Amicus Curiae Brief — CropLife America v. Baykeeper

Supreme Court, U.S.

FILED

DEC 4- dud

Nos. 09-533, 09-547 OFFICE OF THE CLERK

In the Supreme Court of the United States

CropLiFre AMERICA, et al.,

Petitioners,

V.

BAYKEEPER, et al.,

Respondents.

AMERICAN F'ARM BUREAU FEDERATION, et al.,

Petitioners,

Vv.

BAYKEEPER, et al.,

Respondents.

On Petitions for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE AMERICAN MOSQUITO

CONTROL ASSOCIATION, NATIONAL ASSOCIATION

OF STATE DEPARTMENTS OF AGRICULTURE,

LOUISIANA DEPARTMENT OF AGRICULTURE AND

FORESTRY, MINNESOTA DEPARTMENT OF

AGRICULTURE, NORTH CAROLINA DEPARTMENT OF

AGRICULTURE AND CONSUMER SERVICES, AND

SOUTH DAKOTA DEPARTMENT OF AGRICULTURE

IN SUPPORT OF THE PETITIONERS

Edward M. Ruckert

M. Miller Baker

Counsel of Record

Rauut Rao

McDermott Witt & Emery LLP

600 Thirteenth Street, N.W.

Washington, DC 20005

(202) 756-8000

December 4, 2009 Counsel for Amici Curiae

Becker Gallagher - Cincinnati,OH - Washington, D.C.- 800.890.5C01

i

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE ..................... 1

ME IEE w cikisacssddsdeccussansicscccasdasamianeaicneene 2

I. The Sixth Circuit’s Invalidation of the

EPA Rule Seriously Jeopardizes the

Pe HR hiss sccecsncses Mariccrcnccpesnicdsccemnee 2

II. The Sixth Circuit Decision Is

Unworkablle Inn Practice ........ccccccsccssescosesesenees 5

III. The Sixth Circuit Decision Burdens

Farmers and States and Exposes Them

to CWA Liability for Pesticide

Applications Otherwise Lawful Under

PID vocaieciscicocnavspscteceveradvenieauec ene 7

i

TABLE OF AUTHORITIES

Page

Cases

Nat'l Cotton Council of Am. v. EPA,

Be Hse BAe COGN Clk. ZOOD) ...........ccccccsccsscescceseses 5

Statutes and Rules

et 7

Neen reac csesevecescocsescecccees 1

Neen nes. .cscvesnccsccessccecnccccesees 1

Other Authorities

CDC, Dengue Fever,

http://www.cdc.gov/ncidod/dvbid/dengue/

Neen ioc l vccececwonsccevsscnsvcccessocees 4

CDC, Eastern Equine Encephalitis,

http://www.cdc.gov/ncidod/dvbid/arbor/

Neen. ncaencasecenacsccceccssssoreccoee 4

CDC, Malaria,

http://www.cdc.gov/malaria/................:.:000eseseeeeeees 3

CDC, Malaria Facts,

http://www.cdc.gov/malaria/facts. htm .................. 3

ill

CDC, St. Louis Encephalitis,

http://www.cdc.gov/ncidod/dvbid/arbor/

I a scndaks staasaaticcdecineucotet tab amieninscuteeane)

CDC, West Nile Virus,

http://www.cdc.gov/ncidod/dvbid/westnile/

I as oes ouceuac erent ee as eee

CDC, Western Equine Encephalitis,

http://www.cdc.gov/ncidod/dvbid/arbor/

i

EPA and U.S. Center for Disease Control and

Prevention, Joint Statement on Mosquito

Control in the United States, available at

http://www.epa.gov/pesticides/health/

mosquitoes/mosquitojoint.htm#programs ............

Eradication of Malaria in the United States

(1947-1951), available at http://www.cdc.gov/

malaria/history/index.htm#eradicationus............

Mosquito-Borne Diseases, American Mosquito

Control Association, available at

http://www.mosquito.org/mosquito-

information/mosquito-borne.aspX ..............02ceeeeeees

INTEREST OF THE AMICI CURIAE'

The American Mosquito Control Association

(““AMCA”), the National Association of State

Departments of Agriculture (“NASDA”), and the

Louisiana Department of Agriculture and Forestry,

Minnesota Department of Agriculture, North

Carolina Department of Agriculture and Consumer

Services, and South Dakota Department of

Agriculture respectfully submit this brief as amici

curiae supporting the petitions for a writ of certiorari

filed in Nos. 09-533 & 09-547.

