Photo credit: Hector Alejandro licensed under CC by 2.0

Recently, the city of Newton, Massachusetts, and town of Maplewood, New Jersey, passed restrictions on the use of gas-powered leaf blowers because of public health, safety and environmental concerns. Gas-powered leaf blowers are a source of substantial pollution as well as deafening noise levels. In both cases, the courts refused to grant emergency relief to the landscapers thereby allowing the ordinances to take effect. Here are the stories of what happened and what they mean. Jamie L. Banks, PhD, MSc, Executive Director, Quiet Communities

By Jeanne Kempthorne, J.D., Co-Chair, Quiet Communities Legal Advisory Council

Landscapers came out swinging to prevent municipalities in New Jersey and Massachusetts from enforcing gas-powered leaf blower ordinances limiting their use. So far, they’ve struck out.

Quiet Communities’ legal advisors have been following the litigation with interest, and have provided legal and technical assistance to municipalities forced to respond to last-minute efforts to stymie enforcement of local ordinances.

Newton, MA

In January 2017, the City of Newton, Massachusetts, a suburb west of Boston, amended its noise ordinance to, among other things, limit the use of leaf blowers between Memorial and Labor Days to the use of a single electric- or battery-powered machine emitting no more than 65 decibels per property. (The previous ordinance had already limited the permissible decibel level to 65, but was rarely enforced). The amendment followed two years of study and hearings by the City Council.

Shortly before Memorial Day when the summer limitations would take effect, a group of landscapers filed a lawsuit seeking to enjoin the enforcement of the amended ordinance. They argued that the ordinance was preempted by state environmental laws concerning air quality and claimed they would suffer irreparable economic injury if the ordinance were enforced. The plaintiffs also raised constitutional due process and equal protection claims, the latter on the basis of the ordinance’s distinction between gas- and non-gas-powered equipment operated at the same decibel level .

The Middlesex Superior Court denied the landscapers’ motion for a preliminary injunction, emphasizing, first, that the landscapers had not proved that they would suffer irreparable harm in the absence of an injunction. The plaintiffs had sworn in affidavits that they would suffer the loss of some business as a result of raising prices in order to comply with the ordinance, which, even if true, falls far short of the necessary proof of irreparable injury.

Turning to the merits, the court concluded that the plaintiffs were unlikely to prevail on their legal claims at trial. Addressing preemption, which the court characterized as the “principal challenge to the Ordinance,” the court stated that the landscapers’ argument lacks merit because “[t]he [state] Air Act . . .  nowhere mentions noise pollution let alone suggests field preemption with respect to noise control.” The court emphasized that state law expressly authorizes municipal noise ordinances–-a fact the landscapers had ignored. Finally, the court summarily rejected the due process and equal protection challenges as unlikely to succeed. The City need merely show that the ordinance is a rational exercise of its police power, and that the distinction drawn between types of equipment is rationally related to a legitimate purpose.

Maplewood, NJ

In early April, the town of Maplewood, New Jersey, adopted an ordinance that prohibits the commercial use of gas-powered leaf blowers from May 15 through September 30. This replaced a previous ordinance that banned the use of equipment louder than 65 dB, an ordinance the Town found nearly impossible to enforce. On May 10, five days before the ordinance was scheduled to take effect, the New Jersey Landscape Contractors Association, “a nonprofit professional organization dedicated to advancing the integrity, proficiency, profitability and personal growth of the landscape professional,” sued the town, its mayor, and the township committee in federal district court in New Jersey seeking to invalidate the ordinance and to enjoin its enforcement.

The NJLCA complained that the ordinance was arbitrary and irrational in distinguishing between commercial and non-commercial users, and therefore ran afoul of the equal protection clause of the Fourteenth Amendment and the state constitution. It also argued that the ordinance was preempted by the federal Clean Air and Occupational Safety and Health Acts. According to the complaint, the Clean Air Act empowered the State of California, and only the State of California, to regulate emissions from two-stroke, “in-use, non-road” engines. California having not done so, no other state or political subdivision of a state may do so. Nor may the town impose other or different requirements to protect workers, NJLCA complains, because OSHA already regulates worker safety.

In opposing the landscaper association’s motion for an injunction, the Town argued that it rationally distinguished between commercial and non-commercial users in terms of intensity and frequency of use. Moreover, the Town rationally concluded that commercial users were unlikely to engage in problem-solving discussions with the neighbors concerning noise and pollution. The Town disputed the premise of the Clean Air Act preemption argument, noting that the ordinance does not purport to regulate emissions. Finally, the Town noted that the landscapers did not merit equitable relief since it was apparent that they had ignored the previous ordinance which banned equipment operating at more than 65 decibels, which most commercial gas-powered leaf blowers do.

After a hearing on the association’s motion for a preliminary injunction, the district court dismissed the landscape association’s complaint without deciding whether the constitutional and preemption arguments had merit. Instead, it ruled that the association lacked legal “standing” to bring the complaint. If an individual landscaper is willing to be named as plaintiff, the complaint may be refiled. So far, that has not happened. Stay tuned . . .

Our take

What these cases illustrate is a burgeoning threat to local initiatives to protect the health and safety of community residents: the misuse of the little-understood preemption doctrine, which is being deployed more and more by business interests to quash democratic action at the municipal level. Instead of acknowledging and addressing the legitimate concerns of the public and industry workers, some in the landscaping industry have chosen to fight local efforts to protect public health and safety in court, forcing municipalities to spend scarce resources defending their right to enact and enforce local ordinances. Happily, the courts are calling them out.

We do not mean to sweep in a pile all players in the landscaping industry. Many responsible landscapers are conscious of the social, health, and environmental impacts of their work and are more than willing to pick up a rake or to use quieter, cleaner, and safer equipment. Ask them! Let’s reward those who are willing to work towards a more healthy, clean, and serene environment with our business.

Originally posted at Quiet Communities.

Pin It on Pinterest

Share This
%d bloggers like this: