ELR Citation: ELR 21127
No(s). 89-1905 (U.S. Jun 21, 1991)

The Court rules that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not explicitly, implicitly, or by actual conflict preempt local governmental regulation of pesticide use. The Court reverses a decision of the Wisconsin Supreme Court, which held that FIFRA preempts a local ordinance requiring a permit for aerial and ground pesticide use. The Court holds that neither FIFRA's language nor its legislative history establishes preemption. In fact, the Court concludes that FIFRA's statutory language tilts in favor of local regulation. That the Act expressly authorizes the states to regulate pesticides and is silent with reference to local governments does not mean that it excludes political subdivisions, because political subdivisions are components of the very entity the statute empowers. Mere silence does not demonstrate Congress' clear and manifest intent to preempt local authority. Even if FIFRA's express grant of regulatory authority to the states could not be read as applying to municipalities, it would not follow that municipalities are left with no regulatory authority. Rather, it would mean that localities could not claim the regulatory authority explicitly conferred upon the states, and at a minimum, localities would still be free to regulate subject to the usual principles of preemption. The Court also concludes that although FIFRA's legislative history on local pesticide regulation is ambiguous, the use of legislative history materials to discern legislative intent is nevertheless beneficial. A concurring opinion would not rely on legislative reports at all to determine the meaning of a statutory text.

[The Wisconsin Supreme Court's decision is published at 21 ELR 20062.]

Counsel for Petitioners
Thomas J. Dawson, Ass't Attorney General and Wisconsin Public Intervenor
Wisconsin Department of Justice
P.O. Box 7857, Madison WI 53707-7857
(606) 266-8987

Counsel for Respondent
Paul G. Kent, Richard J. Lewandowski
De Witt, Porter, Huggett, Schumacker & Morgan
2 E. Miffin St., Ste. 600, Madison WI 53703
(608) 255-8891