Montgomery Cnty. v. Complete Lawn Care, Inc.

Zarnoch, J. ⁶⁶⁸ From 1958-1962, Rachel Carson wrote Silent Spring from her home in Silver Spring. 1 Carson's examination of the health impacts of DDT and other pesticides galvanized the public, and the next decade saw Congress enact a broad range of statutes that are foundational to modern environmental law. 2 ⁶⁶⁹ Montgomery County ⁶⁹⁸ claims, in essence, that it is following in these footsteps, but we must determine whether it has done so consistently with State law. In 2015, the Montgomery County Council passed an ordinance restricting the use of certain pesticides for cosmetic purposes throughout the County. The Supreme Court held in 1991 that the principal federal law governing pesticides permits such local legislation. Wisconsin Public Intervenor v. Mortier , 501 U.S. 597 , 111 S.Ct. 2476 , 115 L.Ed.2d 532 (1991).

Here, we are asked to decide whether the County's legislation is impliedly preempted or in conflict with Maryland's Agriculture Article. We conclude that the ordinance does not run afoul of State law. Because the Circuit Court for Montgomery County found otherwise, we reverse both its injunction and declaratory judgment, and remand for an entry of a new declaratory judgment declaring the validity of the County ordinance. To briefly summarize, we principally ground our decision on the following: 1) State law does not expressly preempt local government regulation of pesticides; 2) Following a 1985 published opinion of the Attorney General, which said that State law did not impliedly preempt local pesticide regulation, 70 Md. Att'y Gen.

Op. 161 (1985), and the U.S. Supreme Court's 1991 decision in Mortier that federal law also did not preempt local regulation, the pesticide industry unsuccessfully ⁶⁷⁰ sought passage of preemptive legislation in 1992, 1993, and 1994. In full recognition of existing local pesticide ordinances, the members of the House of Delegates by floor vote rejected each of the bills that sought to preempt more stringent local regulation. This "strongly suggests" under the Amendment Rejection Theory that there was no legislative intent to authorize or recognize preemption. Allied Vending, Inc. v. City of Bowie , 332 Md. 279 , 304, 631 A.2d 77 (1993).

No piece of legislation enacted subsequently undercuts that conclusion; 3) For decades, Maryland's Chesapeake and Atlantic Coastal Bays Critical Area Protection Program has authorized certain counties to regulate pesticides within the Critical Area without any record of chaos and confusion from multi-tiered regulation; 4) Despite the existence of a comprehensive federal statute desirous of "uniformity" of regulation, the Supreme Court said that federal law did not regulate pesticides "with[ ] regard to regional and local factors like climate, population, geography, and water supply" or oust local regulation with respect to such matters. Mortier , 501 U.S. at 614 -15 , 111 S.Ct. 2476 ; 5) Probably less comprehensive than federal law, see 501 U.S. at 613 , 111 S.Ct. 2476 , Maryland's pesticide statutes also reference uniformity with federal legislation. This is best regarded as an aspirational goal, rather than an obstacle to local legislation. ⁶⁹⁹ The language of State law and enactments of the General Assembly would authorize broader regulation than federal law both generally and specifically; 6) There is no pervasive administrative enforcement of State pesticide statutes by the Maryland Department of Agriculture, which receives federal funds to enforce federal law in Maryland and which has opposed tougher pesticide controls as "anti-agriculture"; and ⁶⁷¹ 7) Appellees' contentions and the circuit court's conclusion that the County ordinance frustrates the purposes of State law run counter to County Council of Prince George's County v. Chaney Enters. Ltd. P'ship , 454 Md. 514 , 541 n. 19, 165 A.3d 379 (2017) (Frustration of purpose has never been applied to resolve a conflict between State and local law).

PROCEDURAL AND REGULATORY BACKGROUND In October 2015, the Montgomery County Council enacted Bill No. 52-14 ("the County ordinance"). Among its other provisions, the bill amended the Montgomery County Code to restrict certain pesticide use on private and County-owned property. Appellees 3 challenged the ordinance in the Circuit Court for Montgomery County, seeking a declaratory judgment that the bill was preempted by State law and a permanent injunction before the County ordinance was scheduled to take effect in January 2018. The County and Appellees waived discovery, stipulated as to the facts, and filed cross motions for summary judgment.

In an August 2017 written opinion, the circuit court concluded that the County ordinance was preempted by State law, both by implication and by conflict: "[t]he County's Ordinance flouts decades of State primacy in ensuring safe and proper pesticide use, undermines the State's system of comprehensive and uniform product approval and regulation, and prohibits ⁶⁷² products and conduct that have been affirmatively approved and licensed by the State." 4 Accordingly, the circuit court granted Appellees' motion for summary judgment, issued a declaratory judgment that Bill No. 52-14 was unlawful and preempted by Maryland law, and ordered that the bill "as it regards the use of pesticides on private property, shall not ⁷⁰⁰ take effect, and [Appellees] are entitled to permanent injunctive relief from the enforcement of these sections." The County's appeal followed. To properly evaluate whether the General Assembly has intended to preempt local pesticide regulation, we must first consider how the County ordinance fits within the interweaving structures of federal and State law. Montgomery County's Pesticide Ordinance The County ordinance amended existing language in the Montgomery County Code 5 to require that retailers, among other requirements, make available to pesticide purchasers (1) notice signs, (2) federally-approved product labels, and (3) County-approved materials that explain both the potential dangers of pesticide use and the availability of alternative products. Montgomery County Code § 33B-3(a).

