Reconciling Cipollone's Preemption Approach with Both the Supremacy Clause and Basic Notions of Federalism
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William & Mary Law Review Volume 36 (1994-1995) Issue 2 Symposium: Brown v. Board of Education After Forty Years: Confronting the Article 13 Promise February 1995 The Case Against FIFRA Preemption: Reconciling Cipollone's Preemption Approach with Both the Supremacy Clause and Basic Notions of Federalism Stephen D. Otero Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Constitutional Law Commons Repository Citation Stephen D. Otero, The Case Against FIFRA Preemption: Reconciling Cipollone's Preemption Approach with Both the Supremacy Clause and Basic Notions of Federalism, 36 Wm. & Mary L. Rev. 783 (1995), https://scholarship.law.wm.edu/wmlr/vol36/iss2/13 Copyright c 1995 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr 1995] THE CASE AGAINST FIFRA PREEMPTION 785 THE PAST AND PRESENT STATE OF THE FIFRA PREEMPTION CONTROVERSY The History, Regulatory Structure, and Preemptin Language of FIFRA The History of Pesticide Regulatin Congress' first attempt to regulate the pesticide industry was the Insecticide Act of 1910,' which was primarily designed to protect consumers from acts of fraud relating to the commercial sale of imsbranded or adulterated chemical products.8 Congress repealed the Act in 1947 and replaced it with a broader regula- tory measure designed to ensure the "safe use and labeling of pesticides [in order] to protect those who came in immediate contact with them."9 Congress crafted the 1947 version of FIFRA to respond to regulatory demands brought on by a rapid- ly expanding pesticide industry'" The measure was designed to provide for some level of umformity in definitions, encourage cooperation between state and federal regulators, and create a centralized registration and licensing .authority under the Secre- tary of Agriculture." The focus of pesticide regulation continued to shift with in- creased public concern. 2 Accordingly, the 1964 amendments to FIFRA broadened the regulatory scheme to address the effects of pesticides on wildlife and the environment." Given this new focus, upon its creation in 1970, the Environmental Protection 7. Insecticide Act of 1910, ch. 185, 36 Stat. 331 (1910), repealed by Federal In- secticide, Fungicide, and Rodenticide Act, ch. 125, § 16, 61 Stat. 163, 172 (1947), 7 U.S.C. § 136-136y (1988 & Supp. V 1993); see DerGazanan v. Dow Chem. Co., 836 F Supp. 1429, 1431 (W.D. Ark. 1993); Boeh, supra note 5, at 753. 8. See S. REP. No. 838, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 3993, 3999; Smith & Coonrod, supra note 5, at 490. 9. Smith & Coonrod, supra note 5, at 490. 10. Id. 11. Id., see.also H.R. REP. No. 313, 80th Cong., 1st Sess. (1947). 12. Smith & Coonrod, supra note 5, at 490. 13. Id. WILLIAM AND MARY LAW REVIEW [Vol. 36:783 Agency (EPA) assumed responsibility for pesticide regulation. 4 Nonetheless, FIFRA remained "primarily a licensing and label- ing statute" 5 until 197216 when a "wholesale redrafting"17 of the statute "transformed FIFRA from a labeling law into a com- 18 prehensive regulatory statute." Overvew of FIFRA's Regulatory Structure In its present form, FIFRA grants the EPA extensive regulato- ry authority over virtually every aspect of the pesticide manufac- turing process. Manufacturers are required to register their production facilities with the EPA and to maintain books and records of their manufacturing processes for government inspec- tion. 9 In addition, to receive government registration for a par- ticular compound, manufacturers must submit the chemical product to the EPA, complete with a proposed label and direc- tions for use.2" Furthermore, the Adinimstrator has the power to withhold a chemical product's registration until the manufac- turer provides additional information, such as chemical composi- tion, physical and chemical characteristics, and chemical metab- olism.2' Registration approval is granted only if the chemical product's composition and labeling comply with EPA regula- tions,22 and the Adminimstrator deems that the product will serve its intended function without unreasonable adverse effects on public health or the environment." FIFRA also delegates to the EPA considerable enforcement 14. Reorganization Plan No. 3 of 1970 (Environmental Protection Agency), § 8, 84 Stat. 2086, 2088 (1970); Burke v. Dow Chem. Co., 797 F Supp. 1128, 1134 (E.D.N.Y. 1992); Smith & Coonrod, supra note 5, at 491. 15. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991 (1984). 