Nov 4, 2009Farm Bureau Petitions Supreme Court on Pesticide Ruling
The American Farm Bureau Federation (AFBF) filed a petition with the U.S. Supreme Court in early November, asking the high court to review a lower court ruling that will otherwise impose Clean Water Act permitting requirements on the application of pesticides on, over or near water.
Allowing the lower court ruling to stand would pose serious challenges to farmers battling pests,” said AFBF President Bob Stallman. “When pests strike, time is of the essence, and any length of time waiting for permit approval for products that are already approved would be disastrous.”
The problem stems from a January 2009 ruling by the U.S. Sixth Circuit Court of Appeals, which struck down a 2006 EPA rule that interpreted the Clean Water Act did not regulate most pesticide applications into, over or near “waters of the United States,” so long as the pesticide use complied with EPA’s requirements (such as EPA-approved label restrictions), according to AFBF.
The Sixth Circuit found in “National Cotton Council v. EPA” that EPA must require Clean Water Act permits for pesticide application in water or near waters where pesticide falls into the water. The court recognized only a very narrow exception for chemical pesticides intentionally applied to water that leave no “residue” after their use is complete. AFBF’s petition seeks Supreme Court review of that decision.
The practical effect of the Sixth Circuit decision is that almost all pesticide applications directly to water, over water or “near” water will require a Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit. If the decision is allowed to stand, farmers and others who use pesticides, such as mosquito abatement districts, will be required to obtain permits in order to apply pesticides on or near water. Since EPA views “waters of the United States” very broadly – including wetlands and even some ditches – the decision could affect hundreds of thousands of farmers, according to AFBF.
In its petition to the U.S. Supreme Court, AFBF argues that the EPA pesticide rule simply formalized how EPA and Congress have always addressed environmental regulation of pesticide use.
“Since Congress enacted the Clean Water Act in 1972, EPA has never subjected the use of pesticides to NPDES permitting,” said Julie Anna Potts, AFBF’s general counsel. “This court opinion dramatically changes the scope of the Clean Water Act and will force farmers, public health agencies and many others into burdensome, time-consuming and costly permitting requirements that could seriously impair their ability to use pesticides to protect croplands and public health.”
Responses to the AFBF petition, and friend-of-the-court briefs in support of the petition, will be due in early December. The Supreme Court is expected to decide whether to hear the case by the end of the year, according to AFBF. ”