AMCA is a not-for-profit corporation controlled

by state and local governmental agencies responsible

for mosquito control and is supported primarily by

member dues.” AMCA members are vitally

interested in whether the use of mosquito pesticides

in lawful compliance with the Federal Insecticide,

Fungicide, and _ Rodenticide Act (“FIFRA”)

simultaneously constitutes, as the Sixth Circuit held,

the unlawful discharge into water of “pollutants”

within the meaning of the Clean Water Act (“CWA”).

Pursuant to Rule 37.2, the counsel for amici state that all

parties received at least ten-days notice of amici’s intent to file

this brief, and that all parties have given their consent to file.

Pursuant to Rule 37.6, counsel for amici curiae further state

that no counsel for a party authored this brief in whole or in

part, and no person other than amici or its counsel made a

monetary contribution to this brief.

* Although private industry applicators and manufacturers of

pesticides are among AMCA’s members, private industry

interests collectively have only one vote on AMCA’s sixteen-

member board of directors. Public mosquito control agencies

have the other fifteen votes.

NASDA represents the commissioners,

secretaries, and directors of the state departments of

agriculture in all fifty states and four USS.

territories. As co-regulators with the USS.

Environmental Protection Agency (“EPA”), a

majority of NASDA’s members are the lead state

agencies responsible for administering,

implementing and enforcing the laws regulating the

production, labeling, distribution, sale, use and

disposal of pesticides in their states.

The Louisiana Department of Agriculture and

Forestry, Minnesota Department of Agriculture,

North Carolina Department of Agriculture and

Consumer Services, and South Dakota Department

of Agriculture are state agencies with primacy in

pesticide matters under FIFRA in each state,

respectively. Environmental safety is a prime

requisite in the pesticide programs implemented by

each department. The Sixth Circuit’s decision is

likely to disrupt longstanding state regulatory

programs and relationships, as well as negatively

impact the significant economic contributions from

agricultural production in these states.

ARGUMENT

I. The Sixth Circuit’s Invalidation of the

EPA Rule Seriously Jeopardizes the

Public Health

The petitioners provide numerous and well-

founded reasons why this Court should grant the

petitions for writ of certiorari, but amici write

separately to emphasize the potentially grave public

health consequences of the flawed Sixth Circuit

decision. That decision is a clear and present danger

to the public health because it exposes mosquito

control organizations to CWA liability that will

impede their mission.

A. Mosquito control is critically important to

public health in the United States. See EPA and

U.S. Center for Disease Control and Prevention

(“CDC”), Joint Statement on Mosquito Control in the

United States, available at http://www.epa.gov/

pesticides/health/mosquitoes/mosquitojoint.htm#prog

rams (“Mosquito control activities are important to

the public health ... .”). Worldwide, mosquitoes

cause more human suffering than any other

organism—over one million people die from

mosquito-borne diseases every year. One such

disease is malaria.‘ Although malaria was

eradicated in the United States during the twentieth

century through the use of pesticides, the CDC

cautions that “the two species [of mosquito] that

were responsible for transmission prior to

eradication... are still widely prevalent; thus there

is a constant risk that malaria could be reintroduced

in the United States.” Currently, only malaria

prevention techniques—including the spraying of

insecticides that target mosquitoes—prevent

malaria from reemerging in the United States.

Although the current threat of malaria in the

United States has abated, the same is not true of

other mosquito-borne diseases. Specifically, St.

Mosquito-Borne Diseases, American Mosquito Control

Association, available at http://www.mosquito.org/mosquito-

information/mosquito-borne.aspx.

* http://www.cdc.gov/malaria/.

* http:/Awww.cdc.gov/malaria/facts.htm. See also Eradication of

Malaria in the United States (1947-1951), available at

http:/Awww.cdc.gov/malaria/history/index.htm#eradicationus.

