Ames v. Smoot , 98 A.D.2d 216 ( 1983 )

OPINION OF THE COURT

Lazer, J. P.

Has the enactment of article 33 of the Environmental Conservation Law (ECL) pre-empted the field of pesticide regulation and thus precluded local governments from legislating in that area? Since we believe that it has, we conclude that the local law enacted by the Incorporated Village of Laurel Hollow prohibiting aerial spraying of pesticides was void and that it could be repealed without the filing of an environmental impact statement.

Although the enactment under immediate challenge is Laurel Hollow’s Local Law No. 1 of 1982, which repealed Local Law No. 1 of 1981, the real issue in this case is the validity of the 1981 local law, the enactment that proscribed aerial spraying of pesticides. Seeking to save the ban on aerial spraying, three Laurel Hollow homeowners commenced a CPLR article 78 proceeding for a declaration that the repealing legislation was invalid since it had been enacted without compliance with the State Environmental Quality Review Act (SEQRA) (ECL art 8) because of the failure to file an environmental impact statement. Such a statement must be filed before an environmental “action” is taken (see ECL 8-0109). Whether there is merit to petitioners’ contention depends on whether the prohibition against aerial spraying was a valid exercise of local legislative power not in conflict with State law. The village position is that the prohibitory local legislation was a nullity because the regulation of pesticides has been preempted by the State. In reaching the substance of the issue, we treat the article 78 proceeding as a declaratory judgment action since it is rather settled that article 78 is not an appropriate vehicle for the review of legislative action (CPLR 103, subd [c]; Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400, 407).

A municipal corporation is a political subdivision of the State and its lawmaking authority can be exercised only to the extent that it has been delegated by the State (People v De Jesus, 54 NY2d 465; Matter of Marcus v Baron, 57 NY2d 862, revg 84 AD2d 118 for reasons stated in dissenting opn at App Div 84 AD2d 118, 134-138). The State Constitution and various enabling statutes grant municipalities the power to adopt local laws (1) relating to their “property, affairs or government” provided that the local legislation is not inconsistent with the Constitution or any general law (see NY Const, art IX, § 2, subd [c], par [i]; Municipal Home Rule Law, § 10, subd 1, par [i]; Statute of Local Governments, § 10), and (2) with reference to certain enumerated subjects, including “[t]he government, protection, order, conduct, safety, health and well-being of persons or property therein” except “to the extent that the legislature shall restrict the adoption of such a local law” (see NY Const, art IX, § 2, subd [c], par [ii], cl [10]). While regulation of pesticide use clearly involves the “safety, health and well-being” of the population, local laws exercising police powers are invalid if they are inconsistent with State law (see Wholesale Laundry Bd. of Trade v City of New York, 18 AD2d 968, affd 12 NY2d 998 upon opn at App Div at 17 AD2d 327) unless the local legislation falls within certain provisions authorizing local laws that supersede State legislation (see, e.g., Municipal Home Rule Law, § 34, subd 3; Matter of Heimbach v Mills, 67 AD2d 731 [county charters]; Municipal Home Rule Law, § 10, subd 1, par [ii], cl d, subcl [3]; cl e, subcl [3]; Matter of Sherman v Frazier, 84 AD2d 401 [town and village supersession powers]). Since the instant local laws are not encompassed by the statutory exceptions which permit inconsistency with State legislation, resolution of the appeal depends on whether Local Law No. 1 of 1981 and ECL article 33 are inconsistent.

As a word of art relative to the legislative powers of local governments, “inconsistent” refers both to cases of express conflict between local and State law such as local prohibition of what State law permits (Wholesale Laundry Bd. of Trade v City of New York, supra) and to situations where statutory law evidences the State’s intent to pre-empt local regulation (People v De Jesus, 54 NY2d 465, 469, supra; People v Cook, 34 NY2d 100; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347; Matter of Kress & Co. v Department of Health, 283 NY 55). Where a State law indicates a purpose to occupy an entire field of regulation, local regulations are pre-empted regardless of whether their terms conflict with provisions of the State statute or only duplicate them (see Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99; People v De Jesus, supra; Robin v Incorporated Vil. of Hempstead, supra; 6 [rev] McQuillin, Municipal Corporations [3d ed], § 21.34).

