Amicus Curiae Brief — CropLife America v. Baykeeper

® Y “Supreme Court U.S.

FILED

a es om ey

Nos. 69-547, 09-533 DEC 4- 2i9

IN THE

Supreme Court of the United States

AMERICAN FARM BUREAU FEDERATION, et al,

Petitioners,

Vv.

BAYKEEPER, et al.,

Respondents.

CROPLIFE AMERICA, et ail.,

Petitioners,

Vv.

BAYKEEPER, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF OF AQUATIC ECOSYSTEM

RESTORATION FOUNDATION, ET AL.

AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

CARTER G. PHILLIPS*

ANGUS MACBETH

JAMES W. COLEMAN

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, DC 26005

(202) 736-8000

Counsel for Amici Curiae

December 4, 2009 * Counsel of Record

[Additional Amici Curiae Listed on Inside Cover]

(nase ee Ss aR cnacatNmeReRNnS ore telR REGRET

WILSON-EPES PRINTING Co., INC. — (202) 789-0086 — WASHINGTON, D. C. 20002

Additional amici curiae:

Aquatic Plant Management Society

California Cotton Growers Association

Chamber of Commerce of the United States of

America

Cranberry Institute

Kansas Cotton Association

Louisiana Cotton and Grain Association

National Agricultural Aviation Association

National Alliance of Forest Owners

National Association of Home Builders

National Council of Farmer Cooperatives

National Corn Growers Association

National Potato Council

National Sorghum Group

North Carolina Cotton Producers

Oklahoma Cotton Council

Plains Cotton Growers

Rolling Plains Cotton Growers

South Texas Cotton & Grain Association

Southern Cotton Growers

Texas Cotton Producers

USA Rice Federation

Western Growers Association

TABLE OF CONTENTS

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INTEREST OF AMICI CURIAE................c0cce0000s 1

I. THE DECISION BELOW FAILS TO

APPLY APPROPRIATE CHEVRON DEF-

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II. THE DECISION BELOW THREATENS

THE NATION'S ABILITY TO PREVENT

INFESTATIONS THAT ENDANGER THE

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TABLE OF AUTHORITIES

CASES Page

Chevron U.S.A., Inc. v. NRDC, 467 U.S.

Be Ci iitissdcctacacketscvareiensen ae 6

Coeur Alaska, Inc. v. Se. Alaska

Conservation Council, 129 S.Ct. 2458

i iikavsnackiccccaseseiazabusmtumicencusimaniaimuaneiaeiees 6

Erlenbaugh v. United States, 409 U.S. 239

EE icacs0isckcsnbssacduabindinansdeisaimeesnteer eames 8

Rapanos v. United States, 547 U.S. 715

ssc cicuiccepgcaunneaaaencbeliap teak auelenaniinedtonies 9

Solid Waste Agency of N. Cook County v.

Army Corps of Eng’rs, 531 U.S. 159

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STATUTES AND REGULATIONS

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i Msi canasicseladaniateaine damnivedanmseausnbiok 3, 7

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Ee Ee eI OT 11

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SIT sss a/codiedeckescdaengeibicnakanmunaestibemiiciah 12

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LEGISLATIVE HISTORY

S. Rep. No. 92-414 (1971), as reprinted in

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TABLE OF AUTHORITIES—continued

OTHER AUTHORITY Page

Random House Webster’s Unabridged

Dictionary (2d ed. 2000)..............ccceseeeeeeeeee 4,10

INTEREST OF AMICI CURIAE!

Amici are trade groups representing a broad range

of agricultural, forestry, and development interests.

Amici’s members use pesticides to prevent or remedy

disease, infestation, and other harmful invasions of

pests that would otherwise threaten food, water,

forests, and other resources on which the public

depends. Their application of pesticides is strictly

regulated under the Federal Insecticide, Fungicide

and Rodenticide Act (FIFRA).

