Mortier v. Town of Casey

452 N.W.2d 555, 154 Wis. 2d 18, 21 Envtl. L. Rep. (Envtl. Law Inst.) 20062, 1990 Wisc. LEXIS 96

• Court: Wisconsin Supreme Court
• Decided: March 12, 1990
• Docket: 88-1423
• Status: Published

Opinions

HEFFERNAN, CHIEF JUSTICE.

The question presented in this appeal from an order for a declaratory judgment of the circuit court for Washburn county is whether the ordinance of the Town of Casey purporting to regulate the use of pesticides in the Town is preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).¹ We conclude that the ordinance is preempted by the federal law, because the legislative history of the enactment in 1972 reveals a clear intent of the congress to preempt all local regulation of the use of pesticides. We affirm the order of the circuit court declaring the Town of Casey ordinance "void, invalid and of no effect."²

The facts are undisputed. The plaintiffs are a coalition of persons who challenge the ordinance on grounds that it is preempted by both federal and state legislation. Mortier, one of the plaintiffs, sought to spray a portion of his own land located in the Town of Casey with a pesticide. He applied for a permit to do so. The permit was granted subject to restrictions mandated by the Town of Casey's ordinance, which precluded aerial spraying and limited the land area which could be sprayed. Mortier and his fellow plaintiffs brought a declaratory judgment action to declare the ordinance invalid on the grounds of preemption.

We start our analysis of preemption recognizing the constitutional basis of the separate sovereignty of the United States and of the state of Wisconsin. The Tenth Amendment to the United States Constitution recognizes that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

There is, however, no intimation in the record that the enactment of FIFRA was not a proper and constitutional exercise of the legislative power of the United States. Nor is there any intimation that the state of Wisconsin or its political subdivisions lack the police power to enact pesticide regulations. The controlling question arises under art. VI, clause 2, of the United States Constitution, the supremacy clause, which provides that all laws of the United States made pursuant to the Constitution are "the supreme law of the land . . . any thing in the constitution or laws of any state to the contrary notwithstanding."

This latter portion of the Constitution, at least since 1824, has been held to invalidate any state laws that "interfere with, or are contrary to," federal law. See Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 211 (1824), Marshall, C.J.

The test for determining whether the state law must be invalidated or preempted in light of a congressional enactment has been variously stated. The essence of the inquiry is succinctly and simply summarized by Judge Kaufman in New York State Pesticide Coalition, Inc. v. Jorliny, 874 F.2d 115, 118 (2d Cir., 1989), "[0]ur task is to ascertain the intent of Congress." See also, Allis Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985). For purposes of the supremacy clause, the constitutionality of local ordinances is analyzed in the same way as that of state laws. Hillsborough County v. Automated Medical Labs, 471 U.S. 707, 712 (1985); City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973).

In general, it can be said, however, that the general presumption that arises out of the federal system of dual sovereignty is that there shall be no preemption unless that intent of congress is rather clear. In Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), the United States Supreme Court stated the rule that ”[T]he historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”

Thus, preemption, the superseding of the sovereign prerogatives of a state, should not be lightly assumed, but should be found only when it is the intention of the congress to assert federal primacy in a particular field.

The clearest declaration of intent is simply a congressional statement appearing in the legislation which asserts federal primacy. One example is referred to in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 626-27 (1973): '"The United States of America is declared to possess and exercise complete and exclusive national sovereignty in the airspace of the United States . . ..' "³

There may also be preemption of state laws or local ordinances where no express preemption appears in the congressional legislation, but the entire statutory context or regulatory terrain impels the conclusion that congress intended to exclude states and local governments from the area of concern. The City of Burbank case, supra, is illustrative of this type of determination of congressional intent to preempt from the pervasive nature or completeness of the examined congressional scheme.

In the Burbank case, there was no express provision for preemption of noise control, but the court, relying upon Rice v. Santa Fe Elevator Corp., supra at 230, concluded that there could be a "clear and manifest purpose" of congressional preemption even though no statement of congressional preemption appeared in the legislation. It found that clear and manifest congressional purpose in the "pervasive nature of the scheme of federal regulation of aircraft noise . . .." 411 U.S. at 633.

Thus, although the congressional intent to preempt may, in some case, only be apparent by implication, the congressional purpose can nevertheless be clear.

