Wisconsin Public Intervenor v. Mortier – Oral Argument – April 24, 1991

Media for Wisconsin Public Intervenor v. Mortier

Audio Transcription for Opinion Announcement – June 21, 1991 in Wisconsin Public Intervenor v. Mortier

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William H. Rehnquist:

We’ll hear argument next in No. 89-1905, Wisconsin Public Intervenor v. Ralph Mortier.

Spectators are admonished to refrain from talking while you’re still in courtroom.

The Court remains in session.

Mr. Dawson, you may proceed whenever you’re ready.

Thomas J. Dawson:

Mr. Chief Justice, and may it please the Court:

This case is about whether local units of government are going to be allowed to continue to regulate the use of pesticides to protect the health and safety and environment of their citizens, as they have been doing for a great number of years, and certainly since the Congress enacted the Federal Insecticide, Fungicide and Rodenticide Act almost 20 years ago.

The issue presented to this Court is did Congress clearly intend to preempt local governments from regulating pesticides when it enacted FIFRA.

The respondents in this case claim that local governments can do nothing, that they’re powerless to protect their citizens from pesticide hazards.

They claim Congress intended to strip local governments of this power, which includes as much of a power as to simply require the posting of warning signs on adjacent properties to warn citizens to stay away from areas that have been treated by pesticides.

I’d like to briefly–

Antonin Scalia:

Mr. Dawson, can… just so I understand, there is nothing in the position of the court below that would prevent a State upon the petition of a particular county, for example, from denominating that county as a county in which some special provisions will apply.

The State could do it.

It doesn’t… the State does not always have to act Statewide.

Thomas J. Dawson:

–That’s true.

The State could do that.

Antonin Scalia:

Okay.

Thomas J. Dawson:

And the State does not have to respond affirmatively to such–

Antonin Scalia:

Well, of course.

Thomas J. Dawson:

–I’d like to briefly review the ordinance.

First the ordinance is not a pesticide registration regulation.

It does not seek or require to make expert scientific decision entailed in the pesticides registration process that occurs under FIFRA.

Second, the ordinance applies to pesticide spraying of public lands, private lands open to public access, and aerial applications by aircraft.

We’re talking about protecting areas frequented by people.

Third, the ordinance is expressly aimed at protecting private property, drinking water wells, and other areas open to the public, like lakes and streams, hunting grounds, play and recreation areas, and public rights of way.

Fourth, the Town of Casey ordinance is a permit ordinance.

It permits pesticide use under certain circumstances and it allows the town board to impose reasonable conditions.

For example, it can prevent spraying under windy conditions or it can create buffer zones around play areas or school grounds to protect children.

True, permits under this ordinance may be denied, but only after consideration of such things as the benefits of the pesticide application, available alternatives, and negative effects of denying the permit.

No permit has been denied under this ordinance.

Byron R. White:

Does that ordinance regulate the same things that FIFRA does or the State does under its authority?

Thomas J. Dawson:

There could be some overlap, but I think the emphasis here is that this ordinance, and ordinances that have been passed like it, deal with things that FIFRA does not do.

FIFRA does not get down into the locality and dictate or provide conditions… protective conditions for the protection of streams and playgrounds.

These are the things that people at the local level understand.

Things that people in Washington or even at the State capital are not going to be prepared to deal with the way the Town of Casey–

Byron R. White:

Well, I take it that you wouldn’t be satisfied if we held that the only way a locality or a town or a county could act on its own would be if the State permitted it to do so.

Thomas J. Dawson:

–That’s very problematical, because the State may not permit… I’m sorry… the State may not–

Byron R. White:

Well, it wouldn’t be satisfied to condition your right… to condition the town’s authority to pass this ordinance on… the State giving it permission to do so.

Thomas J. Dawson:

–Well, in this case the State has given the Town of Casey permission to pass general ordinances under the police power to protect the local governments.

Byron R. White:

Well, I know in this specific… what if it delegated to the county its power to regulate pesticides?

Thomas J. Dawson:

If it’s the kind of power that is the power that their exercising now, fine.

But if it’s the time… the kind of regulation being suggested by respondents that the town is… has its hands tied to only perform that which the State is going to do, then that’s going to be very serious and problematic.

Byron R. White:

So you would not be satisfied in this?

Thomas J. Dawson:

I would not.

William H. Rehnquist:

Didn’t one of the Wisconsin State courts suggest that the town’s ordinance was preempted or at least unauthorized under State law?

Thomas J. Dawson:

The Washburn County Circuit Court held that.

However, the Wisconsin Supreme Court did not deal with that issue and only dealt–

William H. Rehnquist:

They expressed no view?

Thomas J. Dawson:

–Simply ruled on the Federal question.

The second part of this ordinance is the posting requirement.

It simply says that the ordinance allows the town board to require the posting of signs on treated lands to warn citizens of the areas where the public may go so that they can make their own decisions about whether or not to be exposed to those kinds of chemicals.

FIFRA really doesn’t perform these kinds of functions, nor was it really intended to do that.

Respondents attack the entire ordinance.

They say the town can do nothing in this area.

The place–

Sandra Day O’Connor:

Are all the things that the town did here or proposes to be able to do, things that, if the State itself were to do it, would be authorized under the FIFRA scheme?

Thomas J. Dawson:

–If I understand–

Sandra Day O’Connor:

Do you understand my question?

Thomas J. Dawson:

–I’m not positive.

Sandra Day O’Connor:

Is everything that the town asserts its ordinance permits things that the FIFRA statute would allow a State to do if the State were doing it at the State level?

Thomas J. Dawson:

If I understand–

Sandra Day O’Connor:

Is that not clear?

