 92-574, 86 Stat.

1234 (1972) contained an express preemption

section, the statute as enacted did not.

Instead, the Court relied on statements of the

Chairman of the House Committee on Interstate and

Foreign Commerce and a member of the Senate

Committee on Public Works on the Floor of their

respective chambers and the message of the

President on signing the final bill. Id. at 636-

38.

In this case, Congress adopted a

“comprehensive regulatory statute,”

Ruckelshaus v. Monsanto Company, supra,

and expressly incorporated a role for

State regulation. It can fairly be said

that FPIFRA’s coordinated pesticide

regulatory scheme is pervasive. Just as

the Federal system enacted for control of

aircraft noise left no room for local

curfews or other local controls, City of

Burbank, supra, at 638, regulation of

pesticide use likewise is subject to “an

elaborate and detailed system of

controls.” Id. at 634 (quoting Northwest

Airlines, Inc. v. Minnesota, 322 U.S.

292, 303 (1944) (Jackson, Jes

concurring) ). The express language of

FIFRA contemplates a pervasive system of

primary Federal regulation coordinated

with supplementary centralized State

controls, and this comprehensive system

occupies the field.”* It is not logical

that FIFRA contemplates, atop coordinated

Federal and State regulation, the

prospect of local units of government

such as the Town of Casey creating

schemes for controlling pesticide use

that may be more extensive than their

telephone directories. As the Senate

Committee on Agriculture and Forestry

recognized, the authority to regulate

must be commensurate with the ability to

regulate. See S. REP. NO. 838, supra, at

16.

Amici Milford, Michigan; Mayfield

Village, Ohio; and Boulder, Colorado do

not recognize this fundamental

“EPA*s only published interpretation,

permitting local assistance with «a State

applicator certification program only if it is

‘uniform throughout the State and is totally

responsive to State direction,” is in complete

accord. See 40 Fed. Reg. 11,700 (Mar. 12, 1975).

proposition. Their Brief contends that

if this Court finds that Congress

impliedly preempted local governments,

then preemption should be in those areas

where the Federal and State governments

must ect. Thus they argue:

Given the cost and complexity

of such determinations, only a

small portion of local

pesticide laws, such as local

bans on the use of particular

pesticides or local permitting

decisions that have the same

effect, revisit these

determinations, and thus only

those laws would be preempted

on the ground that they enter

this field or conflict with

federal regulation.

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

government contracts.

Brief at 27, 28.

Under their rationale, requirements

for a permit for application to private

lands, submission of detailed technical

information and hearings are tantamount

to registration decisions. These

requirements are at the heart of

Ordinance &5-1, and because they

duplicate the “core activity of EPA under

FIFRA", would be preempted.

B. Local Pesticide Regulation Is

Unnecessary for Protection of

Wellhead Areas Under the Safe

Water Drinking Act.

Petitioners and the Solicitor

General make much of the purported

ability of local governments to exercise

discretion in enacting specific pesticide

controls from the Safe Drinking Water

Amendments of 1986, Public Law No. 99-339

(1986). Petitioners devote a

considerable portion of their Brief to

the wellhead protection program in 42

U.S.C. Section 300h-7(a). Brief for

Petitioners at 77-87. However, Section

300h-7 makes clear that local governments

were not intended to have an independent

role in wellhead protection. Section

300h-7(a) provides:

The Governor or the Governor’s

designee of each State shall,

within three years [of June 19,

1986], adopt and submit to the

Administrator a State program

to protect wellhead areas

within their jurisdiction...

Each State program under this

section shall, at a minimum--

(1) specify the duties of

State agencies, local

governmental entities and

public water supply

systems with respect to

the development and

implementation of

programs required by this

section.

The remaining provisions of Section 300h-

7 make it clear that the planning and

implementation are to be conducted on a

state-wide basis. Local government

agencies in the wellhead protection

program are not given independent

authority’; their powers are derived

from the role which the State may

specify. Indeed, the Conference Report

on the Safe Drinking Water Act Amendments

is very clear that each State may adopt a

unique method of protecting wellhead

areas:

Each State has the

responsibility of determining

how best to describe a program

to protect the water supply

within each protection area in

the State. The provision is

structured to afford States

maximum flexibility in

formulating a protection

strategy. A State is not

required to develop a

regulatory program unless it

chooses to do so...

137 should be noted that the Safe Drinking

Water Act has a definition of “municipality” that

is separate from that of ‘State.’ See n.7,

supra.

