THE PEOPLE ex rel. GEORGE DEUKMEJIAN, as Attorney General, etc., Plaintiff and Respondent, v. COUNTY OF MENDOCINO et al., Defendants and Appellants. PROPONENTS OF THE INITIATIVE et al., Interveners and Appellants.
S.F. No. 24588
Supreme Court of California
July 26, 1984
36 Cal. 3d 476
John A. Drummond and H. Peter Klein, County Counsel, Stephen D. Underwood and Ronald R. Ball, Deputy County Counsel, for Defendants and Appellants.
Vogel & Rosen, Barry Vogel, Laurens H. Silver, Douglas L. Honnold, Stark, Stewart, Wells & Robinson, Phillip S. Berry, Berry & Berry, Wesley R. Higbie and Henrickson Higbie, Mingst & Cole for Interveners and Appellants.
George Deukmejian and John K. Van de Kamp, Attorneys General, R. H. Connett, Assistant Attorney General, Allene C. Zanger and M. Anne Jennings, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BROUSSARD, J.—In this action for declaratory and injunctive relief, the trial court determined that a Mendocino County initiative ordinance prohib-
In 1977 a forest products company sprayed a 500-acre tract with Phenoxy Herbicides. The drift from the spraying extended nearly three miles from the spray location, and school buses from two different school districts were sprayed. There was a public outcry, and local residents commenced a campaign to prevent the aerial spraying of Phenoxy Herbicides.
In June 1979, the voters of Mendocino County approved an initiative measure prohibiting the aerial application in the county of phenoxy herbicides, including, but not limited to, 2,4,5-T, Silvex, 2,4-D and any matter containing the chemical Dioxin. The ordinance contains an explanation of its purpose: “We find and declare that it is necessary to prohibit the aerial application of phenoxy herbicides because of the dangers of drift, contamination of food and water, and irrevocable harm to natural resources. The aerial application of phenoxy herbicides, in light of said dangers, threatens the right of the people of Mendocino County to be secure in their homes and to enjoy the peaceful, undisturbed use of private property and public lands.” Violation of the ordinance is a misdemeanor.
The ballot argument in favor of the ordinance states that phenoxy herbicides are a public health hazard known to cause birth defects, miscarriages and cancer. Phenoxy herbicides are plant growth regulators, principally used as weed killers. Phenoxy herbicide is primarily used in this state for killing weeds which threaten cereal crops, rice, wheat, barley, oats and corn. Approximately 2.5 percent is used for commercial timberland to retard hardwood growth in favor of conifer growth during reforestation. Use on pasture, rangeland and rights of way account for most of the rest. (See Cal. Dept. of Food & Agr., Pesticide Use Annual Rep. (1982) pp. 66-72, 217, 233.) Apparently, the principal use in Mendocino County is in connection with reforestation.
State Preemption
State regulation of pesticide marketing began in 1901 with additional regulations adopted in 1911 and 1933. Pesticide usage was not regulated by
After the Attorney General stated in an opinion (59 Ops. Cal. Atty. Gen. 300 (1976)) that the use of pesticides was subject to the requirements of the California Environmental Quality Act (
The result of this gradual growth of regulation may be described as follows:
Division 6 of the Food and Agricultural Code2 generally regulates those who are in the business of recommending, selling and applying pesticides and requires that they be licensed by the state. (See, e.g.,
Division 7 of the code regulates the use of agricultural chemicals. (
However, the commissioners retained broad powers. With certain exceptions not relevant here, no person is to use any pesticide for any agricultural use except under a written permit of a county commissioner. (
The director is required to designate a list of “restricted materials” based upon danger to public health, or hazards to applicators, farmworkers, animals, crops and the environment. He is also required to adopt regulations governing the application of “restricted materials,” and prescribing when, where and how a restricted material may be used in the various areas of the state. He may also prohibit its use in areas. (
Section 14007 provides: “Every permit which is issued under the regulations adopted pursuant to this chapter is conditioned upon compliance with the law and regulations and upon such other specified conditions as may be required to accomplish the purposes of this chapter.”4 (Italics added.)