Thomas J. Dawson:

–If I understand your question, I believe the answer is yes.

The town may regulate… it is free to regulate, it is free to do that which the State could do.

Sandra Day O’Connor:

Well, let me put it another way then, because I guess you didn’t understand.

I must not have made it clear.

As I understand it, the Federal statute allows certain State action with regard to the regulation of pesticides.

Isn’t that so?

Thomas J. Dawson:

Yes, that’s correct.

24(a) in fact–

Sandra Day O’Connor:

And is everything that you argue the town can do here something that the Federal law permits?

Thomas J. Dawson:

–Yes.

And that gets us to the act itself.

I think the best place to start with looking at the intent of Congress is the language of the statute.

And that’s section 24 of FIFRA.

24(b)… I’m going to start with 24(b), because that is the express preemption provision of this act, and it only preempts State regulation with regard to pesticide labeling and packaging.

It is specific.

That is as far as the preemption goes.

We then move on to section 24(a) which is the anti-preemption provision of the act.

It’s ironic that respondents depend on the anti-preemption provision of this act for the basis of their argument that local governments are indeed preempted.

Yet this act says that the State may regulate the sale or use of a federally registered pesticide.

It is upon this express language… it is upon the history of this language that respondents go to to make the argument that local governments are preempted.

It does not follow that because States are authorized to regulate that local governments are preempted from regulating.

Antonin Scalia:

Well, that depends upon… surely that depends upon whether you think that the statute, absent any references to States or municipalities, would have preempted the States.

What is your view on that?

Suppose none of the sections that specifically authorize States to do something had been included.

Would this be the type of a statute that is complete enough that we would say this is the systemic regulation by the Federal Government, and States are automatically precluded?

Thomas J. Dawson:

No.

I–

Antonin Scalia:

But that would make a difference.

If you felt the other way on that… if you felt that it were that complete a statute, then unless there were specific authorization for States and for municipalities they would be precluded, right?

Thomas J. Dawson:

–Except that in this case we have 24(b) which is a specific preemption provision.

I assume your question assumes that 24(b) is still here?

Antonin Scalia:

Yes.

It assumes it’s still there.

Thomas J. Dawson:

Yes.

And I would say that in light of the Congress specifically dealing with preemption and going only this far that the States are free to distribute their power to their local governments, to allow their local governments to continue to regulate in this field, that they in fact are not preempted.

Antonin Scalia:

I wish people would use this… what’s the section number in title VII?

Thomas J. Dawson:

It is 136(v).

Antonin Scalia:

136(b).

Thomas J. Dawson:

Section… I might also point to–

Harry A. Blackmun:

Mr. Dawson, it’s completely irrelevant, but where is Casey, Wisconsin?

Thomas J. Dawson:

–Casey, Wisconsin, is a northwestern Wisconsin town–

Harry A. Blackmun:

What county?

Thomas J. Dawson:

–It’s in Washburn County, Wisconsin.

Harry A. Blackmun:

I thought I knew the county, but I’ve never heard of Casey.

Where… is it near Spooner?

Thomas J. Dawson:

It’s near Spooner.

It’s just above Spooner about 30 miles above Spooner.

Harry A. Blackmun:

30 miles north?

Thomas J. Dawson:

Yes.

Harry A. Blackmun:

On the road to–

Thomas J. Dawson:

On the road to Superior.

Harry A. Blackmun:

–Yes.

How large a place?

Thomas J. Dawson:

There are approximately 400 to 500 citizens that live in the town of Casey.

Anthony M. Kennedy:

Large enough to pass the ordinance in question.

Thomas J. Dawson:

Large enough to be authorized by the State legislature to pass the ordinance, yes.

There are other provisions in FIFRA that also suggest that Congress contemplated that there would be local regulation.

In particular, I point to section 22, which is 7 U.S.C. 136 (t) of the act.

This act requires the EPA administrator to cooperate with local units of government in securing uniformity of regulations.

Thomas J. Dawson:

This suggests that local governments are contemplated to have the authority to regulate pesticides for which the EPA should seek uniformity through cooperation not through preemption.

Respondents rest their case heavily on the legislative history of this case.

Antonin Scalia:

Mr. Dawson, before you get to that–

Thomas J. Dawson:

Yes.

Antonin Scalia:

–Did… has the State of Wisconsin taken a position on this matter?

Some States have come in on your side and some States have come in on the other side.

Where is the State of Wisconsin in this?

Thomas J. Dawson:

The State Supreme Court held in a 4-3 decision that the Federal law preempts local governments from regulating pesticides.

Antonin Scalia:

I understand, but the executive of the State has not intervened in this matter or filed anything as an amicus?

Thomas J. Dawson:

That’s correct.

There appears to be no official position.

Going to the legislative history of the act.

We started in the House.

It’s true that the Agriculture Committee voted not to authorize local regulation and that it’s intent was to preempt.

However, this act, this intention, this desire by one legislative committee does not translate to an affirmative act by the full House to preempt local regulation.

Also, on the House floor–

William H. Rehnquist:

This is the House Agriculture Committee you’re referring to, Mr. Dawson?

Thomas J. Dawson:

–Yes, it is.

Excuse me.

The House debated on the floor also when the bill was… went to the floor an amendment to Senate 2 of section 24(a), which is the preemption… the anti-preemption provision, State regulation of general use pesticides.

But again it did not really address the local regulation of pesticides.

Over on the House side… I’m sorry… on the Senate side, the Senate Agriculture and Forestry Committee did intend to preempt local regulation by not authorizing local regulation.

The Senate Commerce Committee, however, differed with the Senate Agriculture and Forestry Committee and they did not wish to preempt local governments.

And it never really disavowed… never did disavow its view that FIFRA should not preempt local regulation.

