State Preemption of Local Authority to Regulate Pesticide

DEPARTMENT OF AGRICULTURE--CITIES AND TOWNS--COUNTIES--AGRICULTURE‑‑PREEMPTION--PESTICIDE--State Preemption of Local Authority to Regulate Pesticide.

1.  Chapter 17.21 RCW authorizes the Department of Agriculture to regulate pesticide application and use.  This chapter preempts cities and counties from regulating pesticide application and use, except the first class cities and the counties in which they are located can regulate structural pest control operators, exterminators, and fumigators.

2.  Chapter 15.58 RCW authorizes the Department of Agriculture to regulate formulation, distribution, storage, and disposal of pesticides.  This chapter does not preempt cities and counties from regulating these activities, so long as the local regulations do not conflict with state law.   

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                                                                   April 14, 1993

Peter Goldmark, Director
Washington State Department of Agriculture
P. O. Box 42560         
Olympia, WA  98504-2560                                                                                    Cite as:AGO 1993 No. 5

Dear Director Goldmark:

            By letter previously acknowledged your predecessor asked for our opinion on a question paraphrased as: 

            Do chapters 17.21 and 15.58 RCW, which provide for state  licensure of pesticide activity, preempt a city or county government from licensing the same pesticide activity? 

                                                               BRIEF ANSWER

            Chapter 17.21 RCW, which governs pesticide application and use, preempts licensure of those activities by cities and counties.  However, chapter 17.21 RCW does not preempt licensure of structural pest control operators, exterminators, or fumigators by a first class city, with a population of 100,000 or more, or a county in which such a city is located.  Chapter 15.58 RCW, which governs the formulation, distribution, storage, and disposal of pesticides, does not generally preempt licensure of these activities by cities and counties so long as the local regulations are not inconsistent with chapter 15.58 RCW and general state law.

                                                                BACKGROUND

            The issue of preemption of local pesticide laws recently gained national attention with the United States Supreme Court decision in Wisconsin Pub. Intervenor v. Mortier, 501 U.S. ____, 115 L. Ed. 2d 532, 111 S. Ct. 2476 (1991).  InMortier, the Supreme Court was faced with the factual situation of a city which had rejected the application of respondent Mortier for a permit to spray a portion of his land with pesticides.  Mortier brought suit claiming that the local ordinance requiring a permit was preempted by FIFRA, the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136,et seq.

            The United States Supreme Court held that FIFRA did not preempt the town's ordinance regulating the use of pesticides by requiring a permit.  More explicitly, it held that FIFRA "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."  111 S. Ct. at 2483.  One must thus look to state law to determine whether local licensure ordinances are preempted by state law. 

            You have asked if chapters 17.21 and 15.58 RCW preempt local licensure of pesticide activities.  We will address each of these chapters in turn.

1.         Chapter 17.21 RCW - Washington Pesticide Application Act

            Chapter 17.21 RCW, the Washington Pesticide Application Act, governs application and use of pesticides.  RCW 17.21.010 declares:

                        The application and the control of the use of various pesticides is important and vital to the maintenance of a high level of public health and welfare both immediate and future, and is hereby declared to be affected with the public interest.  The provisions of this chapter are enacted in the exercise of the police power of the state for the purpose of protecting the immediate and future health and welfare of the people of the state.

            The Director of the Department of Agriculture under RCW 17.21.030(1) "shall adopt rules . . . (f) Establishing testing procedures, licensing classifications, and requirements for licenses and permits as provided by this chapter . . . ."  The licenses provided by chapter 17.21 RCW are as follows:  (1) Commercial pesticide applicator.  RCW 17.21.070;[1](2) Commercial pesticide operator.  RCW 17.21.110;[2](3) Private-commercial applicator.  RCW 17.21.122;[3](4) Private applicator.  RCW 17.21.126;[4](5) Demonstration and research applicator.  RCW 17.21.129;[5](6) Public operator.  RCW 17.21.220(2).[6]

            Chapter 17.21 RCW therefore licenses or excludes from licensing all categories of pesticide application and use. 

2.         Chapter 15.58 RCW - Washington Pesticide Control Act

            Chapter 15.58 RCW, the Washington Pesticide Control Act, governs formulation, distribution, storage, transportation, and disposal, as well as the dissemination of scientific information concerning use.  RCW 15.58.020 declares:

                        The formulation, distribution, storage, transportation, and disposal of any pesticide and the dissemination of accurate scientific information as to the proper use, or nonuse, of any pesticide, is important and vital to the maintenance of a high level of public health and welfare both immediate and future, and is hereby declared to be a business affected with the public interest.  The provisions of this chapter are enacted in the exercise of the police powers of the state for the purpose of protecting the immediate and future health and welfare of the people of the state.

