Five Montgomery County lawn care businesses and seven residents have filed a lawsuit challenging the county’s ban against pesticide use on private property that was approved by the County Council a little over one year ago.
The lawsuit alleges the ban would negatively affect the lives of the residents and the business of the lawncare companies by preventing them from using pesticides and herbicides regulated and approved by the state’s Department of Agriculture as well as the federal Environmental Protection Agency (EPA), according to court documents filed Monday in Montgomery County Circuit Court.
The 21-page complaint claims Maryland regulations, which regulate the use of pesticides and herbicides, preempt the county’s ordinance and therefore the county ban should be declared unlawful. The lawsuit also seeks an injunction preventing the county from enforcing the ban.
The ban involving usage on private property ban isn’t scheduled to go into effect until Jan. 1, 2018. The council ordinance also banned the use of the plant and insect-killing chemicals on county properties and that ban went into effect earlier this year. The lawsuit does not contest the ban on general pesticide use on county properties.
“This ban, if allowed to go into effect, will needlessly damage homeowners, state-certified pesticide applicators, small businesses and their employees, and others who will be precluded from using the products they have depended on for decades to maintain healthy lawns and control insect and weed pests,” the complaint says. “The very pesticide uses the ban prohibits have been licensed and approved by state regulators.”
A divided County Council passed the bill by a vote of 6-3 in October 2015. Council members Roger Berliner, Sidney Katz and Craig Rice voted against the measure, citing the potential of a lawsuit challenging the ban, negative impact on lawn care businesses and council overreach into residents’ rights.
The council supporters said the bill would prevent non-essential uses of the potentially carcinogenic products in the county and that businesses would adapt by using organic lawn care methods. On Tuesday, council member George Leventhal said he believed the ban did not preempt state law.
"I've heard only good feedback on [the law]," Leventhal said. "People are relieved their children aren't playing on toxic chemicals."
The preemption lawsuit is being supported by RISE (Responsible Industry for a Sound Environment), which is a trade association that represents pesticide and herbicide manufacturers. Washington, D.C., environment attorney Gus Bauman of the firm Beveridge & Diamond is representing the plaintiffs in the case.
The lawsuit hardly comes as a surprise. In April 2015, Maryland Assistant Attorney General Kathryn Rowe wrote that a court could rule the county’s pesticide ban is preempted by state law and strike down the general ban for private properties.
County Executive Ike Leggett, in a memo to the council after it passed the bill, said he would not sign the bill due to questions about its legality, effectiveness and scope. Leggett expressed concerns about Rowe’s opinion and another from the state’s Attorney General’s Office about the legality of the measure.
“Undoubtedly, this measure will be taken to court and the result there is quite uncertain,” Leggett wrote. He added that it would be difficult to enforce the measure given that many of the products banned by the ordinance are approved for use by the EPA and the state.
The law does allow some pesticides and other products to be used on private lawns in the county, namely those recommended by the National Organic Standards Board and others designated as a minimum risk by the Federal Insecticide, Fungicide and Rodenticide Act.
The lawsuit claims the restriction limits pesticide applicators to an “extraordinarily narrow” range of products such as cinnamon, citronella, mint and garlic.
Businesses that joined the lawsuit include Complete Lawn Care Inc. of Gaithersburg, Green Gardens Inc. of Clarksburg, Integrated Plant Care Inc. of Rockville, Rowlandscapes Corp. of Clarksburg and Super Lawns Inc. of Gaithersburg. The residents who signed on as plaintiffs are Patricia Eng of Derwood, Conrad Hocking of Olney, Jessica Fox of Gaithersburg, Paul Vilk of Potomac, Michele Cropp of Damascus, Patricia Lynch of Montgomery Village, and Hessie Harris of Silver Spring.