The ordinance further amended existing language in the County Code to require that commercial pesticide applicators provide new ⁶⁷³ customers with certain notice before and after pesticide application. Montgomery County Code § 33B-7(b). Additionally, the ordinance specified that applicators must place certain notice markers in areas near the site of application. Montgomery County Code §§ 33B-8-33B-9.

Most pertinent to Appellees' challenge here, the ordinance specifies that only "listed pesticide[s]" 6 may be applied to (1) lawns, (2) playgrounds, (3) mulched recreation areas, (4) children's facilities, or (5) the grounds of a children's facility when those areas are located on "County-owned property and private property"-which by definition would exclude public schools. Montgomery County Code § 33B-10(a). However, the law then specifies numerous exceptions to those use restrictions: a person may apply any pesticide that is registered with the Environmental Protection Agency ("EPA") 7 to those same surfaces if applied to (1) control weeds, (2) control invasive species, (3) control disease vectors, (4) control biting or stinging insects or stinging plants, (5) control organisms that threaten the health of trees or shrubs, (6) maintain property as part of a public utility's efforts to comply with regulations, (7) control indoor pests, (8) control pests while engaged in agriculture, or (9) control a pest outbreak that poses an imminent threat to human health or prevent significant economic damage. Montgomery County Code § 33B-10(b).

The law then stipulates that if a pesticide is applied pursuant to the exception concerning imminent threats to human health or preventing significant economic damage, the person applying the pesticide must inform the County of the application. Montgomery County ⁷⁰¹ Code § 33B-10(c). 8 ⁶⁷⁴ Federal Regulatory Scheme Any County or State pesticide law is subject to applicable regulatory provisions of the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136 - 136y. Congress first enacted FIFRA in 1947, then comprehensively amended the law in 1972. 1947 FIFRA In 1947, Congress enacted FIFRA to replace 1910's Federal Insecticide Act. Public Law 104, Chapter 125.

When FIFRA was originally enacted in 1947, it was similar to other early federal laws concerning adulterated products 9 in that it was "primarily a licensing and labeling statute." Mortier , 501 U.S. at 601 , 111 S.Ct. 2476 . 10 1947's FIFRA authorized the U.S. Department of Agriculture ("USDA") to issue pesticide licenses and registrations; the law then prohibited the distribution or sale of unregistered, misbranded, or mislabeled pesticides. Chapter 125, § 3. Even though 1947's FIFRA characterized pesticides as "economic poisons," it was not until 1964-after Silent Spring heightened the public's awareness that pesticides could, for instance, accumulate in human body tissues and breast milk-that Congress authorized USDA to take ⁶⁷⁵ pesticides off the market by canceling their registrations. Alexandra B. Klass, Bees, Trees, Preemption, and Nuisance: A New Path to Resolving Pesticide Land Use Disputes , 32 ECOLOGY L. Q. 763, 771 n. 28 (2005) ; John Wargo, Our Children's Toxic Legacy 72 (1998).

By 1970, when federal regulatory authority over pesticides was transferred from USDA to the newly-created EPA, USDA had issued nearly 60,000 pesticide registrations. The 1947 law also stated that for the purpose of "securing uniformity of regulations," USDA was authorized "to cooperate with ... the [appropriate] regulatory agency of any State, or any State, Territory, District, possession, or any political subdivision thereof , in carrying out the provisions of this Act," Chapter 125, § 13 (Emphasis added). To this day, when EPA develops policies that have federalism implications, the agency's internal policies require that EPA consult with ten organizations that are deemed to be representative of state and local officials. See EPA's Action Development Process, Guidance on Executive Order 13132 : Federalism 45-46 (2008), available at https://www.govexec.com/pdfs/111908rb1.pdf. 1972 FIFRA Amendments Spurred by the response to Silent Spring , Congress transformed FIFRA, via 1972's amendments, from a licensing and ⁷⁰² labeling law into "a comprehensive regulatory statute." Mortier , 501 U.S. at 601 , 111 S.Ct. 2476 .

In doing so, Congress situated expanded regulatory authority over pesticides within the (recently-created) EPA. Currently, under FIFRA: • Subject to exceptions, a pesticide must be registered with EPA to be sold or distributed in the United States. 7 U.S.C. § 136a(a). • EPA shall register a pesticide if it determines, among other findings, that the pesticide "will perform its intended function without unreasonable adverse effects on the environment[.]" 7 U.S.C. § 136a(c)(5). • Once EPA registers a pesticide (thereby approving the pesticide's labeling), it is unlawful "to use any registered ⁶⁷⁶ pesticide in a manner inconsistent with its labeling." 7 U.S.C. § 136j(2)(G). • Pesticides that pose heightened risks to the environment (including potential injury to applicators) are classified as "restricted use pesticides," and are subject to further restrictions. 7 U.S.C. § 136a(d)(1)(C). • EPA must review pesticides' registrations every 15 years. 7 U.S.C. § 136a(g)(1). • As a part of the reregistration review process, EPA issues a Reregistration Eligibility Decision (RED) document in which it can require, as a prerequisite for reregistration, the adoption of risk mitigation measures. Such measures can include: the reclassification of pesticides as restricted use; use-site restrictions; the implementation of buffer zones; mandatory good agricultural practices; fumigant management plans; and training programs. See, e.g. , U.S. Envtl.