            The Director of the Department of Agriculture has been given broad rulemaking authority to carry out chapter 15.58 RCW, including rules for "[t]he safe handling, transportation, storage, display, distribution, and disposal of pesticides and their containers".  RCW 15.58.040(2)(e).  Chapter 15.58 RCW provides for the following licenses:  (1)  Pesticide dealer.  RCW 15.58.180(1);[7]  (2) Pesticide dealer manager. RCW 15.58.180(3);[8](3) Pest control consultant.  RCW 15.58.210;[9](4) Public pest control consultant.  RCW 15.58.220.[10]  Chapter 15.58 RCW licenses or excludes from licensing those categories of pesticide activity related to distribution and consultation.    

                                                                    ANALYSIS

            In answering your question, we start with article 11, section 11 of the Washington Constitution, which grants a city or county the power to "make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."  Article 11, section 11 is a direct delegation of police power; this power requires no legislative sanction for its exercise as long as the subject matter is local and the regulation reasonable and consistent with the general laws.  Brown v. Yakima, 116 Wn.2d 556, 559, 807 P.2d 353 (1991); Bellingham v. Schampera, 57 Wn.2d 106, 109, 356 P.2d 292 (1960).[11]

            The plenary police power in regulatory matters accorded municipalities by the state constitution ceases when the state enacts a general law upon the particular subject, unless there is room for concurrent jurisdiction.  Lenci v. Seattle, 63 Wn.2d 664, 669, 388 P.2d 926 (1964).  Whether there is room for the exercise of concurrent jurisdiction in a given instance necessarily depends upon the legislative intent to be derived from an analysis of the statute involved.  If the Legislature is silent as to its intent to occupy a given field, one must look to the purposes of the legislative enactment and to the facts and circumstances upon which the enactment was intended to operate.  If, on the other hand, the Legislature has affirmatively expressed its intent to either occupy the field or accord concurrent jurisdiction, then preemption, except to the extent of concurrent jurisdiction, is clear.  Id. at 669-70. 

            The state may preempt by implication if the Legislature has created a single uniform standard intended for statewide application, or if the Legislature has created so comprehensive a legislative framework in a particular area that there is no room left for concurrent jurisdiction.  Seattle v. Shin, 50 Wn. App. 218, 221-22, 748 P.2d 643 (1988). 

            In the alternative, if the Legislature has not clearly indicated its intent to preempt the power of local government to legislate in an area, an alternative basis for preemption exists; that is, where the ordinance conflicts with state statute.  Snohomish Cy. v. State, 97 Wn.2d 646, 649, 648 P.2d 430 (1982).  The test is whether the ordinance permits or licenses that which the statute forbids and prohibits, or whether the ordinance forbids and prohibits that which the statute permits or licenses.  State v. Seattle, 94 Wn.2d 162, 166, 615 P.2d 461 (1980); Lenci v. Seattle, 63 Wn.2d at 670. 

            Having articulated these applicable principles, we now turn to an examination of whether local licensure of pesticide activities is preempted by chapters 17.21 and 15.58 RCW.

1.         Chapter 17.21 RCW - Washington Pesticide Application Act

            Chapter 17.21 RCW contains an express grant by the Legislature of authority to cities of the first class with a population of 100,000 people or more (or the counties in which they are situated), to license structural pest control operators, exterminators, and fumigators even though such individuals are subject to licensure by the state under one of the license categories set forth above.[12]  RCW 17.21.305. 

            Structural pest control operators, exterminators, and fumigators necessarily exclude nonstructural pest control operators, exterminators, and fumigators.  Where a statute designates a list of things upon which the statute operates, the inference arises that the Legislature intended to omit other things not listed; "specific inclusions exclude implication."  In re Eaton, 110 Wn.2d 892, 898, 757 P.2d 961 (1988).

            Correspondingly, the grant of this licensing authority to counties and cities only applies to cities of the first class with a population of 100,000 people or more or counties in which they are situated.  This necessarily implies that other cities and counties do not have such authority.  A construction of RCW 17.21.305 that would allow local entities to license, irrespective of their population, and/or a construction that would allow licensing of other types of pesticide applicators, would render the inclusion of the specific language by the Legislature an unnecessary act.  It is presumed the Legislature does not engage in unnecessary or meaningless acts.  Stephanus v. Anderson, 26 Wn. App. 326, 613 P.2d 533 (1980). 

            Under the test articulated in Lenci v. State, it is clear from RCW 17.21.305 that the Legislature intended to accord concurrent jurisdiction in limited circumstances; that is, to cities and counties of a certain population and with respect tostructural pest control operators, exterminators, and fumigators only.  By necessary implication, it is clear that the Legislature intended to reserve unto the state the remainder of the licensure field as related to the application and use of pesticides.  In addition, under chapter 17.21 RCW, if a city or county (which met the threshold population requirement of RCW 17.21.305) attempted to license all commercial pesticide applicators,[13]it would be an attempt to prohibit pesticide application and use activity by locally unlicensed, nonstructural pest control operators, exterminators, and fumigators.  Yet such activity is expressly allowed by the state under chapter 17.21 RCW as long as those persons conducting the activity are licensed under state law.

