Federal Preemption of Local Pesticide Use Regulation: The Past, Present and Future of Wisconsin Public Intervenor v. Mortier
By James Ford Lang
INTRODUCTION
Kevin Ryan, an eleven-year-old boy from Illinois, testified before a Senate subcommittee in 1990 about how his neighbors' use of pesticides caused him to suffer from “nausea, severe stomach pain, loss of memory and depression.” Kevin complained that the pesticides made him feel like a prisoner in his own home. The committee heard testimony from many who had suffered because of exposure to pesticides, including the story of a Navy lieutenant who had died after exposure to lawn chemicals sprayed on a naval golf course in the Washington, D.C. area. Stories such as these translated the health problems arising from the multi-billion dollar lawn-care industry into easy-to-understand experiences of real people. Instead of figures about the estimated fifty-one million homeowners who spray chemicals on their lawns and the more than eight million who hire professional lawn-care companies to do the job, the Senate committee heard first hand about the human cost associated with pesticide use. The subcommittee's investigation prompted Senators Harry Reid and Joseph Lieberman to introduce the Notification of Chemical Application Act of 1991. In its current form, the Act “requires companies that apply lawn-care and other non-agricultural chemicals to provide written and posted notice and disclosure of all known health and environmental effects of the chemicals being used.”
Many states currently require pesticide applicators to employ various notification and posting procedures. A number of counties, cities and towns across the United States similarly require pesticide applicators to give neighbors notice of spraying or to seek prior approval for spraying from the town council. Until the summer of 1991, many courts utilized the heavy hammer of federal preemption to strike down such local government efforts. The Supreme Court recently held, however, that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) does not preempt local government regulation of pesticide use. As a result, interested localities are scrambling to fill the regulatory void.
This Note begins by examining the arguments concerning federal preemption of local pesticide regulation that pesticide applicators successfully used in the lower courts to defeat pesticide use litigation. Part II of this Note discusses how and why the Supreme Court rejected these arguments in Mortier. With an eye toward discerning trends, Part III surveys the aftermath of Mortier by examining current state and local efforts at regulation. The Note concludes by addressing the potential impact of expanded and conflicting local restrictions, the possibility that Congress will pass its own notification and posting requirements for lawn-care chemical use and expressly preempt local regulations, and the possibility that the Environmental Protection Agency (EPA) will use its rulemaking powers to impose a nationwide posting or notification program.
Kevin Ryan, an eleven-year-old boy from Illinois, testified before a Senate subcommittee in 1990 about how his neighbors' use of pesticides caused him to suffer from “nausea, severe stomach pain, loss of memory and depression.” Kevin complained that the pesticides made him feel like a prisoner in his own home. The committee heard testimony from many who had suffered because of exposure to pesticides, including the story of a Navy lieutenant who had died after exposure to lawn chemicals sprayed on a naval golf course in the Washington, D.C. area. Stories such as these translated the health problems arising from the multi-billion dollar lawn-care industry into easy-to-understand experiences of real people. Instead of figures about the estimated fifty-one million homeowners who spray chemicals on their lawns and the more than eight million who hire professional lawn-care companies to do the job, the Senate committee heard first hand about the human cost associated with pesticide use. The subcommittee's investigation prompted Senators Harry Reid and Joseph Lieberman to introduce the Notification of Chemical Application Act of 1991. In its current form, the Act “requires companies that apply lawn-care and other non-agricultural chemicals to provide written and posted notice and disclosure of all known health and environmental effects of the chemicals being used.”
Many states currently require pesticide applicators to employ various notification and posting procedures. A number of counties, cities and towns across the United States similarly require pesticide applicators to give neighbors notice of spraying or to seek prior approval for spraying from the town council. Until the summer of 1991, many courts utilized the heavy hammer of federal preemption to strike down such local government efforts. The Supreme Court recently held, however, that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) does not preempt local government regulation of pesticide use. As a result, interested localities are scrambling to fill the regulatory void.
This Note begins by examining the arguments concerning federal preemption of local pesticide regulation that pesticide applicators successfully used in the lower courts to defeat pesticide use litigation. Part II of this Note discusses how and why the Supreme Court rejected these arguments in Mortier. With an eye toward discerning trends, Part III surveys the aftermath of Mortier by examining current state and local efforts at regulation. The Note concludes by addressing the potential impact of expanded and conflicting local restrictions, the possibility that Congress will pass its own notification and posting requirements for lawn-care chemical use and expressly preempt local regulations, and the possibility that the Environmental Protection Agency (EPA) will use its rulemaking powers to impose a nationwide posting or notification program.