Prot. Agency, Reregistration Eligibility Decision (RED) Document for Methyldithiocarbamate Salts - Metam Sodium/Potassium and MITC at 8 (2008). • EPA may cancel a pesticide's registration, or impose other use restrictions, if the pesticide "when used in accordance with widespread and commonly recognized practice, generally causes unreasonable adverse effects on the environment." 7 U.S.C. § 136d(b). In addition to these provisions, § 136v(a) of FIFRA ("Authority of States") expressly allows a state to "regulate the sale or use of any federally registered pesticide[.]" 11 Also, FIFRA ⁶⁷⁷ still provides that the EPA Administrator shall cooperate with "any appropriate agency of any State or any political subdivision thereof ... in securing uniformity of regulations." 7 U.S.C. § 136t(b). Wisconsin Public Intervenor v. Mortier , 501 U.S. 597 , 111 S.Ct. 2476 , 115 L.Ed.2d 532 (1991) In Mortier , the Supreme Court determined that the express grant of authority ⁷⁰³ to "States" in § 136v of FIFRA does not thereby preempt local regulation: "[the section] plainly authorizes the 'States' to regulate pesticides and just as plainly is silent with reference to local governments." Id. at 607 , 111 S.Ct. 2476 .

The Court reasoned: "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." 12 Id. at 608 , 111 S.Ct. 2476 . Furthermore, the Court was unequivocal that-despite the comprehensiveness of the federal regulatory scheme established by the 1972 amendments-FIFRA did not intend to preempt the field of pesticide regulation. Id. at 613 , 111 S.Ct. 2476 . Rather, the Supreme Court said that FIFRA "leaves substantial portions of the field vacant": FIFRA nowhere seeks to establish an affirmative permit scheme for the actual use of pesticides.

It certainly does not ⁶⁷⁸ 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. Id. at 613-14 , 111 S.Ct. 2476 . Maryland's Regulatory Scheme Two subtitles within Title 5 of the State Agriculture Article pertain to pesticides: the Maryland Pesticide Registration and Labeling Law (Subtitle 1, §§ 5-101 - 5-114), and the Pesticide Applicator's Law (Subtitle 2, §§ 5-201 - 5-211). 13 These measures, largely enacted in 1957 and 1969, respectively, were later incorporated into the Agriculture Article in a 1973 Code Revision. 14 Laws of 1973, 1st Sp.

Sess., Chapter 6. The Maryland Pesticide Law of 1958 The Maryland Pesticide Registration and Labeling Law that is now codified as Subtitle 1 of Title 5 of the Agriculture Article was enacted in 1957 (although it was titled "The Maryland Pesticide Law of 1958"). The 1957 law repealed and amended an earlier law from 1939 that had regulated the registration, sale, and handling of insecticides and fungicides. 15 Laws of 1957, Chapter 536. Like the earlier law from 1939, and like 1947's FIFRA, the Maryland ⁷⁰⁴ Pesticide Law of 1958 regulated the distribution, sale, or transportation of adulterated or misbranded pesticides.

An amendment to the Maryland Pesticide Law of 1958 added an uncodified provision to the law ⁶⁷⁹ that provided that jurisdiction in those matters would be vested exclusively in the State Chemist: And be it further enacted, that jurisdiction in all matters pertaining to the distribution, sale and transportation of pesticides is by this act vested exclusively in the State Chemist and all acts and parts of acts inconsistent with this act are hereby expressly repealed. Sec. 3 of Chapter 536, Laws of 1957. We additionally note that, at that time in 1957, the State Chemist was an officer appointed by the University of Maryland's Board of Regents; prior to the creation of the Maryland Department of Agriculture in 1972, the Board of Regents assumed an ex officio role as the State Board of Agriculture. The Pesticide Applicator's Law The provisions regulating pesticide use that are currently codified as the Pesticide Applicator's Law, Subtitle 2 of Title 5 of the Agriculture Article, were first enacted in 1969.

Laws of 1969, Chapter 593. The 1969 law originated as proposed legislation from a Governor's Commission on Pesticides; the Commission itself had been created by a joint resolution of the General Assembly in 1967. Report to the Governor of Maryland and Maryland General Assembly from the Commission on Pesticides , September 1, 1968 ("Commission Report"). The Commission Report, issued in September 1968, recommended adopting legislation to "[e]stablish a center for control of the use of pesticides in Maryland ..." and to "[p]rovide certain essential definitions and guidelines for the [State Board of Agriculture]." Commission Report at 8-9.