The Sixth Circuit’s decision in this case rejected an

Environmental Protection Agency (EPA) rule, which

had provided that pesticide applications made in

accordance with FIFRA do not constitute a discharge

of a pollutant requiring a Clean Water Act (CWA)

permit. CropLife Pet. App. la—25a.

This decision will affect hundreds of thousands of

people and entities, including smal! businesses and

individual landowners. EPA has stated that this

decision threatens

significant disruption among the hundreds of

thousands of persons and businesses nationwide

who apply pesticides to, over, or near waters of

the United States without NPDES [National

Pollutant Discharge Elimination System] per-

1 Pursuant to Rule 37.6, amici state that counsel for the

parties did not author this brief in whole or in part, neither

party nor party counsel made a contribution intended to fund

the preparation or submission of the brief, and no person or

entity other than an amicus made any monetary contribution to

the preparation or submission of this brief. Counsel for all

parties have received timely notice of intent to file this brief and

have consented to the filing, and the letters of consent have been

filed with the clerk.

2

mits and now, as a result of this Court’s decision,

will need to obtain permits in order to continue

doing so consistent with the Clean Water Act.

EPA Mot. for Stay at 1, CropLife Pet. App. 106a—

107a. This will affect a wide variety of organizations

that, like amici’s members, use pesticides to control

dangerous pests, such as “local government entities

that spray to and over waters to control mosquitoes,

farmers who apply pesticides to eradicate aquatic

pests, [and] foresters who aerially spray over waters

to prevent outbreaks of timber pests.” Jd. at 1, 107a.

Thus, the panel’s decision will burden amici’s

operations by subjecting an array of activities to

broad and uncertain CWA liability. Imposition of

CWA permit requirements unsuited to those

activities will impede amici’s ability to respond

quickly and effectively to harmful pests, risking

significant losses and imposing crippling costs.

Amict’s operations are essential to our Nation’s

supply of food, water, and shelter, and they are

vitally affected by this case. Accordingly, amici

believe that the Court will benefit from their views in

evaluating the importance of the legal question

presented by petitioner.

BACKGROUND AND SUMMARY

OF ARGUMENT

A central objective of the Clean Water Act is that

“the discharge of pollutants into the navigable waters

be eliminated by 1985.” 33 U.S.C. § 1251(a)(1). In

furtherance of this goal, the CWA forbids the

unpermitted “discharge of any pollutant” from a point

source. Jd. §1311(a). Accordingly, before anyone

may lawfully discharge a pollutant, it is necessary to

apply for and receive a permit under the “National

3

pollutant discharge elimination system,” id. § 1342

(emphasis added).

The Sixth Circuit held that all biological pesticides

and those chemical pesticides which result in “waste”

in the water are pollutants under the statute and,

when discharged to water from a point source,

require an NPDES permit. The court held that the

statute unambiguously precludes a _ contrary

interpretation, and thus that there is no difference

between farmers, landowners, and public health

officials who treat crops, forests, and swamps to avoid

dangerous infestations, and those who discharge

industrial wastes into a river—under the Act, both

types of discharges are to be eliminated. This result

ignores common sense, does violence to the statute,

and is contrary to this Court’s direction in Chevron

that deference is owed to the agency’s interpretation

of a statute it administers.

The provisions of the Clean Water Act relied on by

the court of appeals do not mention pesticides. The

only reference in the Act to pesticides is at 33 U.S.C.

§ 1254()), which authorizes EPA to “develop and issue

to the States for the purpose of carrying out this

chapter” studies on the effects of pesticides in water.

Congress did not view pesticides categorically as

harmful substances, requiring’ elimination. Just

three days after passing the CWA, Congress enacted

major revisions to the Federal Insecticide, Fungicide

and Rodenticide Act (FIFRA), which balances the

risks and benefits of applying pesticides. 7 U.S.C.

§ 136 et seq. FIFRA forbids any distribution of

pesticides unless they are registered, id. § 136a(a),

and ensures that they are not used in a way that

“cause[s] unreasonable adverse effects on the

environment.” Jd. § 136a(d)(1)(B). “Environment” is

specifically defined to include “water.” Id. § 136(j).