The intent to pre-empt may be deduced not only from express language providing for exclusivity, but also from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme (Consolidated Edison Co. v Town of Red Hook, supra; People v De Jesus, supra; Robin v Incorporated Vil. of Hempstead, supra; Note, Conflicts Between State Statutes and Municipal Ordinances, 72 Harv L Rev 737; Note, The Preemption Doctrine: Shifting Perspectives on Federalism and the Berger Court, 75 Col L Rev 623), including the need for State-wide uniformity in a given area (see, e.g., Robin v Incorporated Vil. of Hempstead, supra [regulation of abortion procedures]; Wholesale Laundry Bd. of Trade v City of New York, supra [minimum wage restrictions]).

ECL article 33 and its attendant regulations (6 NYCRR parts 325, 326) clearly evince the State’s intention to preempt local regulation of pesticide use. Declaring that it recognizes the significance of the use of pesticides to the “welfare, health, economic well-being and productive and industrial capabilities of the people of this state” (ECL 33-0301), the Legislature has established a system of pesticide regulation which includes the designation of restricted use pesticides (see ECL 33-0303, subd 3, par d), and a scheme for the testing and certification of pesticide applicators. To effectuate the desired result and to insure uniformity, the legislation provides that “[jurisdiction in all matters pertaining to the distribution, sale, use and transportation of pesticides, is by this article vested exclusively in the [Commissioner [of Environmental Conservation]” (ECL 33-0303, subd 1). Modeled after the Federal Insecticide, Fungicide and Rodenticide Act (US Code, tit 7, ch 6, subch II et seq.), ECL article 33 expressly asserts the need for uniformity by declaring that “it is desirable that there should be uniformity between the requirements of the several states and the federal government relating to pesticides” and by authorizing the commissioner to adopt regulations in conformity with agencies of the United States Government (ECL 33-0303, subd 4; 6 NYCRR 320.1). If the enhancement of national uniformity is a significant target of article 33, it would be a peculiar interpretation to view the statute as permitting New York’s 62 counties, 929 towns, 556 villages and 62 cities (see NY St Legis Manual, 1980-1981, pp 956-1007) to adopt their own regulatory schemes concerning the use of pesticides within their geographical limits.

If further evidence of the intent to pre-empt is needed it is provided by the complete and detailed nature of the State scheme. Comprehensiveness and detail are important in determining the existence of an intent to pre-empt (see, e.g., Matter of Marcus v Baron, 57 NY2d 862, supra; People v De Jesus, 54 NY2d 465, 469, supra; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347, 350, supra; Kindermann Fireproof Stor. Warehouses u City of New York, 39 AD2d 266; People v Kelsey, 112 Misc 2d 927; Hoetzer v County of Erie, 497 F Supp 1207).