Again, the language of the act is what the full Congress voted on.

The act also had to go to conference committee.

There was not complete agreement on the two bills coming out of the House and the Senate.

And the House and the Senate conference committee did not address or resolve the dispute over the issue of local preemption.

I’d like to reserve my time.

David H. Souter:

Are you… before you sit down, would you comment specifically on the excerpt from legislative history that’s referred to on page 23 of the opposing counsel’s brief where they point out that one Senator inserted in the congressional record a statement prior to the vote that the amendments should be understood as depriving local authorities or political subdivisions of jurisdiction.

David H. Souter:

Is that significant?

Thomas J. Dawson:

That statement has been given different significance by different courts.

That was I believe Senator Allen, the chairman of the Senate Agriculture and Forestry Committee, who stated the view of the Agriculture and Forestry Committee that local governments should be considered to be preempted.

However, this by itself does not establish… the full Senate adopted that view.

Simply because a Senator placed that in the record does not indicate that the full Senate agreed with that view.

And therefore, there is not a clear intent on behalf of the Congress to preempt.

David H. Souter:

Was there any opposing statement submitted into the record at that point?

Thomas J. Dawson:

I’m not aware of any.

I’d like to reserve my time, Mr. Justice.

William H. Rehnquist:

Very well, Mr. Dawson.

Mr. Wallace, we’ll hear from you.

Lawrence G. Wallace:

Mr. Chief Justice, and may it please the Court:

Pesticides, even if federally registered and economically beneficial, are poisons.

And it is no small matter to conclude that Congress decided by implication comprehensively to preclude local units of government from any regulation of the use of these poisons in the community in order to protect against contamination of wellhead and other drinking waters and against other dangers to the health or safety of persons or animals.

It is our view that Congress did not make that determination, even though some members of Congress expressed a preference for that result.

It is equally our view that nothing in FIFRA precludes a State as a matter of State law from determining that local governments should be precluded and that all State regulation of pesticides should be centralized in a State agency, or as California prefers in the brief that it submitted, joined by some other States, that local units be enlisted only in aiding in the administration of State laws.

FIFRA leaves that determination as a matter of State law up to the States.

Anthony M. Kennedy:

Have we ever said specifically at this Court that the Federal Government can direct a State in allocating its powers to its political subdivisions?

I noticed there were certain statutes cited in some of the amicus briefs on railroad safety and right to work laws where other courts have said that this is an appropriate kind of preemption to find.

At least is there some constitutional concern or some constitutional constraints about the Federal Government directing the allocation of powers in this way?

Lawrence G. Wallace:

We addressed that briefly in a concluding footnote in our brief, Mr. Justice.

This Court has not addressed the subject other than in the context of the Federal Expenditure Program in the case we cite on the last page of our brief in the footnote, Lawrence County against Lead Deadwood School District, in which the court held that State law was preempted by a Federal statute which specified how the local units of government would use the Federal… federally supplied funds.

I don’t think a constitutional question need be reached in this case.

We have addressed it very briefly in that footnote and pointed out that it really does rather little for the preservation of State power for a constitutional holding to specify that, if Congress determines that the Federal program will not work properly if there’s a multiplicity of local regulation, it must also preclude regulation by the States themselves even though its preference would be to allow State regulation.

That doesn’t seem to us to serve any purpose of the Tenth Amendment.

This is not the kind of case where anyone claims that this kind of regulation of third party conduct is not something that Congress could exclude the States and local government from altogether.

It preempted–

Antonin Scalia:

Certainly, Congress can give powers to the executive branch and prevent delegation within the executive branch of those powers.

It does that all the time.

Certain things have to be done by the Attorney General.

Antonin Scalia:

Certain things have to be done by the President.

So if that’s any parallel, it’s no problem to do the same with respect to the States.

Lawrence G. Wallace:

–That is correct, Mr. Justice.

And the–

Byron R. White:

Well, Mr. Wallace, I think… could you just briefly say what powers do you think these locals are entitled to exercise, absent any express delegation from the State?

Lawrence G. Wallace:

–Well, the extent of delegation from the State is entirely a matter of State law.

Byron R. White:

I know, but say there’s no delegation from the State at all, and it’s the State… the State is just silent, although the State enjoys the powers that FIFRA gives it.

What powers do the locals have, independent of the State law?

Lawrence G. Wallace:

FIFRA itself does not impose any limitation as a matter of Federal law on whether the power can be exercised by the State government or its State agency or by a local unit of government exercising home rule.

Byron R. White:

I don’t suppose… don’t you… I don’t suppose a local… locality could regulate pesticides in a manner that the State itself could not regulate.

Lawrence G. Wallace:

That is correct, and I’m speaking only of regulating the use of pesticides.

The… FIFRA gives very broad authority to the States to restrict the use of pesticides.

With respect to that subject, FIFRA provides a floor but not a ceiling on restrictions that can be imposed.

Byron R. White:

And within that area of State authority, the locals can do the same thing absent some restriction imposed by the State.

Lawrence G. Wallace:

That is correct.

This is our view under FIFRA.

Much of the policy argument about how this might undermine the policies of FIFRA overlooks the breadth of the delegation of additional State authority to restrict pesticide use.

The pertinent statutory provisions appear on page 5 of the blue brief, petitioners’ merits brief, under the heading Authority of States, in the middle of the page.

These are sections 136v(a) and (b) or 24(a) and (b), as one my prefer.

The only preemption provision is (b), which says that no State shall impose additional labelling requirements.

We’re on page 5 here.

If we’re talking about negative implications, which is the basis on which a preemption claim is made from the text, ordinarily the negative implication would be that unless there is an attempt to impose labelling requirements, there is no other blanket preemption.

