Subject:  WISCONSIN PUBLIC INTERVENOR v. MORTIER, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



WISCONSIN PUBLIC INTERVENOR et al. v.
MORTIER et al.


certiorari to the supreme court of wisconsin

No. 89-1905.  Argued April 24, 1991 -- Decided June 21, 1991

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA or Act), 7
U. S. C. MDRV 136 et seq., was primarily a pesticide licensing and labeling
law until 1972, when it was transformed by Congress into a comprehensive
regulatory statute.  Among other things, the 1972 amendments significantly
strengthened the pre-existing registration and labeling standards,
specified that FIFRA regulates pesticide use as well as sales and labeling,
and granted increased enforcement authority to the Environmental Protection
Agency (EPA).  Regarding  state and local authorities, FIFRA, as amended,
includes provisions requiring pesticide manufacturers to produce records
for inspection "upon request of any officer or employee . . . of any State
or political subdivision," MDRV 136f(b); directing the EPA to cooperate
with "any appropriate agency of any state or any political subdivision
thereof . . . in securing uniformity of regulations," MDRV 136t(b); and
specifying that "[a] State" may regulate pesticide sale or use so long as
such regulation does not permit a sale or use prohibited by the Act, MDRV
136v(a).  Pursuant to its statutory police power, petitioner town adopted
an ordinance that, inter alia, requires a permit for certain applications
of pesticides to private lands.  After the town issued a decision
unfavorable to respondent Mortier on his application for a permit to spray
a portion of his land, he brought a declaratory judgment action in county
court, claiming, among other things, that the ordinance was preempted by
FIFRA.  The court granted summary judgment for Mortier, and the Wisconsin
Supreme Court affirmed, finding pre-emption on the ground that the Act's
text and legislative history demonstrate a clearly manifest congressional
intent to prohibit any regulation of pesticides by local governmental
units.

Held: FIFRA does not pre-empt local governmental regulation of pesticide
use.  Pp. 5-15.

    (a) When considering pre-emption, this Court starts with the assumption
that the States' historic powers are not superseded by federal law unless
that is the clear and manifest purpose of Congress.  That purpose may be
expressed in the terms of the statute itself.  Absent explicit preemptive
language, congressional intent to supersede state law may nonetheless be
implicit if, for example, the federal Act touches a field in which the
federal interest is so dominant that the federal system will be assumed to
preclude enforcement of state laws on the same subject.  Even where
Congress has not chosen to occupy a particular field, preemption may occur
to the extent that state and federal law actually conflict, as when
compliance with both is a physical impossibility, or when the state law
stands as an obstacle to the accomplishment of Congress' purposes and
objectives.  Pp. 5-6.

    (b) FIFRA nowhere expressly supersedes local regulation.  Neither the
Act's language nor the legislative history relied on by the court below,
whether read together or separately, suffices to establish preemption.  The
fact that MDRV 136v(a) expressly refers only to "[a] State" as having the
authority to regulate pesticide use, and the Act's failure to include
political subdivisions in its MDRV 136(aa) definition of "State," are
wholly inadequate to demonstrate the requisite clear and manifest
congressional intent.  Mere silence is insufficient in this context.  Rice
v. Santa Fe Elevator Corp., 331 U. S. 218, 230.  And the exclusion of local
governments cannot be inferred from the express authorization to "State[s]"
because that term is not self-limiting; political subdivisions are merely
subordinate components of the very entity the statute empowers.  Cf., e.
g., Sailors v. Board of Education of Kent County, 387 U. S. 105, 108.
Indeed, the more plausible reading of the express authorization leaves the
allocation of regulatory authority to the absolute discretion of the States
themselves, including the options of specific redelegation or leaving local
regulation of pesticides in the hands of local authorities under existing
state laws.  Nor is there any merit to Mortier's contention that the
express references in 15 136t(b) and 136f(b) to "political subdivision[s]"
show that Congress made a clear distinction between nonregulatory
authority, which may be exercised by such subdivisions, and the regulatory
authority reserved to the "State[s]" in MDRV 136v(a).  Furthermore, the
legislative history is at best ambiguous, reflecting a disagreement between
the responsible congressional committees as to whether the provision that
would become MDRV 136v pre-empted local regulation.  Pp. 6-11.

    (c) FIFRA also fails to provide any clear and manifest indication that
Congress sought to supplant local authority over pesticide regulation
impliedly.  The argument that the 1972 amendments transformed the Act into
a comprehensive statute that occupied the entire pesticide regulation
field, and that certain provisions, including MDRV 136v(a), reopened
certain portions of the field to the States but not to political
subdivisions, is unpersuasive.  Section 136v itself undercuts any inference
of field pre-emption, since MDRV 136v(b) prohibits States from enacting or
imposing labeling or packaging requirements that conflict with those
required under FIFRA.  This language would be pure surplusage if Congress
had already occupied the entire field.  Nor does FIFRA otherwise imply
pre-emption.  While the 1972 amendments turned the Act into a comprehensive
regulatory statute, substantial portions of the field are still left
vacant, including the area at issue in this case.  FIFRA nowhere seeks to
establish an affirmative permit scheme for the actual use of pesticides or
to occupy the field of local use permitting.  Thus, the specific grant of
authority in MDRV 136v(a) must be read not as an exclusion of
municipalities but as an act ensuring that the States could continue to
regulate use and sales even where, such as with regard to the banning of
mislabeled products, a narrow pre-emptive overlap might occur.  Pp. 11-13.

