Professional Lawn Care Association v. Village of Milford

909 F.2d 929, 20 Envtl. L. Rep. (Envtl. Law Inst.) 21245, 31 ERC (BNA) 1825, 1990 U.S. App. LEXIS 12641, 1990 WL 107010

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 1, 1990
• Docket: 89-2141
• Status: Published

Opinions

MILBURN, Circuit Judge.

The defendant-appellant, Village of Milford, Michigan, enacted Ordinance No. 197, which imposes registration, posting and notice requirements upon commercial “users of pesticides.” The district court enjoined the village from enforcing the ordinance on the ground that it was impliedly preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), .7 U.S.C. -136y. The village then filed this timely appeal. For the reasons that follow, we affirm.

I.

A.

Defendant-appellant Village of Milford is a political subdivision of the State of Michigan. Plaintiff-appellee Professional Lawn Care Association of America is a national organization that represents approximately 1,400 commercial lawn care companies, including seven that are located in the village.

On January 27, 1986, the village enacted Ordinance No. 197, entitled

AN ORDINANCE TO PROVIDE FOR THE PUBLIC HEALTH AND SAFETY BY REQUIRING REGISTRATION OF PERSONS APPLYING PESTICIDES FOR HIRE WITHIN THE VILLAGE OF MILFORD AND PUBLIC NOTICE OF THE USE OF PESTICIDES; TO PROVIDE THE PUBLIC THE OPPORTUNITY OF AVOIDING CONTACT WITH THESE PESTICIDES: AND TO IDENTIFY THE LOCATION OF FLAMMABLE PESTICIDES.

The ordinance defines a “user of pesticide” as:

(1) Any person who applies or causes pesticides to be applied to property by any means where such person is engaged in applying pesticides for hire to trees, lawns, shrubs, plants, or the atmosphere; or

(2) Any person who applies or causes pesticides to be applied in commercial businesses and public buildings.

The ordinance requires all users of pesticides who use and apply pesticides for hire within the village to register with the village and pay an annual registration fee of $15.00. Users of pesticides who store, mix or otherwise handle pesticides within the village must provide the village fire department with a copy of their registration forms.

The ordinance requires users who apply pesticides to commercial businesses or public buildings to supply the building operators with decals that indicate the date the pesticides were applied. The decals must be posted at the building entrances until the time of the next application or ninety days, whichever occurs first.

Village residents whose physicians declare them to be “sensitive” to pesticides may, for an annual fee of $15.00, be placed upon the village’s list of chemically sensitive residents. The village updates the list monthly. The ordinance requires all commercial users of pesticides to obtain current copies of the list and to notify the chemically sensitive residents at least twenty-four hours in advance of an outdoor application. The ordinance permits written notice where oral notice is not possible. In addition, users of pesticides must also place yard markers containing the words “Chemically Treated Lawn — Keep Children and Pets Off for 72 Hours” on the property where an outdoor application has been made. The ordinance provides that violations of its terms shall be penalized by assessments of fines ranging from $25 to $100, depending upon the number and type of violations.

The association initiated this action by filing a complaint seeking declaratory and injunctive relief on May 5, 1989. The association alleged that FIFRA preempts the local regulation of pesticides, such as Ordinance No. 197. The village answered the complaint on June 5, 1989, and soon thereafter the parties filed cross-motions for summary judgment.

On August 24, 1989, in a ruling from the bench, the district court granted the association’s motion for summary judgment and enjoined the village from enforcing Ordinance No. 197. The district court filed an order memorializing its decision on September 15, 1989.

B.

FIFRA was originally enacted in 1947 as a pesticide labeling statute. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991, 104 S.Ct. 2862, 2866-67, 81 L.Ed.2d 815 (1984). In 1972, in response to concerns about the safety of pesticide use, and “because of a growing perception that the existing legislation was not equal to the task of safeguarding the public interest,” id. at 991-92, 104 S.Ct. at 2867, Congress rewrote FIFRA through amendments that transformed it into a comprehensive regulatory statute. See id. As amended, FI-FRA “established] an elaborate framework for the regulation of pesticide use in the United States.” Love v. Thomas, 858 F.2d 1347, 1350 (9th Cir.1988), cert. denied; — U.S. -, 109 S.Ct.1932, 104 L.Ed.2d 403 (1989); see also Defenders of Wildlife v. Administrator, EPA, 882 F.2d 1294, 1296 (8th Cir.1989).