The law that was enacted by the General Assembly in 1969 largely mirrored the Commission's proposed legislation. In 1985, the Attorney General's office issued an opinion as to whether State or federal law would preempt a proposed Montgomery County ordinance requiring lawn care businesses and pesticide dealers to warn the public of dangers concerning pesticides before and after application. 70 Md. Att'y Gen. Op. 161 (1985). The bulk of the opinion's analysis focused on why federal law would preempt such an ordinance (an analysis later superseded by Mortier ), but on the State law issue, the ⁶⁸⁰ opinion said: "existing State law [ ] does not preempt the County's authority to regulate pesticides[.]" Id. at 164 n. 5.

The opinion reasoned: (1) "[a]bsent a prohibition by State or federal law, Montgomery County generally has authority to regulate the sale and use of pesticides"; (2) State law does not "oust[ ] local jurisdictions of authority to act" in the field of pesticide regulation; and (3) "State law neither contains express preemption language nor so comprehensively regulates in this area that a court would be compelled to find preemption by implication." Id. at 163-64. The opinion explained that, as a charter county, Montgomery County's express powers include the ability to "legislate for the benefit of the health, safety and general welfare of the local community." Id. at 163 (quoting Ritchmount P'ship v. Bd. of Supervisors of Elections for Anne Arundel County , 283 Md. 48 , 57, 388 A.2d 523 (1978) ). The opinion further noted that the Express Powers Act grants a charter county "broad authority to regulate conditions detrimental to health and to provide for the health and welfare of the County." Id. at 163 (Internal quotation marks omitted). The opinion then stated: "County regulation concerning the safe use of pesticides is plainly within these grants of authority." Id. ⁷⁰⁵ Later Amendments In 1987, the Legislature amended the Pesticide Applicator's Law to require licensees to provide certain pesticide information to customers and to the Department of Agriculture and to post signs on treated property indicating that a pesticide had been applied.

Laws of 1987, Chapters 301 and 302. The Legislature also conferred upon the Department the authority to impose civil penalties and seek injunctive relief for those violating the notice and posting requirements. The 1987 legislation also provided that "[f]or purposes of uniformity and in order to enter into cooperative agreements," the Agriculture Secretary was authorized to "adopt use classifications and other pertinent pesticide regulation provisions that are established by the U.S. Environmental Protection Agency[.]" In 1998, the General Assembly required county boards of education to adopt integrated pest management systems for ⁶⁸¹ public schools and required public schools to provide certain notification and information regarding pesticide application. Laws of 1998, Chapter 461.

The following session, the Legislature made some modifications to this statute, including requiring the Department of Agriculture to develop "uniform standards and criteria" for implementing integrated pest management for school grounds. 16 Laws of 1999, Chapter 327. Other enactments in 1999 and later were more singular in their operation. See, e.g. , Laws of 1992, Chapter 120 (increasing Department fines and penalties) and Laws of 1994, Chapter 550 (addressing certification and training requirements). But no enacted legislation clearly or expressly countered the Attorney General's opinion that local regulation was not preempted.

Legislative Rejection of Attempts to Preempt Local Pesticide Regulation The 1991 Supreme Court decision in Mortier drove the pesticide industry to seek enactment of State legislation preempting the local regulation of pesticides. ⁶⁸² In the 1992 session of the Maryland General Assembly, HB 762/SB 549 was intended to completely preempt local regulation by vesting in the Secretary of Agriculture "sole authority over regulation of pesticide application and notification." 17 "[At] the Secretary's sole discretion," local governments were permitted to adopt more stringent requirements. ⁷⁰⁶ While the Senate bill languished in committee, the House bill was amended to soften the opposition of home rule jurisdictions and environmental groups. Specifically, HB 762 was amended in committee to provide that "Any ordinance or regulation adopted by a local jurisdiction regulating pesticides in effect on October 1, 1992 may remain in effect as written." 18 As amended, the bill cleared committee and went to the floor, where it was voted down 72-52. 19 Opposition to the bill came from Delegates from charter home rule subdivisions (Anne Arundel, Baltimore, Howard, Montgomery, and Prince George's counties, and Baltimore City). 1993 brought round two, where the push began on the Senate side. SB 429 would have vested the Secretary of Agriculture with "general authority over the regulation of pesticides." A local jurisdiction could enact a tougher regulation if it ran the proposal through a three-member review board, consisting of the Secretaries of Agriculture, Environment, and Natural Resources. As introduced, the bill grandfathered existing local ordinances, but not subsequent amendments.

In committee, the grandfather clause was amended to provide that "[T]his Act does not affect the authority of a local ⁶⁸³ jurisdiction that has a local ordinance regulating pesticides as well as public notification regarding the use of pesticides in effect as of October 1, 1993 to adopt and implement an ordinance that is more stringent than State regulation." As amended, the bill passed the Senate by an overwhelming majority (42-5) and was sent to the House. 20 Once again, the bill was approved by the House Environmental Matters Committee, but was then defeated on the House floor by a 70-65 vote. 21 Once again, the opposition to the bill came from Delegates from charter home rule jurisdictions. The final knockdown occurred in 1994. HB 948, as introduced, contained some elements of previous bills, including the grandfather clause from the 1993 legislation. The review board was expanded to five Cabinet secretaries.