    (d) There is no actual conflict either between FIFRA or the ordinance
at issue or between the Act and local regulation generally.  Compliance
with both the ordinance and FIFRA is not a physical impossibility.
Moreover, Mortier's assertions that the ordinance stands as an obstacle to
the Act's goals of promoting pesticide regulation that is coordinated
solely at the federal and state levels, that rests upon some degree of
technical expertise, and that does not unduly burden interstate commerce
are based on little more than snippets of legislative history and policy
speculations and are unpersuasive.  As is evidenced by MDRV 136t(b), FIFRA
implies a regulatory partnership between federal, state, and local
governments.  There is no indication that any coordination which the
statute seeks to promote extends beyond the matters with which it expressly
deals, or does so strongly enough to compel the conclusion that an
independently enacted ordinance that falls outside the statute's reach
frustrates its purpose.  Nor is there any indication in FIFRA that Congress
felt that local ordinances necessarily rest on insufficient expertise and
burden commerce.  Pp. 13-15.

154 Wis. 2d 18, 452 N. W. 2d 555, reversed and remanded.

    White, J., delivered the opinion of the Court, in which Rehnquist, C.
J., and Marshall, Blackmun, Stevens, O'Connor, Kennedy, and Souter, JJ.,
joined.  Scalia, J., filed an opinion concurring in the judgment.
------------------------------------------------------------------------------




Subject: 89-1905 -- OPINION, WISCONSIN PUBLIC INTERVENOR v. MORTIER

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-1905



WISCONSIN PUBLIC INTERVENOR, et al., PETITIONERS v. RALPH MORTIER et al.

on writ of certiorari to the supreme court of wisconsin

[June 21, 1991]



    Justice White delivered the opinion of the Court.

    This case requires us to consider whether the Federal Insecticide,
Fungicide, and Rodenticide Act, (FIFRA), 61 Stat. 163, as amended, 7 U. S.
C. MDRV 136 et seq. pre-empts the regulation of pesticides by local
governments.  We hold that it does not.

I


A
    FIFRA was enacted in 1947 to replace the Federal Government's first
effort at pesticide regulation, the Insecticide Act of 1910, 36 Stat. 331.
61 Stat. 163.  Like its predecessor, FIFRA as originally adopted "was
primarily a licensing and labeling statute."  Ruckelshaus v. Monsanto Co.,
467 U. S. 986, 991 (1984).  In 1972, growing environmental and safety
concerns led Congress to undertake a comprehensive revision of FIFRA
through the Federal Environmental Pesticide Control Act.  86 Stat. 973.
The 1972 amendments significantly strengthened FIFRA's registration and
labeling standards.  7 U. S. C. MDRV 136a.  To help make certain that
pesticides would be applied in accordance with these standards, the
revisions further insured that FIFRA "regulated the use, as well as the
sale and labeling, of pesticides; regulated pesticides produced and sold in
both intrastate and interstate commerce; [and] provided for review,
cancellation, and suspension of registration."  Ruckleshaus, supra, at
991-992.  An additional change was the grant of increased enforcement
authority to the Environmental Protection Agency (EPA), which had been
charged with federal oversight of pesticides since 1970.  See
Reorganization Plan No. 3 of 1970, 35 Fed. Reg. 15623 (1970), 5 U. S. C.
App., p. 1343.  In this fashion, the 1972 amendments "transformed FIFRA
from a labeling law into a comprehensive regulatory statute."  467 U. S.,
at 991.
    As amended, FIFRA specifies several roles for state and local
authorities.  The statute, for example, authorizes the EPA Administrator to
enter into cooperative agreements with the States to enforce FIFRA
provisions.  7 U. S. C. 15 136u, 136w-1.  As part of the enforcement
scheme, FIFRA requires manufacturers to produce records for inspection
"upon request of any officer or employee of the Environmental Protection
Agency or of any State or political subdivision, duly designated by the
Administrator."  MDRV 136f (b).  FIFRA further directs the EPA
Administrator to cooperate with "any appropriate agency of any State or any
political subdivision thereof."  MDRV 136t(b).  Of particular relevance to
this case, MDRV 24(a) specifies that States may regulate the sale or use of
pesticides so long as the state regulation does not permit a sale or use
prohibited by the Act.  MDRV 136v(a).

B
    Petitioner, the town of Casey, is a small rural community located in
Washburn County, Wisconsin, several miles northwest of Spooner, on the road
to Superior. {1}  In 1985, the town adopted Ordinance 85-1, which regulates
the use of pesticides.  The ordinance expressly borrows statutory
definitions from both Wisconsin laws and FIFRA, and was enacted under Wis.
Stat. 15 61.34(1), (5) (1989-1990), which accords village boards with
general police, health, and taxing powers. {2}
    The ordinance requires a permit for the application of any pesticide to
public lands, to private lands subject to public use, or for the aerial
application of any pesticide to private lands.  Ord. MDRV 1.2, 2 App. to
Pet. for Cert. 6.  A permit applicant must file a form including
information about the proposed pesticide use not less than 60 days before
the desired use.  MDRV 1.3(2), id., at 7.  The town board may "deny the
permit, grant the permit, or grant the permit with . . . any reasonable
conditions on a permitted application related to the protection of the
health, safety and welfare of the residents of the Town of Casey."  MDRV
1.3(3), id., at 11-12.  After an initial decision, the applicant or any
town resident may obtain a hearing to provide additional information
regarding the proposed application.  15 1.3(4), (5), id., at 12-14.  When a
permit is granted, or granted with conditions, the ordinance further
requires the permittee to post placards giving notice of the pesticide use
and of any label information prescribing a safe reentry time.  MDRV 1.3(7),
id., at 14-16.  Persons found guilty of violating the ordinance are subject
to fines of up to $5,000 for each violation.  MDRV 1.3(7)(c), id., at 16.
    Respondent Ralph Mortier applied for a permit for aerial spraying of a
portion of his land.  The town granted him a permit, but precluded any
aerial spraying and restricted the lands on which ground spraying would be
allowed.  Mortier, in conjunction with respondent Wisconsin
Forestry/Rightsof-Way/Turf Coalition, {3} brought a declaratory judgment
action in the Circuit Court for Washburn County against the town of Casey
and named board members, claiming that the town of Casey's ordinance is
pre-empted by state and federal law.  The Wisconsin Public Intervenor, an
assistant attorney general charged under state law with the protection of
environmental public rights, Wis. Stat. 15 165.07, 165.075 (1989-1990), was
admitted without objection as a party defendant.  On cross-motions for
summary judgment, the Circuit Court ruled in favor of Mortier, holding that
the town's ordinance was pre-empted both by FIFRA and by state statute, 15
94.67 -- 974.1; 2 App. to Pet. for Cert. 14.
    The Supreme Court of Wisconsin affirmed in a 4-to-3 decision.  Mortier
v. Casey, 154 Wis. 2d 18, 452 N. W. 2d 555 (1990).  Declining to address
the issue of state-law preemption, the court concluded that FIFRA
pre-empted the town of Casey's ordinance because the statute's text and
legislative history demonstrated a clearly manifest congressional intent to
prohibit "any regulation of pesticides by local units of government."  Id.,
at 20, n. 2, and 30, 452 N. W. 2d, at 555, n. 2, 560.  The court's decision
accorded with the judgments of two Federal Courts of Appeals.  Professional
Lawn Care Association v. Milford, 909 F. 2d 929 (CA6 1990); Maryland Pest
Control Association v. Montgomery County, 822 F. 2d 55 (CA4 1987),
summarily aff'g 646 F. Supp. 109 (Md. 1986).  Two separate dissents
concluded that neither FIFRA's language nor its legislative history
expressed an intent to pre-empt local regulation.  Casey, supra, at 33, 452
N. W. 2d, at 561 (Abrahamson, J., dissenting); 154 Wis. 2d, at 45, 452 N.
W. 2d, at 566 (Steinmetz, J. dissenting).  The dissenters' conclusion in
part relied on decisions reached by two State Supreme Courts.  Central
Maine Power Co. v. Lebanon, 571 A. 2d 1189 (Me. 1990); People ex rel.
Deukme jian v. County of Mendocino, 36 Cal. 3d 476, 683 P. 2d 1150 (1984).
Given the importance of the issue and the conflict of authority, we granted
certiorari.  498 U. S. --- (1991).  We now reverse.

