# Amicus Curiae Brief — CropLife America v. Baykeeper

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1194%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 936

## Text

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.

10

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1194%3A5. Public record. Not legal advice.