4

During the Clean Water Act debates, Senator Dole

stated: “[p]Jesticides provide substantial benefits to

mankind by protecting plants and animals from pest

losses.” S. Rep. No. 92-414, at 92 (1971), as reprinted

in 1972 U.S.C.C.A.N. 3668, 3760 (emphasis added).

He went on to note that pesticides would continue to

be beneficial: “[t]he use of pesticides and other

agricultural chemicals will undoubtedly retain a high

level of importance in agriculture for the foreseeable

future.” Jd. And he noted that they would be

regulated under FIFRA: “In the meantime efforts at

both State and Federal levels are paying off in

securing the registration [pursuant to FIFRA] and

adherence to recommended usages.” Id.

Nonetheless, the Sixth Circuit held that pesticides

were unambiguously “pollutants” within the meaning

of the CWA’s § 301, which forbids the unpermitted

“discharge of any pollutant” from a point source. 33

U.S.C. § 1311(a). The Sixth Circuit suggested that it

was compelled to reach this result because

“pollutant” is defined by the CWA to include

“chemical wastes” and “biological materials.” Id.

§ 1362(6). But in its myopic focus on the list of words

defining “pollutant,” the court lost sight of the word

itself: a pollutant is a substance “that renders the

air, soil, water, or other natural resource harmful.”

Random House Webster’s Unabridged Dictionary

1498 (2d ed. 2000). In doing so, it gave the term

“pollutant” “no effect whatever.” Solid Waste Agency

of N. Cook County v. Army Corps of Eng’rs, 531 US.

159, 172 (2001) (SWANCC). Worse, the court

prohibited EPA from giving any effect to the term

“pollutant.” EPA’s view that the term “pollutant”

cabined otherwise expansive terms such as “biological

materials” was both reasonable and faithful to the

statute. Jd. That every fisherman’s worm is

5

“biological material” does not make every cast of the

rod without a CWA permit punishable by a $37,500

fine. 33 U.S.C. § 1319(b), (c); 40 C.F.R. § 19.4.

If left unaddressed, the Sixth Circuit's errors will

have stark consequences. The NPDES permitting

program currently encompasses approximately half a

million permits; EPA has estimated that the decision

below will expand the NPDES program to 5.6 million

new pesticide applications per year. EPA Mot. for

Stay at 11, CropLife Pet. App. 115a. And unlike most

expansions of the NPDES program, which impose

only economic burdens, this expansion threatens the

ability of public health officials, forest owners, and

farmers to prevent or remedy infestations that

endanger the public welfare.

This case consolidated challenges from eleven

circuits and settles the application of the Clean

Water Act to pesticide discharges to the water. There

will be no future split among the courts of appeals on

the issue presented in this case. The Court should

grant certiorari in this case to correct the dramatic

misapplication of Chevron and to relieve the

substantial burdens that this decision has placed

upon farmers, landowners, and public health officials.

ARGUMENT

The Petition in this case effectively shows why this

Court's review is warranted. Amici’s purpose here is

both to show that the implications of the decision

below are sweeping and harmful and that those

harms are not justified by any fair interpretation of

the Clean Water Act. The Sixth Circuit ignored this

Court’s direction on the appropriate deference to an

agency’s interpretation of statutes which it

administers, and this Court’s decisions interpreting

the Clean Water Act. Furthermore, this decision

6

leaves our Nation seriously vulnerable to destructive

and dangerous infestations.

