The Pesticide Control Act Does Not Preempt a Municipality’s Authority to Enforce Its Wetlands Bylaw
A recent Berkshire County Superior Court decision, Stockbridge Bowl Association, Inc. v. Town of Stockbridge Conservation Commission, provides an important clarification regarding the limits of the preemptive effect of the Pesticide Control Act over municipal decision-making. In a case argued by our own Rebekah Lacey, the Court upheld a local Conservation Commission’s authority to deny a permit under a local wetlands bylaw for a proposed project using an herbicide to control invasive aquatic plants in a Great Pond.
The Massachusetts Pesticide Control Act, M.G.L. c.132B, §§1-16, sets a framework for licensing pesticides and pesticide applicators within the Commonwealth. In 1985, the Supreme Judicial Court held that the Act preempted a local requirement regulating the use of pesticides, but the decision left open the possibility that there was some room for municipalities to regulate pesticides in ways that did not conflict with the Act. Town of Wendell v. Attorney General, 394 Mass. 518, 526 (1985). The Legislature subsequently amended the Act to state that “[t]he exclusive authority in regulating the labeling, distribution, sale, storage, transportation, use and application, and disposal of pesticides in the commonwealth shall be determined by this chapter.”
In 2014, a Middlesex Superior Court relied on this change to uphold the Attorney General’s disapproval of a local bylaw establishing a mechanism for a board of health to determine whether a utility’s proposed use of pesticides complied with state and federal law. The Attorney General continues to routinely disapprove local bylaws that seek to directly regulate the use of pesticides.
In 2018, however, an association of lakefront property owners applied to the Stockbridge Conservation Commission for a permit under the local wetlands bylaw to apply the herbicide fluridone to Lake Mahkeenac (also known as the Stockbridge Bowl) in an effort to eliminate Eurasian watermilfoil, an invasive aquatic plant. The Conservation Commission denied the permit after finding that removal of a significant quantity of aquatic vegetation would have adverse impacts on the lake ecosystem. The association appealed the denial, asserting that, because of the preemptive effect of the Pesticide Control Act, the Conservation Commission had no authority to prevent the use of an herbicide approved by the Massachusetts Department of Agriculture.
The Superior Court judge forcefully rejected this argument, holding that “the Town of Stockbridge’s Conservation Commission was not compelled by the Pesticide Control Act to approve the SBA’s proposal to use fluridone to treat Watermilfoil in the Stockbridge Bowl.” The decision confirms that the Pesticide Control Act does not preempt municipal authority to administer local bylaws that may have collateral effects on the use of pesticides. In other words, an activity under the jurisdiction of a local board – such as removal of vegetation from a lake- is not removed from that jurisdiction simply because the proponent chooses to use a pesticide to achieve the desired goal. The decision is a useful reminder that even express statutory preemption has its limits.