Most significantly, the bill was amended to specifically exempt Montgomery County from the review process entirely. The bill was approved by the House Committee and again reached the floor. Although the vote was closer than in previous years, the bill failed to win the necessary constitutional majority of 71 by three votes. A motion for reconsideration failed by a single vote.

The same coalition of charter subdivision legislators was responsible for the defeat. 22 Current Code: The Maryland Pesticide Registration and Labeling Law The Maryland Pesticide Registration and Labeling Law is currently codified as ⁷⁰⁷ Subtitle 1 of Title 5 of the Agriculture Article; its essential provisions remain consistent from when it was first enacted in 1957. The law requires distributors to ⁶⁸⁴ register pesticides with the Agriculture Secretary before distributing them in the State. § 5-105(a). Before a pesticide may be registered, the pesticide must comply with federal pesticide laws and regulations. § 5-105(h). Subject to certain exceptions, any pesticide that is distributed, sold, offered for sale, delivered for transportation, or transported in the State must be properly packaged and labeled, § 5-106, and a person may not distribute, sell, or transport any unregistered or misbranded pesticide. § 5-109.

The Agriculture Secretary may suspend or cancel the registration of any pesticide that is improperly labeled or otherwise does not comply with the law. § 5-107. The statute provides that "[t]he Secretary may cooperate with and enter into agreements with any other agency of the State, any other state, the United States, or with the Association of American Pesticide Control Officials, Inc. to carry out the provisions of this subtitle and to secure uniform rules and regulations." § 5-102(b). Additionally, because "[u]niform pesticide requirements between the several states and the federal government are desirable to avoid confusion that endangers the public health and that results from diverse requirements," the Secretary may adopt EPA's rules and regulations if they "are applicable to and conform with the primary standards established by this subtitle." § 5-104(c). Current Code: The Pesticide Applicator's Law The Pesticide Applicator's Law is currently codified as Subtitle 2 of Title 5 of the Agriculture Article.

The law states that, among other duties, the Agriculture Secretary shall: "[a]dopt rules and regulations governing the storage, sale, distribution, exchange, use, and disposal of any pesticide and its container;" § 5-204(1); "[p]rescribe, when necessary, the time and conditions under which a pesticide may be sold, distributed, exchanged, or used in different areas of the State;" § 5-204(2); "[p]rovide, if necessary, that extremely hazardous pesticides may be sold, distributed, exchanged, or applied only when special permission first is obtained from the Secretary;" § 5-204(3); and "[d]efine the formulations and establish the conditions and appropriate areas for application of any pesticide;" § 5-204(4). The law sets forth that "[a] ⁶⁸⁵ person may not use, apply, or recommend use of a pesticide other than as specified by the label[,]" and "[a] person may not use, apply, or recommend use of a pesticide in a manner other than as specified by [the law] or rules and regulations adopted under it." § 5-210. The Agriculture Secretary must set certification requirements for applicators, § 5-206(a), and may only issue licenses to applicants who meet those requirements. § 5-206(b). At various times, licensees must provide a customer with "[p]ertinent safety information, as determined by the Department," § 5-208(a)(5), and the statute requires notice posting when pesticides are commercially applied to a lawn. § 5-208(c).

Additionally, the statute states that, "[f]or purposes of uniformity and in order to enter into cooperative agreements, [the Secretary shall] adopt use classifications and other pertinent pesticide regulation provisions that are established by the U.S. Environmental Protection Agency[.]" § 5-204(13). DISCUSSION There are three ways in which State law may preempt local law: (1) expressly, (2) by conflict, or (3) by implication. Chaney , 454 Md. at 540 -41 , 165 A.3d 379 (citing ⁷⁰⁸ Md. Reclamation Assocs., Inc. v. Harford County , 414 Md. 1 , 36, 994 A.2d 842 (2010) ). The circuit court found, and Appellees assert, that the County's law is preempted both by conflict and by implication.

We review de novo the circuit court's issuance of a declaratory judgment after granting a motion for summary judgment. Dep't of Pub. Safety & Corr. Servs. v. Doe , 439 Md. 201 , 219, 94 A.3d 791 (2014).

In addition to these two central contentions, we examine whether aspects of the County ordinance have been expressly preempted by an uncodified amendment to the Maryland Pesticide Law of 1958 that does not appear to have ever been officially repealed. I. The County Ordinance's Sale and Distribution Requirements Are Not Expressly Preempted. "Express preemption occurs when the General Assembly prohibits local legislation in a field by specific language in ⁶⁸⁶ a statute." Worton Creek Marina, LLC v. Claggett , 381 Md. 499 , 512 n. 6, 850 A.2d 1169 (2004). As described above, the Maryland Pesticide Registration and Labeling Law, currently codified as Subtitle 1 of Title 5 of the Agriculture Article, originated as the Maryland Pesticide Law of 1958.