I. THE DECISION BELOW FAILS TO APPLY

APPROPRIATE CHEVRON DEFERENCE.

a. It is axiomatic that the deference due an

agency in interpreting a statute which it administers

is governed by Chevron U.S.A., Inc. v. NRDC, 467

U.S. 837 (1984). Chevron provides that a court must

first determine if Congress has “addressed the precise

question at issue,” and, if not, defer to the agency

interpretation so long as it is a “permissible

construction of the statute.” Jd. at 843. This Court

recently emphasized in a Clean Water Act case that

the precise question at issue must be carefully

formulated, and set out the question as the beginning

of its analysis: “Do EPA performance standards and

§ 306(e), apply to discharges of fill material.” Coeur

Alaska, Inc. v. Se. Alaska Conservation Council, 129

S.Ct. 2458, 2469 (2009). When a court decides

whether Congress has addressed the precise

question, it should employ “traditional tools of

statutory construction.” Chevron, 467 U.S. at 843 n.9.

In this case, at the level of greatest precision, the

question at issue is how, if at all, the permit

provisions of the CWA apply to the discharge to the

water of chemical and biological pesticides for the

purpose of controlling pests in or over the water.

The Sixth Circuit failed to ask this question or any

question close to it. In fact pesticides are not

addressed in the provisions of the statute on which

the Sixth Circuit relied. Indeed, the statute’s only

mention of “pesticides” comes at 33 U.S.C. § 1254(J),

which directs EPA to “develop and issue to the States

for the purpose of carrying out this chapter” studies

on the kind and extent of effects on health and

7

welfare from pesticides in water. Jd. § 1254(J(1).

This provision is clearly at odds with the conclusion

that pesticides are to be addressed under the NPDES

system. Under the Act it is the federal EPA, not the

States, which has responsibility for establishing the

terms on which permits are to be initially issued and

then made more stringent over time. Jd. § 1342(a). If

Congress intended pesticides to be subject to NPDES

permits, as industrial waste materials are, it would

not have directed that the analysis of pesticides be

issued to the States.

The pesticide study provision also authorizes the

Administrator of EPA to “conduct studies and

investigations of methods to control the release of

pesticides into the environment” and “submit

reports ... with his recommendations for any neces-

sary legislation.” Jd. § 1254(J(2). If pesticides were

already slated for elimination under the NPDES

program, such a provision would not be necessary.

The language of this provision is consistent with

what the legislative history makes plain: pesticides

are discharged to the water primarily for beneficial

purposes and hence are fundamentally different from

industrial waste.

Within days after passing the CWA, Congress

enacted major revisions to FIFRA, which explicitly

regulates pesticides, and authorized them to be used

where they will not cause “unreasonable adverse

effects on the environment.” 7 U.S.C. § 136a(d)(1)(B).

In other words, pesticides can and should be put to

beneficial uses both on land and water but, as with

all economic poisons, must be handled with care and

judgment in order to prevent harm. In the context of

addressing the Clean Water Act, Senator Dole made

plain that, given the beneficial present and future

uses of pesticides, they were to be regulated under

8

FIFRA: “[t]he use of pesticides and other agricultural

chemicals will undoubtedly retain a high level of

importance in agriculture for the foreseeable future.

In the meantime efforts at both State and Federal

levels are paying off in securing the registration

[pursuant to FIFRA] and adherence to recommended

usages.” S. Rep. No. 92-414, at 92, as reprinted in

1972 U.S.C.C.A.N. at 3760.

Congress did not explicitly address the precise

question at issue and identify pesticides discharged to

the water as “pollutants” subject to permitting.

Moreover, the Sixth Circuit’s decision is inconsistent

not only with the one section of the Clean Water Act

explicitly directed to the regulation of pesticides, but

also with the understanding of Congress that

contemporaneously enacted FIFRA to address

pesticide issues directly. In fact, the evidence in the

statute and its legislative history clearly show that

Congress did not consider pesticides to be classed as

“pollutants.”

The Sixth Circuit’s analysis flies in the face of this

Court’s in pari materia canon, which dictates that

statutes addressing the same subject matter

generally should be read “as if they were one law.”

Erlenbaugh v. United States, 409 U.S. 239, 243

(1972). The Sixth Circuit refused to consider the

bearing of FIFRA on the question before it, declining

to “analyze the relationship between the Clean Water

Act and the FIFRA.” CropLife Pet. App. 25a. Had it

done so, it would have found that Congress

recognized that a balance had to be struck between

the benefits gained from careful use of pesticides on

land and water and the risks of indiscriminate use of

economic poisons. FIFRA sets out how that balance

is to be struck; the Clean Water Act does not.

