Supreme Court Denies Request to take up Pesticides Case


Today, the U.S. Supreme Court denied AFBF’s request for review of the Sixth Circuit Court of Appeals decision in National Cotton Council v. EPA.  In its ruling, the Sixth Circuit held that many pesticide applications to or over “waters of the United States” will require a National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act, a view that overturns over 30 years of law.

In its petition for certiorari, AFBF informed the court not only of the serious legal flaws in the Sixth Circuit’s ruling, but also the devastating impact of this unprecedented imposition of highly restrictive NPDES permit requirements on beneficial pesticide use.

Farmers and ranchers rely on the availability and effectiveness of crop protection methods to stop the spread of diseases and other pests that can devastate a field within days.  Congress plainly intended that agricultural pesticide use be shielded from costly and time-consuming federal permit requirements.  Although the Cotton Council decision did not directly concern the use of pesticides on crops, the ruling will generate tremendous uncertainty and litigation risk that may seriously impair the ability of our nations’ farmers to grow, tend and harvest their crops.

EPA successfully obtained a court order delaying the effective date of the Sixth Circuit’s ruling until April 11, 2011.  Meanwhile, EPA is in the process of developing an NPDES “general” permit for use in several states, while roughly 45 states will have to develop their own NPDES permits for pesticide use.  Early indications are that EPA’s permit will impose detailed paperwork exercises, recordkeeping, and reporting requirements.

It is not clear whether EPA will seek to regulate crop protection activities under its general permit, will assert that agricultural use remains an unregulated “nonpoint” source under the Clean Water Act, or will say nothing and leave the matter for citizen lawsuits to decide.   Because of the threat to farmers caused by this legal uncertainty, AFBF is examining the possibility of asking  Congress to clarify that lawful pesticide applications are regulated under pesticide laws and not the Clean Water Act.

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