It should be noted that the pervasive nature of the federal act in Burbank was derived not alone from the words of the act and concomitant federal regulations, but from the legislative history of the anti-noise bill, including statements appearing in committee reports, statements of the Secretary of Commerce, statements of the chairpersons of the affected congressional committees, and the statement of the President made contemporaneously with the signing of the bill.⁴

Under the express words of the supremacy clause, state law must give way to contradictory or incompatible provisions of a congressional enactment. The plaintiffs assert that, in practice, that must be the result here, for on its face the Town of Casey ordinance could prohibit completely the use of FIFRA-approved pesticides by FIFRA-approved applicators according to FIFRA-approved label instructions. While, as a matter of law, we do not disagree with the plaintiffs' premise, the situation in light of the record is a hypothetical one, for no such complete prohibition is posed by the facts, and we need not address the plaintiffs' assertion in light of our reliance on the legislative history, which we conclude demonstrates a clear and manifest congressional intent to preempt all local regulation.

Thus, there are many paths to determine preemption. The easiest and most forthright, in the absence of an outright statement of federal preemption in the legislation, is simply to start out with the constitutionally directed assumption that, in view of the nature of the federal system, there can be no preemption unless there is an express and unequivocal congressional statement that, in the particular area of legislation, the congressional actions are supreme and state laws are invalid. If the presumption is taken literally, anything less than a forthright preemption statement is ambiguous and traditional state powers must be allowed to stand. While this is an attractive and logical option, it is not the law, for almost all preemption opinions of the Supreme Court deal with ambiguities where there is no express preemptive statement in respect to congressional intent.

While FIFRA does not contain any express preemption language, it does, however, contain language which is indicative of congress' intent to deprive political subdivisions, like the Town of Casey, of authority to regulate pesticides. In sec. 136v, congress authorizes only "states" to regulate pesticides. Then, in sec. 136(aa), the act states that political subdivisions are excluded from the definition of "states." See infra. Because it is not clear that the statutory language alone evinces congress' manifest intent to deprive political subdivisions of authority to regulate pesticides, it is ambiguous. Accordingly, we look to the legislative history to ascertain the primary congressional purpose in enacting these sections and using this particular language. Philko Aviation, Inc. v. Shacket, 462 U.S. 406, 410-11 (1983); City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 634-38 (1973).

The intent of congress — to preempt local, but not state, regulation — becomes abundantly clear when the end product of the congress is considered in light of the progress of the pesticide bill through the congress.⁵

The history of pesticide regulation in this country reflects a struggle between recognizing the important role pesticides play in making the United States a leader in world food production and recognizing the risks that pesticides pose to public health and the environment. With these competing public policies in mind, President Nixon proposed legislation in 1971 to develop a comprehensive regulatory scheme governing the use and sale of pesticides.⁶ This proposal served as the basis for the pesticide regulation bill originally introduced jas H.R. 4152.⁷ The purpose of the proposed bill was "[to provide] for the more complete regulation of pesticides in order to provide for the protection of man and his environment and the enhancement of the beauty of the world around him."⁸ FIFRA accomplished this goal by establishing a nationwide system for training and certifying pesticide applicators, requiring the registration of pesticides, limiting pesticide use to purposes permitted by law and by making it unlawful to use pesticides in a manner that is inconsistent with the label instructions on the container of the pesticide.

After 17 public hearings and 19 closed business meetings, the House Committee on Agriculture reported H.R. 10729 to the full House. H.R. Rep. No. 92-511, p. 13. This committee rejected a proposal which would have permitted political subdivisions other than states to further regulate pesticides:

The Committee rejected a proposal which would have permitted political subdivisions to further regulate pesticides on the grounds that the 50 States and the Federal Government should provide an adequate number of regulatory jurisdictions.

H.R. Rep. No. 92-511, p. 16.

The bill was referred to the Senate Committee on Agriculture and Forestry. The Senate Committee on Agriculture and Forestry concurred with the House Committee on Agriculture's and the House of Representatives' decision to "deprive" political subdivisions of any authority over pesticide regulation. That committee's report states:

The Senate Committee considered the decision of the House Committee to deprive political subdivisions of States and other local authorities of any authority or jurisdiction over pesticides and concurs with the decision of the House of Representatives. Clearly, the fifty States and the Federal Government provide sufficient jurisdictions to properly regulate pesticides. Moreover, few, if any, local authorities whether towns, counties, villages, or municipalities have the financial wherewithal to provide necessary expert regulation comparable with that provided by the State and Federal Governments. On this basis and on the basis that permitting such regulation would be an extreme burden on interstate commerce, it is the intent that section 24, by not providing any authority to political subdivisions and other local authorities of or in the States, should be understood as depriving such local authorities and political subdivisions of any and all jurisdiction and authority over pesticides and the regulation of pesticides. [Emphasis supplied.]

