MoCo Pesticide Ban May Be Vulnerable To Court Challenge, Says Attorney General's Office
Updated 6:45 a.m. Tuesday — A controversial proposal to ban the use of "non-essential" pesticides on private lawns in Montgomery County may be prevented by state law, according to the Maryland Attorney General's Office. Assistant Attorney General Kathryn Rowe wrote that a court could rule the part of the bill banning pesticide use for private property owners is preempted by state law already addressing pesticide use. "While the matter is not completely clear, it is my view that the general ban on application of non-essential pesticides may well be preempted, but that other parts might not be," Rowe wrote earlier this month in a response to an inquiry about state preemption from Montgomery Village Del. Kirill Reznik. "It is my view that a court could conclude that this provision would interfere with the purposes of these State provisions, as well as the goal of achieving uniformity." Rowe wrote that other parts of the bill, introduced by Council President George Leventhal to much support and opposition earlier this year, wouldn't run into preemption issues. Leventhal's bill also would exempt golf courses and farms from the pesticide ban, but not county property and playing fields. Montgomery Parks, which runs the county's nearly 300 recreational playing fields, has urged Leventhal and other Council members to exempt its fields too. Rowe said that requirement, as well as requirements that would require signage if pesticides were being applied, shouldn't pose any legal issues. The private property provision has been one of the most controversial parts of the bill. Reznik said he asked for the attorney general's opinion on the matter for a constituent involved in the Maryland Farm Bureau. The law is largely based on a similar ban enacted in 2013 in Takoma Park, where Leventhal lives. The Council member has challenged opponents of the bill by pointing to organic, non-chemical lawn companies that claim they can maintain healthy, lush lawns without pesticides.
It would classify more than 100 pesticides and weed-killers as "non-essential," including some products cleared by the U.S. Environmental Protection Agency but banned in Ontario, Canada and on a list from the European Commission.
Bill advocates argue there's enough evidence to link glyphosate-based weed-killers like Roundup to child health issues, chemical endocrine disruptors to badly damaged aquatic life in the Chesapeake Bay and prevalent neonicotinoid-based insecticides to the death of bee, butterfly and other insect populations.
Rowe wrote that similar proposed bans concerning private property in states such as Hawaii, Illinois, New York and Minnesota have all been deemed as preempted by state law. The only case she found where there wasn't state preemption came in Maine, though Maine's state law "expressly preserved some local authority."
Leventhal and Roger Belriner, the Council's Environmental Committee chair, have promised a thorough review of the bill that will likely last much of 2015.
Previously, that review seemed confined to the scientific facts behind pesticide and lawn chemical use.
A high-ranking National Cancer Institute doctor told Berliner in March that there's not yet enough science to determine for sure whether popular products such as Roundup cause health defects in humans.