laconic baykeeper, inc., ima fisher, new union … · · 2013-08-30d. invalidation of the rule is...
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Team No. 32
Civ. App. Nos. 07-1001, 07-1002______________________________________________
UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT
______________________________________________
LACONIC BAYKEEPER, INC., IMA FISHER,and SAM SCHWIMMER,
Appellants—Cross-Appellees,
v.
STEPHEN JOHNSON, ADMISTRATOR, U.S. Environmental Protection Agency,
Appellee—Cross Appellant.
NEW UNION FARMERS INSTITUTE, UNION OF NEW UNION PESTICIDE APPLICATORS, HAPPY VALLEY FARM, INC., and WICCILLUM COPTERS, INC.,
Appellants,
v.
STEPHEN JOHNSON, ADMINISTRATOR,U.S. Environmental Protection Agency,
Appellee.
_______________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW UNION________________________________________________
Oral Argument Requested_________________________________________________
BRIEF FOR APPELLANTS, NEW UNION FARMERS INSTITUTE, UNION OF NEW UNION PESTICIDE
APPLICATORS, HAPPY VALLEY FARM, INC., and WICCILLUM COPTERS, INC.
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................................................iii
JURISDICTIONAL STATEMENT ..............................................................................................1
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ................................................1
STATEMENT OF THE CASE .....................................................................................................2
STATEMENT OF FACTS ...........................................................................................................3
SUMMARY OF THE ARGUMENT ............................................................................................4
STANDARD OF REVIEW ...........................................................................................................6
ARGUMENT ................................................................................................................................7
I. ENVIRONMENTAL PLAINTIFFS DO NOT HAVE STANDING TO SEEK INVALIDATION OF THE PESTICIDE RULE ....................................................................7
A. Standing—Constitutional limits on federal jurisdiction ....................................................7
B. Environmental Plaintiffs have suffered no injury in fact ..................................................8
C. Environmental Plaintiffs have shown no causal connection between the Rule and any injury ...............................................................................................................................10
D. Invalidation of the Rule is not likely to redress any injury Environmental Plaintiffs may suffer ...............................................................................................................................10
II. THE DISTRICT COURT HAS ORIGINAL JURISDICTION TO HEAR THIS CLAIM ..12
A. The Pesticide Rule is not an “effluent limitation or other limitation” .............................11
B. Pesticide exemptions are not equivalent to the “issuance or denial of a permit” ...........13
C. No relevant ambiguities apply ........................................................................................15
D. To grant direct appellate review court review in this case would create judicialinefficiency .....................................................................................................................16
III. IF THE DISTRICT COURT LACKED JURISDICTION, THIS COURT SHOULD EQUITABLY TOLL THE 120 DAY STATUTE OF LIMITATIONS ...............................17
ii
A. Tolling the statute of limitations is not contrary to Congressional intent .......................17
B. CWA case law supports tolling under these circumstances ............................................18
C. Equitable considerations militate for tolling the statute .................................................19
IV. INDUSTRY PLAINTIFFS’ CHALLENGES TO THE CONTENT AND SCOPE OF THE PESTICIDE RULE ARE RIPE FOR REVIEW ...................................................................20
A. Ripeness—fitness and hardship ......................................................................................20
B. Industry Plaintiffs’ challenge to the scope of the Rule is ripe ........................................23
C. Industry Plaintiffs’ challenge to the content of the Rule is ripe .....................................24
V. THE PESTICIDE RULE’S EXEMPTION OF SPECIFIC PESTICIDE APPLICATION ACTIVITIES FROM THE CWA PERMITTING PROGRAM WAS REASONABLE AND PERMISSIBLE .....................................................................................................................26
A. Administrative law—judicial deference .........................................................................26
B. The Pesticide Rule fills an explicit gap ...........................................................................27
C. The Pesticide Rule carries the force of law ....................................................................28
D. EPA’s definition of pesticides applied to or near water in compliance with FIFRA as neither chemical wastes nor biological materials is reasonable ......................................29
E. EPA’s definition of point source pollutant as dependent on the character and purpose of the discharge at the moment of discharge is reasonable .................................................32
VI. THE PESTICIDE RULE’S FAILURE TO EXTEND ITS RATIONALE TO SIMILAR APPLICATION ACTIVITIES WAS UNREASONABLE ..................................................33
A. Chevron deference applies to the non-exemption of residues and applications not in compliance with FIFRA; Skidmore deference applies to the non-exemption of terrestrial applications ......................................................................................................................33
B. The Pesticide Rule’s non-exemptions are unpersuasive, arbitrary, capricious, and an abuse of discretion ..........................................................................................................34
CONCLUSION............................................................................................................................35
iii
TABLE OF AUTHORITIES
SUPREME COURT DECISIONS
Abbott Labs. v. Gardner, 387 U.S. 136, 154 (1967).............................................1, 3, 5, 20-21, 23
Burnett v. New York Cent. R. Co., 380 U.S. 424 (1965)..............................................................17
Chevron U.S.A., Inc. v. Natural Res. Def. Counsel, Inc., 467 U.S. 837 (1984)............6, 26-28, 33
Christensen v. Harris County, 529 U.S. 576 (2000)....................................................................27
Crown Simpson Pulp Co. v. Costle, 445 U.S. 193 (1980) .....................................................14-15
Duke Power Co. v. Carolina Envtl Study Group, 438 US 59 (1978) ....................................22, 26
E.I. Dupont de Nemours & Co. v. Train, 430 U.S. 112 (1977) ...................................................15
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) .....................................8
Gardner v. Toilet Goods Ass’n, 387 U.S. 167 (1967)............................................................20, 21
Holmberg v. Armbrecht, 327 U.S. 392 (1946).............................................................................17
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .............................................................4, 7-9
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) ...................32
Nike v. Kasky, 539 U.S. 654 (2003).............................................................................................21
Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998) ..........................................................21
Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342 (1944) ..........................17
Park v. Forest Serv., 205 F.3d 1034 (2000)...............................................................................7, 9
Skidmore v. Swift, 323 U.S. 134 (1944)........................................................................6, 27-29, 33
Toilet Goods Ass’n v. Gardner, 387 U.S. 158 (1967)............................................................20, 21
United States v. Mead Corp., 533 U.S. 218 (2001) .....................................................................27
United States v. Morton, 467 U.S. 822 (1984).............................................................................28
United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973) .....7
iv
Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982).......................................................................................................................7
Whitmore v. Arkansas, 495 U.S. 149 (1990) .................................................................................8
UNITED STATES COURT OF APPEALS DECISIONS
American Ass'n of Meat Processors v. Costle, 556 F.2d 875 (8th Cir. 1977) .............................18
American Mining Cong., 965 F.2d 762 (9th Cir. 1992)...............................................................14
APHETI v. Taylor Res., Inc., 299 F.3d 1007 (2002)....................................................................30
Appalachian Power Co. v. Train, 566 F.2d 451 (9th Cir. 1977) .................................................18
Bethlehem Steel Corp. v. EPA. 538 F.2d 513 (2d Cir. 1976).......................................................15
Cleveland Branch N.A.A.C.P. v. City of Parma, Ohio, 263 F3d 513 (6th Cir. 2001) ...................6
Cont’l Air Lines v. CAB, 522 F.2d 107 (D.C. Cir. 1975).......................................................22, 23
Earth Island Inst. v. Ruthenbeck, 490 F.3d 687 (2007) ...............................................................20
Envtl Def. Ctr. v. EPA, 344 F.3d 759 (9th Cir. 2003)..................................................................14
Fairhurst v. Hagener, 422 F.3d 1146 (9th Cir. 2005) .................................................................29
Friends of the Earth v. EPA, 333 F.3d 184 (D.C. Cir. 2003) ......................................................15
Georgia-Pacific Corp. v. EPA, 671 F.2d 1235 (9th Cir. 1982) ...................................................18
Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th Cir. 2001)..................................31
Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620 (2d Cir. 1976) ...............................15
Hudson River Fisherman’s Ass’n v. City of New York, 751 F. Supp. 1088 (S.D.N.Y. 1990), aff’d,940 F.2d 649 (2d Cir. 1991)...................................................................................................32, 33
Justice v. U.S., 6 F.3d 1474 (11th Cir. 1993)...............................................................................17
Longview Fibre Co. v. Rasmussen, 980 F.2d 1307 (9th Cir. 1992)............................12, 15-16, 19
Moore v. Curtis, 736 F.2d 1260 (8th Cir. 1984) ............................................................................6
Nat’l Ass’n of Home Builders v. Army Corps of Eng’rs, 440 F.3d 459 (D.C. Cir. 2006) ...........22
v
Nat’l Wildlife Fed’n v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988) ............................30
Natural Res. Def. Council v. EPA, 656 F.2d 768 (D.C. Cir. 1981) ..................................12, 14-15
Natural Res. Def. Council v. EPA, 673 F.2d 400 (D.C. Cir. 1982) ........................................12, 13
Natural Res. Def. Council v. EPA, 859 F.2d 156 (D.C. Cir. 1988) ..................................21-22, 24
Powder River Basin Res. Council v. Babbitt, 54 F.3d 1477 (10th Cir.1995) ................................6
Provecto San Pablo v. I.N.S., 189 F.3d 1130 (9th Cir. 1999)........................................................1
