Last week the Maryland Court of Special Appeals, the state’s intermediate appellate court, overturned an earlier circuit court decision, reinstating a Montgomery County ordinance significantly restricting pesticide use throughout the County.
In October 2015, the Montgomery County Council enacted Bill No. 52-14 becoming the first major jurisdiction in the country to enact such a ban. Among its other provisions, the bill amended the Montgomery County Code to ban certain pesticide use on private and County owned property. Most pertinent to the challenge of the ordinance is that is specifies only “Listed pesticide[s]” may be applied to (1) lawns, (2) playgrounds, (3) mulched recreation areas, (4) children’s facilities, or (5) the grounds of a children’s facility when those areas are located on “County-owned property and private property.”
Pesticides are not simply bug spray or better yet not limited to household insect repellants, but is also not only substances used to destroy insects, but include insecticides, herbicides, rodenticides, bactericides, fungicides and larvicides.
“Listed” permitted pesticides are defined to mean only pesticides that are recommended by the National Organic Standards Board or designated as “minimum risk pesticides” under FIFRA.
It is widely accepted that a local government attempting to ban a legal substance is wrong. This anti-pesticide law has been analogized to anti-vaxxers as based on junk science. And lest one be confused, this ban has nothing to do with pollinator habitat or the like.
And it does purportedly allow very limited exceptions to the restrictions, for example if a pesticide is applied pursuant to an exception concerning “imminent threats to human health or preventing significant economic damage” the person applying the pesticide must inform the County of each application.
In an August 2017 written opinion, the circuit court had concluded that the County ordinance was preempted by State law, both by implication and by conflict: “[t]he County’s Ordinance flouts decades of State primacy in ensuring safe and proper pesticide use, undermines the State’s system of comprehensive and uniform product approval and regulation, and prohibits products and conduct that have been affirmatively approved and licensed by the State.” The circuit court issued a declaratory judgment that Bill No. 52-14 was unlawful and preempted by Maryland law, and ordered that the bill “as it regards the use of pesticides on private property, shall not take effect, and [Appellees] are entitled to permanent injunctive relief from the enforcement of these sections.” The County’s appeal followed.
Pesticides have been used by man for more than 4500 years beginning in Samaria, but not now in Montgomery County. A May 2, 2019 opinion that begins “From 1958-1962, Rachel Carson wrote Silent Spring .. Carson’s examination of the health impacts of DDT and other pesticides galvanized the public ..” and footnotes Upton Sinclair’s The Jungle, reinstates the County legislated ban, explaining the Court of Special Appeal’s reasoning, including ..
The opinion lists factors supporting the appellate court’s conclusion against preemption including: “repeated failures to preempt, a lack of comprehensiveness along the lines of FIFRA, no pervasive scheme of administrative regulation, no conflict through frustration of purpose, and General Assembly recognition of local regulation of pesticides. Together, these factors point in one direction: the State has not prohibited local governments from regulating pesticides in the manner addressed by the County. Accordingly, we conclude that the citizens of Montgomery County are not powerless to restrict the use of certain toxins that have long been recognized as ‘economic poisons’ and which pose risks to the public health and environment.”
The issues before the court were about how state law did not preempt local law, but critics of this decision that cites as authority Silent Spring and The Jungle, see a highly charged political issue putting people at risk when pesticides are banned that control pests and diseases including mosquitoes and ticks. Montgomery County, Maryland v. Complete Lawn Care, Inc., et al, may or may not be good law, ( .. however the court’s analysis of preemption is not consistent with this same appellate court’s decision last November in Board of County Commissioners of Washington County, et al. v. Perennial Solar, LLC, a case currently before Maryland highest court the Court of Appeals, where the intermediate appellate Court found counties are impliedly preempted in the solar arena), but allowing one county to ban pesticides puts people at risk, from Zika fever, Lyme’s disease and much more, beyond that jurisdiction’s borders and is bad environmental public policy. Moreover, the judiciary should not advance junk science, even if it is popularized by the local legislative branch.
There are alternatives to this ban. Montgomery County has long had a mandatory green building law and the local government could incentivize LEED Integrated Pest Management Plans that minimize pest problems and exposure to pesticide.
Ideally, the Maryland Court of Appeals will grant certiorari and correct this wrong, protecting the residents of Montgomery County and beyond from a local legislative body by not allowing pesticide to be banned.