II
    Under the Supremacy Clause, U. S. Const., Art. VI, cl. 2, state laws
that "interfere with, or are contrary to the laws of congress, made in
pursuance of the constitution" are invalid.  Gibbons v. Ogden, 9 Wheat. 1,
211 (1824) (Marshall, C. J.).  The ways in which federal law may pre-empt
state law are well established and in the first instance turn on
congressional intent.  Ingersoll-Rand Co. v. McClendon, 496 U. S. ---
(1990).  Congress' intent to supplant state authority in a particular field
may be express in the terms of the statute.  Jones v. Rath Packing Co., 430
U. S. 519, 525 (1977).  Absent explicit pre-emptive language, Congress'
intent to supersede state law in a given area may nonetheless be implicit
if a scheme of federal regulation is "so pervasive as to make reasonable
the inference that Congress left no room for the States to supplement it,"
if "the Act of Congress . . . touch[es] a field in which the federal
interest is so dominant that the federal system will be assumed to preclude
enforcement of state laws on the same subject," or if the goals "sought to
be obtained" and the "obligations imposed" reveal a purpose to preclude
state authority.  Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230
(1947).  See Pacific Gas & Electric Co. v. State Energy Resources
Conservation and Development Commission, 461 U. S. 190, 203-204 (1983).
When considering pre-emption, "we start with the assumption that the
historic police powers of the States were not to be superseded by the
Federal Act unless that was the clear and manifest purpose of Congress."
Rice, supra, at 230.
    Even when Congress has not chosen to occupy a particular field,
pre-emption may occur to the extent that state and federal law actually
conflict.  Such a conflict arises when "compliance with both federal and
state regulations is a physical impossibility," Florida Lime & Avocado
Growers, Inc. v. Paul, 373 U. S. 132, 142-143 (1963), or when a state law
"stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress," Hines v. Davidowitz, 312 U. S. 52
(1941).
    It is, finally, axiomatic that "for the purposes of the Supremacy
Clause, the constitutionality of local ordinances is analyzed in the same
way as that of statewide laws."  Hills borough v. Automated Medical
Laboratories, Inc., 471 U. S. 707, 713 (1985).  See, e. g., City of Burbank
v. Lockheed Air Terminal, Inc., 411 U. S. 624 (1973).

III
    Applying these principles, we conclude that FIFRA does not pre-empt the
town's ordinance either explicitly, implicitly, or by virtue of an actual
conflict.

A
    As the Wisconsin Supreme Court recognized, FIFRA nowhere expressly
supersedes local regulation of pesticide use.  The court, however,
purported to find statutory language "which is indicative" of pre-emptive
intent in the statute's provision delineating the "Authority of States."  7
U. S. C. MDRV 136v.  The key portions of that provision state:

"(a) . . . A State may regulate the sale or use of any federally registered
pesticide or device in the State, but only if and to the extent the
regulation does not permit any sale or use prohibited by this subchapter.

"(b) . . . Such State shall not impose or continue in effect any
requirements for labeling or packaging in addition to or different from
those required under this subchapter."