FIFRA contemplates various levels of interaction between the federal, state and local governments in the regulation of pesticides and their use. FIFRA defines a “state” as “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.” 7 U.S.C. § 136(aa). FIFRA does not define “political subdivisions” or “local authorities.” Some sections of FIFRA, however, refer explicitly to “political subdivisions” and “local agencies” as distinct from “states.” See 7 U.S.C. §§ 136f(b); 136r(b); 136t(b).

FIFRA expressly permits states to regulate the use of federally registered pesticides, “but only if and to the extent the regulation does not permit any sale or use prohibited by” the federal statute. 7 U.S.C. § 136v ¹ FIFRA does not contain any provisions that authorize or prohibit political subdivisions or local authorities from regulating pesticides or their use.

Pursuant to the grant in section 136v, the State of Michigan enacted the Pesticide Control Act of 1976. Mich.Comp.Laws Ann. §§ 286.551 — -.581. The state largely adopted the federal standards, including FIFRA’s certification standards for commercial applicators of pesticides. As a re-suit, commercial pesticide applicators are subject to extensive federal and state regulation in Michigan.

In making its decision, the district court turned first to FIFRA’s legislative history, which reveals that the pesticide legislation President Nixon proposed in 1971 included provisions that expressly gave local governments the power to regulate pesticides and their use. However, nearly every congressional committee that passed on the proposed legislation deleted those provisions in the belief that the state and the federal governments could regulate pesticides adequately without subjecting the pesticide industry to thousands of regulatory jurisdictions. See Maryland Pest Control Ass’n v. Montgomery County, Maryland, 646 F.Supp. 109, 111-13 (D.Md.1986), aff'd without published opinion, 822 F.2d 55 (4th Cir.1987), further related proceedings, 884 F.2d 160 (4th Cir.1989) (per curiam) (“Maryland Pest Control"). As a result, the legislation that Congress enacted contained no provisions granting local governments the power to regulate pesticides and their use. The district court concluded that when Congress amended FI-FRA in 1972, it occupied the entire field of the regulation of pesticides “and then it specifically gave states [and not their political subdivisions] the right to operate within the field....” J.A. 33.

The district court also noted that the question of the preemption of local regulations of pesticides and their use had been decided in two reported opinions, with each court reaching different results. The United States District Court for the District of Maryland found a county ordinance nearly identical to the village’s to be preempted in Maryland Pest Control, while the California Supreme Court found a voter-enacted ban on the aerial application of certain pesticides not to be preempted. See People ex rel. Deukmejian v. County of Mendocino, 36 Cal.3d 476, 683 P.2d 1150, 204 Cal.Rptr. 897 (1984) (“Mendocino County”)2 The district court adopted the analysis in Maryland Pest Control and concluded that FI-FRA preempted Ordinance No. 197.

II.

In determining whether Congress has exercised its power to preempt state or local regulations, we give primary emphasis to ascertaining the congressional intent underlying the statute in question. See R.J. Reynolds Tobacco Co. v. Durham County, North Carolina, 479 U.S. 130, 140, 107 S.Ct. 499, 506-07, 93 L.Ed.2d 449 (1986). Congress may preempt a state or local law expressly or by passing a statute that is “sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary ... regulation.” Hillsborough County, Florida v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). Where the federal statute is not so large that it occupies the entire field, state and local law may still be preempted where it conflicts with the federal law by standing as an obstacle to Congress’ purposes, see Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300-02, 108 S.Ct. 1145, 1151, 99 L.Ed.2d 316 (1989), or where “ ‘the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state [or local] laws on the same subject.’ ” Hillsborough County, 471 U.S. at 713, 105 S.Ct. at 2375 (quoting Rice, 331 U.S. at 230, 67 S.Ct. at 1152).