State of Tennessee v. Herrington, 806 F.2d 642 (6th Cir. 1986) .................................................16
Suburban O'Hare Comm’n v. Dole, 787 F.2d 186 (7th Cir. 1986)..............................................16
Texas v. United States, 497 F.3d 491 (5th Cir. 2007)..................................................................22
Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir. 1984) ..........................................................13
UNITED STATES DISTRICT COURT DECISIONS
Envtl Protection Info. Ctr. v. Pacific Lumber Co., 266 F. Supp. 2d 1101 (N.D. Cal. 2003).12, 13
Long Island Soundkeeper Fund, Inc. v. N.Y. Athletic Club, 1996 WL 131863 (S.D.N.Y. Mar. 22, 1996) ............................................................................................................................................32
Nw. Envtl Advocates v. EPA, 2005 WL 756614 (N.D. Cal. Mar. 30, 2005) .........................12, 13
U.S. PIRG v. Atlantic Salmon, 215 F. Supp. 2d 239 (D. Maine 2002)........................................30
UNITED STATES STATUTES
5 U.S.C. § 704 (2007) ....................................................................................................................5
7 U.S.C. §§ 136a(c)(1), (c)(5) (2007) ..........................................................................................31
7 U.S.C. § 136j(a)(2)(G) (2007) ............................................................................................31, 35
7 U.S.C. § 136l(b)(2) (2007)........................................................................................................31
28 U.S.C. § 1291 (2007) ................................................................................................................1
28 U.S.C. § 1331 (2007) ............................................................................................................1, 5
33 U.S.C. § 502(12)(A) (2007)........................................................................................29-30, 35
vi
33 U.S.C. § 1251(a)(2) (2007) .....................................................................................................31
33 U.S.C. § 1251(e) (2007)..........................................................................................................18
33 U.S.C. § 1311(a) (2007)..........................................................................................................29
33 U.S.C. §§ 1311(g)(4), (g)(5) (2007) .......................................................................................18
33 U.S.C. § 1312(a) (2007)..........................................................................................................28
33 U.S.C. § 1312(b)(2) (2007)...............................................................................................28, 31
33 U.S.C. § 1317(a)(1) (2007) .....................................................................................................28
33 U.S.C. § 1319(a) (2007)..........................................................................................................28
33 U.S.C. § 1361(a) (2007)..........................................................................................................28
33 U.S.C. § 1362(6) (2007) .........................................................................................................28
33 U.S.C. § 1362(a)(19) (2007) ...................................................................................................31
33 U.S.C. § 1365 (2007) ..............................................................................................................24
33 U.S.C. § 1369(b)(1)(E)-(F) (2007) ................................................................2, 5, 11-16, 18-19
40 C.F.R. § 122 (2007) ..............................................................................................................2, 3
42 U.S.C. § 10139, 10161(h) (2007) ...........................................................................................16
Pub. L. No. 100-4. § 505(a) .........................................................................................................18
RULES AND REGULATIONS
FED. R. CIV. P. 56(c) .................................................................................................................7, 20
71 Fed. Reg. 68,483 (Nov. 27, 2006) (to be codified at 40 C.F.R. pt. 122) .....3, 23, 25, 29-33, 35
LEGISLATIVE HISTORY
S. Rep. No. 92-414 (1971) ...........................................................................................................18
OTHER AUTHORITIES
CHILDRESS & DAVIS, FEDERAL STANDARDS OF REVIEW § 2.13 (3d ed. 1999) ..............................6
vii
Mary Jane Angelo, Genetically Engineered Plant Pesticides, 7 U. FLA. J.L. & PUB. POL’Y 257 (1996)...........................................................................................................................................30
Black’s Law Dictionary (7th ed. 1999)........................................................................................12
New Oxford American Dictionary (2001)...................................................................................29
1
JURISDICTIONAL STATEMENT
This case arises under 28 U.S.C. § 1331, which provides that “[t]he district court shall
have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of
the United States.” Unless otherwise provided in a statute, the district courts have jurisdiction to
review final agency action as part of their “general federal question jurisdiction.” Provecto San
Pablo v. I.N.S., 189 F.3d 1130, 1136 n.5 (9th Cir. 1999). This Court has jurisdiction over this
appeal from the district court’s final judgment. See 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1. Whether the Environmental Plaintiffs have standing to challenge the Pesticide Rule.
2. Whether the challenges to the Pesticide Rule should have been brought directly in the
Court of Appeals pursuant to CWA § 509(b)(1), precluding District Court jurisdiction
over any challenge to the Pesticide Rule.
3. Whether, if this Court determines these cases should have been brought in the Court of
Appeals, the Court should equitably toll the 120 day statute of limitations of CWA §
509(b)(1).
4. Whether Industry Plaintiffs’ challenge is ripe under Abbott Laboratories v. Gardner.
5. Whether the Pesticide Rule’s exemption of specified pesticide application activities from
the CWA permitting program was arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.
6. Whether the failure of the Pesticide Rule to include within its exemption pesticide
residues, pesticides applied in violation of FIFRA requirements, and pesticides applied
distant from water but which drift into water was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.
2
STATEMENT OF THE CASE
This is an appeal from an order of the United States District Court for the District of New
Union granting partial summary judgment in favor of Laconic Baykeeper, Inc. (LBK), Ima
Fisher, and Sam Schwimmer (Environmental Plaintiffs), as well as granting summary judgment
dismissing the complaint of New Union Farmers Institute (NUFI), the Union of New Union
Aerial Pesticide Applicators (UNUAPA), Happy Valley Farm, Inc., and Wiccillum Copters, Inc.
(Industry Plaintiffs). Record (R.) at 5. In No. 07-1001, Environmental Plaintiffs brought suit
against the United States Environmental Protection Agency (EPA), challenging its authority
under the Clean Water Act (CWA) to exempt any pesticide application activities from permitting
requirements. R. at 2. Specifically, Environmental Plaintiffs questioned the validity of an
amendment to 40 C.F.R. § 122 known as the “Pesticide Rule” (Rule) at 71 Fed. Reg. 68,483
(Nov. 27, 2006). R. at 2. In No. 07-1002, Industry Plaintiffs also brought suit, challenging the
limited scope of the Rule and seeking declaratory judgment that pesticide residues, pesticides
applied in violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and
pesticides applied distant from water but which drift into water should all be exempted from
CWA permitting requirements. R. at 2. The EPA argued that claims by both plaintiffs were
precluded by 33 U.S.C. § 13691(b)(1), which gives exclusive jurisdiction to the Court of Appeals
for challenges to certain EPA regulatory actions. R. at 2.
Rejecting the EPA’s arguments, the District Court consolidated the two cases and
asserted jurisdiction over the plaintiffs claims. Id. The court first granted partial summary
judgment in favor of Environmental Plaintiffs, reasoning that the Rule’s exemption of biological
pesticides and non-aquatic pesticides contradicted the express intent of Congress. Id. Next,
rather than reaching Industry Plaintiffs’ challenges, the court found their claims were not ripe
3
under Abbot Laboratories v. Gardner, 387 U.S. 136 (1967). R. at 2. Environmental Plaintiffs
and Industry Plaintiffs appealed, and the EPA cross-appealed.
STATEMENT OF FACTS
On November 27, 2006, the EPA issued the “Pesticide Rule,” which amended the Code
of Federal Regulations, 40 C.F.R. pt. 122, to exempt the following two classes of pesticide
applications from regulation under CWA § 301 when they are applied in compliance with the
relevant FIFRA requirements: 1) pesticides applied directly to water to control pests in water,
and 2) pesticides applied over or near water when it is inevitable that they will deposit in water.
R. at 1−2. The exemptions followed from the EPA’s interpretation of “pollutant.” R at 2. In the
Rule, the EPA also defined pollutant to include pesticide residues and pesticides applied without
complying with relevant FIFRA requirements.1 The EPA did not address terrestrial applications
of pesticides in its definition of pollutant, but described its “workgroup” approach to analyzing
such applications as a matter of policy. 71 Fed.Reg. 68,483, 68,488.
Environmental Plaintiff LBK is a non-profit environmental group whose members
include Plaintiffs Ima Fisher and Sam Schwimmer. Fisher uses Laconic Bay (Bay) as a
commercial fisherperson and Schwimmer uses the Bay for swimming and birdwatching. R. at 5.
Industry Plaintiffs NUFI and Happy Valley Farm depend on pesticides to protect their
dairy operations and their corn, soybean, and cotton crops. R. at 5. Members of UNUAPA and
1 The EPA expressly defines pesticide residues as pollutants. 71 Fed.Reg. 68483, 68487 (noting that “residual should be treated as a nonpoint source pollutant”). Pesticides applied inconsistent with FIFRA requirements are impliedly defined as pollutants. Pesticides applied consistent with FIFRA “are not wastes (and therefore not pollutants)” because they are applied in compliance with FIFRA, and thus are being applied for their “intended, beneficial purpose.” Id. at 68488. It follows that pesticides not applied for their intended purposes (which, because FIFRA requirements define the beneficial uses for which pesticides may be applied, includes all applications not in compliance with FIFRA) are defined as wastes, and therefore pollutants. Id.
4
Wiccillum Copters apply pesticides for NUFI’s members. R. at 5. Prior to the promulgation of
the Pesticide Rule, Industry Plaintiffs were not regulated under the CWA. R. at 5.
The City of Progress (City) developed a mosquito control plan (Plan) to apply BTI, a
biological pesticide, and Anvil 10 + 10, a chemical pesticide not approved for aquatic use, to the
Bay in the event that “significant numbers” of birds or mosquitoes infected with West Nile Virus
are discovered in New Union, and entered into a conditional contract (Contract) with Wiccillum
Copters to apply those pesticides. R at 5−6. The City has not yet applied either pesticide to
Laconic Bay. West Nile had not been found in New Union at the time the complaint was filed
(on February 23, 2007), but several infected birds and mosquito populations were subsequently
identified in New Union (in July 2007). R at 6−7.