Pursuant to the statutory authority, the director has adopted numerous and detailed regulations governing the use of pesticides. (Cal. Admin. Code, tit. 3, §§ 2330-2487, 3135-3145.) The director has designated a number of herbicides as restricted materials, including 2,4,5-T, Silvex and 2,4-D. (Id., § 2450, subd. (m).) Permits are required for use in liquid form of amounts in excess of one pint or, if diluted, one gallon and in dry formulation for amounts in excess of one pound or fifty pounds if containing less than 10 percent of the herbicide. (Id., § 2452, subd. (d)(6)(7).) The director has adopted detailed regulations of the aerial application of herbicides, specifying when and where herbicides may be applied, height of discharge, permissible wind velocity, nozzle specifications and safety equipment. (Id., § 2458.)
A county may make and enforce within its limits “all local, police, sanitary, and other ordinances and regulations not in conflict with general
The Legislature has not only recognized the rights of counties to regulate to preserve and protect public health but has imposed a duty to regulate. Health and Safety Code section 450 provides: “The board of supervisors of each county shall take such measures as may be necessary to preserve and protect the public health ... including, if indicated, the adoption of ordinances, regulations and orders not in conflict with general laws, ...”
It is clear that the initiative is a proper local regulation for health purposes authorized by the Constitution unless it conflicts with general laws, and in view of the long tradition of local regulation and the legislatively imposed duty to preserve and protect the public health, preemption may not be lightly found.
“Local legislation in conflict with general law is void. Conflicts exist if the ordinance duplicates (Chavez v. Sargent [1959] 52 Cal.2d 162, 176; In re Portnoy [1942] 21 Cal.2d 237, 240; Pipoly v. Benson [1942] 20 Cal.2d 366, 370), contradicts (Ex parte Daniels [1920] 183 Cal. 636, 642-645), or enters an area fully occupied by general law, either expressly or by legislative implication (In re Lane [1962] 58 Cal.2d 99, 102; Abbott v. City of Los Angeles [1960] 53 Cal.2d 674, 682-688; Chavez v. Sargent, supra, 52 Cal.2d 162, 176-178). If the subject matter or field of the legislation has been fully occupied by the state, there is no room for supplementary or complementary local legislation, even if the subject were otherwise one properly characterized as a ‘municipal affair.’ (In re Hubbard [1964] 62 Cal.2d 119, 125; In re Zorn [1963] 59 Cal.2d 650
The Legislature has not expressly prohibited local regulation of the aerial application of phenoxy herbicides, and the initiative ordinance neither duplicates nor contradicts any statute. Pointing out that the Legislature has recognized that the activity is both hazardous and socially useful, the Attorney General urges that there is a contradiction, claiming that the effect of the statutory scheme is to authorize activities not prohibited by the statutes and regulations. Reliance is placed on cases where it has been held that where a licensing scheme authorizes a person to practice a trade or profession, a local law imposing additional qualification is in conflict with the state scheme. (E.g., Agnew v. City of Culver City (1956) 147 Cal.App.2d 144, 150; Horwith v. City of Fresno (1946) 74 Cal.App.2d 443, 448-449.) The licensing cases are distinguishable. Licensing regulates activity based on a determination of the qualifications of the licensee. (Galvan v. Superior Court (1969) 70 Cal.2d 851, 856.) The Legislature has not directed that licensed persons must be permitted to use specific chemicals or otherwise provided that specified chemicals may be used. It has provided that a permit is necessary before use of chemicals.
The test for determining whether the area is fully occupied on the basis of legislative implication was established in In re Hubbard, supra, 62 Cal.2d 119, 128. In determining whether the Legislature has preempted by implication to the exclusion of local regulation we must look to the whole purpose and scope of the legislative scheme. There are three tests: “(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality.” (Id.; Galvan v. Superior Court, supra, 70 Cal.2d 851, 859-860; Bell v. City of Mountain View (1977) 66 Cal.App.3d 332, 338.)
Preemption by implication of legislative intent may not be found when the Legislature has expressed its intent to permit local regulations. Similarly, it should not be found when the statutory scheme recognizes local regulations.
