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POWER TO REGULATE: A recent case before the Court of Special Appeals in Maryland shows that counties may potentially have more power to regulate pesticides.

Pesticide ruling shows power of Maryland county governments

Legal Notes: Counties could potentially have more power to regulate pesticides.

In 2015, the Montgomery County Council passed a bill prohibiting the use of certain pesticides on private and county-owned properties. The law limited the use of pesticides registered with the Maryland Department of Agriculture, allowing pesticides listed by the county for nonessential cosmetic purposes and exempting agricultural applications.

In 2017, the Montgomery County Circuit Court found that Maryland state law preempted the ordinance.  But the Court of Special Appeals of Maryland, the second-highest court in the state, recently issued an opinion overruling the Circuit Court, finding that federal and state laws in Montgomery County v. Complete Lawn Care Inc. do not preempt the ordinance.

The decision highlights just how broad Maryland counties’ authority is. Based on this ruling, counties may potentially have more power to regulate pesticides inside their boundaries than the Circuit Court’s decision initially considered.

Case history

The ordinance, which Montgomery County passed in 2015, created a new set of restricted pesticides and banned usage on private and county-owned properties.

It prohibited a resident from using a registered pesticide other than a “listed pesticide” on any privately owned or county-owned property, broadly defining a registered pesticide to include any registered by EPA and with MDA. Listed pesticides are limited to those with active ingredients recommended by the National Organic Standards Board.

Pesticide applications on agricultural property, golf courses and in other limited cases were exempt under the ordinance. Municipalities in the county could opt-in to the ordinance.

Court’s opinion

The court highlighted a U.S. Supreme Court decision in Wisconsin Public Intervenor v. Mortier (1991) holding that the Federal Insecticide, Fungicide and Rodenticide Act, or FIFRA, allowed for local governments regulating pesticides. After this ruling, the Maryland General Assembly did not approve legislation that preempted counties from regulating pesticides — in 1992, 1993 and 1994.

The court rejected arguments that state law preempted the county’s ordinance. It also rejected the Circuit Court’s findings that the ordinance is preempted by conflict. Conflict preemption occurs when the lower-level law makes it impossible to comply with both the lower-level law and the higher-level law, or when lower-level law creates an obstacle to achieve the higher-level law.

The state’s pesticide laws did not create preemption by conflict. To the court, the pesticide laws created a floor with counties being able to provide further health and safety restrictions. The county is also not banning the use of state-approved pesticides, according to the court, and a total ban may have caused a different outcome.

The ordinance fits within other state environmental schemes such as the Chesapeake and Atlantic Coastal Bays Critical Area Protection Program. In that program, the state requires counties to develop agricultural programs to reduce runoff and enhance water quality. To the court, the state could actively ask counties to develop pesticide controls to improve water quality. At the same time, the ordinance potentially helps the state achieve water quality goals related to the Clean Water Act. To the court, all of this ruled out conflict by preemption.

The court also rejected preemption by implication, a situation where the higher authority law (in this case, the state) acts to occupy the entire field and leaves no room for the county to act. The court disagreed with arguments that the state law gave MDA full authority to act in the area of pesticides. 

The court pointed to a 1985 attorney general’s opinion concluding state law was not comprehensive enough for a court to find preemption by implication. The court also pointed to three failed attempts in the General Assembly to limit local authority in regulating pesticides.

The court also rejected arguments that state pesticide laws created uniformity in the regulation of pesticides. The language in the state law shows that while uniformity is desirable, it is not mandatory.

The court pointed to new neonicotinoid restrictions that conflict with federal law along with the Chesapeake and Atlantic Coastal Bays Critical Area Protection program that gives counties the authority to pursue best management practices related to pesticides to enhance water quality. 

All this demonstrated to the court that the ordinance was not preempted by implication.

What’s the implication for ag?

The Montgomery County ordinance provided exemptions for agriculture and other services and allowed county municipalities to opt into the ordinance. The courts might not permit another county banning the use of all pesticides. At this time, we only have this ordinance and no other data points to consider.

Across the country, counties have restricted pesticide use and, in some cases, the use of certain crops because of citizen concerns. In some states these ordinances have been overturned for being preempted by state law, but in Maryland county governments have a lot of autonomy to create ordinances that are not preempted by state law.

As with many areas of the law, it may not always be clear when preemption applies.

Goeringer is an Extension legal specialist with University of Maryland.
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