Also significant, in the court's eyes, was FIFRA's failure to specify
political subdivisions in defining "State" as "a State, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the
Trust Territory of the Pacific Islands, and American Samoa."  7 U. S. C.
MDRV 136(aa).
    It is not clear to the State Supreme Court, however, "that the
statutory language [15 136v and 136(aa)] alone evince[d] congress' manifest
intent to deprive political subdivisions of authority to regulate
pesticides."  Casey, 154 Wis. 2d, at 25, 452 N. W. 2d, at 557-558.  It was
nevertheless "possible" to infer from the statutory language alone that
pesticide regulation by local entities was pre-empted; and when coupled
with its legistlative history, that language "unmistakably demonstrates the
intent of Congress to pre-empt local ordinances such as that adopted by the
Town of Casey."  Id., at 28, 452 N. W. 2d, at 559.  The court's holding
thus rested on both 15 136v and 136(aa) and their legislative history;
neither the language nor the legislative history would have sufficed alone.
There was no suggestion that absent the two critical sections, FIFRA was a
sufficiently comprehensive statute to justify an inference that Congress
had occupied the field to the exclusion of the States.  Nor have the
respondents argued in this Court to that effect.  On the other hand, it is
sufficiently clear that under the opinion announced by the court below, the
State would have been precluded from permitting local authorities to
regulate pesticides.
    We agree that neither the language of the statute nor its legislative
history, standing alone, would suffice to pre-empt local regulation.  But
is is also our view that even when considered together the language and the
legislative materials relied on below are insufficient to demonstrate the
necessary congressional intent to pre-empt.  As for the statutory language,
it is wholly inadequate to convey an express preemptive intent on its own.
Section 136v plainly authorizes the "States" to regulate pesticides and
just as plainly is silent with reference to local governments.  Mere
silence, in this context, cannot suffice to establish a "clear and manifest
purpose" to pre-empt local authority.  Rice, 331 U. S. at 230.  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
were left with no regulatory authority.  Rather, it would mean that
localities could not claim the regulatory authority explicitly conferred
upon the States that might otherwise have been pre-empted through actual
conflicts with Federal law.  At a minimum, localities would still be free
to regulate subject to the usual principles of pre-emption.
    Properly read, the statutory language tilts in favor of local
regulation.  The principle is well settled that local " `governmental units
are "created as convenient agencies for exercising such of the governmental
powers of the State as may be entrusted to them" . . . in [its] absolute
discretion.' "  Sailors v. Board of Education of Kent County, 387 U. S.
105, 108 (1967), quoting Reynolds v. Sims, 377 U. S. 533, 575 (1964),
quoting Hunter v. City of Pittsburgh, 207 U. S. 161, 178 (1907).  The
exclusion of political subdivisions cannot be inferred from the express
authorization to the "State[s]" because political subdivisions are
components of the very entity the statute empowers.  Indeed, the more
plausible reading of FIFRA's authorization to the States leaves the
allocation of regulatory authority to the "absolute discretion" of the
States themselves, including the option of leaving local regulation of
pesticides in the hands of local authorities.
    Certainly no other textual basis for pre-emption exists.  Mortier,
building upon the decision below, contends that other provisions show that
Congress made a clear distinction between nonregulatory authority, which it
delegated to the States or their political subdivisions, and regulatory
authority, which it expressly delegated to the "State[s]" alone.  The
provisions on which he relies, however, undercut his contention.  Section
136t(b), for example, mandates that the EPA Administrator cooperate with
"any appropriate agency of any State or any political subdivision thereof,
in carrying out the provisions of this subchapter."  As an initial matter,
the section does not limit "the provisions of the subchapter" which
localities are authorized to carry out to "nonregulatory" provisions.
Moreover, to read this provision as pre-empting localities would also
require the anomalous result of pre-empting the actions of any agency to
the extent it exercised state-delegated powers that included pesticide
regulation.  Likewise, MDRV 136f(b) requires manufacturers to produce
records for the inspection upon the request of any employee of the EPA "or
of any State or political subdivision, duly designated by the
Administrator."  Section 136u(a)(1), however, authorizes the Administrator
to "delegate to any State . . . the authority to cooperate in the
enforcement of this [Act] through the use of its personnel.' "  If the use
of "State" in FIFRA impliedly excludes subdivisions, it is unclear why the
one provision would allow the designation of local officials for
enforcement purposes while the other would prohibit local enforcement
authority altogether.
    Mortier, like the court below and other courts that have found
pre-emption, attempts to compensate for the statute's textual inadequacies
by stressing the legislative history.  Casey, 154 Wis. 2d, at 25-28, 452 N.
W. 2d, at 558-559; Professional Lawn Care Association, 909 F. 2d, at
933-934.  The evidence from this source, which centers on the meaning of
what would become MDRV 136v, is at best ambiguous.  The House Agriculture
Committee Report accompanying the proposed FIFRA amendments stated that it
had "rejected a proposal which would have permitted political subdivisions
to further regulate pesticides on the grounds that the 50 States and the
Federal Government should provide an adequate number of regulatory
jurisdictions."  H. R. Rep. No. 92-511, p. 16 (1971).  While this statement
indicates an unwillingness by Congress to grant political subdivisions
regulatory authority, it does not demonstrate an intent to prevent the
States from delegating such authority to its subdivisions, and still less
does it show a desire to prohibit local regulation altogether.  At least
one other statement, however, concededly goes further.  The Senate
Committee on Agriculture and Forestry Report states outright that it
"considered the decision of the House Committee to deprive political
subdivisions of States and other local authorities of any authority or
jurisdiction over pesticides and concurs with the decision of the House of
Representatives."  S. Rep. No. 92-838, p. 16 (1972).
    But other Members of Congress clearly disagreed.  The Senate Commerce
Committee, which also had jurisdiction over the bill, observed that
"[w]hile the [Senate] Agriculture Committee bill does not specifically
prohibit local governments from regulating pesticides, the report of that
committee states explicitly that local governments cannot regulate
pesticides in any manner.  Many local governments now regulate pesticides
to meet their own specific needs which they are often better able to
perceive than are State and Federal regulators."  S. Rep. No. 92-970, p. 27
(1972).  To counter the language in the the Agriculture and Forestry
Committee Report, the Commerce Committee proposed an amendment expressly
authorizing local regulation among numerous other, unrelated proposals.
This amendment was rejected after negotiations between the two Committees.
See 118 Cong. Rec. 32251 (1972); H. R. Conf. Rep. No. 92-1540, p. 33
(1972).
    As a result, matters were left with the two principal Committees
responsible for the bill in disagreement over whether it pre-empted
pesticide regulation by political subdivisions.  It is important to note,
moreover, that even this disagreement was confined to the pre-emptive
effect of FIFRA's authorization of regulatory power to the States in MDRV
136v.  None of the Committees mentioned asserted that FIFRA pre-empted the
field of pesticide regulation.  Like FIFRA's text, the legislative history
thus falls far short of establishing that pre-emption of local pesticide
regulation was the "clear and manifest purpose of Congress."  Rice, 331 U.
S., at 230.  We thus agree with the submission in the amicus brief of the
United States expressing the views of the Environmental Protection Agency,
the agency charged with enforcing FIFRA. {4}

