# Amicus Curiae Brief — Wisconsin Public Intervenor v. Mortier

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0763%3A22

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 501 U.S. 597

## Text

TABLE OF CONTENTS

Page
INTEREST OF THE AMICI CURIAE 2
SUMMARY OF ARGUMENT 6

ARGUMENT

I.

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

A.

The Coordinated
Federal-State Regulatory
System Covers The Field

To The Exclusion Of

Local Regulations 32

TABLE OF CONTENTS (continued)

ii

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

A.

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

36

40

41

51
59

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,

47

33

10

10

29

iv

TABLE OF AUTHORITIES (continued)
TABLE OF AUTHORITIES (continued)

Page
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

vi

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

ix

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

2
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

3
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.

4
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

6
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,

7

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

8
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

9

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

10
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

11
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).

12

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.... "

13
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.

14
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.

15

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)

16
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").

17

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.

18
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

19
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).

20

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

21

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

22

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

23
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

24
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

25
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

26
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

27
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

28
(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

29

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

30
“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).

31
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

32
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.

33

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

34
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).

35
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

36

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

37

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

38
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.

39

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

40
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.

41
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).

42

“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

43
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

44

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

ed

45
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).

46
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

47

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).

48

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

49
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”

50
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).

51
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).

52
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).

53
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

54
fully carry out County land use
authority embodied in County

land use plans and zoning
ordinances using them as

by
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

55

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

56

(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.

57

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.

58
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

2

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

3

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0763%3A22. Public record. Not legal advice.