9

b. At the next level of generality, the question at

issue may be phrased as whether a substance whose

discharge to the water presents both benefits to

human health and the environment, and certain

risks, falls within the definition of “pollutant” under

33 U.S.C. § 1362(6). On this question, the Sixth

Circuit reached an answer that is not found in the

text of statute, and defies common sense.

Nevertheless, the court found its reading to be

supported unambiguously by the statute.

The decision below asserts that “[t]he term

‘biological materials’ cannot be read to exclude

biological pesticides or their residuals.” CropLife Pet.

App. 19a. Presumably, the Court meant that “bio-

logical pesticides” are literally “biological materials.”

This, of course, is true. But by focusing only on the

words in the definition of pollutant, 33 U.S.C.

§ 1362(6), and not on the term “pollutant” itself, the

court below failed to follow this Court’s instruction

that the meaning of the defined term itself must be

given some effect. SWANCC, 531 U.S. at 172;

Rapanos v. United States, 547 U.S. 715, 734 (plural-

ity opinion), 779 (Kennedy, J., concurring) (2006).

This Court’s instruction in SWANCC and Rapanos is

particularly germane in this case. The Seventh

Circuit, reversed by this Court in SWANCC, made

the same error with respect to the provision of the

Clean Water Act which defines “navigable waters,” 33

U.S.C. § 1362(7), failing to give any weight to the

term “navigable.” The court below, however, has

committed an error with more profound conse-

quences. The SWANCC court merely gave deference

to the Army Corps’ decision to give no effect to the

defined term; the court here has affirmatively

prohibited EPA from giving any effect to the term

10

“pollutant,” despite the deference that EPA is owed in

this context.

The Random House Webster’s Unabridged Diction-

ary, supra, at 1498, offers two definitions of pollutant:

“1. something that pollutes.[?] 2. any substance ...

that renders the air, soil, water, or other natural

resource harmful or unsuitable for a_ specific

purpose.” Both definitions connote a substance that

is harmful or deleterious. Thus, to give the term

“pollutant” effect, EPA properly provided that a

pesticide is only a pollutant if it is not used according

to the terms prescribed by FIFRA.

EPA’s interpretation makes far more sense of the

definition of pollutant. While some of the substances

listed in 33 U.S.C. § 1362(6) are generally considered

harmful, others would be harmful or beneficial

depending on the circumstances. This is clearly the

case with heat and biological materials. Thermal

discharges are specifically recognized in the statute

as being either beneficial or deleterious depending

upon the circumstances. The statute authorizes EPA

to conduct comprehensive studies regarding “mini-

mizing adverse effects and maximizing beneficial

effects of thermal discharges.” 33 U.S.C. § 1254(t).

What is true for heat is true for biological materials

as well. Many biological materials are plainly

pollutants, and many are not. Congress surely did

not intend, for instance, to require discharge permits

for the introduction of hatchery-raised fish to

navigable waters or to eliminate the introduction of

such fish by 1985. In fact, other statutes promote the

stocking of hatchery-raised fish for sport and

2 Random House Webster’s Unabridged Dictionary’s first

definition of “pollute,” supra, at 1498, is “to make foul or

unclean, esp. with harmful chemical or waste products.”

1]

recreation. 16 U.S.C. § 760 et seq. And, the CWA

itself contains a provision directing the U.S. Fish and

Wildlife Service, in cooperation with state agencies,

to establish and implement a fisheries resource

program for Lake Champlain, “including dedicating a

level of hatchery production ... at or above the level

that existed immediately preceding the date of

enactment.” 33 U.S.C. §1270 note. The most

prominent example of the Act’s focus on the

elimination of substances when they are harmful is

the national policy that the discharge of “toxic

pollutants in toxic amounts” be prohibited. Id.