SUMMARY OF THE ARGUMENT
Environmental Plaintiffs do not have standing to seek invalidation of the Rule because
they have not alleged that they are likely to suffer harm from pesticide applications to Laconic
Bay as a result of the adoption of the Rule. At the time they filed their complaint, the record
showed merely that Anvil 10 + 10 is harmful when applied to water and that the City has a plan
to apply Anvil 10 + 10 to Laconic Bay if West Nile Virus is discovered in New Union. This is
insufficient to establish injury in fact, causation, or redressability. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560−61 (1991). Injury to the plaintiff must be “certainly impending,” id.
at 563 n.2, and Plaintiffs failed to show that it was likely, much less certain, that Anvil 10 + 10
would be applied to the Bay. Furthermore, because the City’s Plan existed prior to the Rule’s
promulgation and because its activation depends on the occurrence of events unrelated to the
Rule, even the speculative injury asserted by Plaintiffs is not “fairly traceable” to the Rule. Id. at
590 (alteration omitted). Finally, invalidation of the rule is not “likely” to redress the Plaintiffs’
5
supposed injury because the City’s Plan existed prior to the Rule, and the existence of the Rule
therefore has no effect on it. Id. at 561.
The district court has original jurisdiction to hear challenges to the Pesticide Rule
pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 704. Citing 33 U.S.C. 1369(b)(1)(E)−(F), the EPA
argues that the courts of appeals have exclusive review of challenges to a regulation that wholly
exempts pesticides applied to, over, or near water from NPDES permitting. The EPA’s
argument fails because an exemption is equivalent to neither a limitation under CWA § 1369
(b)(1)(E) nor an “issuance or denial” of a permit under 33 U.S.C. § 1369(b)(1)(F). Moreover,
because Plaintiff-Appellants acted diligently by filing a timely complaint with the district court,
the statute of limitations should be tolled if this Court should determine that the district court did
not have original jurisdiction.
Industry Plaintiffs’ challenges to the content and the scope of the Pesticide Rule are ripe
for review. The challenge to the Rule’s content (i.e., the definition of pesticide residues and
pesticides applied inconsistently with FIFRA requirements as pollutants) is ripe because it is
purely a legal question of statutory interpretation that was promulgated after notice and comment
and carries the force of law, and it creates hardship in the form of complex and intrusive
regulation. Abbott Laboratories v. Gardner, 387 U.S. 136, 149−54. The challenge to the Rule’s
scope (i.e., EPA’s decision that terrestrial application of pesticides, unlike aquatic applications,
cannot be answered by the statute) is ripe because no further factual development is necessary to
evaluate the reasonableness of that final decision, and it places Industry Plaintiffs in the present
dilemma of changing behavior or facing legal challenges without the benefit of a previously
available defense.
6
Environmental Plaintiff’s claims must fail under Chevron deference standards because
the EPA’s rationale for exempting certain classes of pesticide from the definition of pollutant is
reasonable. First, the EPA reasonably distinguishes chemical pesticides, which are used for a
designed purpose, from “chemical waste” pollutants, which serve no purpose. Second, the EPA
also reasonably distinguishes “biological material[]” pollutants from biological pesticides, which
are designed to pose fewer hazards to human health and the environment than do chemical
pesticides. Third, the EPA reasonably interprets the CWA to look at the moment of discharge
from a point source, as well as the intended use, in determining whether materials are pollutants.
Industry Plaintiff’s claims, on the other hand, must succeed. Although the EPA’s
rationale for exempting some applications of pesticides is reasonable, its decision not to extend
that rationale to pesticide residues and pesticides applied in violation of FIFRA is not reasonable.
The EPA’s logic concerning the time and purpose of discharge inescapably exempts pesticide
residues and drift. Nor was it reasonable to address terrestrial applications of pesticides apart
from the definition of pollutant. The former non-exemptions (residues and non-compliant
applications) merit Chevron deference, but the latter (terrestrial drift) merits only Skidmore
deference.
STANDARD OF REVIEW
All claims pressed on appeal herein are subject to de novo review. See Cleveland Branch
N.A.A.C.P. v. City of Parma, Ohio, 263 F3d 513, 523 (6th Cir. 2001) (standing); Powder River
Basin Res. Council v. Babbitt, 54 F.3d 1477, 1483 (10th Cir.1995) (ripeness); Moore v. Curtis,
736 F.2d 1260, 1262 (8th Cir. 1984) (district court conclusions regarding correctness of an
agency’s statutory interpretations); CHILDRESS & DAVIS, FEDERAL STANDARDS OF REVIEW § 2.13
(3d ed. 1999) (meaning of a statute conferring jurisdiction).
7
ARGUMENT
I. ENVIRONMENTAL PLAINTIFFS DO NOT HAVE STANDING TO SEEK INVALIDATION OF THE PESTICIDE RULE
A. Standing—Constitutional limits on federal jurisdiction
By defining what constitutes a “case or controversy” under Article III, the elements of
standing delineate the federal courts’ jurisdictional reach. Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982). The
“irreducible minimum” of standing, id. at 472, requires that the plaintiff establish (1) injury in
fact, (2) a causal connection between the injury and the defendant’s conduct, and (3) that the
requested relief will redress that injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560−61
(1992). The presence of these elements ensures that the power to set the judiciary in motion is
not placed in the hands of those who would use it as a “vehicle for the vindication of . . . value
interests.” United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412
U.S. 669, 687 (1973).
The plaintiff bears the burden of proof for each of these elements, and must support them
“with the manner and degree of evidence required at the successive stages of the litigation.”
Lujan, 504 U.S. at 561. Thus, upon a motion for summary judgment, the plaintiff can resist
dismissal only by demonstrating that a genuine issue of material fact exists for each element.
FED. R. CIV. P. 56(c). Furthermore, the plaintiff bears this burden for each element as of the time
the complaint was filed. In other words, the plaintiff may not “use evidence of what happened
after the commencement of the suit” to create jurisdiction that did not exist at that time. Park v.
Forest Serv., 205 F.3d 1034, 1037 (2000) (finding no standing where plaintiff failed to show
likelihood of constitutional violation in complaint, although violation later occurred).
8
First, the plaintiff must show an injury in fact—“an invasion of a legally protected
interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical.” Lujan, 504 U.S. at 560 (internal quotes and citations omitted). An injury is
“concrete and particularized” when it “affect[s] the plaintiff in a personal and individual way.”
Id. at 560 n.1. Environmental plaintiffs must show harm to their own personal interests, not
harms or possible harms to the environment generally. Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., 528 U.S. 167, 181 (2000). An injury is “actual or imminent” when it has already
occurred or is “certainly impending,” Lujan, 504 U.S. at 560, but not when it is merely a
“possible future injury.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990). Furthermore, where
the “asserted injury arises from the government’s allegedly unlawful regulation (or lack of
regulation) of someone else, . . . [standing] is ‘substantially more difficult’ to establish.” Lujan,
504 U.S. at 562 (emphasis in original). In other words, an indirect injury requires a stronger
showing of immediacy than a direct injury. Id. at 564 n.2 (observing that “in such circumstances
[courts] have insisted that the injury proceed with a high degree of immediacy”).
Second, the alleged injury must be “fairly traceable” to the defendant’s actions, not
independently caused by a third party. Id. at 560 (alteration omitted). In other words, the
plaintiff must show that the challenged action has caused or will cause the third party to take the
actions that directly injure the plaintiff. Id. at 562. Finally, an alleged injury is redressable when
it is “‘likely,’ as opposed to merely ‘speculative,’ that [the injury] will be ‘redressed by a
favorable decision.’” Id. at 561.
B. Environmental Plaintiffs have suffered no injury in fact.
Plaintiffs have not alleged an injury sufficient to confer standing. In ruling to the
contrary, the district court relied on the fact that the City had, after the motions for summary
9
judgment were briefed, announced its intention to discharge pesticides into the Bay. R. at 9.
Because standing must exist at the time the complaint is filed and may not be created by
subsequent events, Park, 205 F.3d at 1037, the district court’s reliance on that announcement
was error.
Plaintiffs have not alleged a “concrete and particularized” injury. At the time the
complaint was filed, Environmental Plaintiffs had merely a general political interest in the
Administrator’s definition of “pollutant”—no more concrete than any other commercial
fisherpersons or recreational swimmers who use waters subject to the EPA’s jurisdiction under
the CWA. Environmental Plaintiffs’ affidavits evince a general concern over the effects of
aquatic pesticide applications in other places, R. at 6 (Anvil 10 + 10 causes die-offs of fish,
effects on sexual development of crabs), but they have not alleged that the challenged Rule
makes them any more likely to be injured by a local application of pesticides. Moreover, even
assuming that their alleged injury from Anvil 10 + 10 (which is not FIFRA approved for aquatic
use) were personal enough to support a challenge, Environmental Plaintiffs have not alleged that
aquatic use of BTI (which is FIFRA approved for aquatic use) are harmful, so they have no
standing to challenge the portion of the Rule that pertains to pesticides applied in compliance
with FIFRA.