16. 86 Stat. 973 (1972) (amending Federal Insecticide, Fungicide, and Rodenticide Act, ch. 125, 61 Stat. 163 (1947)). 17. Smith & Coonrod, supra note 5, at 491. 18. Ruckelshaus, 467 U.S. at 991. 19. 7 U.S.C. §§ 136e-136g (1988 & Supp. V 1993). 20. Id. § 136a; see also 40 C.F.R. § 156.10 (1993) (outlining the labeling require- ments for pesticides). 21. 7 U.S.C. § 136a(c)(2); Ausness, supra note 5, at 213 (citing 40 C.F.R. §§ 158.150, 158.202 (1992)). 22. See 40 C.F.R. § 156.10 (1993). 23. 7 U.S.C. §§ 136a(c)(5), 136(d)(1)(C). 1995] THE CASE AGAINST FIFRA PREEMPTION 787 authority 4 Failure to comply with the standards enunciated by the Administrator can result in significant sanctions. In case of a violation, the EPA may prohibit the sale or use of the product, remove or seize it, enforce civil penalties of up to five thousand dollars, or impose crimnal liability of up to twenty-five thou- sand dollars and/or up to one year of incarceration." State involvement in the regulation of chemical products is a crucial aspect of the FIFRA regulatory scheme. Section 136t(b) requires the EPA Administrator to cooperate with other federal agencies as well as appropriate agencies of any state or political subdivisions thereof.26 Moreover, section 136w-1 grants to the states primary enforcement responsibility for pesticide use viola- tions pursuant to FIFRA.2' The Language of the FIFRA Preemption Provzsions Section 136v lies at the core of the FIFRA preemption contro- versy The Supreme Court specifically addressed the preemp- tive effect of section 136v(a) in Wisconsin 'Public Intervenor v. Mortzer,29 concluding that the legislative history surrounding FIFRA clearly demonstrates "an unwillingness by Congress to grant political subdivisions regulatory authority, [but] does not demonstrate an intent to prevent the States from delegating such authority to its subdivisions, and still less does it show a 24. Id. §§ 136j-1361. 25. Id. 26. Id. § 136t(b). 27. Id. § 136w-1. 28. Section 136v states: Authority of States (a) In general A State may regulate the sale or use of any federally registered pesticide or device m the State, but only if and to the extent the regula- tion does not permit any sale or use prohibited by this subchapter. (b) Uniformity 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. Id. § 136v. Significantly, Congress added the sub-headings to § 136v(a) and (b) to the language of the FIFRA preemption provisions via a 1978 amendment. Smith & Coonrod, supra note 5, at 491. 29. 501 U.S. 597 (1991). 788 WILLIAM AND MARY LAW REVIEW [Vol. 36:783 desire to prohibit local regulation altogether.""0 Thus, section 136v(a) has been called a state power "savings clause" that re- serves to the states broad powers within the FIFRA regulatory scheme.3' Wisconsin Public Intervenor settled the issue of FIFRA pre- emption under the state "savings clause."32 However, the Su- preme Court has not yet directly addressed the preemptive effect of FIFRA section 136v(b). As the interpretation of that provision has obvious implications for the viability of state common law tort claims, the preemptive scope of FIFRA section 136v(b) has been a topic of controversy in the legal community 33 TraditionalPreemptin Analysis The preemption doctrine derives from the Supremacy Clause of the Constitution, which declares that the laws of the United States shall be the supreme law of the land.' Traditionally, preemption has been found in one of three ways: (1) express preemption (by the actual language of the federal statute or leg- islative history of the statute), 5 (2) implied preemption by fed- eral occupation of a regulatory field, 6 or (3) implied preemption because of an actual conflict between federal and state law " The Court has recognized sub-categories to each of these three 30. Id. at 609. 31. Id. at 609-10. 32. See id. at 606-16. 33. See supra notes 5-6 and accompanying text; see also infra notes 46-92 and 184-243 and accompanying text. 34. In full, the Supremacy Clause reads: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. CONST. art. VI, cl.2. 35. Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 203 (1983) (citing Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)). 36. Id. at 203-04 (citing Fidelity Fed. Say. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982)). 37. Id. at 204. 1995] THE CASE AGAINST FIFRA PREEMPTION 789 main categories of preemption. For instance, express preemption may occur either when a federal statute specifically excludes state regulation" or when an admimstrative body promulgates preemptive