S. Rep. No. 92-838, 92nd Cong. 2nd Sess. reprinted in U.S. Code Cong. & Admin. News, Vol. 3, pp. 3993, 4008, 1972.

The Senate Commerce Committee also had jurisdiction over the bill.⁹ The Senate Commerce Committee introduced an amendment to the bill which would have given local governments the authority to regulate pesticides.¹⁰ The Senate Committee on Agriculture and Forestry reasserted its intention to preempt local pesticide regulation.¹¹

The two Senate Committees deliberated for almost two months and were able to arrive at a compromise in the form of a substitute bill.¹² The Senate Commerce Committee's amendment allowing local governments a role in pesticide regulation was excluded in the substitute bill.¹³

Eventually, H.R. 10729 came before the full Senate. The Senate rejected the amendment proposed by the Senate Commerce Committee which would have allowed local governments to regulate pesticides.¹⁴ The Senate passed the compromise version of H.R. 10729 by a vote of 71-0.¹⁵ Concurring basically with the House version of the bill, in addition, Senator Allen, the Chair of the Subcommittee on Agricultural Research and General Legislation, inserted into the Congressional Record, the following:

[FIFRA] should be understood as depriving such local authorities and political subdivisions of any and all jurisdiction and authority over pesticides and the regulation of pesticides. [Emphasis supplied.]

Id. at 32256.

Finally, members of the Senate and House met in conference to resolve differences between their respective versions of the pesticide legislation. The Conference Committee's explanatory statement reflects that the Committee did not consider the issue of local regulation of pesticides¹⁶ as that had previously been resolved.

The completed act included the language which, coupled with the legislative peregrinations of the pesticide bill, unmistakably demonstrates the intent of congress to preempt local ordinances such as that adopted by the Town of Casey. 7 U.S.C., sec. 136v (1982 ed.) provides in part:

§ 136v. Authority of States

(a) A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.

(b) Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.

(c)(1) A State may provide registration for additional uses of federally registered pesticides formulated for distribution and use within that State to meet special local needs in accord with the purposes of this subchapter and if registration for such use has not previously been denied, disapproved, or canceled by the Administrator. Such registration shall be deemed registration under section 136a of this title for all purposes of this subchapter, but shall authorize distribution and use only within such State.

Thus, there has been a specific authorization for "states" to regulate the sale or use of pesticides. In effect, this is a declaration of negative preemption, i.e., it is reasonable to conclude that this provision was inserted for the express purpose of negating any possible implied intent to preempt state regulations. From this alone, it is possible to infer that regulation by other governmental entities not protected from preemption by 7 U.S.C., sec. 136v, is preempted.

Congress left no doubt about what it meant when it referred to a "State." Section 136(aa) provides:

(aa) State

The term "State" means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Trust Territory of the Pacific Islands, and American Samoa.

This provision in itself is persuasive under the exclusion rule that omitted governmental entities such as the Town of Casey are excluded or deprived of the right to regulate the use of pesticides. It is significant that congress was careful to distinguish between provisions which apply to "states" and provisions which apply to "states or political subdivisions." For example, FIFRA provides in sec. 136t(b) that the EPA shall cooperate with any appropriate agency of any "State or any political subdivision." Moreover, this provision, when coupled with repeated references in the course of the legislative committee reports that the decision of both the House and Senate was to "deprive" political subdivisions of states and other local authorities of any authority or jurisdiction over pesticides, leads to the unmistakable conclusion that it was the clearly manifested intent of the congress to preempt any regulation of pesticides by local units of government. While the regulation of pesticides traditionally lies within the police powers of local communities, the federal legislation "deprives" them of that authority.

Moreover, the commentary to federal regulations promulgated pursuant to FIFRA, although after the fact of congressional action, expresses the administrative determination of the EPA that "It is not the intention of the Act or of these regulations to authorize political subdivisions below the State level to further regulate pesticides." 40 Fed. Reg. 11700.¹⁷

We agree with the basic conclusion of the United States District Court in Maryland Pest Control Assoc. v. Montgomery County, 646 F. Supp. 109 (D. Md., 1986), aff'd 822 F.2d 55 (4th cir., 1987), when it determined that the posting and notice provisions of a local unit of government in respect to application of pesticides were preempted by FIFRA. In concluding that the local provisions were invalid, the United States District Court, after examining the same legislative history which we recounted above, stated:

[TJhis legislative history could not be more clear. Both the House and the Senate expressly considered the question of whether local governments should be authorized to regulate pesticides and, although there was an interim disagreement between two Senate committees on the issue, the legislation as finally enacted by the Senate and the House did not include the proposed language, clearly focused upon in both chambers, which would have authorized¹⁸ local pesticide regulation. Principled decision-making and respect for the integrity of the legislative process compel the conclusion that Congress knew and meant what it was doing.