B
    Likewise, FIFRA fails to provide any clear and manifest indication that
Congress sought to supplant local authority over pesticide regulation
impliedly.  In particular, we reject the position of some courts, but not
the court below, that the 1972 amendments transformed FIFRA into a
comprehensive statute that occupied the field of pesticide regulation, and
that certain provisions opened specific portions of the field to state
regulation and much smaller portions to local regulation.  See Professional
Lawn Care, 909 F. 2d, at 933-934; Maryland Pest Control, 646 F. Supp., at
110-111; see also, Brief for National Pest Control Association et al. as
Amici Curiae 6-16; Brief for Washington Legal Foundation as Amicus Curiae
5-18.  On this assumption, it has been argued, MDRV 136v(a) could be viewed
as opening the field of general pesticide regulation to the States yet
leaving it closed to political subdivisions.
    This reasoning is unpersuasive.  As an initial matter, it would still
have to be shown under ordinary canons of construction that FIFRA's
delegation of authority to "State[s]" would not therefore allow the States
in turn to redelegate some of this authority to their political
subdivisions either specifically or by leaving undisturbed their existing
statutes that would otherwise provide local government with ample authority
to regulate.  We have already noted that MDRV 136v(a) can be plausibly read
to contemplate precisely such redelega tion.  The term "State" is not
self-limiting since political subdivisions are merely subordinate
components of the whole.  The scattered mention of political subdivisions
elsewhere in FIFRA does not require their exclusion here.  The legislative
history is complex and ambiguous.
    More importantly, field pre-emption cannot be inferred.  In the first
place, MDRV 136v itself undercuts such an inference.  The provision
immediately following the statute's grant of regulatory authority to the
States declares that `[s]uch State shall not impose or continue in effect
any requirements for labeling and packaging in addition to or different
from those required under" FIFRA.  7 U. S. C. MDRV 136v(b).  This language
would be pure surplusage if Congress had intended to occupy the entire
field of pesticide regulation.  Taking such pre-emption as the premise,
MDRV 136v(a) would thus grant States the authority to regulate the "sale or
use" of pesticides, while MDRV 136v(b) would superfluously add that States
did not have the authority to regulate "labeling or packaging," an addition
that would have been doubly superfluous given FIFRA's historic focus on
labeling to begin with.  See Monsanto, 467 U. S., at 991.
    Nor does FIFRA otherwise imply pre-emption.  While the 1972 amendments
turned FIFRA into a "comprehensive regulatory statute," Monsanto, 467 U.
S., at 991, the resulting scheme was not "so pervasive as to make
reasonable the inference that Congress left no room for the States to
supplement it."  Rice, 331 U. S., at 230.  To the contrary, the statute
leaves ample room for States and localities to supplement federal efforts
even absent the express regulatory authorization of MDRV 136v(a).  FIFRA
addresses numerous aspects of pesticide control in considerable detail, in
particular: registration and classification, MDRV 136a; applicator
certification, MDRV 136b; inspection of pesticide production facilities, 15
136e and 136g; and the possible ban and seizure of pesticides that are
misbranded or otherwise fail to meet federal requirements, MDRV 136k.
These provisions reflect the general goal of the 1972 amendments to
strengthen existing labeling requirements and insure that these
requirements were followed in practice.  MDRV 136k.  See Monsanto, 467 U.
S., at 991-992.  FIFRA nonetheless leaves substantial portions of the field
vacant, including the area at issue in this case.  FIFRA nowhere seeks to
establish an affirmative permit scheme for the actual use of pesticides.
It certainly does not equate registration and labeling requirements with a
general approval to apply pesticides throughout the Nation without regard
to regional and local factors like climate, population, geography, and
water supply.  Whatever else FIFRA may supplant, it does not occupy the
field of pesticide regulation in general or the area of local use
permitting in particular.
    In contrast to other implicitly pre-empted fields, the 1972 enhancement
of FIFRA does not mean that the use of pesticides can occur " `only by
federal permission, subject to federal inspection, in the hands of
federally certified personnel and under an intricate system of federal
commands.' "  City of Burbank v. Lockheed Air Terminal, 411 U. S., at 634,
quoting Northwest Airlines v. Minnesota, 322 U. S. 292, 303 (1944)
(Jackson, J., concurring).  The specific grant of authority in MDRV 136v(a)
consequently does not serve to hand back to the States powers that the
statute had impliedly usurped.  Rather, it acts to ensure that the States
could continue to regulate use and sales even where, such as with regard to
the banning of mislabled products, a narrow pre-emptive overlap might
occur.  As noted in our discussion of express preemption, it is doubtful
that Congress intended to exclude localities from the scope of MDRV
136v(a)'s authorization, but however this may be, the type of local
regulation at issue here would not fall within any impliedly pre-empted
field.

