Sam Weaver

March 19, 2009

Environmental litigants scored a major victory in the Sixth Circuit Court of Appeals earlier this year when Judge R. Guy Cole Jr. threw out an Environmental Protection Agency (EPA) final regulation that did not require entities applying pesticides in compliance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to obtain a National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act.

Judge Cole's January 9th opinion concluded that the regulation exceeded EPA's interpretive authority. The decision was based in part on arguments posed by both environmental and industry groups who petitioned the court to vacate the rule. While EPA argued that the CWA was ambiguous and its construction of the terms of the statute was reasonable, Cole disagreed concluding that the text of the statute was clear and that it was his duty as a Judge to ensure that agency interpretations of statutes reflect the unambiguous intent of congress.

As is often the case in litigation, not everyone is happy with the court's conclusion. One concern, raised by the National Association of Wheat Growers (NAWG), is that thousands of farmers who apply pesticides to their crops in accordance with federal law will nonetheless be required to apply for CWA permits in order to continue their work.

Despite such concerns, the decision is a great victory for those concerned with the management of non point source pollution, or pollutants introduced into the environment from sources like run off rather than from the end of a pipe. Indeed, the Court found that the application of pesticides was a point source; rejecting EPA's argument that the residue that eventually reaches navigable waters cannot be considered to have come from a point source.

Groups opposed to Judge Cole's decision are contemplating a petition to the circuit for an en banc rehearing of the case, however the NAWG, one of the potential parties to the petition, does not seem optimistic about its success.

Sources

Nat'l Cotton Counsel of America v. E.P.A., 553 F.3d 927 (6th Cir. 2009).

Steward D. Fried & Gary H. Baise, Impacts of National Cotton Counsel v. EPA: Wheat Growers may Need NPDS Permits to Apply Pesticides, News from the National Association of Wheat Growers, February 20th 2009, http://www.wheatworld.org/html/news.cfm?ID=1551.

Clean Water Act 33 U.S.C. 1342 (2008) (NPDS permitting system).

See Clean Water Act 33 U.S.C. 1362 (6), (12), (14) (2008) (Defining pollutant, discharge of a pollutant, and point source).