(dissenting). The majority opinion concludes that in enacting the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) Congress divested local government of the power to regulate the use of pesticides for the health and safety of its citizens. Because I conclude that Congress has not demonstrated a clear and manifest purpose to deprive local government of its powers under the Federal Constitution, I dissent.1
HH
The fundamental premise of preemption analysis is that absent any showing of "a clear and manifest purpose of Congress" to preempt state and local governmental regulation, the courts will not infer preemption. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). The United States Supreme Court has repeatedly expressed its reluctance to infer preemption, characterizing its reluctance as a presumption that "Congress did not intend to displace state law." Maryland v. Louisiana, 451 U.S. 725, 746 (1981). This presumption is even stronger when the state or local governmental regulation relates to health and safety, which the Court has characterized "primarily, and historically, a matter of local concern." Hillsborough County v. Automated Medical Labs, Inc., 471 U.S. 707, 718 (1985). See also Rice v. Santa Fe Elevator Corp., supra 331 U.S. at 230; Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483, 487-88 (9th Cir. 1984), cert. denied 471 U.S. 1140 (1985).
*34The Court's reluctance to infer preemption is grounded in its deference to the role of states in our federal system. If congressional intent or purpose is ambiguous, courts should be slow to find preemption, "[f]or the state is powerless to remove the ill effects of our decision, while the national government, which has the power, remains free to remove the burden." Penn Dairies v. Milk Control Comm'n, 318 U.S. 261, 275 (1943).
The United States Supreme Court has recognized that Congress may preempt state and local governmental power by express statutory language (sometimes referred to as express exemption). Jones v. Rath Packing Company, 430 U.S. 519, 525 (1977).
By requiring that the congressional decision to restrict state and local governments be made in a deliberate manner through the exercise of law-making power, the Supreme Court attempts to ensure a sound balance between state sovereignty and national interests. Tribe, Constitutional Law 480 (1988).
Absent express statutory language, courts must interpret the federal statute to determine whether the challenged state or local action "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67 (1941). State or local action will be an obstacle (1) if Congress dominates the regulatory field by structure or objective and "leaves no room" for supplementary state or local regulation (sometimes referred to as implied preemption), or (2) if state or local regulation conflicts with federal law (sometimes referred to as conflict preemption). Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963); Ray v. Atlantic Richfield, 435 U.S. 151, 158 (1978); Malone v. White Motors, 435 *35U.S. 497, 504 (1977).2
1 — 4 h-4
1 conclude that under each of these tests FIFRA does not preempt the Town of Casey's ordinance.
FIFRA contains no express language preempting local regulation, nor does it exclude political subdivisions from the definition of states, as the majority claims. Nor is the statute "ambiguous" regarding preemption — it is simply silent. See majority op. pp. 25-26.
Furthermore, there is no indication in FIFRA that Congress considered pesticide regulation to be an exclusive federal interest or that Congress occupied the field. Labeling of pesticides is under the exclusive control of the Environmental Protection Agency, but FIFRA explicitly authorizes states to regulate pesticides under federal guidelines. The 1972 Amendments provide that "a state may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter." 7 U.S.C. sec. 136v(a). Congress thus expressly provided that the states and the *36federal government share control over the use of pesticides for the safety of citizens and their environment.
Nothing in FIFRA expressly prohibits a state from delegating its power under FIFRA to municipalities. Congress apparently viewed the local governments as having some role. Under sec. 136t, the Environmental Protection Agency must cooperate with any state or "any political subdivision thereof, in carrying out the provisions of this Act, and in securing uniformity of regulations."
I cannot find in the structure or objective of the Act that Congress has dominated the regulatory field and left no room for supplementary local regulation.
Finally, the Town of Casey ordinance does not conflict with FIFRA. I therefore conclude that there is no conflict preemption.
As the foregoing discussion indicates, Congress was silent regarding local governments' authority to regulate pesticides and Congressional intent to preempt local governmental regulation. Congress did not occupy the regulatory field, and no conflict exists between FIFRA and the Town of Casey ordinance. Nevertheless, the majority opinion concludes that Congress expressly preempts local governmental regulation of pesticides. The majority opinion reaches its conclusion that Congress's silence amounts to an express Congressional intent to preempt local action by examining the legislative history surrounding the passage of FIFRA in conjunction with sec. 136v. Majority op. pp. 25-29.
