Local control of pesticide use valid, court rules


WASHINGTON -- The Supreme Court yesterday restored to local governments a power that Maryland communities thought had been lost: the authority to control when local residents may use chemicals that kill bugs and weeds.

The court ruled unanimously that Congress had no intention of taking regulation of pesticides from county and city governments when it passed laws giving the government major power over the production and marketing of such chemicals.

Lower federal and state courts had split on whether local communities had any authority left under those federal laws. It appeared to be clear that state governments could engage in some regulation, but some courts had concluded that that could not be done at the county and city level.

The court's decision will open the way for Prince George's and Montgomery counties to pursue ordinances that require pesticide applicators to post notices before they spray lawn chemicals.

In a 1987 decision, the 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled that those two counties did not have the authority to regulate use of pesticides. Both counties had passed posting ordinances to protect people who are hypersensitive to chemical pesticides after a man died after walking onto a pesticide-covered golf course.

The Maryland General Assembly apparently has never hesitated to try to regulate pesticides.

In recent years, bills have been introduced to ban certain pesticides. "We failed not because there was a federal pre-emption but because we didn't have the votes," said Delegate E. Brian Frosh, D-Montgomery.

But the legislature did restrict the use of TBT, an anti-fouling paint once widely used on boat bottoms. Since then, the federal government adopted similar restrictions.

Exterminators say the ruling could hurt their businesses and raise the cost to consumers. "You could have a regulatory nightmare," said Craig Strobel, vice president of Paramount Pest Control.

For instance, he said, each county in Maryland and each local jurisdiction could have a different law. So applying pesticides would require his company to keep track of each area's various laws.

Both individual and commercial pesticide application would be affected by the ruling.

The Supreme Court had agreed in January to settle the dispute among the lower courts and did so yesterday by ruling in favor of county and city regulation of pesticide uses.

The decision came in a case involving a small community in Wisconsin, the town of Casey. It adopted an ordinance in 1985 requiring anyone seeking to apply any pesticide to any land, or to do aerial spraying of pesticides, to get a permit 60 days in advance.

A local resident who wanted to have some of his land sprayed from the air applied for and got a permit to use pesticides but not to have that done by aerial spraying. He then challenged the town's power to adopt such an ordinance.

The Wisconsin Supreme Court agreed with the challenge, concluding that local governments cannot regulate use of pesticides because federal law had taken over that activity. While the state court noted that federal law allows state governments to engage in some regulation, it said counties and cities did not share any of that power.

The Supreme Court overturned that ruling yesterday, in the case of Wisconsin Public Intervenor vs. Mortier (No. 89-1905).

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