There may be conflict preemption.

Antonin Scalia:

But what the other side says, Mr. Wallace, is that you’re reading it backwards… that is, is not a preemption provision at all.

It’s a permission provision… that without this provision the act is so complete in and of itself that we would have held the States cannot enter this field.

The Federal Government did it very thoroughly, has all sorts of provisions, and all sale and use of pesticides are to be governed by the Federal Government.

So this is not a preemption provision.

It’s a permission provision.

It says, despite what would normally be the preemption of this statute, we’re going to allow a State to regulate the sale or use.

If you look at it that way, it’s quite different, and the negative implication is just the opposite.

Lawrence G. Wallace:

There’s rather little basis in what EPA actually undertakes to do in the communities to support that argument.

The EPA does not touch upon the subject of posting notices.

There are any number of hypotheticals that could be raised with respect to protection of ground water sources from accumulated runoffs.

EPA does go into great detail about tolerance levels left on food stuffs from the use of pesticides, but it can’t as a practical matter undertake a determination of where runoffs will go and how they will accumulate in sources of drinking water in particular communities.

That depends so much on how widespread the use of the pesticide is and where the runoffs will accumulate.

Those are matters that require quite specific local knowledge.

EPA does not… it does have directions on the labels of the pesticides so that those applying the pesticides… at least the purchaser and if the applicator has the original label, the applicator will know what precautions to take.

But this doesn’t in any way notify other persons who might be affected by the use.

EPA does not address the question of whether pesticide application in a child care facility or a school should be restricted to hours when the children are not present.

There are just many subjects that EPA does not address, either by regulation or under the statutes.

John Paul Stevens:

Mr. Wallace, in that connection, if the EPA prescribes a regulation… I mean a labelling deciding… describing how a pesticide can be used safely, is there any violation of Federal law if a person using the pesticide chooses not to follow the instructions?

Lawrence G. Wallace:

The… they’re authorized for use only in accordance with the label.

John Paul Stevens:

I understand, but my question is whether… if a person goes beyond, uses it in a way which would violate the labelling instructions, is that person who uses the pesticide subject to any penalty under Federal law?

Lawrence G. Wallace:

Well, it would… I don’t know what the penalty would be.

I just haven’t looked into that in preparing the case.

It definitely would be something not authorized under the Federal–

John Paul Stevens:

Because it seems to me the local ordinance here is focusing on the user rather than the labeler, whereas the Federal law tends to focus on the contents of the label and descriptions of permitted use.

Lawrence G. Wallace:

–That is true.

That is true.

And it is a violation of the Federal law to use the pesticide for a use that is not in accordance with the label.

John Paul Stevens:

I see.

Lawrence G. Wallace:

The label requirements are to define the permissible uses, but the States have carte blanche to restrict uses beyond that.

The subsection (a) that I was just going to focus our attention on is designed for that purpose and the pertinent committee reports say that this allows additional restriction by the States.

And there’s nothing in FIFRA with respect to pesticide use that ordains that a State has to allow the use of any pesticide for any purpose.

A State could adopt a measure going totally organic and say that no pesticide henceforth will be used in the confines of this State, and nothing in FIFRA would prevent it.

And if that–

Antonin Scalia:

Why does this run off problem that you spoke about before… why would that have to be handled at the local level?

Lawrence G. Wallace:

–It doesn’t have to be.

But in many States they choose to repose that authority in the local governments and the–

Antonin Scalia:

Don’t the FIFRA statutory provisions or regulations prevent the use of certain pesticides where they would be likely to get into streams?

Lawrence G. Wallace:

–That is not addressed in the kind of detail that the Safe Drinking Water Act addresses it, which we have cited in our brief.

The Safe Drinking Water Act of 1986 is designed to deal more specifically with contamination of wellhead water and other public drinking waters.

And that contemplates an active role by local governments, although again it doesn’t require the States to repose that authority in the local governments if the States prefer to meet their obligations otherwise.

But that… since an argument of preclusion of local authority, and FIFRA by negative implication is the essence of an argument that if the statute is ambiguous and should be read as containing a negative implication, we think that the 1986 act can appropriately be looked at under the standards of this Court’s recent opinion in West Virginia University Hospitals to–

Antonin Scalia:

You can argue that under the scheme of the statute you really need local regulation.

You can make that argument in fact, because it’s clear that the States can prohibit local regulation.

Lawrence G. Wallace:

–That is correct.

Congress did not require the States to take that route.

States vary a great deal in the extent to which they rely on home rule and local governments to perform certain functions.

But traditionally, local governments have been very involved in the protection of the health and safety of the community on questions of this kind.

And certainly–

William H. Rehnquist:

Thank you, Mr. Wallace.

We’ll hear argument from you now, Mr. Kent.

Paul G. Kent:

Mr. Chief Justice, and may it please the Court:

The circuit court of Washburn County, Wisconsin and the Wisconsin Supreme Court found the pesticide regulation enacted by the Town of Casey to be preempted by Federal law, and in asking this Court to uphold these State court decisions, I urge this Court to consider three key factors.

First, the statutory language and the legislative history of FIFRA demonstrate a clear congressional intent to preempt local regulation.

Congress expressly considered but rejected local regulation.

Second, Congress created a Federal/State scheme which is responsive to Federal, State, and local needs.

And it did so because Congress recognized that pesticide regulation is more than simply a local concern and must be subject to Federal and State control.

But that scheme also allowed… also allows local needs to be addressed.

And the third point I would like to emphasize as I begin this morning is that the Town of Casey ordinance, the ordinance before the Court, is an extraordinarily broad ordinance.

It creates a comprehensive permitting program which is totally independent of any State or Federal program.

