Summary of a Recent
Judicial Development in
Environmental Law

Local Fertilizer Ordinances Banning Phosphorous Withstand
Federal and Constitutional Attacks

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Croplife America, Inc. v. City of Madison, 373 F. Supp. 2d 905 (W.D. Wis. 2005), the United States District Court for the Western District of Wisconsin granted the city's motion for summary judgment and denied the plaintiffs' motion for the same. The plaintiffs filed suit challenging city and county ordinances banning the sale of commercial fertilizers containing phosphorous. The court held that the ordinances were not preempted by the Federal Insecticide Fungicide and Rodenticide Act (FIFRA), did not violate equal protection, did not violate the Commerce Clause, were not unconstitutionally vague, and did not violate the plaintiffs' First Amendment freedom of speech rights.

Background

In early 2004, the defendants, the city of Madison and Dane County, adopted County Ordinance § 80.03, which "restrict[ed] the use of lawn fertilizers containing phosphorous within the county." Id. at 909. The ordinance also prohibited "the sale, display or application of any lawn fertilizer that contain[ed] phosphorus." Id. at 910. Those persons caught violating the ordinance "face[d] forfeitures of between $25 to $300 for each offense." Id. In response, the plaintiffs, participants in the fertilizer industry, filed the instant suit on December 15, 2004. Id. at 909.

Arguments

The plaintiffs argued "that state laws regulating pesticides preempt[ed] the city and county ordinances," that FIFRA expressly preempted the ordinance, that the ordinances violated the Commerce Clause, that the ordinances violated equal protection by allowing biosolids containing phosphorus but banning phosphorus in commercial fertilizers, that the ordinances were unconstitutionally vague, and that they violated the First Amendment's right to freedom of speech. Id. at 910-19.

Analysis and Holdings

The court first addressed the plaintiffs' contention that Wisconsin pesticide regulation laws preempted the city's and county's ordinances at issue, "insofar as [they] attempt[ed] to regulate fertilizer products . . . combined with pesticides." Id. at 910. After reviewing Wis. Stat. § 94.64(1)(e) and Wis. Stat. § 94.70, Wisconsin state's pesticide regulation laws, the court held that the plaintiffs had created a straw man because the state statutes were "directed only to the composition, use and sale of the fertilizers with which the pesticides [were] mixed" but did not "restrict the nature or composition of the pesticides with which a fertilizer product [was] combined." Id. at 910-11. The plaintiffs' state preemption argument failed because it could not show "any logical conflict between the local ordinances and any state legislation." Id. at 911.

Next, the court addressed whether FIFRA preempted the city of Madison's ordinance. Id. The city's ordinance required persons using lawn or turf fertilizer containing phosphorous, pursuant to an ordinance exception, to water the fertilizer consistent with the product's label. Id. The plaintiffs argued that "this requirement conflict[ed] expressly with FIFRA because it add[ed] a new or different requirement to water lawns immediately following application of a fertilizer-pesticide product." Id. The court disagreed, however, holding that the plaintiffs misread the ordinance because it was "clear that the city's regulations [did] not override the instructions on the product label." Id. For this reason, the city's ordinance did not conflict with FIFRA. Id.

The court then addressed the plaintiffs' argument that both ordinances violated the Commerce Clause. Id. at 913-14. State and local laws run afoul of the Commerce Clause when they attempt to do one of the following three things: (1) serve a protectionist purpose; (2) impose a burden that falls more heavily on interstate commerce than on local commerce; or (3) affect commerce without giving local firms any competitive advantage. Id. The court analyzed both ordinances according to this tripartite framework and held that neither one ran afoul of the Commerce Clause. Id. at 913-16.

Then the court addressed the plaintiffs' argument that "the county ordinance violate[d] equal protection because it allow[ed] biosolids containing phosphorus while banning phosphorus in commercial fertilizers. Id. at 916. The parties agreed that the county ordinance was subject to review under the rational basis test. Id. Under the generous rational basis test, the court held that the plaintiffs could not "show the lack of any rational basis for the county's decision." Id.

Next, the court addressed whether the city's ordinance was unconstitutionally vague and in violation of the plaintiffs' due process rights. Id. After reviewing the city's ordinance, the court held that a person of ordinary intelligence could understand it. Id. Therefore, the court ruled that the ordinance was not unconstitutionally vague.

Finally, that court addressed the plaintiffs' contention that the ordinances' restrictions on the commercial display of fertilizers containing phosphorous violated free speech under the First Amendment. Id. at 918. Commercial speech is entitled to First Amendment protection when it is "lawful and not misleading, but regulations proscribing such speech will be upheld if they advance substantial interests of the government and do so in a 'direct and material' manner and the extent of the restriction is 'in reasonable proportion to the interests served.'" Id. Ultimately the court held that the plaintiffs had no First Amendment right to display fertilizer that was illegal to sell. Id. Citing the Supreme Court, the court stated that "[t]he dissemination of information receives no protection unless it concerns a lawful activity and is not misleading." Id.

For these reasons, the court granted the defendants' motion for summary judgment, and denied the plaintiffs' motion for summary judgment. Id. at 919.

The case was decided on June 13, 2005.