Further support for attributing to the word “law” its traditional meaning is shown by the fact that the Legislature has manifested its intent that local concerns and conditions must be given paramount importance. Although section 11503 provides that regulations adopted by county commissioners are not operative until approved by the director, the Legislature has provided that the director‘s regulations of use of restricted pesticides may be limited in “certain areas” (
Moreover, the use of the word “law” shows that the Legislature intended to require compliance with other state statutes, including those found in other codes, and other statutes permit local regulation of air pollution and water quality, the purposes of the initiative ordinance. Local and regional authorities have the primary responsibility for the control of air pollution from all sources other than emissions from motor vehicles. (
Had the Legislature intended to require compliance only with provisions of the Food and Agricultural Code or its pesticide provisions, it could easily have substituted other provisions. Its failure to do so can only be read as meaning that the term “law” included other statutes and ordinances.
Because of section 14007, the pesticide regulations do not meet the first two tests established in Hubbard for implied preemption. The use of the term “law,” coupled with air and water pollution statutes permitting local regulation, preclude a conclusion of clear indication that use of agricultural chemicals is a matter of exclusive state concern or that a paramount state concern will not tolerate local regulation. The third test established by Hubbard cannot be met because the initiative ordinance has little effect on transient citizens, and it cannot be concluded that the effect on them outweighs the possible benefit to the municipality.
The Attorney General argues that the reference to the “law” in section 14007 is limited to valid laws and that a local ordinance regulating pesticides is not valid because the area is preempted by state regulation. It is no doubt true that only valid laws are intended to come within the term. However, the reasoning is circular. As pointed out above, in determining whether there is implied preemption we must look at the entire statutory scheme, and in the instant case section 14007 is part of that scheme. Thus, the determination whether the Legislature has intended to occupy the field must include consideration of the provisions of section 14007, and when we do so, we find that local ordinances are permitted. It cannot properly be concluded that local ordinances are invalid on grounds of implied preemption before it has been determined that the state has occupied the field.
The Attorney General also urges that while the air and water pollution statutes reserve local power to adopt additional regulations, those statutes must be harmonized with the Food and Agricultural Code sections which specifically regulate the use of pesticides and that the Food and Agricultural Code provisions take precedence over the local powers recognized in the air and water pollution statutes.5 Although ordinarily specific provi-
We conclude that the Legislature has not preempted local regulation of pesticide use.6
Federal Preemption
Intervener, California Forest Protective Association (Association), urges that the initiative ordinance is in conflict with federal law and therefor invalid. It does not claim that Congress intended to preclude state regulation, rather it urges on the basis of statutory history that Congress intended to permit state regulation but prohibit local regulation. Appellants argue that Congress has not expressly stated its intention to preempt local regulation, that the statutory history does not reflect the requisite clear showing of intent to preempt local ordinances and that in any event Congress could not, consistent with the Tenth Amendment to the United States Constitution, interfere with the states’ powers to distribute integral governmental functions among its agencies and permit state regulation while prohibiting local.
The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) (
Section 136v added by the 1972 act provides: “(a) 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.”7
When Congress amended FIFRA in 1972, it also added a definition of the term “State.” “The term ‘State’ means 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” (
There is no provision in FIFRA expressly prohibiting local governmental agencies from regulating the use of pesticides, expressly providing that the term “State” excludes such agencies, or providing that the state may not act through its local agencies.
As originally reported to the House by the Committee on Agriculture,8 the bill which was to become FEPCA (H.R. No. 10729, 92d Cong., 1st Sess. (1971)) contained a provision permitting state regulation to the extent that it did not permit any sale or use prohibited by the act “or restrict by license or permit the use of a pesticide registered for general use.” (117 Cong. Rec. 40027 (1971).) After substantial debate pointing out that some states had adopted restrictions on pesticides which went beyond federal restrictions, the bill was amended to in effect delete the quoted clause. Although one congressman thereafter spoke against the bill, stating it failed to recognize that needs created by local conditions are best handled by state and local agencies, no amendment to add local agencies to the bill was proposed, and the bill was approved shortly thereafter by the full House. (117 Cong. Rec. 40066-40068 (1971).)
