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Judge rules Montgomery Co. pesticides ban preempted by state law

If a Montgomery County ordinance restricting the use of certain pesticides went into effect, ‘it would have allowed over 180 Maryland jurisdictions to adopt their own pesticide regulations and that would have led to absolute confusion in the lawn care industry every Saturday,’ a lawyer for opponents says. (AP Photo/M. Spencer Green)

If a Montgomery County ordinance restricting the use of certain pesticides went into effect, ‘it would have allowed over 180 Maryland jurisdictions to adopt their own pesticide regulations and that would have led to absolute confusion in the lawn care industry every Saturday,’ a lawyer for opponents says. (AP Photo/M. Spencer Green)

A judge has blocked Montgomery County’s restrictions on the use of certain pesticides on lawns and near schools and playgrounds, finding the ordinance is preempted by state law.

Montgomery County Circuit Judge Terrence J. McGann sided with plaintiffs in two consolidated lawsuits, granted them summary judgment and enjoining the county from enforcing portions of the ordinance. McGann determined the ordinance, set to go into effect next year, would amount to a “local veto” on state- and federal-use rules on pesticides, which agencies already thoroughly regulate.

McGann read his opinion from the bench Thursday, according to attorney Gus Bauman, who represented a group of homeowners and small businesses. It took nearly an hour for the 14-page opinion to be read in its entirety to a packed courtroom, but Bauman said it was “refreshing” to see a judge take steps to ensure all interested parties understood his reasoning.

Timothy Maloney, who represented a second group of plaintiffs, said his clients are pleased with the decision.

“The state and federal regulation is pervasive and it’s existed for decades and it’s extremely detailed and it’s backed by scientists at the federal and state level,” said Maloney, a principal at Joseph, Greenwald & Laake P.A. in Greenbelt. “Montgomery County has no expertise in this area whatsoever and it would lead to chaos.”

The ordinance, approved two years ago by the Montgomery County Council, created a new set of restricted pesticides and banned their use on private and county-owned properties, including lawns, playgrounds, mulched recreation areas and children’s facilities. The purpose was “to protect the health of children, families, pets, and the environment.”

Several council members were frustrated with the McGann’s ruling, including President Roger Berliner, who said the county will review its legal options to reduce residents’ exposure to potentially carcinogenic chemicals.

But county spokesman Patrick Lacefield said Friday he is unsure whether the jurisdiction will appeal, noting the ordinance went into effect without the signature of County Executive Isiah Leggett, who was concerned about a legal challenge based on preemption.

“Since this was a council initiative, if they decide they want to appeal, then the county will appeal, but we’re not there yet,” he said.

Maloney said there is a group on the council “that seems bound and determined to expand its regulatory authority wherever and wherever it can” and cited past instances of courts striking down county regulations.

‘Portents of preemption’

During debate on the bill, the council heard from multiple sources that a judge might find they had exceeded their authority in regulating pesticide use before passing the ordinance, according to McGann, who called the legislative history “rife with pressing portents of preemption.”

Opinions from the Maryland Office of the Attorney General, Maryland Department of Agriculture, Montgomery County Department of Environmental Protection and finally Leggett raised concerns that state regulations preempted local ones.

McGann was convinced the state “occupied the field” because it imposed a comprehensive system to “regulate every facet of pesticide use.” The state dictates where, when and how each pesticide — which must be registered and approved — can be used and specifies use instruction on labels, he ruled.

Bauman, of Beveridge & Diamond PC in Washington, said the judge made it clear the county government cannot supplant the authority of the state and federal governments when they have pervasively regulated an industry.

“I have never seen a more open-and-shut case for preemption as I did when I was retained on this case,” he said.

The county also argued its regulation furthered the state’s goal of making sure pesticides are used safely, but McGann said the ordinance is in direct conflict with state laws because it “prohibits and frustrates an activity intended to be permitted.”

The ability of localities to opt out of the ordinance also creates additional confusion about what pesticide use is permitted in certain areas of the county, McGann wrote, and would require retailers to explain the ordinance to customers.

“If this ordinance was allowed to stand,” Maloney said, “it would have allowed over 180 Maryland jurisdictions to adopt their own pesticide regulations and that would have led to absolute confusion in the lawn care industry every Saturday.”

The cases are Complete Lawn Care Inc. et al. v. Montgomery County, Maryland, 427200V and Anita Goodman et al. v. Montgomery County, Maryland, 427253V (consolidated).

The Associated Press contributed to this report.


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