William H. Rehnquist:

Are you suggesting by that Mr. Kent that if it were a narrower ordinance it might not be preempted?

Paul G. Kent:

I could see that if the ordinance was very narrowly drawn there may be some areas in which it would not run afoul of FIFRA, but that would be very limited circumstances.

William H. Rehnquist:

Local governments in your view are left some authority… are granted some authority by FIFRA?

Paul G. Kent:

As we’ve set forth in our brief one area would be is if it falls outside of the preempted field.

If what you have is a local regulation which has merely an incidental impact on the regulation of pesticides, we don’t believe that that would be precluded.

Byron R. White:

FIFRA doesn’t occupy the field?

It doesn’t exhaust the universe of possible pesticide regulation?

Paul G. Kent:

Well, in our view, Your Honor, we would… we believe–

Byron R. White:

Well, if it did, why the locals couldn’t do anything.

Paul G. Kent:

–That’s true.

Perhaps you’ve misunderstood my… or I didn’t articulate clearly my answer to the Chief Justice… and that is if there is an area where the local units of governments are regulating and it has a totally incidental impact on pesticide regulation, that might be permitted.

I think the example I gave in the brief was when a town rezones an area from a commercial district to an agricultural district, there will be an impact on pesticide use and regulation by simply the fact that the use is going to be changed for that area.

But that’s a very incidental impact on pesticide regulation and it would fall outside of the preempted field.

I think to get back to the Casey ordinance, what’s important to realize is that if this ordinance is not preempted by or in conflict with Federal law, then few is any local ordinances would be preempted.

And literally tens of thousands of local units of government across the country would be free to enact almost any kind of pesticide regulation.

Byron R. White:

Well, what is it in conflict with?

Paul G. Kent:

We believe that the Casey ordinance is in conflict because it stands as an obstacle to accomplishing the purposes and objectives of FIFRA and frustrates the Federal scheme.

We believe that it’s in conflict in several significant effects.

Anthony M. Kennedy:

Well, then would a State law which had exactly the same provisions be subject to the same invalidity in your view?

Paul G. Kent:

I do not… it would not under a field preemption analysis, but possibly–

Anthony M. Kennedy:

Well, under this statute and on this case?

Paul G. Kent:

–On… under a conflict analysis, it could pose those types of problems.

If I could explain, I think that if we had a situation where the State of Wisconsin authorized every local unit of government to enact its own pesticide ordinance, you could have sufficient lack of coordination that if could well be in conflict with the FIFRA scheme.

Sandra Day O’Connor:

Well, what if the State of Wisconsin itself adopted the exact same scheme to use Statewide that Casey… the Town of Casey adopted here?

Would that be preempted by FIFRA?

Paul G. Kent:

No, it would not, Your Honor.

Under a field preemption analysis, we believe the States under FIFRA do have the authority to regulate this.

Sandra Day O’Connor:

But wouldn’t it be just as much of a conflict with the purpose?

Paul G. Kent:

Not, Your Honor, if it was enacted on a Statewide basis.

If, for example, what we had was a scheme such as that enacted by the State of California where you have local units of government, in that case the county agriculture commission, that can do certain things, but subject to State review and State supervision.

That would not be a problem.

Sandra Day O’Connor:

Well, it boils down then just to your objection that whatever acts are taken are taken at the local level.

Paul G. Kent:

The problem with it being–

Sandra Day O’Connor:

Isn’t that right?

Paul G. Kent:

–That’s–

Sandra Day O’Connor:

Otherwise you’re being very inconsistent.

Paul G. Kent:

–Yes, Your Honor, the… we would object to the local regulations for the reason that you do not have the type of coordination that you get on a Statewide level.

Antonin Scalia:

I assume you would also say Justice O’Connor’s… you responded to Justice O’Connor’s question by saying it wouldn’t conflict if it were on a Statewide basis.

Antonin Scalia:

What if it weren’t on a Statewide basis, but it was passed by the State legislature?

The State legislature passes a law saying the Town of Casey… in the Town of Casey, the following restrictions on pesticide use shall apply.

And it adopts similar laws for other counties.

They submit… they just pump their municipal ordinances through the State legislature.

Now, that would clearly be permitted under the statute, wouldn’t it?

Paul G. Kent:

It would be permitted within the… again, under a field preemption analysis, I do not believe that it would–

Antonin Scalia:

Well, field preemption is trumped by the provision that says a State may regulate the sale or use of any Federal… I mean that trumps any field preemption, doesn’t it?

Paul G. Kent:

–No, I believe that looking back, Your Honor, at the way the statute was defined and the legislative history that Congress intended to preempt local regulation of pesticides.

Antonin Scalia:

This is a local regulation.

It’s State regulation but not uniformly throughout the State.

If they wanted to say a State may regulate uniformly throughout the State the sale or use of federally… they would have said it.

They didn’t say that.

They just said a state may regulate.

Paul G. Kent:

Yes, a State may regulate on less than a Statewide basis.

Antonin Scalia:

Right.

Paul G. Kent:

I think there comes a point at which there very well could be a conflict.

I don’t think it’s approached at this–

Antonin Scalia:

I don’t know why you fight this so hard, because some of us might think it’s useful to be able to have different types regulation in various areas of the State.

Paul G. Kent:

–I–

Antonin Scalia:

And if you’re telling me that that’s impossible, you know, I’m not sure you’re helping your case.

Paul G. Kent:

–I’m sorry, Your Honor, I’m not saying it’s impossible.

And in fact, Wisconsin uses that scheme very effectively.

It, for example, allows different restrictions with respect to aldicarb and some other pesticides throughout the State.

My only concern with your question is that if Wisconsin simply had a blanket delegation to local units of government which said enact any kind of pesticide ordinance you like and it’s okay with us.