C
    Finally, like the EPA, we discern no actual conflict either between
FIFRA and the ordinance before us or between FIFRA and local regulation
generally.  Mortier does not rely, nor could he, on the theory that
compliance with the ordinance and FIFRA is a "physical impossibility."
Florida Lime & Avocado Growers, 373 U. S., at 142-143.  Instead, he urges
that the town's ordinance stands as an obstacle to the statute's goals of
promoting pesticide regulation that is coordinated solely on the federal
and state levels, that rests upon some degree of technical expertise, and
that does not unduly burden interstate commerce.  Each one of these
assertions rests on little more than snippets of legislative history and
policy speculations.  None of them is convincing.
    To begin with, FIFRA does not suggest a goal of regulatory coordination
that sweeps either as exclusively or as broadly as Mortier contends.  The
statute gives no indication that Congress was sufficiently concerned about
this goal to require pre-emption of local use ordinances simply because
they were enacted locally.  Mortier suggests otherwise, quoting legislative
history which states that FIFRA establishes "a coordinated Federal-State
administrative system to carry out the new program," and raising the
specter of gypsy moth hoards safely navigating though thousands of
contradictory and ineffective municipal regulations.  H. R. Rep. No.
92-511, at 1-2.  As we have made plain, the statute does not expressly or
impliedly preclude regulatory action by political subdivisions with regard
to local use.  To the contrary, FIFRA implies a regulatory partnership
between federal, state, and local governments.  Section 136t(b) expressly
states that the Administrator "shall cooperate with . . . any appropriate
agency of any State or any political subdivision thereof, in carrying out
the provisions of this [Act] and in securing uniformity of regulations."
Nor does FIFRA suggest that any goal of coordination precludes local use
ordinances because they were enacted independent of specific state or
federal oversight.  As we have also made plain, local use permit
regulations -- unlike labeling or certification -- do not fall within an
area that FIFRA's "program" pre-empts or even plainly addresses.  There is
no indication that any coordination which the statute seeks to promote
extends beyond the matters with which it deals, or does so strongly enough
to compel the conclusion that an independently enacted ordinance that falls
outside the statute's reach frustrates its purpose.
    FIFRA provides even less indication that local ordinances must yield to
statutory purposes of promoting technical expertise or maintaining
unfettered interstate commerce.  Once more, isolated passages of
legislative history that were themselves insufficient to establish a
pre-emptive congressional intent do not by themselves establish legislative
goals with pre-emptive effect.  See, e. g., S. Rep. No. 92-838, at 16.
Mortier nonetheless asserts that local ordinances necessarily rest on
insufficient expertise and burden commerce by allowing, among other things,
large-scale crop infestation.  As with the specter of the gypsy moth,
Congress is free to find that local regulation does wreak such havoc and
enact legislation with the purpose of preventing it.  We are satisfied,
however, that Congress has not done so yet.

IV
    We hold that FIFRA does not pre-empt the town of Casey's ordinance
regulating the use of pesticides.  The judgment of the Wisconsin Supreme
Court is reversed, and the case is remanded for proceedings not
inconsistent with this opinion.

It is so ordered.
 
 
 
 
 
 

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1
    The town has a population of from 400 to 500 persons, large enough to
enact the ordinance at issue in this case.  See Washburn County Directory
1982-83, Brief for Respondents 4, n. 4; Tr. Oral Arg. 12.

2
    Section 61.34(1) provides:
    "Except as otherwise provided by law, the village board shall have the
management and control of the village property, finances, highways,
streets, navigable waters, and the public service, and shall have power to
act for the government and good order of the village, for its commercial
benefit and for the health, safety, welfare, and convenience of the public,
and may carry its powers into effect by license, regulation, suppression,
borrowing, taxation, special assessment, appropriation, fine, imprisonment,
and other necessary or convenient means.  The powers hereby conferred shall
be in addition to all other grants and shall be limited only by express
language."
Section 61.34(5) provides:
    "For the purpose of giving to villages the largest measure of
self-government in accordance with the spirit of article XI, section 3, of
the [Wisconsin] constitution it is hereby declared that his chapter shall
be liberally construed in favor of the rights, powers and privileges of
villages to promote the general welfare, peace, good order and prosperity
of such villages and the inhabitants thereof."

3
    The coalition is an unincorporated, nonprofit association of individual
businesses and other associations whose members use pesticides.

4
    Justice Scalia's foray into legislative history runs into several
problems.  For one, his concurrence argues that the House Agriculture
Committee made it clear that it wanted localities "out of the picture"
because its report specifies as grounds for rejecting a proposal permitting
the localities to regulate pesticides the observation that the Federal
Government and the 50 States provided an adequate number of regulatory
jurisdictions.  Post, at 2.  But the only way to infer that the Committee
opposed not only a direct grant of regulatory authority upon localities but
also state delegation of authority to regulate would be to suppose that the
term "regulatory jurisdictions" meant regulatory for the purposes of
exercising any authority at all as opposed to exercising authority derived
from a direct Federal grant.  H. R. Rep. No. 92-511, p. 16 (1971).  The
language of the Report does not answer this question one way or another.
    The concurrence further contends that the Senate Agriculture Committee
unequivocally expressed its view that MDRV 136v should be read to deprive
localities of regulatory authority over pesticide.  This may be true, but
it is hardly dispositive.  Even if MDRV 136v were sufficiently ambiguous to
justify reliance on legislative history, the meaning a committee puts
forward must at a minimum be within the realm of meanings that the
provision, fairly read, could bear.  Here the Report clearly states that
MDRV 136v should be read as a prohibition, but it is just as clear that the
provision is written exclusively in terms of a grant.  No matter how
clearly its report purports to do so, a committee of Congress cannot take
language that could only cover "flies" or "mosquitoes", and tell the courts
that it really covers "ducks."
    Finally, the concurrence suggests that the Senate Commerce Committee
report reconfirmed the views of the two agriculture committees that MDRV
136v prohibited local pesticide regulation.  Post, at 3-4.  But the
Commerce Committee at no point states, clearly or otherwise, that it agrees
that the section before it does this.  Rather, the Report states that
"while the Agriculture Committee bill does not specifically prohibit local
governments from regulating, the report of that committee states explicitly
that local governments cannot regulate in any matter."  S. Rep. No. 90-970,
p. 27 (1972) (emphasis added).  The Commerce Committee, indeed, went on to
assert its policy differences with its Agriculture counterpart.  It did
this by attempting to strike at the root of the problem through changing
the language of the provision itself.  Far from showing agreement with its
rival, the Commerce Committee's words and actions show a body that first,
conceded no ground on the meaning of the disputed language and then second,
raised the stakes by seeking to insure that the language could go only its
way.  On both the existence and the desirability of a prohibition on local
regulation, there can be no doubt that the Commerce and Agriculture
Committees stood on the opposite sides of the Senate debate.
    As for the propriety of using legislative history at all, common sense
suggests that inquiry benefits from reviewing additional information rather
than ignoring it.  As Chief Justice Marshall put it, "[w]here the mind
labours to discover the design of the legislature, it seizes every thing
from which aid can be derived."  Fisher v. Blight, 2 Cranch 358, 386
(1805).  Legislative history materials are not generally so misleading that
jurists should never employ them in a good faith effort to discern
legislative intent.  Our precedents demonstrate that the Court's practice
of utilizing legislative history reaches well into its past.  See, e. g.,
Wallace v. Parker, 6 Peters 680, 687-690 (1832).  We suspect that the
practice will likewise reach well into the future.





