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Court Pass on Pesticide Dispute Alarms Industry by Mateusz Perkowski Capital Press, February 27, 2010

EPA will create rules for spraying near water by April 2011

The U.S. Supreme Court has declined to review a legal dispute over regulating pesticides as pollutants under the Clean Water Act, potentially exposing thousands of farmers to environmental litigation, critics say.

Agricultural and pesticide groups had challenged a previous court ruling that held that pesticides applied over or near waterways should be subject to Clean Water Act regulations.

Pesticides were already subject to environmental restrictions under another statute -- the Federal Insecticide, Fungicide and Rodenticide Act -- before the 2009 decision by the 6th U.S. Circuit Court of Appeals.

The American Farm Bureau Federation and CropLife America claimed the ruling will drastically expand the Clean Water Act's scope and unnecessarily saddle farmers and pesticide manufacturers with a burdensome new layer of regulations.

"There's no need to have a duplicative federal law governing the application of pesticides," said Tyler Wegmeyer, director of congressional relations for the American Farm Bureau Federation.

The EPA has until April 2011 to draw up new Clean Water Act permit rules for applying pesticides near or over waterways.

The new regulations are expected to affect more than 360,000 pesticide applicators in the U.S., Wegmeyer said.

However, the impact of the legal decision will probably be even broader, he said.

Environmental activists are likely to test the ruling's scope in the courts, so even trace amounts of pesticides in water will likely serve as grounds for lawsuits alleging Clean Water Act violations, Wegmeyer said.

"From the legal standpoint, it opens the door for every farmer to get sued," he said.

Charles Tebbutt, an attorney representing the Baykeeper environmental group, disagreed that pesticide regulations under FIFRA sufficiently protected the environment.

Existing rules establish a "very minimal standard and not a place-based standard" for preventing harm, he said.

Up until now, agriculture has taken a "Wild West" approach to applying pesticides, with regulations allowing applicators to "shoot first and ask questions later," Tebbutt said.

"This will hopefully force a change in the mindset of pesticide use," he said. Congress enacted the Clean Water Act more than three decades ago, but EPA never regulated pesticide applications under that statute, according to court documents.

The agency decided to formally clarify that policy in 2006, when it published regulations specifically exempting pesticide applications from Clean Water Act permitting requirements.

Those rules were challenged by Baykeeper and other groups in several courts and the petitions were ultimately consolidated in the 6th Circuit Court of Appeals.

EPA argued that pesticide applications cannot be considered a "point source" of pollution under the Clean Water Act, since the chemicals serve a useful purpose upon discharge and thus aren't a form of waste.

The appellate court rejected that argument and vacated the EPA's rule in January 2009.

Although the EPA believes the appellate court incorrectly applied a legal standard in deciding the case, the agency urged the Supreme Court not to review the dispute, according to court documents.

The EPA has already begun developing Clean Water Act permit rules for pesticide applications that will sufficiently reduce the burden on farmers and regulators, the agency said in a legal brief.

However, more than 30 members of the House and Senate submitted a joint legal brief asking the Supreme Court to review the case.

The appellate decision was unreasonable and contrary to the intent of Congress, with the "court substituting its judgment for that of the expert agency," the brief claimed.

Those members of Congress have been making their views known to the Obama administration, as have other agricultural industry groups, said Jay Vroom, executive director of CropLife America. He said he hopes that will have an effect on the EPA's regulatory plans for pesticide permits under the Clean Water Act.

"We're all expressing our concerns and hope to work through this," Vroom said. "We remain concerned there is potential for this to go badly."

The court battle may not be completely over, he said. Currently, there is another case related to pesticide regulations under the Clean Water Act before the 2nd Circuit U.S. Court of Appeals, Vroom said.

If that lawsuit results in a different interpretation of the law, there would be a conflict between federal circuit courts -- serving as grounds for another Supreme Court appeal, he said.