I could see under that circumstance you could have a conflict with FIFRA.

But under this scheme I do not believe such a conflict would arise.

Antonin Scalia:

Well, that’s this case.

That’s just a general delegation by the State.

That’s what you have here… this… towns can enact ordinances.

Paul G. Kent:

Right, and I believe that that is preempted, Your Honor.

Paul G. Kent:

I would like to highlight a few portions of both the statutory language and legislative history, because I believe that what is important in looking at this case is the Federal/State scheme which Congress in fact enacted.

Under that Federal/State scheme only States may regulate pesticide use beyond the Federal Government and that’s set forth in section 136v(a).

And Congress very carefully defined the term FIFRA.

And it says States means States and certain territories and the District of Columbia.

It doesn’t say it includes political subdivisions or it didn’t even say that the term “state” includes States, leaving it open.

It said States means States.

We believe that not only is there that specific statutory definition, but that that is underscored by the intentional differentiation Congress made throughout FIFRA.

In that legislative scheme, States may do a number of things other than regulate pesticide use.

They may issue experimental use permits, certify pesticide applicators, obtain exemptions for emergency conditions, and exercise primary enforcement authority.

Political subdivisions, a term also used within the statute… political subdivisions are only authorized to inspect books and records, cooperate and monitoring, and cooperating in carrying out the chapter, and in securing the uniformity of regulation.

To allow the petitioners’ view of this statute to stand, this Court would first have to conclude that Congress really didn’t mean what it said when it defined the term “states”… that then Congress really didn’t mean what it meant when it used the term “state” and “political subdivision” on a differential basis.

And it is only when one disregards those key elements of the statute that you can reach petitioners’ provision.

And I would submit, Your Honor, that really does violence to both the statutory language and legislative intent here.

Sandra Day O’Connor:

Well, counsel, in the absence of any legislative history of the type found here, would you think that a definition of the term FIFRA would normally in another Federal statute preclude the States from allowing their political subdivisions to do the same thing?

Paul G. Kent:

Yes.

I believe it would, particularly when one construes, not only the definition, but the fact that Congress used the term “state” in some places and then used the term “state” and “political subdivision” in others.

There’s that intentional differentiation which I think underscores that the definition–

Sandra Day O’Connor:

Have any cases of this Court or the courts of appeal in other statutes gone off on that rationale, do you know?

Paul G. Kent:

–Certainly, there are cases which indicate that where Congress intentionally differentiates between terms that that congressional… that that indicates congressional intent to use those terms differently.

I don’t… I’m not aware of any case that is specific to this type of scheme.

But as a matter of basic–

Sandra Day O’Connor:

And you don’t normally think that State action includes action taken by local political subdivisions that are authorized by States?

Paul G. Kent:

–It might or might not.

It depends upon the context of the statute, Your Honor.

I believe that in some cases, one can either find that in the express terms of the statute or draw that implication in other cases.

Sandra Day O’Connor:

Well, it’s a little hard to find on the face of this statute that the term “state” couldn’t include authorized action by political subdivisions.

Paul G. Kent:

I think provided that those actions were specifically authorized by the State there would be no problem.

But that’s what we have here.

Sandra Day O’Connor:

Well, but it’s not a… trying to tell a State what kind of law it has to pass to authorize action.

Wisconsin may pass very general laws that allow cities to take action of this kind.

Paul G. Kent:

Yes, but I don’t believe that they have really done so here, and again, I think it’s not… in this particular context, it’s not just the definition of the term FIFRA which draws that differentiation.

All of the regulatory authorities directed to States.

And it’s only the subservient cooperative roles that local, political subdivisions can exercise.

I would like to turn briefly then to the legislative history which I think is important in this case, because if ever there was a case where there was clear legislative history, I believe this is such a case.

First, we have explicit statements from the Senate Agriculture and Forestry Committee, and I quote,

“The regulation by the Federal Government and the 50 States should be sufficient and should preempt the field. “

unquote.

But that language doesn’t occur in a vacuum.

That comes out of a debate that occurred in both the House and in the Senate.

And when this matter was before the House, the House had before it an administration proposal which included in what latter became section 136v, a section that said States and political subdivisions.

That language was deleted by the House Agriculture Committee when they concluded regulation by the Federal Government and the 50 States should be sufficient and should preempt the field.

When this matter went over to the Senate, the same issue was squarely before the Senate.

The Senate Agriculture and Forestry Committee adopted the House version and then the Senate Commerce Committee said, well, let’s take a look at putting local units of government back into section 136v, sub (a).

And the result of that… there was a… the Senate Agriculture and Forestry Committee explicitly rejected that amendment.

The compromise committee of the Senate that looked at these two committees, rejected that.

And then ultimately the version that was adopted by the full Senate was the version that was proposed by the Agriculture and Forestry Committee.

And I would submit that this is not a case where we have a compromise or an agreement to disagree or certainly not legislative silence.

This was a case where kind was specifically addressed the issue that’s before the Court today… should we include local units of government in allowing regulations beyond FIFRA, and Congress resolved that question by saying no.

David H. Souter:

Mr. Kent, just to make sure I understand it.

The statement that you quote on page 23, as I understand what you’ve just told us was a statement specifically referring to what is now subsection (b).

Paul G. Kent:

Subsection 136v.

David H. Souter:

v(b), that’s right.

Paul G. Kent:

v sub (a)… v sub (a).

David H. Souter:

I beg your pardon.

Yes, I stand corrected.

Paul G. Kent:

So that at this point, one not only has to disregard the statutory language… the definition, the differentiation, but one also has to disregard the fact that Congress expressly considered this question and rejected petitioners’ view point.