Subject: 89-1905 -- CONCUR, WISCONSIN PUBLIC INTERVENOR v. MORTIER

 


    SUPREME COURT OF THE UNITED STATES


No. 89-1905



WISCONSIN PUBLIC INTERVENOR, et al., PETITIONERS v. RALPH MORTIER et al.

on writ of certiorari to the supreme court of wisconsin

[June 21, 1991]



    Justice Scalia, concurring in the judgment.

    I agree with the Court that FIFRA does not pre-empt local regulation,
because I agree that the terms of the statute do not alone manifest a
pre-emption of the entire field of pesticide regulation.  Ante, 12-15.  If
there were field preemption, 7 U. S. C. MDRV 136v would be understood not
as restricting certain types of state regulation (for which purpose it
makes little sense to restrict States but not their subdivisions) but as
authorizing certain types of state regulation (for which purpose it makes
eminent sense to authorize States but not their subdivisions).  But the
field-pre-emption question is certainly a close one.  Congress' selective
use of "State" and "State and political subdivisions thereof" would suggest
the authorizing rather than restricting meaning of MDRV 136v, were it not
for the inconsistent usage pointed to in Part I of the Court's opinion.

    As the Court today recognizes, see ante, at 7, the Wisconsin Justices
agreed with me on this point, and would have come out the way that I and
the Court do but for the Committee Reports contained in FIFRA's legislative
history.  I think they were entirely right about the tenor of those
reports.  Their only mistake was failing to recognize how unreliable
Committee Reports are -- not only as a genuine indicator of congressional
intent but as a safe predictor of judicial construction.  We use them when
it is convenient, and ignore them when it is not.

    Consider how the case would have been resolved if the committee reports
were taken seriously: The bill to amend FIFRA (H. R. 10729) was reported
out of the House Committee on Agriculture on September 25, 1971.  According
to the accompanying Committee Report:

    "The Committee rejected a proposal which would have permitted political
subdivisions to further regulate pesticides on the grounds that the 50
States and the Federal Government should provide an adequate number of
regulatory jurisdictions."  H. R. Rep. No. 92-511, p. 16 (1971).


Had the grounds for the rejection not been specified, it would be possible
to entertain the Court's speculation, ante, at 9, that the Committee might
have been opposing only direct conferral upon localities of authority to
regulate, in contrast to state delegation of authority to regulate.  But
once it is specified that an excessive number of regulatory jurisdictions
is the problem -- that "50 States and the Federal Government" are enough --
then it becomes clear that the Committee wanted localities out of the
picture, and thought that its bill placed them there.

    The House Agriculture Committee's bill was passed by the full House on
November 9, 1971, and upon transmittal to the Senate was referred to the
Senate Committee on Agriculture and Forestry, which reported it out on June
7, 1972.  The accompanying Committee Report both clearly confirms the
foregoing interpretation of the House Committee Report, and clearly
endorses the disposition that interpretation produces.

    "[We have] considered the decision of the House Committee to deprive
political subdivisions of States and other local authorities of any
authority or jurisdiction over pesticides and concurs with the decision of
the House of Representatives.  Clearly, the fifty States and the Federal
Government provide sufficient jurisdictions to properly regulate
pesticides.  Moreover, few, if any, local authorities whether towns,
counties, villages, or municipalities have the financial wherewithal to
provide necessary expert regulation comparable with that provided by the
State and Federal Governments.  On this basis and on the basis that
permitting such regulation would be an extreme burden on interstate
commerce, it is the intent that section [136v], by not providing any
authority to political subdivisions and other local authorities of or in
the States, should be understood as depriving such local authorities and
political subdivisions of any and all jurisdiction and authority over
pesticides and the regulation of pesticides."  S. Rep. No. 92-838, pp.
16-17 (1972) (emphasis added).


Clearer committee language "directing" the courts how to interpret a
statute of Congress could not be found, and if a such a direction had any
binding effect, the question of interpretation in this case would be no
question at all.

    But there is still more.  After the Senate Agriculture Committee
reported the bill to the floor, it was re-referred to the Committee on
Commerce, which reported it out on July 19, 1972.  The report of that
Committee, plus the accompanying proposals for amendment of H. R. 10729,
reconfirmed the interpretation of the Senate and House Agriculture
committees.  The Report said:

    "While the Agriculture Committee bill does not specifically prohibit
local governments from regulating pesticides, the report of that committee
states explicitly that local governments cannot regulate pesticides in any
manner.  Many local governments now regulate pesticides to meet their own
specific needs which they are often better able to perceive than are State
and Federal regulators."  S. Rep. No. 92-970, p. 27 (1972).