States can be expected to take

a wide variety of approaches to

protection of wellhead areas

within their jurisdiction, and

it is conceivable that each

State could develop its own

unique approach. Protection

strategies may also vary for

different protection areas

within one _ State. The

amendment recognizes that

States are best able to assess

specific problems within their

jurisdictions, and to develop

and implement necessary

protection measures.

H.R. REP. NO. 575, 99th Cong., 2d Sess. 45

(1986).

A state has “maximum flexibility” in

choosing a role for local governments in

wellhead protection. In some instances a

state may choose to confer expansive

authority on local governments; in

others, a state may choose to exclude

their participation altogether.

Pesticide regulatory autonomy is thus

unnecessary for local agencies to fulfiil

any wellhead protection functions

conferred by the State.

III. LOCAL PESTICIDE REGULATION IS

CONTRARY TO THE PUBLIC INTEREST.

The Town of Casey and its Ordinance

85-1 provide a classic example of the

problems inherent in autonomous

regulation of pesticide use by local

governments and the prescience of the

Report of the Senate Committee on

Agriculture and Forestry. As a remote

rural town of fewer than 500 tucked away

in the northwest corner of Wisconsin,

Casey lacks the financial resources and

the technical expertise necessary to make

informed scientific decisions to enforce

its extensive pesticide regulatory

ordinance. Even such matters as the

control and measurement of pesticide

drift call for specialized training and

expertise which the Town does not

possess.

Neither the Wisconsin Legislature

nor any State agency expressly authorized

the Town of Casey to enact Ordinance 85-1

or any of its predecessors. Nonetheless,

under Ordinance 85-1 the Town could

reject any pesticide use permitted under

FIFRA and by Wisconsin even where the use

would be limited to private lands.

Indeed, the permit which the Town granted

Respondent Mortier banned aerial spraying

and limited the land over which he could

spray.

A. lLecal Pesticide Regulation

Involves Economic and Social

Costs That Can Harm the Quality

of Life.

Ordinance 85-1 adopts a defi.ition

of pesticide even broader than that set

forth in FIFRA.” It also defines

Section 1.1(2) of Ordinance 85-1 not only

codifies FIFRA’s definition but also includes

State law and cegulations (II Pet. App. at C5-6).

“public lands” to include all lands and

interests in lands “owned by the state

{and} the County of Washburn .. . and

which are dedicated in whole or in part

to public use and benefit.” Section

1.1(4) (II Pet. App. at C6).

The scope of FIFRA is very broad.

It obviously includes pest control agents

used in agriculture and Seucotzy.

However, a walk through the aisles of any

supermarket reveals that common kitchen

and bathroom cleansers (e.g., Comet® and

Vanish®), household disinfectants (e.g.,

Lysol®) and laundry bleaches (e.g.,

Clorox®) fall within FIFRA’s scope.

Pesticides also have very important

institutional uses; restaurants,

hospitals, offices of healthcare

professionals, barbershops and beauty

salons, food processing plants and other

commercial establishments and structures

would be much less sanitary, and

consequently more dangerous places,

without them. Indeed, the flea and tick

collars that pets wear are also

pesticides.

Although Ordinance 85-1 is limited

to spraying pesticides on land, the use

of all of the products set forth above

could be subject to bans, restrictions or

permit requirements if localities were

left to their own devices. Indeed,

nothing but their imagination would

prevent local governments from requiring

notices or other restrictions if

individuals sprayed for household

insects, applied a disinfectant in

bathrooms, dusted roses in their gardens,

or protected themselves by putting

disinfectant chemicals in their swimming

pools. Pesticide producers, distributors

and users such as the members of the

amici organizations, and individual

homeowners, businesses and consumers can

be confronted with the daunting challenge

of complying simultaneously with Federal

and State regulations and those adopted

by counties, cities, towns and special

local districts asserting jurisdiction

even over the same parcel of land or

structure requiring pest control

services.

Local pesticide regulation has

interfered, and can continue to

interfere, with the use of pest control

products to increase the abundance of

crops and yields from forests, protect

home values, maintain home food service

and health care sanitation and protect

trees and home surroundings.

Thus a by-law and regulation of the

Town of Wendell, Massachusetts and its

Board of Health, respectively, adopted

certain restrictions similar to Ordinance

85-1; some would have been extended to

agricultural and domestic uses.'* An

ordinance enacted by the Village of

Wauconda, Illinois, regulated a variety

of commercial pesticide applications,

including control of mosquitoes,

household insects and lawn care. Users

of pesticides, including landlords and

tenants of public buildings, were

required to register with the village,

obtain a permit and pay an annual fee.