            State v. Halvorsen, 30 Wn. App. 772, 638 P.2d 124 (1981) provides an example of this type of conflict.  InHalvorsen, the defendant was cited for committing the misdemeanor offense of violating Kitsap County Code 7.12.100 which required a dog kennel license where four or more dogs over the age of four months were kept for any purpose.  Under state law, RCW 36.49.010, a county was authorized to require kennel licenses when dogs are kept for breeding, sale, or sporting purposes.  Since the county's ordinance required a kennel license where dogs are kept for any purpose, the court found that it conflicted with the express limitation on the county authority in the state statute.  The same would be true of a county attempting to require licensure of more activities than expressly authorized to them under a state statute granting concurrent jurisdiction.  In such a case, there is a clear conflict and the county ordinance is preempted by the state law. 

2.         Chapter 15.58 RCW - Washington Pesticide Control Act

            We turn next to an examination of licensure under chapter 15.58 RCW.  The provisions of chapter 15.58 RCW do not deal with licensure of application and use activities, but rather with activities related to the "formulation, distribution, storage, transportation, and disposal of any pesticide".  RCW 15.58.020.  The chapter specifically provides for licensure of distribution and consultation activities. 

            Cities and counties have been directly delegated police power to enact laws; this power is as ample within their limits as that possessed by the Legislature.  Brown v. Yakima, 116 Wn.2d 556.  As such, they may enact ordinances prohibiting the same acts prohibited by state law so long as the state law was not intended to be exclusive and the city ordinance does not conflict with the general law of the state.  Tacoma v. Luvene, 118 Wn.2d 826, 827 P.2d 1374 (1992).  A statute will not be interpreted to deprive a municipality of the power to legislate on particular subjects unless that clearly is the legislative intent.  Southwick, Inc. v. Lacey, 58 Wn. App. 886, 891-92, 795 P.2d 712 (1990).  An ordinance, therefore, is preempted only if one of the previously articulated tests is met. 

            There is nothing contained in chapter 15.58 RCW which evidences an intent by the Legislature to preempt the field of licensure of those pesticide activities articulated under RCW 15.58.020.  To the contrary, the omission in chapter 15.58 RCW of a provision comparable to RCW 17.21.305 leads one to a conclusion that the Legislature did not intend to preclude local licensure of those activities.[14]

            Absent such a provision, it is similarly difficult to conceive of a situation where a county or city's attempt to license activity otherwise licensed or excluded under chapter 15.58 RCW would result in preemption based on a direct conflict.[15]

            A local ordinance does not conflict with a state statute merely because the ordinance prohibits a wider scope of activity.  Brown v. Yakima, 116 Wn.2d at 562.  InBrown, a local fireworks ordinance that was more restrictive than a state statute as to the dates and times fireworks could be sold or used was found not to be preempted, because both laws were prohibitory and not contradictory.  Likewise, provisions under chapter 15.58 RCW and local ordinances precluding chapter 15.58 RCW pesticide activity unless a license is obtained, would both be prohibitory.  The local ordinances, by requiring licensure, would simply add to the existent state prohibition.

            Although we conclude that chapter 15.58 RCW does not generally preempt cities and counties from regulating the formulation, distribution, storage, and disposal of pesticides, our opinion must be qualified with one caveat.  If a particular city or county ordinance conflicts with a state statute, state law will govern and the local ordinance will be preempted.  Snohomish Cy. v. State, 97 Wn.2d at 649.  Thus, while chapter 15.58 RCW does not generally preempt local regulation, a specific local ordinance may be preempted if it conflicts with state law.

            In summary, RCW 17.21.305 bestows concurrent jurisdiction on cities with a population over 100,000 and the counties in which they are situated to license structural pest control operators, exterminators, and fumigators.  The Legislature has shown an intent to preempt the licensure field in the area of application and use except to the extent of this concurrent jurisdiction.  Ordinances which go beyond this limited authority conflict with chapter 17.21 RCW.  The Legislature has not shown an intent to preempt the licensure field under chapter 15.58 RCW.  With respect to local licensure of activities otherwise licensed or excluded from licensing under chapter 15.58 RCW, a city or county would not be precluded from licensing.

            We trust this opinion will be of assistance to you.

                                                                        Very truly yours,

                                                                        CHRISTINE O. GREGOIRE
                                                                        Attorney General

                                                                        SHIRLEY W. BATTAN
                                                                        Senior Assistant Attorney General

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