The views we express are not without significant precedential authority for in Long Is. Pest Control Assn. v Town of Huntington (72 Misc 2d 1031, affd 43 AD2d 1020) the Town of Huntington’s effort to assert local control over pesticide use was struck down. Huntington had enacted an ordinance creating a pesticide control board, delegating to it the authority to register all pesticides intended for use or sale in the town and forbidding the sale or use of unregistered pesticides. The pesticide control board subsequently published lists of approved and nonapproved pesticides and denied registration to the nonapproved ones. In holding the ordinance invalid, the trial court concluded that article 33 had made it clear that its purpose was to occupy the entire field of pesticide regulation (72 Misc 2d 1031, 1033-1034, supra). We affirmed without opinion (43 AD2d 1020, supra). Attempting to distinguish the Huntington case, petitioners contend that the town’s scheme was pre-empted because it duplicated that of the State while in the Laurel Hollow instance there is no conflict or duplication since article 33 is silent on the subject of aerial spraying. This effort to distinguish flies in the face of the fact that the decision voiding the Huntington ordinance declared that the “town code and the State law are not in harmony” (72 Misc 2d 1031, 1033, supra). Even if they had been harmonious, however, express conflict or duplication between State and local law is not a necessary predicate to a judicial finding that the Legislature intended to pre-empt local legislation (see People v De Jesus, supra; Robin v Incorporated Vil. of Hempstead, supra). Furthermore, there is no foundation for the assertion that article 33 is silent on the subject of aerial spraying. The statute authorizes the commissioner to promulgate regulations to “prescribe methods to be used in the application of pesticides, including the time, place, manner and method of application and equipment used” (ECL 33-0303, subd 3, par e). Not only is aerial spraying a common method of applying pesticides, but the statute specifically defines the term “application of pesticide” to include any application by “aircraft or ground equipment” (ECL 33-0101, subd 7). It is pure sophistry to argue that because the State statute does not recite in haec verba that aerial spraying is permitted or prohibited it does not contemplate regulation of such a method of application.

Finally, petitioners seek to avoid the consequences of the statute’s exclusivity language by arguing that only commercial use of pesticides is regulated by article 33. We find no support for that position in the statutory provisions. Article 33 vests exclusive jurisdiction in the commissioner relating to “all matters pertaining to the distribution, sale, use and transportation of pesticides” without restricting the jurisdiction solely to commercial users (see ECL 33-0303, subd 1). Consistent with that broad delegation of power, the commissioner is specifically authorized to “promulgate a list of restricted use pesticides and the usages of such pesticides that may be permitted subject to whatever conditions or limitations which the commissioner deems appropriate to fully protect the public interest” (ECL 33-0303, subd 3, par d). In exercising his powers, the commissioner has banned outright the use of certain pesticides and has designated other pesticides as “restricted”. Restricted pesticides can only be used in conformity with labels registered with the Department of Environmental Conservation and only in the concentration levels described (6 NYCRR part 326). Of necessity, these restrictions or prohibitions'"of named pesticides apply to everyone in the State, whether engaged in commercial application or not, and regardless of whether the property treated is residential, commercial or industrial. In addition to the detailed plan for the issuance of commercial permits (ECL 33-0901), the commissioner’s regulations have established a permit system for private individuals who seek to use restricted pesticides on their own property (see 6 NYCRR 325.36 et seq.). Private applicators of restricted use pesticides must attend training programs and pass departmental examinations prior to being certified by the Department of Environmental Conservation. Clearly, then, the State regulatory scheme and the authority delegated to the commissioner to enforce it encompass use and application both by those whose business is pesticide application and private persons not engaged in the pesticide business. In any event, once the State carves out an area of regulation for itself, it is irrelevant that it decides to concentrate on one type of activity within the area or on a particular method of regulation (see People v De Jesus, 54 NY2d 465, 471, supra).

Our conclusion should be apparent. Since Local Law No. 1 of 1981 infringed on an area of regulation which was exclusive to the State, it was void from its inception. Therefore, the village trustees were entitled to repeal the void legislation without filing an environmental impact statement. The repeal did not constitute an action “which may have a significant effect on the environment” (see ECL 8-0109, subd 2) for all it did was correct the village records to expunge an unenforceable and void law. Since the appellate record does not provide a full background of the enactment of the legislation prohibiting aerial spraying, we are unable to comment on whether it was also void for failure to file an environmental impact statement.

Accordingly, the judgment appealed from should be reversed, on the law, the proceeding should be converted into an action for a declaratory judgment, it should be declared that Local Law No. 1 of 1982 of the Incorporated Village of Laurel Hollow is valid and the matter should otherwise be dismissed.