U.S. Supreme Court

High court asked to review interpretation of Clean Water Act

By MATEUSZ PERKOWSKI

Capital Press

Agriculture groups have asked the U.S. Supreme Court to reverse an appellate court ruling that’s expected to result in the far-reaching expansion of federal pesticide oversight.

Earlier this year, the 6th U.S. Circuit Court of Appeals found that pesticide applications near or over water should be subject to Clean Water Act permits.

Several industry groups want the nation’s highest court to overturn that decision, arguing that the lower court overstepped its authority. They worry the ruling will result in an additional layer of regulations and spur more environmental lawsuits aimed at widening the scope of the ruling.

For example, the decision could be understood to apply to pesticide applications near drainage ditches or fields near wetlands.

“The breadth of the decision is going to create a lot more litigation,” said Julie Anna Potts, general counsel for the American Farm Bureau Federation, one of the groups appealing the ruling.

“There are potentially millions of transactions this could affect,” she said.

The case stems from a 2006 U.S. Environmental Protection Agency rule that exempted pesticide applications from Clean Water Act permits.

According to the EPA’s rationale, the application of pesticides is not a “point source” of pollution, such as a wastewater discharge pipe, and shouldn’t be subject to Clean Water Act regulations.

Under this reasoning, pesticides are not pollutants upon leaving the spray nozzle. Once the chemicals have served their purpose, their residues are considered pollutants.

However, to fall under Clean Water Act regulations, the chemicals must be considered pollutants at the time of discharge, according to EPA regulations.

Those rules were challenged in several appellate courts and consolidated in the 6th U.S. Circuit Court of Appeals, which in January rejected the EPA’s exemption of pesticides from the Clean Water Act.

The EPA decided not to appeal the decision. The court issued a two-year stay postponing the ruling’s effective date, thereby giving the agency time to develop the necessary regulations.

The agricultural groups want the Supreme Court to reject the lower court’s interpretation of “pollutant from a point source.”

Although some portion of the chemical will eventually become superfluous, a pesticide can’t be considered waste at the point of discharge — just as ice can’t be sprayed from a hose and butter can’t be squeezed from a cow, according to the group’s petition.

The court misunderstood the congressional intent behind the Clean Water Act and did not properly defer to the EPA’s interpretation of the law, as required by Supreme Court precedent, according to the petition.

The petition is one of about 10,000 expected to come before the Supreme Court this year. Typically, the court hears arguments in about 100 cases each year.

“The statistics are not attractive for any case to be heard, but we do think this one has the features and merits that will allow it to at least rise to a higher probability of consideration,” said Jay Vroom, head of CropLife America, a pesticide industry group involved in the appeal.

For one, the ruling sets a precedent that affects the entire U.S., not just a particular region, he said. Second, the decision could be interpreted as applying to other useful substances that leave residues, such as fertilizers, de-icing chemicals and fire retardants.

“The list just goes on and on,” Vroom said.