The ordinance required users to post

outdoor warning signs or indoor warning

decals of specified size and message for

‘Sthe Supreme Judicial Court of Massachusetts

upheld the Attorney General's disapproval of the

ordinance and by-law on state preemption grounds.

Town of Wendell v. Attorney General, 394 Mass.

518, 476 N.E.2d 585 (1985).

72 hours after application.

Ordinance 85-1 and others like it

have a serious impact on the ability of

railroads and utilities to maintain their

rights-of-way and forest managers to

maximize yields by protecting trees from

insects and competing vegetation. This

is the case with an ordinance of the Town

of Lebanon, Maine, which prohibits any

commercial spraying of herbicides for

nonagricultural uses unless the spraying

is first approved by a vote of the town

meeting.’

“See Pesticide Public Policy Foundation v.

Village of Wauconda, 622 F. Supp. 423 (N.D. Ill.

1985), aff'd without opinion, 826 F.2d 1068 (7th

Cir. 1987); Pesticide Public Policy Foundation v.

Village of Wauconda, 117 Ill. 2d 107, 510 N.E.2¢d

858 (1987) (answering certified question that

ordinance was preempted by Illinois law).

“The town meeting refused the request of an

electric power company to spray to control the

growth of vegetation along the utility's right-

of-way. The Supreme Judicial Court of Maine

rejected a FIFRA preemption challenge to the

ordinance. Central Maine Power Co. v. Town of

Typically, rights of way and forests

cut across many local jurisdictions.

Even though applications of pesticides

are conducted in full compliance with

Federal and State law, local regulation

of these activities can result in

requiring a single maintenance job to

comply with literally dozens of local

regulations. This not only increases the

cost to perform these activities (with

concomitant increases in freight rates

and the price of forest products), but

imposes significant delays and burdens on

adjoining municipalities as well. The

definition of “public lands” in Ordinance

85-1 as including lands owned by the

State and Washburn County can reduce the

ability of the State or County to

eradicate predators such as gypsy moths.

Lebanon, 571 A.2¢ 1189 (Me. 1990).

By having to comply with the onerous

provisions of Section 1.3 of the

Ordinance (II Pet. App. at C7-16), wait a

minimum of 60 days and potentially be

subject to public hearings, the State or

County would be hard pressed to make

timely applications to deal with

emergency pest infestations in areas in

and around the Town of Casey. To the

extent that unincorporated areas or other

political subdivisions do not have such

ordinances, those areas would be subject

to greater infestation or would require

more intensive and intrusive application

of pesticides than otherwise necessary.

When southern California suffered an

infestation of medflies in late 1989, the

State proposed to use pesticides to

eradicate the problem, just as it had

done successfully earlier. This time,

however, the cities of Los Angeles and

a tn

Fullerton enacted ordinances forbidding

agricultural operations from their

respective airports and banning aerial

application of pesticides within their

respective city limits.'* The cities of

Pasadena, Azusa and Lynwood adopted

ordinances purporting to regulate

formation flying within their boundaries,

an action which would inhibit the State’s

ability to apply pesticides.'* Except

for the Azusa ordinance, which has

expired, and notwithstanding California’s

express preemption of local pesticide

regulation,” these ordinances remain in

See State of California v. City of Los

Angeles, No. BS002736 (Super. Ct. Los Angeles

County filed Aug. 29, 1990); State of California

v. City of Fullerton, No. 625496 (Super. Ct.

Orange County filed May 22, 1990).

See State of California v. City of

Pasadena, No. C755032 (Super. Ct. Los Angeles

County filed Mar. 12, 1990).

See n.10, supra, at 30.

’ )

a”

effect.** Efforts by local governments

to circumvent even the most explicit

State legislation aimed at precluding

local regulation underscores the

inadequacy of relying solely upon State

preemption of local authority.

This parochialization of pesticide

regulation and resulting restrictions on

pesticide use are unnecessary restraints

upon the regulated localities and their

neighbors. They burden commerce, inhibit

responses to emergencies and increase the

costs and complexities of compliance.

Such consequences provide cogent reasons

why Congress intended to prohibit local

regulation of pesticide use in 1972.

The cities of Los Angeles, Glendale,

Burbank and San Bernardino also filed suit

against the State alleging that aerial pesticide

spraying, even if consistent with FIFRA,

constituted a public nuisance. See Medfly

Consolidated Cases, Judicial Council Coordination

Proceeding No. 2487 (Super. Ct. Los Angeles

County consolidated Aug. 22, 1990).