Nor is any injury sufficiently imminent to confer standing. Because any possible harm to
Fisher or Schwimmer would result from a failure to regulate third parties (pesticide applicators),
Plaintiffs must show a “high degree of immediacy.” Lujan, 504 U.S. at 564 n.2. The only
possible footing on which an allegation of imminent injury might stand is the existence of the
City’s Plan and the Contract for mosquito control between the City and the UNUAPA members.
By their very nature, however, the Plan and Contract fail to satisfy the imminence requirement.
10
The Plan is not imminent because it becomes active only if “significant numbers” of infected
mosquitoes or birds are identified. R. at 6. Nor can the consummation of the Contract be
considered “certainly impending,” Lujan, 504 U.S. at 560, unless the condition on which it is
premised (presumably, the activation of the City’s Plan) is certain. At the time the complaint
was filed, there was no evidence of West Nile Virus in New Union, and the City’s plans to apply
pesticides to Laconic Bay could by no means be characterized as “certain.”
C. Environmental Plaintiffs have shown no causal connection between the Rule and any injury.
Furthermore, even the possibility that the Plan and the Contract will become active—
Environmental Plaintiff’s strongest argument for the existence of an imminent injury—is not
causally related to the challenged Rule. Only if the EPA’s action in some way affected the
City’s Plan could this causal requirement be met. If the Plan and Contract were to become active
upon EPA approval, for instance, then the Rule might fairly be characterized as a “cause” of the
pesticide applications. Instead, the City’s Plan and its Contract with UNUAPA members was
developed independently of this rule, and their activation is solely dependent on occurrences
outside the EPA’s control (viz., identification of West Nile Virus in New Union). R. at 6.
Therefore, no possible harm to Fisher or Schwimmer can be traced to the challenged action.
D. Invalidation of the Rule is not likely to redress any injury Environmental Plaintiffs may suffer.
Finally, invalidation of the rule would not redress any cognizable injury to the plaintiffs.
Because the Rule is not the cause of the possible applications of pesticides to Laconic Bay, its
invalidation cannot be the solution that prevents such applications.
Environmental Plaintiffs seek to invalidate the Rule in the hopes that a more favorable
rule will be adopted after reconsideration—a rule that defines pesticides, whether applied in
11
compliance with the relevant FIFRA requirements or not, as pollutants requiring NPDES
permits. The plaintiffs are threatened (albeit in a conjectural way) by the possible application of
Anvil 10 + 10 to Laconic Bay, which would violate FIFRA. A more favorable rule cannot make
the City’s Plan to apply Anvil 10 + 10 to water any less illegal, but might enable Plaintiffs to
bring a citizen suit against pesticide applicators under the CWA. Therefore, whether the
invalidation of the Rule will redress plaintiff’s alleged injury (characterized generously as the
relative uncertainty of their ability to bring a citizen suit against the applicators for failure to get
an NPDES permit) depends on the likelihood of such a rule’s adoption. Unfortunately, such a
rule is highly unlikely to be adopted. If the EPA required NPDES permits for applications not in
compliance with FIFRA, the question of whether to require an NPDES permit, which must be
obtained before the pesticide is applied, would depend on whether the pesticide was applied in
compliance with the relevant FIFRA requirements (an inquiry that can only be conducted after
the application). Such a requirement, to put it mildly, would be strained and illogical.
Therefore, invalidation of the Rule is unlikely to redress even the plaintiffs’ most tenuous alleged
injury.
II. THE DISTRICT COURT HAS ORIGINAL JURISDICTION TO HEAR THIS CLAIM
Relying on 33 U.S.C. § 1369(b)(1), the EPA argues that Plaintiffs incorrectly filed their
complaints and should have sought review in the circuit court. In relevant part, 1369(b)(1)
states:
Review of administrator's action…(E) in approving or promulgating any effluent limitation or other limitation under §§ 1311, 1312, 1316, or 1345 of this title, [or] (F) in issuing or denying any permit under § 1342 of this title…may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district.
12
EPA’s reliance on this provision is misplaced because 1) the Pesticide Rule is not an effluent
limitation or other limitation; 2) it is not equivalent to an issuance or denial of a permit; 3) no
relevant ambiguities apply; and 4) judicial efficiency militates in favor of direct review by the
district court.
A. The Pesticide Rule is not an "effluent limitation or other limitation"
Courts have generally given § 1369(b)(1)(E) a narrow reading. See Longview Fibre Co.
v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir. 1992). The Pesticide Rule does not “limit”
anything; instead, it excludes a whole class of pollutants. A wholesale exemption of a class of
discharges2 is not an effluent limitation or other limitation.3 Nw. Envtl Advocates (NEA) v. EPA,
2005 WL 756614 *4-5 (N.D. Cal. Mar. 30, 2005) (noting that regulations exempting ballast
water are not limitations because an exemption4 does not limit anything); EPIC v. Pacific
Lumber Co., 266 F. Supp. 2d 1101, 1115 (N.D. Cal. 2003) (holding that EPA regulation
exempting certain silvicultural activities from definition of "point source" is not a limitation).
Although some courts include within the scope of 1369(b)(1)(E) regulations that govern
underlying permitting procedures, the Pesticide Rule does not fall within this limited exception.
In Natural Res. Def. Council v. EPA, 673 F.2d 400 (D.C. Cir. 1982) (NRDC II), the court read §
1369(b)(1)(E) broadly to include NPDES regulations that involve underlying permitting
procedures. The court applied the reasoning it used in Natural Res. Def. Council v. EPA, 656
F.2d 768, 775 (D.C. Cir. 1981) (NRDC I): A regulation creates a "perverse situation" if a circuit
court is able to review the issuance or denial of a permit under 1369(b)(1)(F) but lacks “the
2 "Discharge of a pollutant…means…any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 502(12)(A).3 A "limitation" is defined as "[t]he act of limiting; the state of being limited" or "a restriction." Black’s Law Dictionary (7th ed. 1999). 4 An "exemption" means "[f]reedom from a duty, liability, or other requirement." Id.
13
authority to review directly the regulations on which the permit is based." Id. at 775. See also
Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir. 1984) (granting review under § 1369(b)(1)(E)
of underlying procedures that concerned the burden of proof in a permit hearing).
Even assuming that 1369(b)(1) includes underlying permitting procedures, a wholesale
exclusion from permitting is not procedural. NEA, 2005 WL 75661, at *6. In NRDC II, the
court found that the EPA's rejection of permitting procedures authorized by the state of
California were "functionally equivalent" to denying a permit, which created the "perverse
situation" wherein the Appellate Court would not be able to review the regulation. 673 F.2d at
405-406. In NEA, however, the court distinguished cases involving wholesale exclusions of
discharges: "Because [plaintiff] challenges a decision that in effect excludes sources from the
NPDES program, the circuit court will never have to confront the issuance or denial of a permit
for these sources." NEA, 2005 WL 756614, at *7; See also EPIC v. Pacific Lumber Co., 266 F.
Supp. 2d 1101, 1115 (N.D. Cal. 2003) ("there can be no underlying permit procedures for
silvicultural sources, because they are not subject to an NPDES program").
Here, unlike in NRDC II, the appellate court will not be precluded from reviewing
regulations that affect underlying permitting procedures because pesticides applied to or near
water have been excluded from permitting entirely.
B. Pesticide exemptions are not equivalent to the "issuance or denial of a permit"
Exempting a whole class of discharges is not equivalent to the issuance or denial of a
permit, because an issuance or denial presupposes a pollutant that is subject to permitting. See
NEA, 2005 WL 756614, at *6 ("the EPA could never issue or deny a permit for ballast water
discharges given that they are exempt from the NPDES permit requirements and absolutely no
procedures exists to provide such permits").
14
Further, there is no precedent that gives the circuit court original jurisdiction over
regulations expanding the scope of activities covered by NPDES permitting. Even if this were
so, the Pesticide Rule does not expand the scope of activities but rather narrows the types of
applications subject to NPDES permitting. The EPA relies on Crown Simpson Pulp Co. v.
Costle, 445 U.S. 193 (1980) to argue otherwise. In Crown Simpson, the court interpreted §
1369(b)(1)(F) to include review of the “functional equivalent” of an issuance or denial of a
permit. Id. at 1095. In that case, the EPA had vetoed state-issued permits that would have
granted a pulp mill a variance from EPA's effluent limitation standards. Id. at 1093−94. In an
unanimous decision, the court held that the EPA's rejection of the state-issued permitting plan
was the "functional equivalent" of a denial of the pulp-mill's permit because the "precise effect of
its action [was] to 'den[y]' a permit within the meaning of § 509(b)(1)(F)." Id. at 1095.
EPA erroneously extends the holding of Crown Simpson to argue that regulations
expanding the scope of activities covered by the NPDES permit program are subject to direct
review by the circuit court. To make this argument, the EPA relies on American Mining Cong.,
965 F.2d 762, 763 (9th Cir. 1992) ("[1369(b)(1)(F)] allows us to review the regulations
governing the issuance of permits," NRDC I, 656 F.2d at 768, (Circuit courts “have the power to
review rules that regulate the underlying procedures”), and Envtl Def. Ctr. v. EPA, 344 F.3d 759,
775 (9th Cir. 2003).
Unlike the Pesticide Rule, which permanently exempts applications to water, the above
cases involve temporary exemptions of specific discharges. In American Mining, the EPA issued
regulations for inactive mines but granted temporary permitting exceptions pending expiration of
a stormwater permit moratorium. 965 F.2d at 762. Similarly, in NRDC I, the Ninth Circuit
reviewed an EPA regulation that granted an exclusion of point sources from immediate
15
permitting requirements for 5 years. 656 F.2d at 768. In Envtl Def. Ctr. v. EPA, 344 F.3d at 759,
the court granted direct review of a case involving a challenge to the temporary moratorium on
the permitting of stormwater discharges pending the results of studies.