The Senate Committee on Agriculture and Forestry reported H.R. No. 10729 out of committee with a recommendation of “do pass.” Its report
The bill was then reported to the Committee on Commerce, and it made a number of amendments, including one assigning to local as well as state governments “the authority to regulate the sale or use of a pesticide or device, so long as such regulation does not permit sale or use prohibited under the Act.” (Sen. Rep. No. 92-970, 2d Sess. (1972) reprinted in 1972 U.S. Code Cong. & Admin. News, No. 3, at p. 4128.)
After reviewing the Commerce Committee action, the Agriculture and Forestry Committee filed a supplemental report (pt. II, Sen. Rep. No. 92-838, 2d Sess. (1972) reprinted in 1972 U.S. Code Cong. & Admin. News, No. 3 beginning at p. 4023) setting out its reasons for its opposition to the Commerce Committee amendments. The Agriculture and Forestry Committee reiterated its opposition to the regulation of pesticide sale and use by local governments. It stated that regulation by the federal government and the 50 states should be sufficient and preempt the field, and it again set forth the material quoted above from its original report.
Thereafter, a compromise substitute to the Committee on Commerce amendments was offered supported by all members of the Committee on Agriculture and Forestry and a majority of the Committee on Commerce. The compromise bill deleted the provision for local government regulation. The “Explanation of Compromise Substitute for the Text of H.R. 10729” expressly pointed out that the Committee on Commerce amendment giving local governments authority to regulate use of pesticides was not included in the substitute. (118 Cong. Rec. 32257-32258 (1972).) Shortly, thereafter
There was no difference in the House and Senate passed versions of the provision governing state regulation, and it apparently was not addressed in the Conference Report or other materials. The Conference Report was passed by both Houses. (Id., at pp. 33924, 35546.)
Within constitutional limits Congress may preempt state authority by so stating in express terms or, absent explicit preemptive language, Congress’ intent to supersede state law altogether may be found from a scheme of federal regulation so pervasive as to warrant the inference that Congress left no room to supplement it. (Pacific Gas & Electric Company v. State Energy Resources Conservation & Development Commission (1983) 461 U.S. 190, 203-204; Exxon Corp. v. Eagerton (1983) 462 U.S. 176, 180-182.) In the instant case, we cannot infer that Congress concluded that its scheme of regulation was so pervasive that it should not be supplemented. Rather Congress has made clear that further restrictive regulation is permissible. It has provided that a “State” may adopt more restrictive regulation.9 (
The question before us is whether Congress by providing for further “State” regulation, has prohibited in express terms a state from authorizing its local governmental entities to participate in its regulatory program. There is nothing in
The Association relies upon the maxim expressio unius est exclusio alterius (see Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195), claiming that the reference to “State” should be read as excluding local governmental regulation. Because local governmental agencies are political subdivisions of the state, the maxim may not be applied. The maxim may be applied to comparable or perhaps similar nouns, but there is no reason to apply it to exclude agents of the enumerated party. Moreover, even if the maxim were applicable, it would only warrant the conclusion that the statute did not authorize regulation; it would not establish that local regulation was prohibited.
The Association also claims that the legislative history establishes that Congress intended that “State,” as used in
However, in the absence of a clear manifestation of intention to preclude state regulation in an area traditionally regulated by the exercise of state or local police powers, it will not be presumed that a federal statute was intended to supersede such powers. (Jones v. Rath Packing Co. (1977) 430 U.S. 519, 525-526; De Canas v. Bica (1976) 424 U.S. 351, 356; New York State Dept. of Social Services v. Dublino (1973) 413 U.S. 405, 413.)
The legislative history does not demonstrate a clear congressional intention to preempt traditional local police powers to regulate the use of pesticides or to preempt state power to distribute its regulatory authority between itself and its political subdivisions.
The report of the House Committee on Agriculture did not state that political subdivisions should be prohibited from regulating but only that they should not be authorized to regulate. This is consistent with the ordinary view that states are free to distribute regulatory power between themselves and their political subdivisions. Acceptance of the rejected proposal to authorize political subdivisions to regulate would have deprived the states of their traditional power to refuse to permit local regulation. The report of the House Committee on Agriculture is thus consistent with the usual view that local regulation is neither authorized nor prohibited and that it is for the states to determine whether the powers reserved to them by the Constitution and statutes shall be exercised directly by the states, by political subdivisions or both.