Laws of 1957, Chapter 536. And as mentioned, an amendment to the Maryland Pesticide Law of 1958 added an uncodified provision to the law that provided that jurisdiction in all matters pertaining to the distribution, sale, and transportation of pesticides would be vested exclusively in the State Chemist: And be it further enacted, that jurisdiction in all matters pertaining to the distribution, sale and transportation of pesticides is by this act vested exclusively in the State Chemist and all acts and parts of acts inconsistent with this act are hereby expressly repealed. Laws of 1957, Chapter 536, Sec. 3. The County's brief acknowledges this uncodified provision, and even goes so far as to call it a "preemption clause," but then claims that the clause was eliminated by the 1973 Code revision that created the new Agriculture Article.

We disagree with the County on both counts: the provision does not, in fact, appear to have ever been expressly repealed; nevertheless, it is not preemptive of the County's authority to impose local pesticide requirements. The County cites a Revisor's Note to the 1973 Session Law that created the Agriculture Article for the proposition that the 1973 Code revision repealed the uncodified provision. The Revisor's Note in question stated: "All other present references to the State Chemist in this subtitle are proposed for deletion ...." Laws of 1973, Chapter 6, at 1571 (Emphasis added). However, the phrase "in this subtitle" would only refer to codified provisions of the Code; by their very nature, uncodified provisions would not be a part of the codified "subtitle." Thus, the uncodified provision would not have been deleted by this language and, technically, remains law. 23 ⁶⁸⁷ Nevertheless, we do not read the uncodified provision as a true preemptive clause that was meant to confine local regulation in the face of State authority.

Rather, in context, the uncodified provision appears more likely to have been intended as a realignment of duties among State officials. The Maryland Pesticide Law of 1958 repealed and amended an earlier law from 1939 that had regulated the registration, sale, and handling of insecticides and fungicides. The 1939 law had placed enforcement and administrative authority over ⁷⁰⁹ pesticide registrations in the State Board of Agriculture, and authorized the State Board of Agriculture to promulgate such rules and regulations as may have been necessary for the law's administration. Laws of 1939, Chapter 141, § 105D.

The Maryland Pesticide Law of 1958, however, specified that those responsibilities would now be vested in the State Chemist, an officer appointed by the University of Maryland's Board of Regents acting ex officio as the State Board of Agriculture. Laws of 1957, Chapter 536, § 134. Elsewhere, the 1957 law stated that "[a]ll authority vested in the State Chemist ... may with like force and effect be executed by such employees of the Board of Agriculture as the State Chemist may from time to time designate for said purpose." Laws of 1957, Chapter 536, § 140C. Given these somewhat overlapping duties between the State Board of Agriculture and the State Chemist it appointed, the uncodified provision was likely intended to clarify the apportionment of duties between the State units.

And as such, when the Code was revised in 1973, and the position of State Chemist was transferred to a subordinate position within the new Department of Agriculture, it would at that time have become clear that the express duties of the State Chemist were now duties within the Department's hierarchy of duties. Indeed, were the uncodified provision intended to be a true preemption clause with respect to the authority of local governments-and never repealed-it would make no sense to vest exclusive State jurisdiction in a subordinate office within the Agriculture Department. ⁶⁸⁸ II. The County Ordinance is Not Preempted by Conflict. The crux of conflict preemption is that "a political subdivision may not prohibit what the State by general public law has permitted, but it may prohibit what the State has not expressly permitted." Ad + Soil, Inc. v. County Comm'rs of Queen Anne's County , 307 Md. 307 , 335, 513 A.2d 893 (1986) (Emphasis in original) (quoting City of Baltimore v. Sitnick & Firey , 254 Md. 303 , 317, 255 A.2d 376 (1969) ); see also Chaney , 454 Md. at 541 n. 19, 165 A.3d 379 ("Conflict preemption occurs when a local law 'prohibits an activity which is intended to be permitted by state law, or permits an activity which is intended to be prohibited by state law.' ") (quoting Talbot County v. Skipper , 329 Md. 481 , 487 n. 4, 620 A.2d 880 (1993) ).

Notably, although the circuit court found conflict preemption in part based on its determination that the County ordinance would frustrate the State's purpose of seeking uniform pesticide regulations, the Court of Appeals "has not recognized frustration of purpose-type conflict preemption." Chaney , 454 Md. at 541 n. 19, 165 A.3d 379 . Indeed, the Court of Appeals has emphasized that it has "rejected the application" of "federal 'frustration of purpose' preemption to a local... ordinance" because "our appellate courts ha[ve] never applied it to resolve a conflict between state and local law." 24 Id. Here, Appellees argue that the sort of express authorization that would compel a ⁷¹⁰ finding of conflict preemption is contained in the Department of Agriculture's regulations. For instance, the Department's regulations require that when using pesticides, ⁶⁸⁹ a person shall "[u]se or recommend only those pesticides which are registered with the Department[.]" COMAR 15.05.01.02(B)(1).

The Department additionally specifies that "[a] person may not use a restricted use pesticide unless that person is a certified applicator or is a person working under the supervision of a certified applicator." COMAR 15.05.01.02(C). We agree with the County, however, that this language is less an express authorization of use than it is a restriction of permitted use. See, e.g. , 73 Md. Att'y Gen. Op. 12, 18 (1988) ("Every registered pesticide has a federally approved label that defines and restricts its use.") (Emphasis added).