B. lLecal Efforts at Pesticide

Regulation Have Impeded

Research into Alternatives to

Conventional Pesticides.

Many of the members of amicus IBA

are engaged in research into alternatives

to traditional chemical pesticides using

the techniques of genetic engineering.

EPA has promulgated an integrated

framework for regulating biotechnology

under FIFRA” which enables EPA to become

involved in regulating research into

genetically engineered and nonindigenous

pesticide candidates far earlier than

with conventional pesticides. Nonetheless

various local governments have succumbed

to concerns about biotechnology by

adopting ordinances which prohibit or

seriously delay the ability of

22See EPA, Statement of Policy; Microbial

Products Subject to the Federal Insecticide,

Fungicide, and Rodenticide Act and the Toxic

Substances Control Act, 51 Fed. Reg. 23,313-36

(June 26, 1986).

researchers to conduct necessary

environmental releases with Federal and

State approval.

Two examples will show the way in

which such ordinances can stifle

research. First, in Monterey County,

California, the Board of Supervisors

passed two interim ordinances (February

18, 1986, and March 28, 1986) temporarily

prohibiting experimental field tests

using genetically altered bacteria, and

adopted a final ordinance on May 12,

1987. The final ordinance” required a

use permit, the submission of detailed

information, including all information

submitted to State and Federal agencies

not considered to be trade secrets, and

called for environmental review pursuant

to the California Environmental Quality

“Monterey County, Cal. Ordinance 3233 (1987)

(Monterey County Code Ch. 20.110).

Act, financial assurances and

indemnification to the County and its

employees. Violations each day were

considered to be separate offenses

punishable by a fine of up to $500,

imprisonment for up to 180 days, or both.

Permits could be issued with such

conditions as the County Planning

Commission deemed necessary to protect

public health, safety and the

environment. The final ordinance stated:

The purpose of this

Chapter is to establish a

uniform County regulatory

policy, standards, and

permitting process pertaining

to the location and siting of

iments involving the

release of genetically

engineered microorganisms into

the environment with the end in

view that public health and

safety and the environment are

afforded the maximum degree of

protection. It is not the

intent of this Chapter to enter

the regulatory sphere occupied

by the federa and state

government; rather, it is the

intent of this Chapter to more

fully carry out County land use

authority embodied in County

land use plans and zoning

ordinances using them as

primary guides in the

determination of proper

location for the conduct of

genetic engineering

experiments .**

Notwithstanding EPA’s approval of an

Experimental Use Permit for a small-scale

field test of a genetically engineered

pesticide candidate, and the State of

California’s own Experimental Use Permit

approval, the County of Monterey

determined, by Ordinance No. 3233, that

it was uniquely well suited to regulate

the location and siting of experiments

involving the release of genetically

engineered microorganisms. By doing so

in the guise of a land-use ordinance to

regulate a matter that was categorically

preempted by Federal and State law,

*“Mowrmary Courrr, Cal. Coot Section 20.110.020

(1987).

biotechnology research has

been

Noting this consequence, the Monterey

County Agricultural Commissioner wrote to

shut down in Monterey County.

the County’s Board of Supervisors:

The perceived political climate

hae affected testing of

products

Bacillus thuringiensis

in Monterey County. Because

these products would be of

great benefit to locally

produced crops, they must be

tested here to assure efficacy

and safety under local growing

conditions. Because of the

Genetic Engineering Experiments

Ordinance, such testing is not

being done in Monterey County.

Monterey County is known as the

salad bowl of the world, but is

in danger of losing this title

by not allowing vital

experimentation with

biologically sound alternatives

to the toxic pesticides

currently being used to control

various pests. Experimentation

in the actual growing region is

an essential step preceding

registration of new products.

effectively

(emphasis in the original).”

The Monterey County ordinance is still in

effect.

Second, efforts to impose

restrictions on the environmental release

of genetically engineered organisms have

been unsuccessfu in the New Jersey

Legislature. Nonetheless, the City of

Estell Manor and Shamong Township have

adopted ordinances which severely

restrict and jelay such research.”

“Memorandum from Richard Wutter to the

Monterey County Board of Supervisors (June 21,

1988), reprinted in the Appendix to this Brief.

2*Shamong Township Ordinance 1968-1 requires

any researcher proposing to release a genetically

engineered microorganism, inter alia, to apply

for a permit and pay « $1,000 processing fee at

least six months before the release, have not

less than $5 million in liability insurance and

prepare «a detailed risk assessment and «4

contingency plan to desl with potential

environmental damange. The release would be

permitted only after the Township Council

approves it after a public hearing. Violators

are punishable by fines and imprisonment, and the

municipal attorney may seek injunctive relief.