William H. Rehnquist:

Did the committee report refer to the particular sub… sections and subsections you’re talking about?

Paul G. Kent:

Yes, I believe it did, Your Honor.

It was referring to the text of the bill, which would be 24(a) and 24(b).

William H. Rehnquist:

Indicating that it was those particular sections or subsections which did preempt it?

Paul G. Kent:

Right, that was the Senate Agriculture and Forestry Committee in particular.

And what the Senate Commerce Committee attempted to do was to amend that section by including political subdivisions.

And that amendment was rejected first by the Agriculture and Forestry Committee and then ultimately their view prevailed in the Senate.

I would like to just touch briefly on my second point, which is that the Federal/State scheme which Congress enacted here balances both Federal, State, and local concerns.

My first point here is–

Antonin Scalia:

Excuse me.

Paul G. Kent:

–Sure.

Antonin Scalia:

I suppose that if State throughout this whole things means State or any municipality as well, then a provision like… oh, gad, there’s so many different letters here… 136b(f) which says that the administrator shall, under such regulations, authorize any State to issue an experimental use permit for a pesticide.

I suppose that would apply to municipalities, too.

Then he can authorize municipalities to issue experimental use permits.

Paul G. Kent:

If you–

Antonin Scalia:

Now, has he done that?

Has he authorized any–

Paul G. Kent:

–Has the State authorized it?

Antonin Scalia:

–No, has the administrator?

Paul G. Kent:

I… not that I know of.

Antonin Scalia:

Authorized any municipalities to issue experimental use permits?

Paul G. Kent:

Not that I’m aware of, Your Honor.

Antonin Scalia:

But he’d be able to do that if State means both the capital state government and the municipalities.

Paul G. Kent:

I believe that would be the logical conclusion of our argument.

Antonin Scalia:

It’s scary, isn’t it?

Paul G. Kent:

We believe so, Your Honor.

To turn to two of the related problems that would result in allowing local units of government to have unfettered decision making in this area, we cited a number of them in our brief and I would like to just highlight two.

One is what I’ve referred to as the so-called gypsy moth problem.

If you have local units of government which can restrict pesticides in their area, they would then be able to allow a noxious pest to grow and develop, and then spread onto neighboring jurisdictions.

At that point, the neighboring jurisdictions not only have to use more pesticides, but the pest is spread over a larger area.

So that–

William H. Rehnquist:

Mr. Kent, we deal with any number of preemption cases here, as you know, every year.

And ordinarily if it’s thought that there is no preemption, the State and local governments are left in exactly the same position as you say they should not be left in here.

Not only is the State free to regulate, but if State law allows, the local unit is allowed to regulate.

William H. Rehnquist:

So that’s a fairly normal consequence of a finding of no preemption.

Paul G. Kent:

–If I understand your point, Your Honor, the… your point is that if the States are preempted that the–

William H. Rehnquist:

No, my point is that you’re saying look at what extravagant things might be… happen if the various localities regulate this subject.

And I’m saying that possibility is opened up every time we hold that there is no preemption by the Federal statute.

Not only State governments can regulate, but ordinarily local units can regulate.

Paul G. Kent:

–That’s true, Your Honor.

But I would submit that this is a particularly problematic area in the pesticide area, because if a local unit of government is allowed to restrict pesticides in its jurisdiction, that problem isn’t simply transferred in the same form to a neighboring jurisdiction.

It can be transferred in a way that makes the problem worse… that the pests grow… that you have a larger area over which to control the pests and the use of more pesticides.

So it’s actually exacerbating the problem.

Antonin Scalia:

Why can’t the State administrator take care of that problem?

Paul G. Kent:

The State administrator could if it was a problem of significant enough Statewide–

John Paul Stevens:

Well, you’re describing one that’s significant to adjoining jurisdiction.

I think that would be the perfect case for State intervention.

In fact I would think the State would be more likely to intervene than the Federal Government.

Paul G. Kent:

–In a… I use that example simply to illustrate the general problem.

And I would agree that in a Statewide emergency, the State would have the authority to come in and take care of that problem.

But where the situation is perhaps even more problematic is where you don’t have a Statewide problem, but you have a problem that’s a much more regional or localized problem.

You have a small farm that happens to cross two jurisdictions, and in one jurisdiction he’s precluded from using a certain pesticide to control, say, a certain leaf hopper or mite or something that’s destroying his crop.

That then gets… that then transfers to the neighboring–

John Paul Stevens:

Yes, but that works both ways.

Also, if you allow unrestricted air spraying, you can affect the water supply that can go into the next county, too.

I think that either use or non-use can cause harm to neighboring jurisdictions.

Paul G. Kent:

–Yes, but I think that the… I would agree with that as a general proposition.

My point is that the harm actually intensifies as it spreads, because instead of having that same problem in the neighboring jurisdictions of some overspray and drift, what you have is the growth of the pest and a larger problem than you had originally.

John Paul Stevens:

May I ask you this question?

Supposing Wisconsin passed the statute that said, air spray… whether or not spraying by air shall be permitted in any area shall be determined by the local jurisdiction, period.

Then would that allow the local governments then to regulate?

Paul G. Kent:

I don’t believe so, Your Honor, and for this reason that the statutory scheme and as confirmed by the legislative history here means that it is the State which must be the ultimate regulatory jurisdiction.

John Paul Stevens:

And that regulatory power cannot be subdelegated to lessor units under your view?

Paul G. Kent:

Local units of government can participate in administering and enforcing a State program.

Paul G. Kent:

So, for example, if–

John Paul Stevens:

But if the State itself isn’t supervising the program, you’d say they could not delegate authority to individual government units.

Paul G. Kent:

–That is correct.

