ELR Citation: ELR 20062
No(s). 88-1423 (Wis. Mar 12, 1990)

The court holds that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) implicitly preempts a town ordinance purporting to regulate the use of pesticides in the town. The court first holds that, while FIFRA does not contain any express preemption language, it does contain language indicative of Congress' intent to deprive municipalities of the authority to regulate pesticides. However, because the statutory language alone does not evince Congress' manifest intent, it is ambiguous. Accordingly, the court examines the legislative history of FIFRA's enactment in 1972 and holds that the legislative history reveals Congress' clear intent to preempt all local regulation of pesticide use. The court also notes that because the completed Act specifically authorizes the states to regulate the sale or use of pesticides, it is reasonable to infer that regulation by other governmental entities is not protected from preemption. Moreover, the preamble to federal regulations promulgated pursuant to FIFRA expresses the Environmental Protection Agency's determination that neither the Act nor its regulations authorize political subdivisions below the state level to regulate pesticides.

A dissenting justice would hold that Congress did not deprive local government of its powers under the U.S. Constitution to regulate pesticide use. FIFRA's legislative history does not demonstrate that Congress expressly or implicitly intended to preempt local regulation, and the Act is not ambiguous regarding preemption; it is simply silent.

Another dissenting justice would hold that Congress did not intend local governments to be preempted from acting on their local concerns regarding pesticide use. Instead, FIFRA's legislative history indicates that Congress favored no preemption.

Counsel for Defendants-Appellants
Thomas J. Dawson, Ass't Attorney General
114 E. State Capitol, P.O. Box 7857, Madison WI 53707
(608) 266-1221

Counsel for Plaintiff-Respondent
Paul G. Kent
DeWitt, Porter, Huggett, Schumacher & Morgan
Manchester Pl., 2 E. Mifflin St., Ste. 600, P.O. Box 2509, Madison WI 53703
(608) 255-8891