646 F. Supp. at 113.

Both the plaintiffs and defendants have posited policy reasons why their respective positions should prevail. The plaintiffs assert that the whole question of pesticide regulation is so complex and technical that local governments cannot possibly cope with the ever-changing advances in science and medicine — that only national and state regulation is feasible. The defendant Town, on the other hand, argues that only the localities where the pesticide will be used can be aware of the local conditions and the hazards that pesticide use can cause in a particular locality. Additionally, it is argued that to find preemption affronts the constitutional prerogatives of states' rights and home rule. All of these positions in the abstract and in reality have merit, but the question posed for this court's resolution is one of law and statutory interpretation: Was there a manifested intent by the congress that there be preemption? Because we conclude there was preemption of local regulation, it is clear that the policymaker — in this case the congress — must be given ultimate deference in its determination of policy, i.e., that it is the policy of the United States Congress to allocate the power to regulate pesticides at a level that stops at the state level. If that policy is less than the optimum, the resolution must be left to the political arena and not to the judiciary. Moreover, if, as we find, that preemption was the intent of the Congress, fidelity to our constitutional structure requires that federal supremacy be recognized. We conclude that the circuit court correctly concluded that the preemptive action of the congress deprived the Town of Casey of its police power to regulate pesticides. We affirm the declaration of the circuit court that the Town of Casey's pesticide ordinance is invalid.

By the Court. — Order affirmed.

1 7 U.S.C., sec. 136 et seq.

2 This appeal from the order entered on June 16, 1988, was accepted on bypass of the court of appeals (sec. 809.60, Stats.) pursuant to the joint petition of all parties.

Because we decide the case on the controlling question of federal preemption, we do not address the question of whether the enactments of the Wisconsin legislature also preempt the Town ordinance. The circuit court held that the town ordinance was preempted by both federal and state legislation.

3 City of Burbank turned on an analysis of the pervasive nature of the scheme of aircraft noise regulation and not on the quoted preemptive statement in respect to airspace. The statement does, however, illustrate an express statement of federal preemption. 411 U.S. at 633.

4 The dissent of Justice Rehnquist reaches the opposite conclusion, i.e., that the congressional intent was to allow local regulation. Although they differ in their conclusion as to whether a "clear and manifest purpose" to preempt can be found, the significance of both the majority and the dissent in Burbank to the instant case is their reliance on legislative history. In his dissent, Justice Rehnquist acknowledges that implied preemption in a proper case may be based on legislative history.

5 An historical perspective of FIFRA from 1947 to 1983 is afforded by the opinion of Ruckelshaus v. Monsanto Co., 467 U.S. 986, 990-93 (1984).

6 See U.S. Code Cong. & Admin. News, Vol. 3, p. 4001, 1972.

7 See H.R. Rep. No. 92-5111, p. 12.

8 See U.S. Code Cong. & Admin. News, supra at 3995.

9 118 Cong. Rec. 32251 (1972).

10 U.S. Code Cong. & Admin. News, id. at 4066.

11 Id. at 4066.

12 Id. at 4091.

¹³

14 See 118 Cong. Rec. 32258 (1972).

15 Id. at 32263.

16 See U.S. Code Cong. & Admin. News, id., at 4130-4135.

17 Hillsborough County v. Automated Medical Labs, 471 U.S. 707 (1985), is a case frequently cited for the proposition that mere pervasiveness of regulation and nothing more may not compel a conclusion of preemption. We refer to the opinion only because it points out that "state laws can be pre-empted by federal regulations as well as by federal statutes." P. 713. As stated above, the commentary is indicative of the EPA's authoritative construction of the congressional intent of FIFRA to exclude pesticide regulation below the state level.

18 While the parties seem to think that the term, "authorize," is indicative of sloppy thinking on the part of the District Court (because it is contended that local governments inherently possess that police power authority), that view of the court's language overlooks the fact that, without the language excepting "states" from the effect of the law, states, as well as local government powers, might well be construed to be preempted. Hence, it was appropriate to speak of local government authority. Moreover, the language used in the committee report makes pellucid that it was the will of the committee, eventually ratified by the congress, that local subdivisions of states be "deprived of authority." It was appropriate and perceptive for the United States District Court to refer to the question of whether, despite the nature of federal regulation imposed by FIFRA, localities in addition to states should nevertheless have the authority to impose additional regulations. Clearly, the unambiguous intent of the congress was to deprive the local units of government of their usual police power authority.