There would have to be continuing State jurisdiction and supervision.

John Paul Stevens:

Could I ask you then if… what do you understand of the provision for cooperation where they do specifically refer to local jurisdictions?

What kind of cooperation do you understand that to be referring to?

Paul G. Kent:

I would see that in two respects, Your Honor.

The first is the type of cooperation that might come up in the context of where the State decides to regulate a pesticide with respect to a particular local area, as Wisconsin does, for example, in saying in certain counties we have additional restrictions on the pesticide aldicarb.

There you would want to have some contact and cooperate with the local officials in, you know, setting up the monitoring and in administering that program.

John Paul Stevens:

I see.

Paul G. Kent:

I think another way of looking at it would be the California model.

The California model says, we will allow local units of government to do certain things, and there’s a specific delegation to those local units of government, but the State retains control.

A decision by, for example, the county Agricultural Commissioner to issue a special use permit in California is subject to specific review by the State in the State Administrative Procedure Act.

Under the California scheme if a local unit of government proposes a specific regulation for its area, the State will allow that to happen provided there is an express approval by the State.

Now, that type of a scheme really allows the purposes of FIFRA to be served, because it brings to that scheme not only the State expertise but the type of coordination that you would have on a Statewide level.

And it really… it serves to provide a Statewide perspective so that some of the most parochial problems can be then vetoed by the State effectively.

So it’s that State control which we think is key here, and what Congress was intending to do as it set forth in the statute and the legislative history.

I would like to highlight again and perhaps clarify some of our earlier comments with respect to the conflict issue here.

And I believe that the conflict that we’re talking about with respect to this ordinance is not necessarily… although it could be an impossibility-type conflict where the Federal Government says X and the local unit of government is saying Y.

Our concern with this type of ordinance is much more in that it frustrates the Federal scheme in several respects.

The Federal scheme was designed to provide coordination and cooperation.

This ordinance, which requires… which establishes an independent regulatory scheme, operates wholly outside of any State program.

If this particular ordinance was allowed to stand, local units of government would be free to enact whatever they want, and the goal of coordination would be lost.

Second, I think that this type of ordinance presents the same type of problems with effective use of pesticides that we’ve talked about earlier.

There is a problem of parochialization, that the local units of government concerned with their own narrow interests may inadvertently be ignoring the larger State or regional interests.

And as a practical matter, having this type of ordinance by a unit of government with the least technical resources we believe thwarts the congressional purpose that there by effective pesticide regulation managed by those units of government which can bring the effective and efficient regulation of pesticides to bear, to have the technical resources to do that.

That if this ordinance is allowed to stand, where the conflict arises, then, is in a case where you then have the burgeoning of literally tens of thousands of these types of local ordinances where you would have one jurisdiction requiring a permit for 60 days prior to use, as the Town of Casey has done here.

Then in the next township, 6 miles down the road there’s not a permitting scheme, but there is a very elaborate notice and posting scheme.

And then the next 6 miles down the road, you have another type of ordinance that, say, perhaps requires a review of the pesticide re-registration process or something on that order.

Congress among other things in its concern with coordination, was also concerned about burdens on interstate commerce.

Paul G. Kent:

And I think many of the amicus parties which have filed briefs here today have highlighted those.

And to just give you one example of where that could be a problem, I would submit the utility rights of way or rail corridor problem is an excellent example.

A railroad or a rural electric cooperative in northern Wisconsin which crosses several hundred miles would have to submit to regulations… a different set of regulations every 6 miles as it goes across the State under this type of ordinance.

John Paul Stevens:

May I ask one question about this ordinance?

Paul G. Kent:

Yes, Your Honor.

John Paul Stevens:

Is there any other regulation of aerial spraying in Wisconsin other than ordinances of this kind?

Paul G. Kent:

There is a regulation under the Wisconsin Administrative Code, Ag 29.

There are certain restrictions on spraying, and in fact, there are certain limited advanced notice provisions as part of that State–

John Paul Stevens:

But this is more restrictive than that regulation obviously?

Paul G. Kent:

–Right, considerably more restrictive.

And again our concern here ultimately is with the multiplicity of these types of regulations could effectively preclude any use of pesticides by these governments.

In concluding, I would just like to note that congressional intent we believe remains the ultimate touchstone here.

And we believe Congress established a coordinated Federal and State program.

And it provided that States can regulate use and defines States to preclude local governments.

It underscored the different roles between States and local governments, allowing States to cooperate and participate in those State programs.

And I think as the words of the statute say, in carrying out the provisions of this chapter, they can assist in a State program.

But they cannot we submit under this statute and this legislative history be involved in a case where they can do so wholly independent and without regard to the State program or the Federal program.

William H. Rehnquist:

Thank you, Mr. Kent.

Mr. Dawson, you have 1 minute remaining.

Thomas J. Dawson:

Mr. Chief Justice, and may it please the Court:

First, I’d like to come back to a question that Justice Souter raised regarding Senator Allen’s activity on the floor of the Senate, and I may have misspoke.

I want to refer the Court to the Solicitor General’s brief on page 20 in which it makes very clear exactly what happened.

There Senator Allen inserted an explanation of the bill as it appeared in the original report of the Committee of Agriculture and Forestry, which included that paragraph concerning the authority of local governments from the initial report.

Thus, he did not read it into the record while on the Senate floor.

And the fact is that the Senate… the dispute that existed between the Senate Agriculture and Forestry Committees as well as the Commerce Committee was never resolved.

That dispute was never resolved in the passage of this act.

This act went to a conference–

William H. Rehnquist:

Thank you, Mr. Dawson.

The case is submitted.

The honorable court is now adjourned until Monday next at ten o’clock.