Moreover, as the district court noted, these cases do not provide a rationale as to why
exclusive appellate review was granted, so the EPA’s rationale—that by granting review in these
cases the appellate courts expanded the scope of § 1369(b)(1)(F) to include those regulations that
extend the reach of permitting activities—is merely conjectural. Another possible explanation
could be that the court saw temporary exemptions as "functionally equivalent" to the issuance or
denial of a future permit—a reading consistent with Crown Simpson. Here, the Pesticide Rule
does not provide for future permitting. Finally, even if the EPA was correct to interpret
§1369(b)(1)(F) as granting exclusive circuit court review of regulations expanding the scope of
permitting activities, the Pesticide Rule narrows (rather than expands) the types of applications
subject to NPDES by leaving out certain pesticide applications.
C. No relevant ambiguities apply
The district court found that there is no ambiguity in the language of 1369(b)(1). R. at
10. Indeed, even though some courts have grappled with ambiguities found within § 1369(b)(1),
none of those ambiguities is relevant here. See Longview Fibre; E.I. du Pont de Nemours & Co.
v. Train, 541 F.2d 1018 (4th Cir. 1976); Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d
620 (2d Cir. 1976); Bethlehem Steel Corp. v. EPA. 538 F.2d 513, 517 (2d Cir. 1976); Friends of
the Earth v. EPA, 333 F.3d 184, 193 (D.C. Cir. 2003).
Nevertheless, the EPA relies on Suburban O'Hare to assert that any ambiguity as to
whether jurisdiction lies with a district court or with the appellate court should be resolved in
favor of the appeals court. In Suburban O'Hare Comm’n v. Dole, 787 F.2d 186 (7th Cir. 1986),
16
the appellate court heard a challenge to its jurisdiction because one of the four orders issued by
the FAA was subject to district court review while the other three were subject to appeals court
review. Id. at 192. ("When an agency decision has two distinct bases, one of which provides for
exclusive jurisdiction in the courts of appeals, the entire decision is reviewable exclusively in the
appellate court.")
The EPA also relies on State of Tennessee v. Herrington, 806 F.2d 642 (6th Cir. 1986), in
which the court dealt with a provision that provided for exclusive appeals court review for all
actions arising under 42 U.S.C. § 10139(a). Another section (§ 10161(h)) incorporated §
10139(a), which created an ambiguity as to whether actions arising under § 10161(h) were
subject to appellate review. Legislative history argued in favor of appellate review.
The case here is distinguishable from both Suburban O'Hare and Herrington. The EPA
claims only one basis for its Rule—the interpretation of a statutory term. Therefore, the only
question is whether the interpretive action falls within the ambit of § 1369(b)(1). Moreover, the
Court is not asked to determine whether another CWA section incorporates § 1369(b)(1).
D. To grant direct appellate court review in this case would create judicial inefficiency
We agree with the district court that Congress should determine whether an appellate
court has original jurisdiction over this matter. Plainly, Congress intended that only a limited
number of cases should be brought directly to an appeals court. See Longview Fibre, 980 F.2d at
1314. The reasoning in Longview Fibre Co. that 1369(b)(1) should be read narrowly is
compelling. 980 F.2d 1307. First, when an EPA action is subject to direct appellate review, civil
or criminal proceedings for enforcement may be foreclosed. Id. at 1309. Second, a more
expansive reading of 1369(b)(1) would create confusion, lead to inadvertent mistakes in
jurisdictional filings, and cause undue delays. Id. See also, American Paper Institute v. EPA,
17
882 F.2d 287, 289 (7th Cir.1989). Third, blurring the line between a limitation (or issuance and
denial of a permit) and wholesale exclusions of the statute, would add greater confusion to an
already "complex and difficult review scheme.” Id. at 1314.
Based on the foregoing analysis, the amendments to the Pesticides Rule do not involve
the promulgation of a limitation nor are they equivalent to the issuance or denial of a permit. To
rule otherwise would unnecessarily blur the line between district and appellate court review and
lead to judicial inefficiency.
III. IF THE DISTRICT COURT LACKED JURISDICTION, THE COURT SHOULD EQUITABLY TOLL THE 120 DAY STATUTE OF LIMITATIONS.
Assuming that this Court holds that it should have had jurisdiction, the Court should
equitably toll the statute of limitations because 1) tolling the statute of limitations is not contrary
to Congressional intent, 2) CWA case law supports tolling under these circumstances, and 3)
equitable considerations support tolling the statute.
Statutes of limitations protect defendants from "stale claims." Order of R.R.
Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348−49 (1944). However, according to
the doctrine of equitable tolling, courts have the ability to extend federal statutes of limitations.
Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946). The doctrine applies to every federal statute
of limitation, Id., whenever a plaintiff has filed a petition in the wrong court but otherwise acted
with due diligence. Justice v. United States, 6 F.3d 1474 (11th Cir. 1993).
A court generally makes two inquiries to determine whether to toll: 1) whether tolling
would give effect to the congressional purpose of the Act, Burnett v. New York Cent. R. Co., 380
U.S. 424 (1965); and 2) whether fairness and justice would be served by tolling the statute under
the circumstances. Justice v. U.S., 6 F.3d at 1474. Of course, prior case law is also persuasive.
A. Tolling the statute of limitations is not contrary to Congressional intent
18
Although Congress expressed in the CWA its desire for a clear and prompt time schedule
for applications for judicial review5, denying plaintiffs a hearing because of a technical mistake
runs counter to Congress's express intent to provide for "public participation in the development,
revision, and enforcement of any regulation." 33 U.S.C. § 1251(e) (emphasis added). Indeed,
Congress reinforced this concern by extending the statute of limitations from 90 to 120 days.
See Pub. L. No. 100-4, § 505(a). Congress further provides that late applications shall toll the
statute when "based solely on grounds which arose after such 120th day." See 33 U.S.C.
1369(b)(1).
B. CWA case law supports tolling under these circumstances
Second, CWA case law favors tolling the statute of limitations when a plaintiff, while
acting with due diligence, mistakenly files in the wrong court. See American Ass'n of Meat
Processors v. Costle, 556 F.2d 875, 876−77 (8th Cir. 1977).6 Further, courts have tolled §
1369(b)(1) when a regulation lacks definiteness so as to provide insufficient notice to a plaintiff
as to the reasons for which a permit has been denied. See Georgia-Pacific Corp. v. EPA, 671
F.2d 1235 (9th Cir. 1982). Moreover, courts have tolled the statute when a plaintiff objects to
the manner in which permits are issued or denied before permitting procedures have commenced.
See Appalachian Power Co. v. Train, 566 F.2d 451 (9th Cir. 1977).
Here, plaintiffs filed timely petitions in the district court and (assuming that it was the
wrong jurisdiction) should be able to re-file in this court. If this court construes an exemption as
5 See S.Rep. No. 92-414, 92d Cong. 1st Sess. (1971).6 Plaintiffs in American Ass'n of Meat Processors challenged EPA guidelines after the 90 day period stipulated in 1369(b)(1), but petitioned the court to toll the statute of limitations because of "substantial uncertainty" as to which court to file. The court denied the petition because the petitioners failed to file in any court. The court noted that "[t]he situation would be different had petitioners originally sought to challenge the guidelines in a timely manner." Id. at 877.
19
equivalent to the issuance or denial of a permit (or a limitation), then the Pesticide Rule lacks
sufficient definitiveness and does not give plaintiffs adequate notice as to which court to file the
action. Lastly, if the Court rules that the Pesticide Rule was effectively an "issuance or denial"
of a permit, then the 120 day statute of limitations should not begin to run until permit
determinations have been made.
C. Equitable considerations militate for tolling the statute
Plaintiffs acted diligently by filing their complaint in the district court. The EPA issued
the final rule on November 27, 2006 and Industrial Plaintiffs filed their action on February 24,
2007—well within the statutory period of 120 days provided for in 1369(b)(1). Further, the
policy of "promot[ing] justice by preventing surprises" is not relevant here because the EPA was
a party to the original suit. Finally, if plaintiffs’ application is denied, it will be under what the
Ninth Circuit has described as a "gnarled and hazardous" and oft-confusing judicial review
provision. Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir. 1992).
Based on the foregoing analysis, the Court should toll the statute of limitations if it finds
that the district court did not have original jurisdiction. While Congress may have intended
prompt review of CWA regulations, it did not expressly prohibit courts from tolling the statute of
limitations when plaintiffs simply file in the wrong court. To the contrary, the weight of
authority gives the plaintiffs the right to re-file when they timely but mistakenly file in the wrong
court. In fact, plaintiffs had reasonable basis for filing in the district court and acted diligently
with respect to the action. Moreover, direct review by this court would not work an injustice
against the EPA since it was a party to the original suit.
20
IV. INDUSTRY PLAINTIFFS’ CHALLENGES TO THE CONTENT AND SCOPE OF THE PESTICIDE RULE ARE RIPE FOR REVIEW
A. Ripeness—fitness and hardship
On appeal from summary judgment, the reviewing court asks whether the plaintiffs have
shown a genuine issue of material fact that the claim was ripe at the time the complaint was filed.
