Attorney General: Honorable Arthur J. Rocque, Jr., Commissioner of Environmental Protection, 2000-025 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

August 31, 2000

Honorable Arthur J. Rocque, Jr.
Commissioner of Environmental Protection
79 Elm Street
Hartford, CT 06106

Commissioner Rocque:

You have asked for our opinion on whether towns can spray for mosquitoes in areas in which the Department of Environmental Protection (DEP) does not intend to spray and whether towns can prevent the state from conducting its own spraying program within town boundaries. As explained below, we conclude that towns may spray in areas the state does not intend to spray provided the spraying is conducted in accordance with all applicable laws, but cannot prevent the state from conducting its spraying program.

In 1997, the legislature passed the Act Concerning Mosquito Control and Aerial Application of Pesticides, Conn. Gen. Stat. § 22a-45b, et seq. The Act mandates a coordinated effort between DEP, the Department of Public Health, and the Department of Agriculture to control mosquitoes. The Act allows the Commissioner of DEP to "conduct or cause the conducting of [the elimination of mosquitoes or mosquito breeding places] provided no filling, draining, excavation, installation, or erection of any structure, or any other permanent alteration of private property shall be conducted without the consent of the landowner on whose property such work is to be conducted." C.G.S. Sec. 22a-45b.1 The Act also requires the Commissioners of Public Health, Agriculture, and DEP to "establish a contingency plan, within available appropriations, for the spraying of larvicide to control mosquitoes in the event of an outbreak of infectious disease in any human or animal population due to mosquito infestation." These statutes, in combination with the contingency plan, clearly give the Commissioner of DEP the authority to spray to control mosquitos generally, and specifically if there is an outbreak of infectious disease in human or animal populations.

The statutes relating to municipal powers provide that municipalities can "[c]ontrol insect pests or plant diseases in any manner deemed appropriate" and to "[p]rovide for the health of the inhabitants of the municipality and do all things necessary or desirable to secure and promote public health." C.G.S. Sec. 7-148(b)(7)(H)(x) and (xi). Thus, the legislature has given municipalities broad authority in this area also. The authority given to municipalities is broad enough to permit them to spray for mosquitoes, especially when mosquitoes create a threat to public health.

Municipal authority does not, however, include the power to prohibit the state from spraying. It is well-settled law that where municipal actions conflict with state law, state law controls. "There is attached to every ordinance, charter or resolution adopted by or affecting a municipality the implied condition that these must yield to the predominant power of the state when that power has been exercised." Bencivenga v. Milford, 183 Conn. 168, 173 (1981).

The Supreme Court explained that a municipal ordinance cannot prohibit what the statute grants. It cannot set up new standards in place of the legislative standards. It cannot substitute its judgment for the legislative judgment. It cannot overturn a public policy evidenced in long-continued legislation over a subject statewide in its range and not only intended to conserve the health of people but certainly doing it.

Shelton v. City of Shelton, 111 Conn. 433, 447 (1930). Moreover, an ordinance may not conflict with a statute by effectively prohibiting what a state statute clearly permits. Dwyer v. Farrell, 193 Conn. 7, 13-14 (1984). A municipality, therefore, may not prohibit the state’s exercise of its statutory authority to spray when the state determines spraying is necessary to protect the public interest.

The fact that the legislature has given the state the right to regulate mosquitoes does not prevent the local government from acting in a manner that is not inconsistent with the statute. "Where the state legislature has delegated to local government the right to deal with a particular field of regulation, the fact that a statute also regulates the same subject in less than full fashion does not, ipso facto, deprive the local government of the power to act in a more comprehensive, but not inconsistent, manner." Aaron v. Conservation Commission, 183 Conn. 532, 543 (1981). While the legislature has given the state the power to control mosquitoes, it has also given the municipalities the power to protect the health of their residents and control insects. If a municipality determines that it is necessary to control mosquitoes in a more comprehensive manner by spraying in areas beyond the areas the state intends to spray, it is free to do so, assuming, of course, the spraying is done in a manner consistent with other applicable laws and in a way that does not interfere with the state’s spraying program.

I hope you find this information useful.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Kimberly P. Massicotte
Assistant Attorney General

RB/kpm


1The statute also allows the Commissioner to make orders and regulations concerning the control of mosquitoes and mosquito breeding places.


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