The Department's regulations do not provide carte blanche to use registered pesticides once they have been registered by EPA and the State (and, in the case of a restricted use pesticide, so long as the individual is appropriately certified). The full text of the Department's regulations goes on to require that pesticide applicators incorporate additional best practices to promote human health and the environment: in the same COMAR chapter, for instance, the Department requires individuals to "[o]bserve all precautions in the handling, use, storage, and disposal of pesticides" so that "humans[ ] do not suffer injury" and "[u]nreasonable adverse effects on the environment do not occur or are minimized[.]" COMAR 15.05.01.02(B)(3). The Department also requires certified applicators to "[m]ake use of scientific training, practical experience, and commonly recognized pesticide industry guidelines or recommendations" when treating for pests, and to "[c]onsider recommended alternative pest control measures, such as mechanical, cultural, physical, biological, or chemical control[.]" COMAR 15.05.01.03(C). All this language would be completely extraneous surplusage if mere compliance with a registered pesticide's label gave individuals an unfettered green light to use the pesticide throughout Maryland as directed by the label. 25 ⁶⁹⁰ Accordingly, the Department's regulations requiring compliance with labels are better characterized as setting a floor, above which the County may provide for further health and safety restrictions.

See Mayor & City Council of Balt. v. Hart., 395 Md. 394 , 396-97, 409, 910 A.2d 463 (2006) (When a statute dictated statewide minimum safe driving conduct for emergency vehicles, and a Baltimore Police Department order provided a more stringent standard for its own emergency vehicles, the Court of Appeals determined that "[t]he function of [the statute] is, presumably, to help facilitate the safe operation of emergency vehicles. [The BPD order] simply provides for, arguably, a higher safety standard."); see also M. Peter Moser, County Home Rule-Sharing the State's Legislative Power with Maryland Counties , 28 MD. L. REV. 327, 350 n. 79 (1968) (discussing Court of Appeals decisions that upheld "additional limitations" imposed by local regulations, "on the basis that the state and [locality] might act concurrently on the subject matter."). Moreover, despite Appellees' characterization ⁷¹¹ of the County's use restrictions as a total "ban," the County ordinance "is less restrictive than a categorical ban[.]" Md. Reclamation Assocs. , 414 Md. at 44 , 994 A.2d 842 . The County ordinance does not restrict the use of "listed" pesticides; does not affect who may be certified or hired as a commercial applicator; exempts agricultural use; and allows using any pesticide registered with EPA under a rather expansive set of circumstances: to control weeds, invasive species, disease vectors, biting or stinging insects or stinging plants, indoor pests, or a pest outbreak that poses an imminent threat to human health.

We are also mindful that pursuant to the Chesapeake and Atlantic Coastal Bays Critical Area Protection Program, Md. ⁶⁹¹ Code (2012 Repl. Vol., 2018 Cum. Supp.), Natural Resources Article, §§ 8-1801 - 8-1817, the State requires local jurisdictions within the Critical Area to develop agricultural programs that "[a]ssure that best management practices for the control of nutrients, animal wastes, pesticides , and sediment runoff be used to protect the productivity of the land base and enhance water quality." COMAR 27.01.06.02(E) (Emphasis added). This provision goes on to state that such practices "shall minimize contamination of surface and ground water and, further, shall minimize adverse effects on plant, fish, and wildlife resources." 26 Id.

It would be anomalous for the State to require each of the jurisdictions within the Chesapeake Bay Critical Area (16 counties and Baltimore City) to actively develop pesticide control practices for the sake of protecting water quality and wildlife if the Agriculture Article conflicted with the ability of County governments to enact such rules. Furthermore, local policies that minimize pesticide contamination would only aid the State's water quality goals under the Clean Water Act. 27 See, e.g., Md. Dep't of Env't, NPDES MS4 Permit [a Clean Water Act discharge permit] for Montgomery County at 6 (2010) ("The County shall continue to implement a program to reduce pollutants associated with road maintenance activities. The road maintenance program shall include ... [r]educing the use of pesticides, herbicides, fertilizers, and other pollutants associated with roadside vegetation management through increased use of integrated pest management ..."). ⁶⁹² III. The County Ordinance is Not Preempted by Implication.

Implied preemption concerns whether a local law "deals with an area in which the State Legislature has acted with such force that an intent by the State to occupy the entire field must be implied." Chaney , 454 Md. at 541 , 165 A.3d 379 (quoting Skipper , 329 Md. at 488 , 620 A.2d 880 ). In determining whether "the General Assembly [has] occup[ied] a particular field so extensively as to preclude local legislation," Altadis U.S.A., Inc. v. Prince George's County, Maryland , 431 Md. 307 , 311, 65 A.3d 118 (2013), the "primary indicia of a legislative purpose to pre-empt an entire field of law is the comprehensiveness ⁷¹² with which the General Assembly has legislated that field." Chaney , 454 Md. at 541 , 165 A.3d 379 (quoting Allied Vending, 332 Md. at 299 , 631 A.2d 77 ). The Court of Appeals has emphasized that "[t]here is no particular formula for determining whether the General Assembly intended to preempt an entire area," Skipper , 329 Md. at 488 , 620 A.2d 880 . Secondary factors that could aid in an implied preemption finding include whether a "multi-tiered regulatory process ... would invite chaos and confusion," Altadis , 431 Md. at 315 , 65 A.3d 118 (quoting Allied Vending , 332 Md. at 303 , 631 A.2d 77 ), and whether the General Assembly has exclusively regulated in an area "in which no local control has traditionally been allowed," Altadis , 431 Md. at 315 , 65 A.3d 118 (quoting Allied Vending , 332 Md. at 302 , 631 A.2d 77 ).

Other secondary factors include: "whether local laws existed prior to the enactment of the state laws governing the same subject matter"; "whether the state laws provide for pervasive administrative regulation"; "whether the state law expressly provides concurrent legislative authority to local jurisdictions or requires compliance with local ordinances"; "whether a state agency responsible for administering and enforcing the state law has recognized local authority to act in the field"; and "whether the particular aspect of the field sought to be regulated by the local government has been addressed by the state legislation." Allied Vending , 332 Md. at 299 , 631 A.2d 77 (Internal citations omitted). ⁶⁹³ The secondary Allied Vending factors, if not ignored entirely, have not risen in subsequent cases to a litmus test for implied preemption. See, e.g., Chaney , 454 Md. at 541 -45 , 165 A.3d 379 . Thus, the failure to meet some or all of the secondary Allied Vending factors does not necessarily control the outcome of an implied preemption challenge. Another Allied Vending preemption consideration deemed controlling in that case was application of the Amendment Rejection Theory of statutory construction.

In that case, the Court relied on repeated legislative rejection of bills that would have authorized local regulation of cigarette vending machines to find that such failures "strongly suggest[ ] that there was no intent to allow local governments to enact different [ ] requirements." 332 Md. at 304 , 631 A.2d 77 (quoting Skipper , 329 Md. at 493 , 620 A.2d 880 ). An evaluation of these considerations leads us to conclude that the General Assembly has not intended to preempt the entire field of pesticide regulation. A. The Comprehensiveness and Course of Legislative Activity Appellees claim that the State has regulated so extensively and comprehensively as to preclude any local regulation. Appellees point to the Pesticide Applicator's Law, codified as Subtitle 2 of Title 5 of the Agriculture Article, which states that, among other duties, the (now) Agriculture Secretary shall: "[a]dopt rules and regulations governing the storage, sale, distribution, exchange, use, and disposal of any pesticide and its container;" § 5-204(1); "[p]rescribe, when necessary, the time and conditions under which a pesticide may be sold, distributed, exchanged, or used in different areas of the State;" § 5-204(2); "[p]rovide, if necessary, that extremely hazardous pesticides may be sold, distributed, exchanged, or applied only when special permission first is obtained from the Secretary;" § 5-204(3); and "[d]efine the formulations and establish the conditions and appropriate areas for application of any pesticide;" § 5-204(4). ⁶⁹⁴ On their face, these provisions are less comprehensive than the non-preemptive features of FIFRA.

Furthermore, we note ⁷¹³ that at the time these provisions were enacted, in 1969, the Maryland Department of Agriculture did not yet exist. Instead, the regulatory authority conveyed by the language just described was given to the State Board of Agriculture-a body that since 1908 had officially consisted of the University of Maryland's Board of Regents acting in an additional capacity. 28 We do not believe that the General Assembly of 1969 intended the University's Board of Regents to have such expertise in the field of pesticide regulation as to preclude any regulation by local governments. For perspective, in 1966 the USDA employed one toxicologist, despite being the federal agency in charge of administering FIFRA at that time. John Wargo, Our Children's Toxic Legacy 76 (1998).

We are also especially mindful that the Department of Agriculture's regulatory authority was already present within the Pesticide Applicator's Law when the Attorney General's office concluded, closer to the time of enactment, in 1985, that "State law ... [does not] so comprehensively regulate[ ] in this area that a court would be compelled to find preemption by implication." 70 Md. Att'y Gen. Op. 161, 164 n. 5 (1985). Such an understanding that State law did not preempt local regulations is gleaned from the General Assembly's consideration of pesticide legislation in 1987. That year, the General Assembly revised the Pesticide Applicator's Law to require commercial applicators to post notice signs on lawns for 48 hours following the application of pesticides.

Laws of 1987, Chapters 301 and 302. The State legislation arose after ⁶⁹⁵ Montgomery County and Prince George's County each passed legislation requiring notice in connection with pesticide application. In a consolidated lawsuit, the U.S. District Court for the District of Maryland held in 1986 that FIFRA preempted both counties' laws. Md. Pest Control Ass'n v. Montgomery County, Maryland. , 646 F.Supp. 109 (D.Md. 1986), aff'd , 822 F.2d 55 (1987).

The counties' legislation, along with pressure from environmental activists, spurred the General Assembly to pass the statewide notice