While I have doubts about the methodological approach the majority employs,3 I need not reach that *37issue because the legislative history upon which the majority relies does not demonstrate with the requisite *38degree of clarity that Congress expressly or impliedly intended to preempt local regulation.
*39Four other courts have examined the legislative history of FIFRA that the majority contends is "abundantly clear," majority op. pp. 25-26, and reached conflicting interpretations of Congressional intent. One court concluded that the legislative history of FIFRA demonstrates that Congress intended to preempt local regulation. Maryland Pest Control Assoc. v. Montgomery County, 646 F. Supp. 109 (D. Md. 1986), aff'd without opinion 822 F.2d 55 (4th Cir. 1987). Three courts concluded that the legislative history demonstrates that Congress did not intend to preempt local regulation of pesticides. People ex rel. Deukmejian v. County of Mendocino, 683 P. 2d 1150 (Cal. 1980); Central Main Power Co. v. Lebanon (Maine Supreme Judicial Court, March 6, 1990); and Coparr, Ltd. and Caranci v. Boulder, No. 87-M-1865 (Dist. Ct. Denver, Colo. October 3, 1989). Put in their best light, these cases suggest that the legislative history surrounding the enactment of FIFRA is ambiguous: courts reading the same documents have reached different conclusions. Viewed in their worst light, the results reached in the cases confirms Harold Leventhal's observation that statutory interpretation is akin to "looking over a crowd and picking out your friends."4 As Judge Kozinski has noted, "[t]he fact of the *40matter is that legislative history can be cited to support almost any proposition, and frequently is." Wallace v. Christensen, 802 F.2d 1539, 1559 (9th Cir. 1986).
Courts must use federal legislative history with healthy skepticism, recognizing that the history may not always be a trustworthy indication of congressional intent. As Justice Scalia has written, "[C]ommittee reports, floor speeches, and even colloquies between congressmen are frail substitutes for bicameral vote upon the text of a law and its presentment to the President." Thompson v. Thompson, 484 U.S. 174, 191-192, 108 S. Ct. 513, 523, 98 L. Ed.2d 512 (1988) (Scalia, J., concurring). See also Hirschey u. FERC, 111 F.2d 1, 7-8 (D.C. Cir. 1985) (Scalia, J., concurring).
*41In reaching the conclusion that FIFRA preempts local regulation, the majority opinion relies to a large extent on the interpretations of provisions of H.R. 10729 found in the Report of the House Committee on Agriculture and the Report of the Senate Committee on Agriculture and Forestry. The usefulness of those reports as evidence of Congressional intent is limited.
First, the House and Senate Committee Reports included in the legislative history of FIFRA and relied upon by the majority opinion, see majority op. pp. 27-28, do not evaluate the pesticide bill passed by Congress. The Committees considered a significantly different and earlier version of the legislation. The Senate Commerce Committee added numerous amendments after the Senate Agriculture and Forestry Committee had considered the legislation.5 A joint Senate committee made up of members of the Agriculture and Forestry Committee and the Commerce Committee also further changed the bill reported to the Senate by the Commerce Committee and created a compromise bill.6 The bill the Senate passed was further modified by the Committee of Conference composed of members of the House and Senate.7 The relevance of the Committee reports to the final bill passed by Congress and signed by the President is speculative.
Second, contrary to the assertions of the majority opinion, the language of sec. 136v can be interpreted in several ways. When the Senate Commerce Committee proposed amendments to clarify the role of local governments within FIFRA's regulatory structure, it inter*42preted sec. 136v as silent with regard to preemption. The Commerce Committee stated:
While the Agriculture Committee bill does not specifically prohibit local governments from regulating pesticides, the report of that committee states explicitly that local governments cannot regulate pesticides in any manner. Many local governments now regulate pesticides to meet their own specific needs which they are often better able to perceive than are State and Federal regulators.8 (Emphasis added.)
The disagreement between the two committees over the meaning and effect of sec. 136v depreciates the value of the Agriculture and Forestry Committee's interpretation of sec. 136v in determining the "clear and manifest purpose of Congress." Despite this disagreement about the meaning of sec. 136v, the statute was never changed to clarify whether FIFRA preempted local regulation.