The record of House proceedings fails to reflect any understanding that local regulation was prohibited. On the floor of the House, the preemption provision was diluted by eliminating the provision prohibiting states from restricting by license or permit the use of a registered pesticide. The isolated comment of one congressman who opposed the bill that it failed to recognize that particular needs created by local conditions are best handled by state and local agencies does not establish that local regulation is prohibited. In
Properly analyzed, the history of the Senate proceedings is also consistent with the usual view that it is for the states to determine whether their reserved powers shall be exercised directly, by political subdivisions, or by both. Although the Senate Committee on Agriculture and Forestry clearly sought to prohibit regulation by political subdivisions, the Committee on Commerce sought to authorize regulation by political subdivisions, and then there was a compromise. The explanation of the compromise stated that the Committee on Commerce amendment giving local governments authority to regulate was deleted but it did not state that the views of the Committee on Agriculture and Forestry were adopted in their entirety on this issue or that the compromise adopted or rejected the middle ground which would leave the states to determine how to allocate their regulatory resources.10 The history of the Senate proceedings establishes only that there was a compromise and that under that compromise the Committee on Commerce‘s intention to authorize local government regulation was rejected. The act provides a “state” may regulate, which would ordinarily be interpreted as permitting the states to delegate their power, and nothing in the compromise explanation precludes such delegation.
The legislative history does not manifest a clear congressional intent to preclude states from authorizing local governmental entities to adopt restrictive regulations of pesticides.11
The judgment is reversed.
Bird, C. J., Mosk, J., and Reynoso, J., concurred.
The director‘s disapproval of the local action, voiced before this court by the Attorney General, was unheeded by the majority. One would be hard pressed to draft stronger language than that contained in section 11503 to indicate the intention of the Legislature regarding the resolution of conflicts such as the one presented in this case.
For the moment, a praiseworthy result may have been reached, for the aerial spraying of agent orange has been effectively banned in one county. However, the majority decision creates direct authority for the piecemeal adoption of local ordinances prohibiting aerial spraying of pesticides which, however reluctantly used, have been and will probably continue to be necessary as last resorts in protecting agriculture on a statewide basis. Henceforth the final battlefields involving the question of the survival of the state‘s vast agricultural industry will include town halls, city halls and supervisors’
KAUS, J.—I respectfully dissent.
I
Like Judge Kay, I cannot agree with the majority that the county ordinance at issue here—banning all aerial spraying of designated herbicides throughout the county—can coexist with the state statutory scheme.
As the majority recounts, over the past three and a half decades the Legislature has adopted a series of enactments which provide for the comprehensive regulation of the use of pesticides and herbicides in California by the state Department of Food and Agriculture (hereafter department). As section 11501 of the Food and Agricultural Code makes clear, the purpose of this legislation is not only to protect the health and safety of the public and the environment from the dangers of pesticides, but also “[t]o provide for the proper, safe, and efficient use of pesticides essential for production of food and fiber” and “[t]o permit agricultural pest control by competent and responsible licensees and permittees under strict control of the director and commissioners.”1 Thus, the department‘s mission requires it to consider both the potential hazards and benefits of pesticides and herbicides in regulating their use for agricultural purposes throughout the state.
Pursuant to its statutory authorization, the department has promulgated detailed license and permit regulations pertaining to the aerial spraying of the herbicides at issue, specifying not only who may do the spraying, but also when and where such herbicides may be used, the permissible height at which the herbicides may be discharged, and the maximum wind velocity when discharge is permissible. (See, e.g., Cal. Admin. Code, tit. 3, §§ 2450, 2452, 2458.) Although county commissioners, who administer the state permit procedure, have discretion to impose additional requirements in light of local needs and problems (
In upholding the ordinance, the majority relies heavily on section 14007 which provides that “[e]very permit ... issued [pursuant to the department‘s regulations] ... is conditioned upon compliance with the law and regulations and upon such other specified conditions as may be required to accomplish the purposes of this chapter.” (Ante, at p. 483 [maj.‘s italics].) Since a county ordinance is a “law,” the majority reasons that section 14007 recognizes a county‘s power to impose any additional restrictions on the use of pesticides it desires, including by necessary implication an entire ban on the use of a pesticide that has been specifically approved by the department.