4

Louis Encephalitis,” Eastern Equine Encephalitis,’

Western Equine Encephalitis,» Dengue Fever’ and

West Nile Virus” are all still present in the United

States. There is no known vaccine or effective cure

for any of these diseases; they are prevented only by

controlling mosquito populations. In _ particular,

West Nile Virus—which is responsible for the most

severe outbreak of mosquito-borne disease in the

United States in decades—continues to impact many

parts of the country. In the last ten years, over 1,000

Americans have died, and over 10,000 were

hospitalized, some with severe permanent

disabilities, from this mosquito-borne disease.

B. In the absence of any official guidance on

which pesticide applications near water would

require National Pollutant Discharge Elimination

System (“NPDES”) permits under the CWA, and the

absence of any guidance on what acceptable permits

would encompass, the Sixth Circuit decision’s

invalidation of the EPA Rule exposes all mosquito

control programs in the United States to the

imminent threat of CWA suits. Indeed, since the

Sixth Circuit issued its decision, twenty-one local

mosquito control agencies in California alone have

been served by environmental groups with intent to

sue notices under the CWA for alleged CWA

violations (i.e., using pesticides without an NPDES

permit). Such litigation would serve only to disrupt

these agencies’ critically important efforts to control

* http://www.cde.gov/ncidod/dvbid/arbor/sle_qa.htm.

" http://www.cdc.gov/ncidod/dvbid/arbor/eeefact. htm.

* http://www.cde.gov/ncidod/dvbid/arbor/weefact.htm.

* http://www.cdc.gov/ncidod/dvbid/dengue/index.htm.

* http://www.cdc.gov/ncidod/dvbid/westnile/index.htm.

on

mosquitoes and mosquito-borne disease. Further,

the cost of defending such litigation and the risk of

fines and liability for plaintiffs’ attorney fees will

compel many of these agencies to abandon essential

mosquito control activities or risk bankruptcy.”

If the Sixth Circuit decision is allowed to stand,

the threat of CWA liability will seriously disrupt or

effectively halt many essential mosquito control

efforts throughout the United States. This could

result in a marked increase in the number of deaths

and serious illnesses caused by mosquito-borne

diseases such as West Nile Virus.

II. The Sixth Circuit Decision Is Unworkable

In Practice

Aside from seriously jeopardizing the public

health, the Sixth Circuit decision creates an

unworkable legal regime.

A. The Sixth Circuit notes that under its

interpretation of the CWA, not all chemical pesticide

applications require an NPDES permit. Nat’l Cotton

Council of Am. v. EPA, 553 F.3d 927, 936 (6th Cir.

2009). However, the two circumstances identified by

the Sixth Circuit as needing a permit under the

CWA—where traces of pesticides applied on land or

in the air end up in water, or where residues of

aquatic pesticides remain in the water, see id. at 936-

37— effectively require an NPDES permit for all

chemical pesticide applications, because operators

can never be absolutely certain that traces of such

pesticides will not enter water (in the case of

‘' The temporary stay of the mandate obtained by the

government does not obviate this problem because the mere

existence of the Sixth Circuit decision has a present in terrorem

effect on the ongoing activities of mosquito control entities.

6

pesticides applied on land and in the air), or remain

in the water (in the case of pesticides applied directly

in the water). In practice, the Sixth Circuit decision

will effectively require that operators obtain an

NPDES permit for every pesticide application,

regardless of when and where the application is

made. Because the CWA imposes criminal as well

as civil liability, pesticide applicators face enormous

risks if they operate without an NPDES permit.

B. Moreover, as discussed previously, mosquito

control activities are highly dependant on pesticides.

Accordingly, the significant increase in permit

applications that would result from requiring an

NPDES permit for every mosquito’ control

application would paralyze the permitting process

and leave public health officials with no effective

mechanism to control pest outbreaks. This is

particularly the case given that mosquito control

districts must decide within a very brief time which

areas to treat for mosquitoes (a planning process

that typically must be completed in the span of a few

hours, to at most one or two days, if it is to be

effective and where such treatment can occur at

literally thousands of specific locations).

C. In the more than thirty-five years of

administering the CWA, the EPA has never issued

an NPDES permit for the application of pesticides.