See N.Y. Times, March 20, 19868, Section 12 (N.J.

Clearly, Congress did not intend

that local units of government would be

able to inveigh against a comprehensive

regulatory scheme by manipulating zoning

laws or passing other legislation to

grind research to a screeching halt.

Such a Draconian effect demonstrates the

folly of autonomous Balkanization of

regulatory authority that Petitioners

support so zealously. The Court need not

speculate about the prospective impact of

local pesticide regulation: it need only

look to Monterey County to confirm its

Weekly), at 4, col. 5. Estell Manor Ordinance

No. 87-8 (1987) requires a permit issued after a

public hearing. The City’s governing body is

empowered to adopt regulations similar in nature

to those in the Shamong ordinance. Violators are

also subject to fines and imprisonment. Both

ordinances are still in effect. To the extent

these ordinances regulate release of genetically

engineered pesticides or pesticide candidates,

they have not been approved by the New Jersey

Department of Environmental Protection as

required by state law. See N.J. Stat. Am. Section

13:1F-13 (19865), enacted in 1971.

effects.

If agricultural biotechnology is to

achieve its promise to contribute to

restoring the competitive position of the

United States and to create products that

will replace traditional chemical

pesticides, it is necessary to eliminate

the potential for local legislation

responding to fear and ignorance which

can overwhelm carefully controlled

research efforts approved by Federal and

State authorities. A decision by this

Court holding that FIFRA preempts such

local regulation will go a long way in

/permitting this vital research to proceed

in a timely fashion.

CONCLUSION

For the foregoing reasons, the

Judgment of the Supreme Court of

Wisconsin should be affirmed.

Respectfully submitted,

Prederick A. Provorny

(Counsel of Record)

Paul B. Ja

PROVORNY & JACOBY

1350 Connec\:icut Ay -ue, N.W.

Suite 502

van et D.C. 200

(202) 223-4200

Robert A. Kirshner

National Forest Produc :s

Association

1250 Connecticut Avenue, N.W.

Washi » D.C. 20036

(202) 463-2590

Attorneys for Amici Curiae

March 27, 1991

APPENDIX

JUNE 21, 1988

TC: MONTEREY COUNTY BOARD OF

SUPERVISORS

FROM: NUTTER, AGRICULTURAL

a p

SUBJECT: GENETIC ENGINEERING EXPERIMENTS

ORDINANCE

of 1987 Board adopted the

Genetic” Sagiseeriag Experiments

Ordinance. Since that time, there have

no applications to perform

experimental — with genetically

altered wrganisms

No oe. - a , for

See genetically altered

microbial sms have been submitted

to Monterey County during the past year.

Two companies, tycogen Corporation and

poe ma A indicated concerns —

research with any type o

cievenial® organism in Monterey County.

~ indicated

avoided work Geneasey County because

an y $e. political environment”

is no

it is

and there

controversy

This company has

work with

a fungus that kills a common weed, cheese

weed. This work has been done in Fresno

and San Diego Counties.

Another company, Ecogen, has experimented

with Bacillus thuringiensis crosses on

lettuce and broccoli in Santa Barbara and

Fresno Counties. Advanced Genetic

Sciences has obtained a research

authorization for experimentation with

naturally occurring Pseudomonas bacteria

on celery, cauliflower,and cotton in

Contra Costa, Fresno, Tulare, and Kern

Counties.

The perceived political climate has

affected testing of Bacillus

products in Monterey

County. Because these products would be

of great benefit to locally produced

crops, they must be tested here to assure

efficacy and safety under local growing

conditions. Because of the Genetic

Engineering Experiments Ordinance, such

testing is not being done in Monterey

County.

Monterey County ig known as the salad

bowl of the worlds but is in danger of

losing this title not allowing vital

experimentation with biologically sound

alternatives to the toxic pesticides

currently being used to control various

pests. Experimentation in the actual

growing region is an essential step

preceding registration of new products.

For the sake of growers in this county,

as well as those consuming such

commodities, there should not be this

additional step for performing research

with genetically altered microbials.

There are adequate protections through

existing federal, state, and county

regulatory systems.

I recommend that the Genetic En ineerin

Experiments Ordinance not be eenbiaued s

@ part of the Monterey County zoning

ordinance. It is unnecessa and

cumbersome and is to our disadvantage.

RWN/SEC: sec

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.