In my view, this reading of the statute strains credulity. While section 14007 recognizes a permit-holder‘s obligation to comply with generally applicable county ordinances that do not unreasonably impinge on the activities specifically authorized by the state-authorized permit, the section cannot properly be read to afford a county the authority effectively to revoke the state-granted permit by proscribing the state-authorized activity. If the Legislature had intended to give counties a veto power over the use of a particular pesticide or the granting of a permit, it certainly would have expressed that thought in language clearer than section 14007.
The majority‘s additional reliance on the air and water pollution statutes is similarly unavailing. While those enactments do provide that local entities may adopt stricter air or water pollution standards than those imposed by the relevant state or regional air and water pollution agencies, nothing in those statutes relates to the specific subject of pesticides or gives any indication that the Legislature intended to affect the Department of Food and Agriculture‘s authority in this area. Indeed, legislation enacted in 1978—after the air and water pollution provisions cited by the majority—makes it quite clear that the Legislature has determined that the department is the appropriate agency to consider the environmental impact of pesticide use in this state. (Stats. 1978, ch. 308, §§ 1-9, pp. 643-648. See Comment, The Regulation of Pesticide Use in California (1978) 11 U.C.Davis L.Rev. 273, 295-297.) A more recent statute—enacted in 1983—reconfirms the legislative intent in this regard. (Stats. 1983, ch. 1047, § 2, pp. ---, adding
II
Although, in light of the above conclusion, I need not reach the federal preemption issue, I disagree with the majority‘s resolution of that issue as well. Granted that, under normal circumstances, a federal statute which expressly authorizes “a State” to impose more restrictive regulations than are provided by federal law can reasonably be interpreted to permit political subdivisions of a state to exercise a like power, the legislative history of the Federal Environmental Pesticide Control Act of 1972 strongly demonstrates a contrary congressional intent in this instance.
As the majority acknowledges, the report of the Senate Agriculture and Forestry Committee on the 1972 act expressly stated: “The Senate Committee considered the decision of the House Committee to deprive political subdivisions of States and other local authorities of any authority or jurisdiction over pesticides and concurs with the decision of the House of Representatives. Clearly, the fifty States and the Federal Government provide sufficient jurisdictions to properly regulate pesticides. Moreover, few, if any, local authorities whether towns, counties, villages, or municipalities have the financial wherewithal to provide necessary expert regulation comparable with that provided by the State and Federal Governments. On this basis and on the basis that permitting such regulation would be an extreme burden on interstate commerce, it is the intent that Section 24, by not providing any authority to political subdivisions and other local authorities of or in the States, should be understood as depriving such local authorities and political subdivisions of any and all jurisdiction and authority over pesticides and the regulation of pesticides.” (Italics added.) (Sen. Rep. No. 92-838, 2d Sess. (1972) reprinted in 1972 U.S. Code Cong. & Admin. News, No. 3, at p. 4008.)
The majority seeks to dismiss this language by suggesting (1) that the relevant House committee had a different view of the permissibility of local regulation under the proposed federal act and (2) that the quoted report of the Senate Agriculture and Forestry Committee was superseded by a subsequent compromise with the Senate Commerce Committee. (Ante, pp. 492-
In its initial report on the bill in question, the House Committee on Agriculture stated that while the relevant provision of the legislation would permit “[t]he States ... completely [to] prohibit the use of these ‘restricted use’ pesticides within their jurisdictions,” ”the Committee rejected a proposal which would have permitted political subdivisions to further regulate pesticides on the grounds that the 50 States and the Federal Government should provide an adequate number of regulatory jurisdictions.” (Italics added.) (H.R.Rep.No. 92-511, 1st Sess. p. 16 (1971).) This is a plain statement that the House committee did not intend to permit supplementary regulation by local political subdivisions. Although the majority suggests that this language should be interpreted to mean that the house committee simply intended to refrain from affirmatively authorizing local regulation as a matter of federal law but did not intend to prohibit states from delegating such authority to political subdivisions, that reading manifestly does not square with the committee‘s conclusion that “the 50 States and the Federal Government should provide an adequate number of regulatory jurisdictions.”