Third, the majority opinion's reliance on the Agriculture and Forestry Committee’s report does not take into account the subsequent compromise the two Senate Committees reached. In order to avoid a confrontation over differences between the differing versions of pesticide legislation reported to the Senate, members of the Senate Committee on Agriculture and Forestry and the Committee on Commerce met for nearly two months of heated discussion. According to a report ultimately filed by the group and included in the legislative history, "Commerce Committee amendment[ ] ... 10 (which authorized local governments to regulate the use of pesticides) . . , [is] not included in the substitute."9 Rather than indicating that the group intended FIFRA to preempt local action, the more plausible explanation is that *43Congress never resolved the issue of preemption. In the interest of reporting a bill in the current session of Congress, members of both Senate committees agreed to disagree on the issue of preemption of local regulation.
Fourth, the majority opinion relies upon language added to the congressional record immediately prior to the final vote of the Senate to support its finding of preemption. See majority op. p. 28. Upon examination of the Congressional Record,10 I find that the language relied upon by the majority opinion is simply a restatement of the report of the Senate Committee on Agriculture and Forestry already cited by the majority. See majority op. p. 26. For the reasons previously set forth, the Committee report is a questionable indication of congressional intent regarding the preemption of local regulation of pesticides.
Fifth, the majority opinion states that the Senate rejected the Commerce Committee's amendment that would have allowed local governments to regulate pesticides. See majority op. p. 28. The majority opinion overstates what occurred on the floor of the Senate. The amendments offered by the Senate Commerce Committee were withdrawn from the floor of the Senate in favor of the compromise struck by members of the Committee on Agriculture and Forestry and the Commerce Committee. As far as I can discern from the Congressional Record, the full Senate never considered the issue of local regulation of pesticides and therefore did not reject it by full vote.11
Finally, the majority opinion ignores the political atmosphere in which FIFRA was enacted and which probably accounts for Congress's failure to address the issue of local regulation. Both the Senate and the House *44were under intense pressure from agricultural, environmental and industrial groups regarding pesticide legislation. Congress worked for nearly two years attempting to forge the delicate compromise necessary to pass a pesticide bill. The bill was considered highly controversial and was at risk of being defeated at nearly every turn. A number of speakers, including then Senator Gaylord Nelson of Wisconsin, rose to speak on the highly partisan nature of the debate and the fragility of the compromise reached on all sides.12 In this turbulent political environment, the Senate never specifically considered the issue of preempting local governmental power, suggesting that the issue was not reached in the interest of passage of a pesticide bill.
The legislative history and the highly partisan nature of the debate suggest that Congress was unable to agree about preemption of local regulation. While the compromise struck in FIFRA may have been necessary to ensure passage of the bill, I do not think that it demonstrates Congressional intent with sufficient certainty to deprive the citizens of the Town of Casey of the power to protect themselves and their environment.
>
I do not doubt that if Congress so chose, it could prevent localities from regulating pesticide use. See, e.g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). But absent "the clear and manifest purpose of congress" to accomplish such an end, the *45presumption against preemption and the right of citizens of the Town of Casey to regulate pesticides must prevail. In contrast to the majority opinion, I prefer construing FIFRA with "due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy." San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243 (1959).
For the reasons set forth, I dissent.
I am authorized to state that Justices Steinmetz and Bablitch join in this dissent.
I limit my discussion to the federal preemption issue. I conclude, however, that the Town of Casey's Ordinance is not preempted by state law.
"The Supremacy Clause of Art. VI of the Constitution provides Congress with the power to pre-empt state law. Pre-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, when there is outright or actual conflict between federal and state law, where compliance with both federal and state law is in effect physically impossible, where there is implicit in federal law a barrier to state regulation, where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress." Louisiana Public Service Comm'n v. FCC, 476 U.S. 355, 368-69 (1986) (citations omitted).
The majority opinion does not fit into the traditional pre*37emption analysis of express preemption, implied preemption, or conflict preemption even when you accept that the three categories are not analytically airtight. Tribe, Constitutional Law, 481, n.14 (1988).
The majority opinion apparently attempts to find express preemptive intent not in the text of the statute but in legislative history. It defends its reliance on legislative history to determine express Congressional intent about preemption (majority op. at pp. 22-24) by concluding that secs. 136v authorizing states to regulate the sale or use of any federally registered pesticide raises a negative implication that Congress intended to preempt local governmental regulation of pesticides. The majority opinion is saying that Congress's express authorization to the states raises a question about Congress's intent to proscribe local action. Building on this perceived "ambiguity," the majority opinion examines legislative history to determine Congress's express intent to preempt local action.