By including pesticide applications under the CWA,

the Sixth Circuit decision greatly expands the

number of entities that will now need an NPDES

permit. Currently, the NPDES program

encompasses approximately 520,000 permitted

facilities. Under EPA estimates, at a minimum, the

Sixth Circuit decision will require an additional

365,000 so-called “applicators” to seek permits for

approximately 5.6 million pesticide applications per

year. This represents a nearly two-fold increase in

the volume of NPDES permits to be issued.

Even if the stay of the mandate provides the EPA

with sufficient time to expand the NPDES

permitting system to encompass all of the pesticide

“applicators” swept in by the Sixth Circuit decision,

the NPDES process is essentially incompatible with

the realities of pesticide use for mosquito control.

First, EPA regulations require that NPDES permits

include monitoring programs. But the extremely

large costs of routinely monitoring the constituents

of pesticides before and after each application at

even a small fraction of application sites would

exceed the operational budgets of most mosquito

control programs. Second, this type of monitoring

would also require dissemination to the mosquito

control programs of information on the complete

composition of pesticide products—information

which, as proprietary business information under

FIFRA, cannot be legally provided by EPA or the

states to these entities. See 7 U.S.C. 136h (d)(1X(C).

In other words, a legal NPDES permit would create a

condition for which compliance may be impossible—

requiring the monitoring of chemical constituents by

dischargers notwithstanding the fact that the

dischargers cannot legally be provided the names of

the chemicals to be monitored.

lil. The Sixth Circuit Decision Burdens

Farmers and States and Exposes Them to

CWA Liability for Pesticide Applications

Otherwise Lawful Under FIFRA

In addition to mosquito control agencies, the

Sixth Circuit decision has broad (and jarring)

consequences for farmers and states.

8

A. The Sixth Circuit decision requires NPDES

permits for aquatic pesticide applications as well as

for many terrestrial applications. As all pesticide

applications are already regulated under FIFRA,

requiring NPDES permits in these circumstances

will impose a series of unnecessary, costly and

burdensome requirements on farmers. Additionally,

at present, neither EPA nor state regulators have

the required resources to review the dramatic

increase in permit applications that will result from

the Sixth Circuit decision. Because of the time-

sensitive nature of pesticide applications, the

resulting delays will adversely impact the viability of

farming operations across the country. Moreover, by

impeding necessary pesticide uses to quickly combat

emergency infestations, the Sixth Circuit decision

could impair food production.

States will also be burdened by the new regime

created by the Sixth Circuit decision. Just as the

EPA will be designing NPDES permits to comply

with the Sixth Circuit decision, forty-five states will

be similarly required to develop their own permits to

comply with that decision. Under FIFRA, it is the

state lead agencies—generally the _ state

departments of agriculture—that have primacy of

the enforcement of pesticide matters. The

consequence of the Sixth Circuit decision creates a

tremendous unfunded regulatory mandate for the

state governments. The decision will require

states—not just EPA—to issue permits to cover

pesticide applications that are already regulated and

legal under FIFRA and state pesticide laws, laws

that also enforce against the misuse of pesticide

applications.

B. Further, by extending its decision to

terrestrial applications—under the theory that

pesticide applications on land or air may

nevertheless have CWA implications if such

pesticides end up in navigable waterways—the Sixth

Circuit has placed every farmer in the United States

in legal jeopardy under the CWA’s citizen-action

provisions for applications of pesticides that

otherwise conform to FIFRA. If the Sixth Circuit

decision is left to stand, U.S. farmers—regardless of

farm size or produce output—will go into the next

growing season under the looming threat of lawsuits.

Similarly, states and local governments that apply

pesticides along roadways and power lines, among

other locations, face the burden of potential CWA

litigation if residues of such terrestrial applications

that otherwise conform to FIFRA end up in the

nation’s waterways.

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CONCLUSION

For the foregoing reasons, amici request that this

Court grant the petitions for a writ for certiorari.

Respectfully submitted,

EDWARD M. RUCKERT

M. MILLER BAKER

Counsel Of Record

RAHUL RAO

MCDERMOTT WILL & EMERY LLP

600 Thirteenth Street, N.W.

Washington, DC 20005

(202) 756-8000

Counsel for Amici Curiae

Dated: December 4, 2009