The majority‘s treatment of the Senate proceedings is similarly flawed. As the majority points out, after the Senate Agriculture and Forestry Committee issued its report clearly stating that local regulation was to be prohibited, the Senate Commerce Committee proposed an amendment to the bill which, along with many other substantial changes, would have expressly permitted such local regulation. (Sen.Rep.No. 92-970, 2d Sess. (1972) reprinted in 1972 U.S. Code Cong. & Admin. News, No. 3, pp. 4111-4112, 4128.) Thereafter, the two Senate Committees met and worked out a compromise which settled the numerous differences in the bills that had emerged from the two committees. (See Explanation of Compromise Amendment in the Nature of a Substitute, reprinted in 1972 U.S. Code Cong. & Admin. News, No. 3, pp. 4088-4092.) With respect to the provision involved in this case, the text proposed by the Agriculture and Forestry Committee was adopted; the Commerce Committee‘s amendment was dropped. (Id., at p. 4091.)
This history again plainly shows an intent to prohibit local regulation. In refusing to draw this conclusion, the majority states: “The explanation of the compromise stated that the Committee on Commerce amendment giving local governments authority to regulate was deleted but it did not state that the views of the Committee on Agriculture and Forestry were adopted in their entirety on this issue or that the compromise adopted or rejected the middle ground which would leave the states to determine how to allocate
With all respect, I find this reasoning specious. Since the compromise bill adopted the Agriculture and Forestry Committee‘s version without change, ordinary principles of statutory construction suggest that the provisions should be interpreted in light of the intent expressed in that committee‘s report. If there had been any intent to modify the effect of the provision as expressed in that report, it would surely have been noted in the explanation of the compromise. Absent any such indication, the conclusion the majority draws from the Senate proceedings is unsupportable.
Thus, the legislative history from both houses of Congress indicates that the drafters of the legislation did not intend to permit supplementary regulation by local political subdivisions.
Accordingly, even if the ordinance in question were compatible with state law, it does not withstand a federal preemption challenge. (See L.I. Pest Control Ass‘n, Inc. v. Town of Huntington (1973) 72 Misc.2d 1031 [341 N.Y.S.2d 93, 96], affd. 43 App.Div.2d 1020 [351 N.Y.S.2d 945].)
I would affirm the trial court judgment granting summary judgment for the state.
Grodin, J.—Concurred in Part II.
Notes
“If, in the opinion of the commissioner, the public health, welfare or safety requires that any regulation take effect immediately he shall designate it as an emergency regulation and specify in writing the facts which constitute the necessity. An emergency regulation shall become effective on the date it is approved by the director.” (
“Before issuing a permit for any pesticide the commissioner shall consider local conditions including, but not limited to, the following:
“(a) Use in vicinity of schools, dwellings, hospitals, recreational areas, and livestock enclosures.
“(b) Problems related to heterogeneous planting of crops.
“(c) Applications of materials known to create severe resurgence or secondary pest problems without compensating control of pest species.
“(d) Meteorological conditions for use.
“(e) Timing of applications in relation to bee activity.
“(f) Provisions for proper storage of pesticides and disposal of containers.
“Each permit issued for any pesticide shall include conditions for use in writing.” (Italics added.)
Section 12825 provides: “Pursuant to Section 12824, the director may, after hearing, cancel the registration of, or refuse to register, any economic poison:
“(a) Which has demonstrated serious uncontrolled adverse effects either within or outside the agricultural environment.
“(b) The use of which is of less public value or greater detriment to the environment than the benefit received by its use.
“(c) For which there is a reasonably effective and practicable alternate material or procedure which is demonstrably less destructive to the environment.
“(d) Which, when properly used, is detrimental to vegetation, except weeds, to domestic animals, or to the public health and safety.
“(e) Which is of little or no value for the purpose for which it is intended.