Neither case the majority opinion cites supports its approach that legislative history may serve as the sole basis for finding express intent about preemption or the clear and manifest purpose of Congress required for preemption of state or local regulations.
The majority opinion first relies on City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1972). In that case the Supreme Court determined that the pervasive nature of federal regulation of airspace precluded imposing local noise controls on airports. After reaching this conclusion, Justice Douglas, writing for the majority, referred to legislative history during passage of the bill, stating that the bill would not change the preemption rule existing under previous statutes and to statements of Senators and the President asserting that federal regulation preempted state regulation. These references were apparently placed in the opinion to bolster a conclusion of the pervasiveness of the federal act that the Court had already reached (implied preemption).
In dissent Justice Rehnquist looked at earlier congressional *38enactments, not legislative history during passage of the bill, to determine whether Congress had previously preempted the field from state or local regulation of the type that the City of Burbank had enacted. The majority and dissent apparently did not disagree about the legislative history during passage. They disagreed about the pervasiveness of the new federal act, about whether prior acts were pervasive also and whether Congress impliedly preempted local action.
I do not read Burbank as endorsing the majority opinion's claim that a court can examine conflicting legislative history to determine Congress's express intent to preempt local action. The majority opinion does not rest on the premise that FIFRA is pervasive and thus occupies the field (implied preemption).
In Philko Aviation, Inc. v. Shacket, 462 U.S. 406 (1983), the question was whether the federal statute required transfers of title to aircraft to be in writing and recorded with the FAA to be valid against innocent third parties. Philko was entitled to the plane if the federal statute governed all title transactions and supplanted local transfer law. Shacket would win if state law could govern transactions where no written transfer of title existed. The Court examined the legislative history not to determine congressional intent about preemption but to help define the statutory language relating to conveyances, thereby determining the scope of the federal legislation and whether the state law conflicted with the federal láw. Once the Court clarified the federal statute's use of the term conveyance, the Court concluded that the state law conflicted with federal law and was preempted (conflict preemption).
Using the Philko approach, the majority opinion should look for legislative history illuminating the meaning of the word State. It does not. It cannot because the definition of state is clear. Instead, the majority looks to legislative history to determine Congressional express intent about preemption.
The Philko case does not stand for the rule that the Court will examine legislative history to determine Congress's express *39intent about preemption. The Philko case is a typical case in which the Court examines legislative history to determine the meaning of ambiguous language in the statute. The Philko court then determined there was preemption because of conflict.
Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983). Judge Abner Mikva, a former member of Congress, has also warned against wholesale acceptance of legislative history. Committee reports are central pieces of evidence when attempting to determine legislative intent behind a particular legislative act. But "[c]ommittee reports are too frequently used for political *40horse-trading and individual ego trips . . .." Reading and Writing Statutes, 48 U. Pitt. L. Rev. 627, 631 (1987). Judge Mikva directs our attention to the minutiae which cloud any attempt to divine the intent of "535 prima donnas":
Even the nuts and bolts of the legislative process can be valuable in divining the intent of Congress. The use of committee reports and floor debate (and lack of it), the difference between floor amendments and committee amendments, the trade-offs between statutory language and committee report language, the impact of conference committee changes in a bill, the effect of conflicting interpretations given by members during floor debate — all of these elements are weighed differently by judges who have been exposed to the tortuous way in which a bill becomes law.
Others have also counseled the use of caution when relying on federal legislative history. Eskridge and Frickey, Legislation: Statutes and the Creation of Public Policy, 695-776 (1988), Eskridge and Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 324-340 (1990); Hertzel, Instilling Legislative Interpretation Skills in the Classroom and the Courtroom, 48 U. Pitt. L. Rev. 663, 678-87 (1987); Posner, Statutory Interpretation in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 805-815 (1983).
118 Cong. Rec. 32249-51 (1972).
Id. at 32257-58.
U.S. Code Cong. & Admin. News, vol. 3, pp. 4130-4134 (1972).
Id. at 4111.
118 Cong. Rec., supra at 32252.
Id. at 32252-56.
Id. at 32252.
Id. at 32259. See also remarks of Senator Talmadge, id. at 32251 ("many of the issues were highly controversial"); remarks of Senator Packwood, id. at 32263 ("This package has evolved through much agony, deliberation, argument, reflection and compromise. Each has had to give some.").