FED. R. CIV. P. 56(c); Abbott Labs. v. Gardner, 387 U.S. 136, 154 (1967) (“This action at its
inception was properly brought and this subsequent representation of the Department of Justice
should not suffice to defeat it.”).
The ripeness doctrine exists to “prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements over administrative policies,
and also to protect the agencies from judicial interference until an administrative decision has
been formalized and its effects felt in a concrete way by the challenging parties.” Id. at 148−49.
To achieve those goals, courts consider fitness of the question for resolution and the hardship to
the parties of delaying review. Id. at 149.
Factors to be considered in whether a pre-enforcement challenge is fit for judicial review
are (1) whether the question is legal or factual and (2) whether the agency action is final. Id.
A legal question is one that “c[an] be resolved on the record as it st[ands], without
reference to more specific facts.” Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 695 (2007). If
a question can be competently resolved either in a pre-enforcement challenge or in the context of
a specific application, then it meets this criterion: it can be resolved on the existing record. The
test for whether a court can competently hear a challenge is whether unknown facts would be
material to its resolution. Compare Toilet Goods Ass’n v. Gardner (Toilet Goods I), 387 U.S.
158, 163 (1967) (finding issue was not purely legal because the success or failure of the
challenge “w[ould] depend on” not only questions of statutory construction, but also factors that
21
were yet unclear), with Gardner v. Toilet Goods Ass’n (Toilet Goods II), 387 U.S. 167, 171
(1967) (finding challenge was purely legal because “the only question raised” was one of
statutory interpretation, and was “susceptible of” judicial review without “inquiry into factual
issues”).
An agency action is final unless there is a “real” as opposed to “theoretical” possibility
that the agency will refine its policy before it causes a concrete injury. Ohio Forestry Ass’n v.
Sierra Club, 523 U.S. 726, 735−36 (1998) (not final because procedures by which the rule could
be refined had to be followed before any concrete harm occurred). Finality under the APA is a
“pragmatic” question. Nike v. Kasky, 539 U.S. 654, 671 (2003). Two especially significant
factors in this inquiry are whether the rule was promulgated after notice and comment and
whether it is expected to carry the force of law. Abbott Labs, 387 U.S. at 151 (noting that rule
was “promulgated in a formal manner” and “compliance was expected”).
In the context of a pre-enforcement challenge brought under the APA, delaying review
creates a hardship on the plaintiff when it harms her “direct[ly]” or “immediate[ly]” in a legal or
practical way. Id. at 152. If a regulation carries the force of law, it is not relevant that
enforcement is initiated by a third party; a change in the plaintiff’s legal position is a hardship.
Id. at 152. If the regulation causes the plaintiff to change her “primary conduct” immediately,
postponing review will be a hardship. Toilet Goods I, 387 U.S. at 164 (observing that primary
conduct includes, for instance, negotiation of contracts, day to day affairs, and record-keeping).
Often, a regulation will have both a legal and practical dimension—forcing the plaintiff to
choose between changing his behavior and incurring liability. Natural Res. Def. Council v. EPA,
859 F.2d 156 (D.C. Cir. 1988) (opining that such a choice is the “paradigmatic hardship”).
22
Hardships, of course, lie along a continuum from minor to serious. To find a challenge
ripe, “the interest of the court and agency in postponing review until the question arises in some
more concrete and final form [must] be outweighed by the interest of those who seek relief” from
the hardship it poses. Cont’l Air Lines v. CAB, 522 F.2d 107, 125 (D.C. Cir. 1975). Where the
court doubts the fitness of a challenge, it weighs the hardship to the parties of delaying review
against its concerns about the fitness (e.g., the possibility that the agency may change course
before causing harm or that the court might be able to deal with the legal issues more
competently in the context of a specific application). Nat’l Ass’n of Home Builders v. Army
Corps of Eng’rs, 440 F.3d 459, 465 (D.C. Cir. 2006). On the other hand, if the challenge is fit
(i.e., a purely legal challenge of a final agency decision), the court and agency interests in
delaying review will necessarily be low, so that there must be only “some hardship” in order to
find the challenge ripe. Texas v. United States, 497 F.3d 491, 498 (5th Cir. 2007); see also Nat’l
Ass’n of Home Builders, 440 F.3d at 464−65 (remarking that legal challenge to final action is
“presumptively reviewable,” and “lack of hardship” does not defeat ripeness).
Where a plaintiff will lose a legal defense as a result of the agency’s action, that loss is a
hardship sufficient to overcome weaknesses in fitness. Natural Res. Def. Council, 859 F.2d 156.
In that case, the challenge to an EPA rule denying the availability of the “upset defense” to
plaintiffs was ripe for pre-enforcement review, even though the court doubted that the claim was
purely legal. Id. at 181, 206 (claim could only “fairly be viewed” as legal, but the court
characterized another claim as “purely legal”). In addition, if delay would “foreclose any relief”
for the plaintiff, then such a hardship “argue[s] strongly” for immediate review. Duke Power Co.
v. Carolina Envtl Study Group, 438 US 59, 82 (1978).
23
Finally, as the court in Cont’l Air Lines, Inc. v. CAB noted, “[t]here is always some
danger in accelerating the review process, and always some hardship in delaying it.” 522 F.2d at
128. But when the question is a close one, “doubts . . . are resolved by the presumption of
reviewability which . . . permeates the Abbott Laboratories ruling.” Id. (internal quotes omitted).
B. Industry Plaintiffs’ challenge to the scope of the Rule is ripe
First, Industry Plaintiffs’ claim that terrestrial applications of pesticides should have been
exempted from the definition of pollutant is legal in nature, and further factual development is
unnecessary to facilitate judicial review. Industry Plaintiffs do not seek to compel the EPA to
conclude its policy assessment of terrestrial pesticide application in their favor, but rather argue
that this question is not one of policy. In other words, the EPA may not purport to divine
Congress’ intent regarding pesticides applied over/near water but refuse to extend the same
reasoning to pesticides applied terrestrially, at least without an explicit finding that Congress had
such intent with regard to the former, but not the latter.7 The court has all the facts that it needs
to evaluate the reasonableness of the EPA’s failure to exclude terrestrial applications of
pesticides from the definition of pollutant; the EPA provides those facts in its final Rule. To
dismiss this claim as unripe is to accept the EPA’s faulty characterization of the definition of
pollutant as both strictly legal and impossibly fact-bound at the same time. The reasonableness
of this characterization should be addressed on the merits, not in the ripeness inquiry.
Second, the EPA’s decision not to address the issue of terrestrial pesticide application is
final. To be sure, the EPA has assembled a “workgroup” to allow stakeholders to participate in a
policy discussion about that very issue, but the EPA is not considering whether to revisit its
decision to define pollutant without regard to terrestrial applications of pesticides. 71 Fed.Reg.
7 See discussion supra Parts V.−VI. for further arguments on the merits.
24
68,483, 68,488. Instead, the challenged rule is the EPA’s final definition of pollutant with regard
to pesticide. The EPA’s determination that terrestrial applications should be addressed as a
matter of policy is itself a final action. And, since compliance with this Rule is expected, its
omission of terrestrial applications carries the force of law—a fact further demonstrated by the
legal consequences of the rule on Industry Plaintiffs, as described below.
Finally, if the court delays review of their claim that the EPA should have included
terrestrial applications of pesticides in the exemption, Industry Plaintiffs will suffer hardship.
While FIFRA does not authorize citizen suits, the CWA does. 33 U.S.C.A. § 1365. Industry
Plaintiffs, therefore, will be subject to citizen enforcement suits where pesticides applied
terrestrially find their way into waters protected by the CWA. Although such suits were possible
even before the Rule was promulgated, the Rule forecloses a strong defense that previously
could have been employed by applicators—viz., that terrestrial pesticide applications are exempt
from the CWA’s definition of pollutant. Furthermore, although the EPA may eventually (as a
policy decision) exempt terrestrial applications of pesticides from CWA regulation, such an
exemption will come too late to prevent the harm—Industry is faced with the present dilemma of
curbing their terrestrial pesticide applications (virtually impossible in modern industrialized
agriculture) or facing citizen suits without the benefit of what might have been their strongest
legal defense. Such a hardship is more than sufficient to ripen Industry Plaintiffs’ challenge. As
in NRDC, the loss of a legal defense is a hardship sufficient to ripen even a marginally fit
challenge. The case for ripeness is even stronger where, as here, the claim is purely legal and the
agency action is final.
C. Industry Plaintiffs’ challenge to the content of the Rule is ripe
25
The EPA states that pesticide residues are pollutants. 71 Fed. Reg. 68,483, 68,487. In
addition, the EPA concludes that pesticide applications in compliance with FIFRA are not
pollutants because they are applied in compliance with FIFRA. Id. at 68,488. In this way, the
EPA negatively defines pesticide applications not in compliance with FIFRA as pollutants. They
are therefore not exempted by the Rule from CWA regulation. Industry’s challenge to this
interpretation is strictly legal and amenable to immediate review. To decide whether the EPA’s
decision is reasonable, the court needs no facts other than those existing when Industry Plaintiffs
filed their complaint. The EPA itself argues that this is purely a question of legal interpretation.