Absent express language to the contrary, there is ordinarily a presumption against preemption, Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128-29, 68 L.Ed.2d 576 (1981), especially when the challenged state or local regulation concerns state or local health and safety matters. See Hillsborough County, 471 U.S. at 715, 105 S.Ct. at 2376. However, the failure of a federal statute to speak directly to preemption does not necessarily create a gap for state or local regulation. See Adams Fruit Co. v. Barrett, — U.S. -, 110 S.Ct. 1384, 1390-91, 108 L.Ed.2d 585 (1990).

The village claims that the district court’s analysis was off-target because Ordinance No. 197 does not regulate pesticides or their use, but is merely a “public notice regulation” designed to protect the health and safety of village residents. We cannot agree because the unambiguous language of the ordinance imposes requirements that pesticide users must fulfill, and practices they must follow, before and after applying pesticides. By its plain terms, the ordinance regulates “users of pesticides,” the application of pesticides, and conduct that concerns the application and use of pesticides.³ Therefore, we conclude that Ordinance No. 197 is an attempt by a local government to regulate pesticides and their use. See Maryland Pest Control, 646 F.Supp. at 113; see also New York State Pesticide Coalition, Inc. v. Jorling, 874 F.2d 115, 117 (2d Cir.1989) {state public notice requirement held to be a permissible sale and use regulation).

c.

FIFRA does not preempt the village ordinance by its express terms, which leaves resolution of this issue to a determination of whether Congress has preempted local regulation by implication. We are urged by the parties to join with the Wisconsin Supreme Court in adopting the rationale of Maryland Pest Control, see Mortier v. Town of Casey, 154 Wis.2d 18, 452 N.W.2d 555 (1990), or to adopt the opposing view and join the Supreme Judicial Court of Maine in following Mendocino County, see Central Maine Power Co. v. Town of Lebanon, 571 A.2d 1189 (Me.1990).

In Mendocino County, the California Supreme Court found that because FIFRA contemplates various levels of state and local interaction, Congress did not occupy the entire field, but merely joined the state and local governments in pesticide regulation. The court emphasized FIFRA’s failure to limit the states’ ability to delegate their authority to political subdivisions and the traditional regulatory powers of state and local governments.⁴ The court concluded that as political subdivisions of states, local governments could regulate pesticide use. The court also reviewed FI-FRA’s legislative history and failed to find any express indications that Congress intended to deny local governments the power to regulate pesticide use.

In Maryland Pest Control, the district court concluded that through the 1972 amendments to FIFRA, Congress intended to enact, and did enact, a comprehensive statute that occupied the field of pesticide regulation. 646 F.Supp. at 110. The court found that by its terms, FIFRA opened specific portions of the field to state regulation and much smaller portions to local regulation. Id. at 111. The district court concluded that if it were to ignore the distinctions Congress drew between states and their political subdivisions, it would needlessly render vast portions of the statute superfluous and ignore Congress’ intent to erect a broad federal regulatory framework. Id. The district court also found that legislative history demonstrated that both houses of Congress specifically considered, and specifically rejected, President Nixon’s proposed provisions that would have allowed for local regulation of pesticides and their use. Id. at 111-13.

Our analysis of FIFRA and its legislative history leads us to conclude that when Congress rewrote .the statute, it impliedly preempted the local regulation of pesticides, including Ordinance No. 197. It is well-established that the starting point in preemption analysis is congressional intent, and it is undisputed that the intent behind the 1972 amendments was to enact sweeping federal pesticide regulation. Congress transformed FIFRA into a statute that cast a regulatory net over pesticides and their use, in part by giving the EPA enforcement authority over the use, sale and labeling of pesticides. When seen in this context, the Mendocino County view that Congress only entered the field of pesticide regulation already occupied by state and local governments is, at best, strikingly inconsistent with the undisputed legislative intent.

