2017 | Politics

County Council to Appeal Judge’s Ruling Striking Down Pesticide Ban

This month, a judge ruled that the local law was preempted by state law

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Supporters of the pesticide ban wore gas masks to the council's vote approving the measure in October 2015

Andrew Metcalf

The Montgomery County Council is not backing down after a judge struck down the general pesticide ban that was set to go into effect next year.

The council announced Wednesday that it will appeal a ruling by Judge Terrence McGann, who ruled this month that the ban on using certain pesticides on private lawns passed was preempted by state law. The council passed the ban in 2015.

McGann ruled that the state has a comprehensive system of regulating pesticides. It works in coordination with the federal Environmental Protection Agency’s efforts to regulate the products. The county ban would create confusion in the marketplace, McGann ruled.

Council President Roger Berliner said in an interview Wednesday that eight council members indicated they would like to appeal the ruling, while one member did not respond to his poll. He declined to name the member who did not respond.

“Our council’s legal team advised us that the county would have a reasonable chance of prevailing in an appeal of the circuit court’s decision,” Berliner said in a statement. “It is important that the council is allowed to protect our community from the threat posed by pesticides on private lawns.”

The general ban on pesticide use on private properties was scheduled to go into effect Jan. 1 and would have prevented residents from using pesticides that have been identified as or could be carcinogenic to humans.

Council member George Leventhal, who sponsored the pesticide legislation, said he was delighted the council is appealing the ruling.

“Studies have linked numerous chemicals found in lawn pesticides to cancer and other serious health conditions,” Leventhal said in a statement. “The council sits as the Board of Health, but the court has ruled that we are preempted from protecting our residents from this health threat. This sets a worrisome precedent that should be overturned.”

The ruling will be challenged in Maryland’s Court of Special Appeals, according to council attorney Josh Hamlin. The county has to formally file its appeal by the first week of September, Hamlin said.

Pesticide manufactures, local lawn care businesses, county residents and the pesticide industry group Responsible Industry for a Sound Environment successfully challenged the pesticide ban in circuit court.

After McGann issued his ruling, the plaintiffs’ attorney Gus Bauman said the judge “made it so clear that the County Council cannot override the state government and he has also made it very clear that the regulation of pesticides is so comprehensive by both the state and federal governments that there is nothing else the county can do with its ban on pesticides.”

Bauman called the judge’s ruling “precedent setting.”

The council initially passed the bill 6-3, with Leventhal, Marc Elrich, Hans Riemer, Nancy Navarro, Tom Hucker and Nancy Floreen voting in favor it. Berliner, Sidney Katz and Craig Rice voted against it.

County Executive Ike Leggett allowed the bill to become law without his signature because he previously warned the council it would likely face a preemption challenge in court. The council passed the bill with the majority needed to override Leggett’s veto.

The state’s Attorney General’s office also warned the council before it passed the bill that it would likely be preempted by state law.

Despite this, council members are pressing forward with the appeal on the grounds that the county should be able to adopt a regulation that a local board of health could adopt.

Floreen also was pleased the council will appeal the ruling.

“Having battled breast cancer myself, I am particularly sensitive to the need to limit our exposure to toxic chemicals,” Floreen said in a statement. “I am concerned with the public’s health and welfare, and that all residents, particularly our children, stand to benefit from reduced exposure to pesticides.”