The Court claims that this passage, plus the amendment that it explains,
show that "the two principal committees responsible for the bill [were] in
disagreement over whether it preempted pesticide regulation by political
subdivisions."  Ante, at 10.  I confess that I am less practiced than
others in the science of construing legislative history, but it seems to me
that quite the opposite is the case.  The Senate Commerce Committee Report
does not offer a different interpretation of the pre-emptive effect of H.
R. 10729.  To the contrary, it acknowledges that the report of the
originating com mittee "states explicitly that local governments cannot
regulate pesticides in any manner," and then proceeds to a statement ("Many
local governments now regulate pesticides, etc.") which questions not the
existence but the desirability of that restriction on local regulatory
power.  And since it agreed with the interpretation but did not agree with
the policy, the Senate Commerce Committee proposed an amendment to H. R.
10729, whose purpose, according to its report, was to "giv[e] local
governments the authority to regulate the sale or use of a pesticide beyond
the requirements imposed by State and Federal authorities."  S. Rep. No.
92-970, at 27.  In a supplemental Report, the Senate Agriculture Committee
opposed the Commerce Committee's amendment, which it said would "giv[e]
local governments the authority to regulate the sale or use of a
pesticide," thereby "vitiat[ing]" the earlier Agriculture Committee Report.
S. Rep. No. 92-838, pt. 2, at 46-47 (1972).  This legislative history
clearly demonstrates, I think, not (as the Court would have it) that the
two principal Senate committees disagreed about whether H. R. 10729
pre-empted local regulation, but that they were in complete accord that it
did, and in disagreement over whether it ought to.

    Of course that does not necessarily say anything about what Congress as
a whole thought.  Assuming that all the members of the three committees in
question (as opposed to just the relevant subcommittees) actually adverted
to the interpretive point at issue here -- which is probably an unrealistic
assumption -- and assuming further that they were in unanimous agreement on
the point, they would still represent less than two-fifths of the Senate,
and less than onetenth of the House.  It is most unlikely that many Members
of either chamber read the pertinent portions of the Committee Reports
before voting on the bill -- assuming (we cannot be sure) that the Reports
were available before the vote.  Those pertinent portions, though they
dominate our discussion today, constituted less than a quarter-page of the
82page House Agriculture Committee Report, and less than a half-page each
of the 74-page Senate Agriculture Committee Report, the 46-page Senate
Commerce Committee Report, and the 73-page Senate Agriculture Committee
Supplemental Report.  Those Reports in turn were a minuscule portion of the
total number of reports that the Members of Congress were receiving (and
presumably even writing) during the period in question.  In the Senate, at
least, there was a vote on an amendment (the Commerce Committee proposal)
that would have changed the result of the supposed interpretation.  But the
full Senate could have rejected that either because a majority of its
Members disagreed with the Commerce Committee's proposed policy; or because
they disa greed with the Commerce Committee's and the Agriculture
Committee's interpretation (and thus thought the amend ment superfluous);
or because they were blissfully ignorant of the entire dispute and simply
thought that the Commerce Committee, by asking for recommittal and
proposing 15 amendments, was being a troublemaker; or because three
different minorities (enough to make a majority) had each of these
respective reasons.  We have no way of knowing; indeed, we have no way of
knowing that they had any rational motive at all.
    All we know for sure is that the full Senate adopted the text that we
have before us here, as did the full House, pursuant to the procedures
prescribed by the Constitution; and that that text, having been transmitted
to the President and approved by him, again pursuant to the procedures
prescribed by the Constitution, became law.  On the important question
before us today, whether that law denies local communities throughout the
Nation significant powers of selfprotection, we should try to give the text
its fair meaning, whatever various committees might have had to say --
thereby affirming the proposition that we are a Government of laws not of
committee reports.  That is, at least, the way I prefer to proceed.
    If I believed, however, that the meaning of a statute is to be
determined by committee reports, I would have to conclude that a meaning
opposite to our judgment has been commanded three times over -- not only by
one committee in each house, but by two committees in one of them.  Today's
decision reveals that, in their judicial application, committee reports are
a forensic rather than an interpretive device, to be invoked when they
support the decision and ignored when they do not.  To my mind that is
infinitely better than honestly giving them dispositive effect.  But it
would be better still to stop confusing the Wisconsin Supreme Court, and
not to use committee reports at all.

    *  *  *
    The Court responds to this concurrence in a footnote, ante, at 11-12 n.
4, asserting that the legislative history is really ambiguous.  I leave it
to the reader to judge.  I must reply, however, to the Court's assertion
that the "practice of utilizing legislative history reaches well into [our]
past," ante, at 12 n. 4, for which proposition it cites an opinion written
by none other than John Marshall himself, Wallace v. Parker, 6 Pet. 680
(1832).  What the Court neglects to explain is that what it means by "the
practice of utilizing legislative history" is not the practice of utilizing
legislative history for the purpose of giving authoritative content to the
meaning of a statutory text  -- which is the only practice I object to.
Marshall used factual statements in the report of an Ohio legislative
committee "as part of the record" in the case, id., at  689, 690, assuming
that that was permissible "under the laws of Ohio," ibid.  I do not object
to such use.  But that is quite different from the recent practice of
relying upon legislative material to provide an authoritative
interpretation of a statutory text.  That would have shocked John Marshall.
As late as 1897, we stated quite clearly that there is "a general
acquiescence in the doctrine that debates in Congress are not appropriate
sources of information from which to discover the meaning of the language
of a statute passed by that body."  United States v. Trans-Missouri Freight
Assn., 166 U. S. 290, 318.  And even as late as 1953, the practice of using
legislative history in that fashion was novel enough that Justice Jackson
could dismiss it as a "psychoanalysis of Congress," and a "weird endeavor."
United States v. Public Utilities Comm'n, 345 U. S. 295, 319 (Jackson, J.,
concurring).  It is, in short, almost entirely a phenomenon of this century
-- and in its extensive use a very recent phenomenon.  See, e. g., Carro &
Brann, Use of Legislative Histories by the United States Supreme Court: A
Statistical Analysis, 9 J. Legis. 282 (1982); Wald, Some Observations on
the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L.
Rev. 195, 196-197 (1983).

    I am depressed if the Court is predicting that the use of legislative
history for the purpose I have criticized "will . . . reach well into the
future."  But if it is, and its prediction of the future is as accurate as
its perception that it is continuing a "practice . . . reach[ing] well into
[our] past," I may have nothing to fear.
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