Supreme Court Declines to Review Sixth Circuit Pesticide Case

February 26, 2010 Bookmark and Share

The Supreme Court declined this week to review a case that concluded pesticide discharge is a point source of pollution subject to additional regulation and permitting under the Clean Water Act, effectively letting the ruling stand and ending judicial appeals in the case.

The case, National Cotton Council of America v. U.S. Environmental Protection Agency (EPA), was decided by the Sixth Circuit Court in January 2009. In effect, the ruling will mean that EPA will almost certainly require producers to obtain National Pollutant Discharge Elimination System (NPDES) permits or some other type of permits for each and every pesticide application, even if applied within label requirements.

In June, the Sixth Circuit Court ordered a two-year stay of the decision to allow time for EPA and state regulators to implement it properly, but NAWG and other agricultural organizations felt the ruling was wrongly made and requested a rehearing by the entire Sixth Circuit. In August, the Court denied that request for rehearing saying the issues considered were “fully considered”.

Two separate coalitions, led by CropLife America and the American Farm Bureau Federation, later filed petitions for a writ of certiorari from the Supreme Court, asking them to examine the case – a long-shot, since few petitions for cert are accepted each year. This week, the Supreme Court – the court of last resort in the United States – officially denied cert, declining to become involved and letting the Sixth Circuit decision stand.

With judicial options for modifying the Sixth Circuit’s ruling now exhausted, agriculture groups will turn their attention to working with the EPA to formulate regulations under the ruling and working with Members of Congress on any possible legislative clarification.

EPA estimates the ruling will affect approximately 365,000 pesticide applicators that perform 5.6 million pesticide applications annually.

For more on the case and its potential impacts from NAWG counsel, please visit www.wheatworld.org/environmentalissues.