Id. (“EPA is not [making a policy decision] . . . . Rather, the EPA is exercising its authority to
interpret a term in a statute it administers.”). The EPA dismisses comments regarding its policies
as irrelevant to this “legal interpretation” (“[C]omments regarding the adequacy of EPA’s
pesticide regulatory program do not pertain to the legal interpretation of whether a pesticide is a
‘chemical waste’ or a ‘biological material’ for purposes of the definition of ‘pollutant’ under the
CWA.”). Id. Beyond the interpretive discussion in the final Rule, the court has access to the
legislative history, previous judicial decisions on point, and the EPA’s prior statements of
guidance. Although a challenge could be brought against the EPA’s definition in a later
enforcement proceeding, the factual context of such a challenge would not be material to the
legal question here presented. As such, this question can be competently resolved at this time.
Second, the EPA’s definition of pesticide applications not in compliance with FIFRA and
residues from FIFRA-compliant applications as pollutants is final. It is the consummation of the
EPA’s decision-making process, promulgated after notice and comment as a “final rule”—a
“comprehensive statement of EPA’s legal position.” Id. at 68,490. In addition, this rule carries
the force of law. It is an interpretation of a statute that the EPA administers and purports to settle
26
“substantial uncertainty” regarding the legal rights and responsibilities of pesticide applicators
and the agencies that supervise them. Id. at 68,485.
Finally, Industry Plaintiffs will suffer serious hardship if the court delays review of their
challenge to the EPA’s decision to define applications contrary to FIFRA and residual pesticides
as pollutants. Although state agencies previously followed their “longstanding practice[s]” of
not regulating pesticide applications under the CWA, they must now regulate these applications
as pollutants. Id. Furthermore, such regulation is likely to be overly intrusive and complex, due
to the regulators’ need to determine whether pesticide applicators will comply with relevant
FIFRA requirements, including labeling requirements, as a threshold matter for determining
whether particular applications are pollutants under the CWA. Moreover, and perhaps most
importantly, if Industry Plaintiffs are denied review now, they will never be able to procure
effective review of these decisions. If the court hears Environmental Plaintiffs’ challenge
without the benefit of Industry Plaintiffs’ perspective, its judgment will be skewed. Judicial
lithification of the current rule or one even less favorable to Industry means that, essentially,
saying “not now” is tantamount to saying “never.” Such hardship is more than sufficient to find
the challenge ripe. Industry faces new and intrusive regulation—an immediate hardship. And as
in Duke Power, 438 U.S. at 81, the fact that a delay would effectively foreclose judicial review
“argue[s] strongly” for immediate review.
V. THE PESTICIDE RULE’S EXEMPTION OF SPECIFIC PESTICIDE APPLICATION ACTIVITIES FROM THE CWA PERMITTING PROGRAM WAS REASONABLE AND PERMISSIBLE
A. Administrative law—judicial deference
When an agency interprets the federal regulation that it administers, judicial review of
that interpretation is guided by a two-step analysis. See Chevron U.S.A., Inc. v. Natural Res.
27
Def. Counsel, Inc., 467 U.S. 837, 842−43 (1984). On one hand, if Congress speaks directly to
the question at issue, then both the court and the agency must “give effect to the unambiguously
expressed intent of Congress.” Id. Legislative intent may be divined through the usual tools of
statutory construction, including the text of the statute, the purpose of the statute, and legislative
history. Id. at 843 n.9. On the other hand, the statute may be silent or ambiguous as to the
question at issue. If Congress has explicitly left this “gap for the agency to fill,” then the court
must enforce an agency’s interpretation that is not “arbitrary, capricious, or manifestly contrary
to the statute.” Id. at 843−44. Likewise, if Congress has implicitly delegated its gap-filling
authority, the court must uphold an agency’s “permissible construction.” Id. at 843.
In clarifying the scope of Chevron, the Supreme Court of the United States held that an
agency’s interpretation warrants substantial deference “only when it appears that Congress
delegated authority to the agency generally to make rules carrying the force of law, and that the
agency interpretation claiming deference was promulgated in the exercise of that authority.”
United States v. Mead Corp., 533 U.S. 218, 226−27 (2001). Furthermore, a “very good indicator
of delegation meriting Chevron treatment” is an agency’s express authority to engage in
adjudication or notice-and-comment rulemaking. Id. at 229. Where an interpretation does not
demonstrate such force of law, the less-deferential Skidmore analysis applies instead. See id. at
228; Christensen v. Harris County, 529 U.S. 576, 588 (2000). Under Skidmore, a court gives
weight to an interpretation only in proportion to “the thoroughness evident in its consideration,
the validity of its reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade. Skidmore v. Swift, 323 U.S. 134, 140 (1944).
B. The Pesticide Rule fills an explicit gap
28
The EPA Administrator is expressly given broad “authoriz[ation] to prescribe such
regulations as necessary to carry out his functions” under the CWA. 33 U.S.C. § 1361(a). In
United States v. Morton, 467 U.S. 822 (1984), analogous language was interpreted as “explicitly
delegated authority to construe the statute by regulation . . . .” Id. at 835. Within the CWA’s
broad, enumerated definition of pollution, Congress failed to specifically address pesticides,
instead leaving a gap in the statute. See 33 U.S.C. § 1362(6). The EPA filled this gap with two
specific interpretations in the Pesticide Rule, pursuant to subsection 1361(a); therefore, Chevron
deference clearly applies.
C. The Pesticide Rule carries the force of law
Pursuant to this explicitly delegated authority, the text generally gives the EPA great
interpretive discretion in administering the CWA. “Whenever, in the judgment of the
Administrator . . . discharges of pollutants . . . would interfere” with water quality goals, the
Administrator should establish effluent limitations “reasonably expected” to advance these goals.
33 U.S.C. § 1312(a) (emphasis added). “[I]n his discretion,” the Administrator promulgates final
effluent standards. 33 U.S.C. § 1317(a)(1). The Administrator “may issue” permits upon a
showing of “no reasonable relationship” between factors in a cost-benefit analysis. 33 U.S.C. §
1312(b)(2) (emphasis added).
The CWA also makes further grants that support authority for the Rule’s drafting.
Subsections 1311(g)(4) and (g)(5), for example, provide procedures for adding to and removing
from the list of pollutants under that subsection. Additionally, subsection 1319(a) provides for
enforcement mechanisms and compliance orders that would give the EPA’s pronouncements the
“force of law.” More specifically, the CWA authorizes the EPA to issue NPDES permits for
point source discharges of “pollutants” into waters of the United States, under section 402(a). 33
29
U.S.C. 1311(a). Acting within that authority, the EPA issued the Pesticide Rule, an
interpretation of “pollutants.” 71 Fed. Reg. 68,483.
The foregoing textual analysis demonstrates that Congress envisioned an Administrator
with the kind of broad discretionary authority that was exercised in formulating the Pesticide
Rule. The Rule is the final iteration of several previous interpretive statements. Id. The EPA
provided public notice of and requested public comment on the first Interim Statement, and
incorporated that input into the Interpretive Statement. Id. Again, the EPA solicited comment,
which it incorporated into the final Pesticide Rule. Id. EPA’s definitions with respect to which
pesticides are pollutants, therefore, carry the force of law, and the modest deferential standards
of Skidmore analysis are clearly inappropriate.
D. EPA’s definition of pesticides applied to or near water in compliance with FIFRA as neither chemical wastes nor biological materials is reasonable.
Within the CWA’s definition of pollutant in section 502(6), the only items that could
encompass pesticides are “chemical wastes” and “biological materials.” The EPA could
reasonably have concluded that the term “chemical wastes” does not refer to chemical pesticides.
The New Oxford American Dictionary (2001) defines “waste” as something “eliminated or
discarded as no longer useful or required after the completion of a process.” By contrast,
pesticides are “EPA-evaluated products designed, purchased and applied to perform their
intended purpose of controlling target organisms in the environment.” Fairhurst v. Hagener, 422
F.3d 1146, 1150 (9th Cir. 2005).
The EPA could also have reasonably concluded that “biological materials” does not refer
to biological pesticides. The district court opines that “Congress presumably had a reason to
classify ‘chemicals’ as pollutants only if they were wastes, while classifying all ‘biological
materials’ as pollutants.” R. at 12. However, it was only after the CWA was adopted in 1972
30
that biological pesticides became prevalent. 71 Fed. Reg. 68,486. Thus, Congress no more
ignored biological pesticides in drafting the CWA than the Framers ignored digital
communications under the First Amendment. Moreover, current biological pesticides generally
have been designed to produce less environmental harm as a result of “their greater specificity to
the target pest, their tendency to have lower toxicity than chemical pesticides, and their tendency
to have limited persistence in the environment.” Mary Jane Angelo, Genetically Engineered
Plant Pesticides, 7 U. FLA. J.L. & PUB. POL’Y 257, 259 (1996). Finally, as an argument in the
alternative, both biological and chemical pesticides fall within the purview of FIFRA regulations,
and thus, the CWA would have no reason to regard them inconsistently. Under each of these
foregoing rationales, the EPA could reasonably have concluded that encouraging the use of
biological pesticides via the Pesticide Rule would be consistent with Congress’ purpose for the
CWA. 71 Fed. Reg. 68,486−87.
Case law does not contradict this conclusion. Where courts found biological materials to
be pollutants, those materials were deemed to be wastes at the time of discharge from a point
source. E.g. U.S. PIRG v. Atlantic Salmon, 215 F. Supp. 2d 239, 247−49 (D. Maine 2002)
(salmon feces exiting net pens); Nat’l Wildlife Fed’n v. Consumers Power Co., 862 F.2d 580,
585 (6th Cir. 1988) (fish remains released from turbine). What these courts did not conclude,
importantly, was that biological materials used for their intended purposes might constitute
pollution. 71 Fed. Reg. 68,486. To the contrary, the Ninth Circuit specifically found that the
enumerated items in section 502(6) support an interpretation that “biological materials”
encompasses only waste produces of human processes. APHETI v. Taylor Res., Inc., 299 F.3d
1007, 1015 (9th Cir. 2002). This interpretation fits well with the CWA’s definition of pollution
31
in subsection 1362(a)(19) as “man-made or man-induced,” and with its explicit purpose of
“protection and propagation of . . . shellfish.” 33 U.S.C. § 1251(a)(2).
