Two different court rulings conflict on pesticide case

Second and Sixth Circuits In Some Conflict on Pesticide Issue
By National Wheat Grower’s Association

The Second and Sixth Federal Circuit Courts appear to be in conflict on regulation of pesticide applications following a Second Circuit decision handed down March 30 in the Peconic Baykeeper vs. Suffolk County Department of Public Works case. According to information out this week from CropLife America and RISE, the crop protection product trade associations, that decision did not endorse the analysis used by the Sixth Circuit in the case National Cotton Council v. Environmental Protection Agency, which was decided in 2009 and said pesticide discharge is a point source of pollution subject to additional regulation and permitting under the Clean Water Act. The Second Circuit decision in fact affirmed that pesticide applications made in accordance with the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and EPA’s 2006 National Pollutant Discharge Elimination System (NPDES) Rule – existing law and regulation – are lawful.

The organizations said that the decision did not address whether a pesticide applied to water is a pollutant and did not endorse the Sixth Circuit’s reasoning on that issue. However, the three-judge panel did rule the pesticide applications at issue in this case were “from a point source,” as defined by the Clean Water Act, though the Second Circuit refused to follow the reasoning in National Cotton Council.

The Second Circuit also vacated a judgment by a lower court which said Suffolk County’s mosquito control applications were in compliance with the pesticide product labels. That issue was sent back to the lower court for further review.

Importantly, the Second Circuit held that applications under the auspices of EPA’s rule and applied in compliance with an EPA-approved FIFRA label is lawful as long as the rule remains in effect. The Second Circuit Court ruling also notes that nothing changes the EPA rule until the stay currently in place related to the Sixth Circuit ruling is lifted. These facts effectively mean that the use of crop protection products vital to agricultural production and public health is not in immediate danger.

The Sixth Circuit decision has been alarming for many in agriculture because it could require producers to obtain additional permitting for every crop protection application. The logistics of carrying this out are harrowing for EPA, state agencies and producers alike, prompting the Court to issue a two-year stay of the decision to give regulators a chance to figure out how to apply it.

CropLife and RISE pointed out that the conflicting court decisions emphasize the need for Congressional oversight. NAWG will continue to work with both organizations, EPA and other coalition partners to gain more information about these decisions and the path forward to ensure that needed products are available for ag uses in a timely and efficient manner.

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