Moreover, Mendocino County ignores the distinctions Congress drew in the express terms of the legislation. FIFRA contains several provisions that expressly refer to political subdivisions and local authorities as distinct from state governments and agencies. Additionally, Congress did not include political subdivisions in its definition of “states.” See 7 U.S.C. § 136(aa). Where, as here, “ ‘Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress act[ed] intentionally and purposely in the disparate inclusion or exclusion.’ ” Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972)); see also Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194, 1197 (6th Cir.1983). (“It is a fundamental rule of statutory construction that inclusion in one part of a congressional scheme of that which is excluded in another part reflects a congressional intent that the exclusion was not inadvertent.”).

State law is preempted where it “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” Schneidewind, 485 U.S. at 300, 108 S.Ct. at 1151. As the district court pointed out, adoption of the Mendocino County view would allow the uniformity and comprehensiveness Congress sought to establish through FIFRA to be lost in the muddle of thousands of local standards and regulations. FIFRA would no longer stand as a sweeping federal regulatory framework but would become the lowest common denominator in an equation of infinite variables.

Courts need only to examine the legislative history of a statute when its terms are ambiguous or where enforcement of the plain terms of the statute would “produce a result demonstrably at odds with the intention of [the statute’s] drafters.” Ron Pair Enterprises, 109 S.Ct. at 1031 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)). In this case, the district court reviewed the legislative history of the 1972 amendments and adopted the analysis in Maryland Pest Control. We, too, agree with the Maryland Pest Control analysis, and also with Judge Kaus, who dissented from Mendocino County in part because he found the decision was “based on an untenable reading of the legislative record.” Mendocino County, 204 Cal.Rptr. at 911, 683 P.2d at 1164 (Kaus, J., dissenting). The lengthy history of the 1972 amendments to FIFRA demonstrates that both houses of Congress positively rejected President Nixon's proposal that local governments be permitted to regulate pesticides and their use. In addition, as noted in Maryland Pest Control, several of the committee reports explicitly stated an intent to deprive local authorities of the power to regulate pesticide use. See Maryland Pest Control, 646 F.Supp. at 112-13.

III.

In the absence of explicit statutory language, there is a presumption against the preemption of local police powers. See Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128-29, 68 L.Ed.2d 576 (1981). However, that presumption does not stand unrebutted merely because Congress failed to include a provision that expressly preempted state law. See Adams Fruit Company v. Barrett, — U.S.-, 110 S.Ct. 1384, 1390-91, 108 L.Ed.2d 585 (1990). In this case, the presumption against preemption is overcome because FIFRA, as amended in 1972 and thereafter, is “sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary ... regulation.” Hillsborough County, 471 U.S. at 713, 105 S.Ct. at 2375. Moreover, the statutory language and the fundamental rules of statutory interpretation make it clear that Congress intentionally omitted states’ political subdivisions from the section 136v grant of authority to regulate pesticides, and the legislative history demonstrates that Congress positively rejected the proposal to make room for local governments in the field of pesticide regulation.

Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

1 . § 136v Authority of States

(a) In general

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) Uniformity

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.

2 . The Wisconsin Supreme Court recently followed Maryland Pest Control, see Mortier v. Town of Casey, 154 Wis.2d 18, 452 N.W.2d 555 (1990), while the Supreme Judicial Court of Maine recently followed Mendocino County, see Central Maine Power Co. v. Town of Lebanon, 571 A.2d 1189 (Me.1990).

3 . Determination of the meaning of a statute begins with the plain language of the statute itself. See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235,-, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989); Bradley v. Austin, 841 F.2d 1288, 1293 (6th Cir.1988). Because "use” and "apply” are not defined by the ordinance, we interpret them "as taking their ordinary, contemporary, common meaning[s].” Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979). Definitions of "apply” include "to put to use especially for some practical purpose” and "to ... lay or spread on,” Webster’s Third New International Dictionary 105 (1981), while definitions of the noun "use” include "a method or manner of using something” and “the privilege or benefit of using something.” Id. at 2523.

4 . Notably, a year after Mendocino County was decided, the United States Supreme Court held that Congress could control the states and regulate in areas that were previously thought to be insulated from a federal regulation because they were “traditional” areas of state and local control. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546-47, 105 S.Ct. 1005, 1015-16, 83 L.Ed.2d 1016 (1985).