Moreover, the EPA already extensively regulates pesticides under the statutory
framework of FIFRA, requiring all pesticides sold in the United States to undergo a rigorous
registration process, and imposing criminal sanctions for violations of those rules. 7 U.S.C. §§
136, 136j(a)(2)(G), 136l(b)(2). These measures serve to protect human health and the
environment from unreasonable risks of pesticide use. 7 U.S.C. §§ 136a(c)(1), (c)(5).
Therefore, the EPA could reasonably have concluded that requiring additional EPES permits for
specific pesticides would be essentially redundant to limitations already imposed under FIFRA.
Although in Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 531 (9th Cir.
2001), the EPA acknowledge that FIFRA registration does not provide equivalent protections to
waterways as does EPES permits, these small differences do not compel a conclusion that
inconsistent protections would be unreasonable. To the contrary, the CWA acknowledges that
the EPA must weight economic and social costs against the benefits achieved from effluent
limitations. 33 U.S.C. § 1312(b)(2). In such a cost-benefit analysis, the EPA might reasonably
have concluded that FIFRA requirements are sufficient, where they guard water quality by
controlling “the amounts, concentrations, and viability of substances that may potentially end
up” in the water. 71 Fed. Reg. 68486. Moreover, because the EPA’s amicus briefs in Talent do
not reflect the kind of deliberative consideration that gives the Pesticide Rule its force of law,
and because they do not address the specific legal issues at play here, they cannot be considered
controlling. 71 Fed. Reg. 68485.
Finally, the district court defends the distinction between biological and chemical
pesticides by observing that “Congress might well have concluded that introduction of non-
32
indigenous species . . . posed a greater threat to the ‘integrity’ of the nation’s waters than the
introduction of chemicals that were not ‘chemical wastes.’” R. at 12. The reasonableness of
such a distinction is irrelevant however. It is only significant that the opposite interpretation—
the EPA’s interpretation that biological materials refers only to waste—is entirely reasonable.
This Court, therefore, must uphold the exemptions made by the Rule, and cannot substitute its
own preferred interpretation. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967, 980 (2005).
E. EPA’s definition of point source pollutant as dependent on the character and purpose of the discharge at the moment of discharge is reasonable.
Section 301(a) prohibits the “discharge of any pollutant,” meaning specifically “any
addition of any pollutant to navigable waters from any point source.” The EPA could reasonably
have interpreted this language to prohibit only material that is both a pollutant and from a point
source at the moment of discharge. 71 Fed. Reg. 68487. Thus, for example, non-aquatic
mosquito pesticides discharged from a helicopter would not be waste at the time of discharge,
and would fall beyond the scope of section 301(a). The District Court confuses the issue by
arguing that application of non-aquatic pesticides must be “waste,” and thus pollutants, because
they are “no longer useful” by the time they reach water. See R. at 12. Again, the merit of the
district court’s interpretation is irrelevant, as the EPA’s interpretation is perfectly reasonable.
Two cases cited in support of the district court’s conclusion are not at odds with the Rule.
In Long Island Soundkeeper Fund, Inc. v. N.Y. Athletic Club, 1996 WL 131863 (S.D.N.Y. Mar.
22, 1996), the court found that spent ammunition rounds and broken targets were pollutants
when they were discharged from a point-source firing range. Also, in Hudson River Fisherman’s
Ass’n v. City of New York, 751 F. Supp. 1088 (S.D.N.Y. 1990), aff’d, 940 F.2d 649 (2d Cir.
1991), the court found that chlorine residuals and alum floc were a pollutant, because they had
33
formed by the time they were injected from a “pipe” into a reservoir, and “[a]ll that remain[ed
was] for the floc to settle at the bottom of the lake.” Id. at 1102. Thus, “a pollutant is a
pollutant” at the time it is discharged from a point source, “no matter how useful it once may
have been” prior to the discharge. See id. at 1101. These two conceptions of pollution clearly
comport with the Pesticide Rule, and with the EPA’s and many states’ longstanding practice of
not requiring NPDES permits for pesticides. 71 Fed. Reg. 68485.
VI. THE PESTICIDE RULE’S FAILURE TO EXTEND ITS RATIONALE TO SIMILAR APPLICATION ACTIVITIES WAS UNREASONABLE
A. Chevron deference applies to the non-exemption of residues and applications not in compliance with FIFRA; Skidmore deference applies to the non-exemption of terrestrial applications.
The EPA decided not to exempt residues and non-compliant applications after notice and
comment and long deliberation; therefore, Chevron analysis applies to their review. See 71 Fed.
Reg. 68483, 68487. The Pesticide Rule, as a definitional rule, applies only to a small subset of
pesticide applications. 71 Fed. Reg. 68485. The Rule does not address drift from terrestrial
pesticide applications—an issue instead entrusted to a multi-stakeholder advisory committee
(PPDC). Id. at 68487. Like the EPA’s amicus brief in Talent, this non-exemption is not the
result of the kind of deliberative administrative decision-making used in formulating the
definition of pollutant. Consequently, it does not carry the force of law; Chevron analysis does
not apply; and Skidmore deference must stand in its place. See Christensen, 529 U.S. at 588.
This Court need only consider the Rule’s power to persuade with respect to the EPA’s failure to
extend its rationale to terrestrial applications. See Skidmore, 323 U.S. at 140. This Court may
therefore substitute its own judgment as to whether terrestrial applications should have been
addressed by the EPA as a definitional question rather than a policy question. Id. However,
even under Chevron, each non-exemption is arbitrary and capricious.
34
B. The Pesticide Rule’s non-exemptions are unpersuasive, arbitrary, capricious, and an abuse of discretion
As demonstrated supra Parts I.C.3–.4, the crux of the Rule is its focus on the timing and
purpose of pesticide application, faithful to statements made by the CWA’s primary sponsor that
“[s]ometimes a particular kind of matter is a pollutant in one circumstance, and not in another.”
Fairhurst, 422 F.3d at 1150 (quoting Senate Debate on S. 2770, 117 Cong. Rec. 38,838 (daily
ed. Nov. 2, 1971) (Statement of Senator Muskie)). Contrary to the EPA’s equivocations at 71
Fed. Reg. 68490, the crucial circumstance defining when a material is not a pollutant is its
intended use at the time of discharge from a point source. It is unpersuasive, arbitrary, and
capricious, therefore, that the EPA refuses to extend this reasonable interpretation to pesticide
residues, pesticides applied in violation of FIFRA requirements, and pesticides applied distant
from water but which drift into water.
The EPA clarifies that its exemptions apply where pesticides unavoidably must enter
water in order for the application to achieve its intended purpose of controlling pests near water.
71 Fed. Reg. 68486. For example, pesticides unavoidably deposit into water when applied
aerially to mosquito populations within a forest canopy, and to non-native plant growths near
water. Id. Again, the essence of these examples is the timing and purpose of the application.
The EPA, however, provides no persuasive justifications for failing to extend this reasoning to
Industry Plaintiff’s analogous aerial applications of pesticides to crops near water and to
mosquitoes in tidal marshes. In those circumstances, the pesticides are not pollutants at the time
of their discharge from point sources, and they cannot achieve their purposes without
unavoidably drifting into water. It is arbitrary, capricious, and unpersuasive to exclude these
circumstances from the Rule.
35
Likewise, as pesticides properly “perform their intended purpose of controlling target
organisms in the environment,” residues necessarily result after discharge from a point source.
See Fairhurst, 422 F.3d at 1150. Even if such residue conforms to a common understanding of
waste, it contradicts the CWA’s formulation of “pollution,” which excludes useful materials.
Section 502(6) specifically lists “incinerator residue” as a pollutant. The broader category of
“solid waste” clearly includes this reduced, solid byproduct of incineration. Nonetheless,
Congress apparently felt the need to create a more specific category; it made no similar
enumeration of “pesticide residue.” The very narrow categorization of incinerator residue
strongly suggests that the CWA did not intend to extend the definition of “pollution” to other
specific kinds of residue where the precursors of the residue are not themselves pollutants.
Finally, the EPA reasonably justifies exempting certain pesticides from NPDES permits
on the grounds that they are already regulated by FIFRA requirements. Yet, in the same breath,
it qualifies such exemptions upon adherence to those requirements. In other words, the EPA
simultaneously asserts that criminal liability imposed by FIFRA regulations is sufficient and
insufficient to protect waters. See 7 U.S.C. §§ 136j(a)(2)(G), 136l(b)(2). This contradictory
result is plainly irrational and unpersuasive. The EPA’s failure to include pesticide residues,
spray drift, and pesticides applied in violation of FIFRA regulations therefore represents an
abuse of its discretionary powers.
CONCLUSION
Industry Plaintiffs respectfully request that this Court reverse the district court’s grant of
partial summary judgment in favor of Environmental Plaintiffs, reverse its summary dismissal of
Industry Plaintiffs’ claims, and grant declaratory relief to Industry Plaintiffs requiring the EPA to
exempt the challenged categories of pesticide applications from CWA regulation.