Friday, January 9, 2009

The National Cotton Council v. EPA

Jan 7: In the U.S. Court of Appeals, Sixth Circuit, Case No. 06-4630. As explained by the Appeals Court, the case involves the final regulation issued by the U.S. EPA under the Clean Water Act, 33 U.S.C. § 1251 et seq. The Clean Water Act regulates the discharge of “pollutants” into the nation’s waters by, among other things, requiring entities that emit “pollutants” to obtain a National Pollutant Discharge Elimination System (NPDES) permit. On November 27, 2006, the EPA issued a Final Rule concluding that pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) are exempt from the Clean Water Act’s permitting requirements. [71 FR 68,483 (11/27/06)]. [See WIMS 11/22/06]

Two different groups of Petitioners -- one representing environmental interest groups and the other representing industry interest groups -- oppose EPA’s Final Rule as exceeding the EPA’s interpretive authority. EPA defends the Final Rule by arguing that the terms of the Clean Water Act are ambiguous and that the Final Rule is a reasonable construction of the Clean Water Act entitled to deference from the Court.

The Appeals Court said, "We cannot agree. The Clean Water Act is not ambiguous. Further, it is a fundamental precept of this Court that we interpret unambiguous expressions of Congressional will as written. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). Therefore, we hold that the EPA’s Final Rule is not a reasonable interpretation of the Act and vacate the Final Rule."

The Appeals Court explains its decision further saying, ". . . we conclude that the statutory text of the Clean Water Act forecloses the EPA’s Final Rule. The EPA properly argues that excess chemical pesticides and chemical pesticide residues, rather than all chemical pesticides, are pollutants. However, the Final Rule does not account for the differences between chemical and biological pesticides under the language of the Clean Water Act. Further, because the Act provides that residual and excess chemical pesticides are added to the water by a 'point source' there is no room for the EPA’s argument that residual and excess pesticides do not require an NPDES permit. The 'point source' from which the residue originates is easily discernable and necessarily must 'be controlled at the source.' See 73 Fed. Reg. at 33,702. Given all of the above in combination with the EPA’s interpretation that '[p]oint sources need only convey pollutants into navigable waters to be subject to the Act,' id. at 33,703, dischargers of pesticide pollutants are subject to the NPDES permitting program in the Clean Water Act. As such, the EPA’s Final Rule cannot stand. Because the Clean Water Act’s text bars the Final Rule we make no determination regarding the validity of the issuance of the Final Rule under the APA, nor do we analyze the relationship between the Clean Water Act and the FIFRA."

Access the complete opinion (click here). Access the EPA docket for this action with background, technical documents and public comments (click here).