Supreme Court Won't Review Pesticide Case

The National Cotton Council vs. EPA case out of the U.S. Sixth Circuit of Appeals centers on whether or not federally licensed pesticide applications need a Clean Water Act permit if sprayed on, over or near water.

Ag groups have asked for a Supreme Court hearing on the case, but Monday found out that the highest court would not review the case.

The George W. Bush Administration put a regulatory patch in place to address the issue. Modern agriculture was upset because it came up short of defining where National Pollutant Discharge Elimination System (NPDES) permits should and shouldn't be required.

Don Parrish, senior directory of regulatory relations at the American Farm Bureau Federation, said a broad interpretation of the ruling could require as many as 5 million new pesticide applications.

In a statement from AFBF President Bob Stallman, he said the Supreme Court's decision not to revisit the case compounds the mistake made by the U.S. Circuit Court of Appeals. “All farmers know they must use chemicals properly. They also know the label on each chemical they use is the law of the land. Going through redundant bureaucratic red tape for a duplicate permit to apply a safe product is preposterous. That kind of regulatory overkill will not improve food safety or the environment,” Stallman said.

CropLife America (CLA) had filed a cert petition asking the Supreme Court to review and reconsider the three-judge panel’s decision which struck down the EPA's regulation that NPDES permits are not required when applying pesticides to or near water sources. Historically, agricultural pest management activities have been treated as non-point sources under the Clean Water Act and have not required NPDES permits.

“The panel’s ruling creates another legal burden for our farmers, custom applicators and agricultural dealers, and leads to additional regulations which may well further prevent food growers from maximizing their output,” said Jay Vroom, president and CEO of CLA. “We are disappointed that the 6th Circuit’s decision could cause the U.S. government to continue to practice a precautionary policy which is detrimental not only for farmers, but could prevent the country from producing more food, fuel and fiber for a growing world population.”

The final decision by the 6th Circuit is stayed until April 2011. Despite the Supreme Court’s decision, CLA said it will continue to pursue additional avenues to contain the 6th Circuit’s ruling. The organization will also continue to work with key stakeholders to ensure that the critical needs of agriculture are best preserved.

“While we recognize that only a very small percentage of cert petitions are accepted for review,” said Douglas Nelson, executive vice president and general counsel of CLA, “we are also aware of decisions of other federal courts in NPDES cases which affirm the regulatory framework of EPA and Congress to treat pesticides as non-point source applications. Regardless, CLA will continue to work with EPA to minimize the burden placed on farmers and reduce the disruption this will cause across the crop protection industry.”

CLA filed the cert petition with the U.S. Supreme Court on November 2, 2009, with support from a host of agricultural allies including: Agribusiness Association of Iowa, BASF Corporation, FMC Corporation, Responsible Industry for a Sound Environment, Southern Crop Production Association and Syngenta Crop Protection, Inc. A separate cert petition challenging the 6th Circuit’s decision was also filed by the American Farm Bureau Federation, American Forest & Paper Association and The National Cotton Council.

Several amici briefs supporting CLA’s cert petition were also filed by various state departments of agriculture and national trade associations. Additionally, over 30 members of Congress, including both Democrats and Republicans, also filed a brief requesting the Supreme Court accept the case.