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New York State Pesticide Coalition Inc. v. Jorling

decided: May 10, 1989.

THE NEW YORK STATE PESTICIDE COALITION, INC., THE PROFESSIONAL LAWN CARE ASSOCIATION OF AMERICA, THE PESTICIDE PUBLIC POLICY FOUNDATION, INC., THE NATIONAL PEST CONTROL ASSOCIATION, THE NATIONAL ARBORIST ASSOCIATION, ELIZABETH SEME AND WALTER SCHROEDER, PLAINTIFFS-APPELLANTS,
v.
THOMAS JORLING, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, DEFENDANT-APPELLEE



Appeal from an order of the United States District Court for the Northern District of New York, Neal P. McCurn, C.J., granting appellee's motion for summary judgment in a suit challenging New York State's pesticide notification program as preempted by the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA). Affirmed.

Author: Kaufman

Kaufman, Circuit Judge

During the last two decades, America has recognized the imminent threat to the environment presented by continued pollution of our natural resources. Effective regulation of hazardous chemicals, including pesticides, has emerged as basic to our national environmental policy. Increasingly, many state governments have also taken up the cause. New York is the first state to enact a comprehensive Pesticide Notification Program and as such has become the target of various pesticide trade representatives from across the nation who assert that the new provisions conflict with federal law.

We are urged to conclude that the New York law, designed to assure public awareness that poisonous chemicals are being utilized, is preempted by the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA). Because the program constitutes lawful state regulation of the sale and use of pesticides, rather than impermissible "labeling," we hold that it is not.

The facts are not in dispute. Recently, the New York legislature added Title 10, "Special Requirements for Commercial Lawn Applications," to Article 33 of the New York Environmental Conservation Law (ECL). See ECL § 33-1001 et seq. Title 10, and regulations promulgated by appellee, New York Department of Environmental Conservation, to implement it, set forth various notification requirements intended to alert the public to the impending use of poisonous chemicals and to disseminate information to those who may be exposed. See 6 N.Y. Comp. Codes R. & Regs. tit. 6 § 325 (1987) ("NYCRR").

Specifically, the New York regulations demand that all commercial pesticide applicators follow several steps. They must enter into a written contract with the owner of the premises where extermination is to occur, ECL § 33-1001(1), and provide a list of the chemicals to be applied along with any warnings which appear on the pesticide's Environmental Protection Agency (EPA) approved label, id. Moreover, they are required to give the prospective purchaser a notification "cover sheet" which provides further warnings and safety information, NYCRR tit. 6 § 325. In addition, signs must be posted on the perimeter of the affected property, instructing persons not to enter the area for a 24 hour period, ECL § 33-1003. And, in some instances, vendors must notify the public in newspapers of prospective use over large tracts. NYCRR tit. 6 § 325.

Appellants New York State Pesticide Coalition et al. ("Pesticide Applicators") are lobbyists for those involved in the business of selling and using pesticides.*fn1 They argue that Title 10 and § 325 are facially preempted by § 24(b) of FIFRA, and contend that irreparable injury will result from the cost of both compliance and potential liability under the new law. Moreover, they are concerned that other states will create notification schemes similar to New York's.

FIFRA placed the "labeling" of pesticides within the singular province of the EPA. See FIFRA § 24(b), 7 U.S.C. § 136v(b). However, it expressly permitted states to impose regulations on the "sale and use" of these substances in addition to federal statutory requirements, so long as there was no conflict. FIFRA § 24(a), 7 U.S.C. § 136v(a).

On cross-motions for summary judgment, the parties agreed that there were no disputed issues of material fact. Judge McCurn granted appellee's motion, holding that the new legislation was not "labeling," but rather a permissible sale and use regulation and thus not preempted by FIFRA. We agree.

Control of the use of pesticides and other poisonous chemicals has long been a national policy. The first federal statute regulating this area was intended to protect farmers from misbranded or adulterated insecticides or fungicides. See Federal Insecticide Act of 1910 (Act of April 26, 1910, ch. 191, 36 Stat. 331, repealed 61 Stat. 163, 172 (1947)). Later, Congress passed FIFRA, a broader statute intended to "protect man and his environment" from the deleterious effects of such chemicals. S. Rep. No. 92-838, 92d Cong., 2d Sess. 1 (1972), reprinted in U.S. Code Cong. & Admin. News 1972, p. 3993.

As first enacted, FIFRA was "primarily a licensing and labeling statute." Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991, 104 S. Ct. 2862, 81 L. Ed. 2d 815 (1984). By the early 1970s, mounting public anxiety over the effect on the environment of the use of these poisons led Congress to revise FIFRA through the adoption of the Federal Environmental Pesticide Control Act of 1972, P.L. 92-516, 86 Stat. 973 (FEPCA). FIFRA was transformed from primarily a labeling law into a comprehensive scheme to regulate the use, sale and labeling, of pesticides-partly through EPA registration of the substances, including review, suspension and cancellation of registration. See H. R. Rep. No. 92-511, at 1; Monsanto, 467 U.S. at 991-92.

At the time of these developments, the states evolved their own regulatory framework.*fn2 The 1972 Amendments to FIFRA explicitly preserved the right of the states to delineate the proper use of such products within their own borders in § 24(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 U.S.C. § 136v(a). States were, however, proscribed from regulating the labeling of pesticides: "Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter." 7 U.S.C. § 136v(b). The states have joint control with the federal government in regulating the use of pesticides, for the safety of its citizens and their environment, see also H.R. Rep. No. 92-571, 92nd Cong., 1st. Sess. at 1 (1971), with the exception of the EPA's exclusive supervision of labeling.

The federal preemption doctrine is a basic principle of our legal system. The Supremacy Clause of the Constitution provides that the law of the United States "shall be the supreme Law of the Land." U.S. Const. art. VI, cl. 2. In determining whether a state statute is preempted by federal law, and thus invalid under the Supremacy Clause, our task is to ascertain the intent of Congress. See Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95, 103 S. Ct. 2890, 77 L. Ed. 2d 490 (1983).

Congress may supercede state law in three ways. A federal statute may expressly state that it displaces state law. E.g., Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S. Ct. 1305, 51 L. Ed. 2d 604 (1977). The principal claim advanced by appellants is whether Congress's express ...


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