§ 1251(a)(3) (emphasis added). Congress clearly

recognized that even “toxics” are truly pollutants only

when they cause harm.

The answer to the question of how Congress

addressed whether or not substances that may be

beneficial or harmful, depending upon the circum-

stances, are to be classified makes perfect sense.

When the substance is harmful, it is a pollutant;

when it is beneficial, it is not. As we have shown, it

is in FIFRA and not the Clean Water Act that

Congress struck the balance that permits the

beneficial use of pesticides but prohibits their

harmful use.?

3 The primacy of FIFRA in governing the use of pesticides is

reinforced by the terms of the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA), 42

U.S.C. § 9601 et seqg., which Congress passed in 1980 and which

governs the reporting and clean up of discharges of hazardous

substances into the environment. Under CERCLA, Congress

explicitly treated pesticides in a manner unlike any other

hazardous substance. The statute requires reporting of “any

release (other than a federally permitted release)” of a

hazardous substance. Id. § 9603(a). But the section does not

apply to the application of a pesticide product registered under

FIFRA. Id. § 9603(e). The statute also imposes liability for

12

If the Sixth Circuit had framed the question at

issue carefully, it would have found that, although

the statute does not explicitly address whether

pesticides are pollutants, it does recognize that

“pollutants” are limited to harmful or deleterious

substances.

Under Chevron, EPA’s interpretation of the

statutory scheme was both reasonable and fully

consistent with the direction provided in the Clean

Water Act, FIFRA, and the Comprehensive

Environmental Response, Compensation, and

Liability Act (CERCLA). The discharge of pesticides

into the water for the beneficial purposes of

preventing or remediating an infestation is not the

discharge of a pollutant when it is done pursuant to

FIFRA, the statute that directs EPA to set the

parameters for the use of pesticides. The agency’s

interpretation was entitled to deference.

II. THE DECISION BELOW THREATENS THE

NATION’S ABILITY TO PREVENT INFES-

TATIONS THAT ENDANGER THE PUBLIC

WELFARE.

At a stroke, the Sixth Circuit’s decision has made

all pesticide applications to the waters of the United

States illegal. Petitioners and their members rely on

remedial costs resulting from the release of a hazardous

substance. Id. § 9607(a). But it provides no recovery of such

costs resulting from the application of a pesticide product

registered under FIFRA. Id. § 9607(i). By dealing with pesti-

cides under a provision that is separate from that addressed to

“federally permitted releases,” Congress made clear that

pesticides were not regulated by permit programs such as that

in the CWA but instead are regulated by the terms of FIFRA.

This statutory exception to CERCLA is fully consistent with the

treatment afforded pesticides in the EPA rule vacated by the

Sixth Circuit in this case.

13

these applications to safeguard the nation’s crops,

forests, and housing stock from dangerous

infestations. The Sixth Circuit’s decision will put

these vital resources in grave danger.

As EPA has stated, the decision will forbid “5.6

million pesticide applications annually ... to control

pests such as mosquitoes and gypsy moths, combat

algae, weeds and other undesirable vegetation and

attack invasive species such as zebra mussels.” EPA

Mot. for Stay at 11, CropLife Pet. App. 115a. The

decision will prevent action by “local government

entities that spray to and over waters to control

mosquitoes, farmers who apply pesticides to eradicate

aquatic pests, [and] foresters who aerially spray over

waters to prevent outbreaks of timber pests.” Id. at

1, 107a. The decision will make each such applicat-

ion of pesticide unlawful. Jd. at 1-2, 106a—107a.

EPA has suggested that these dramatic adverse

consequences may be mitigated by the development

of general permits for application of pesticide to

water, but such claims may be wishful thinking and

at a minimum warrant healthy skepticism.

First, as EPA details, the process of developing and

implementing a general permit is complicated, time-

consuming, and unpredictable. EPA Mot. for Stay at

11-15, CropLife Pet. App. 115a—119a. This is by

design—in implementing its statutory duty, EPA

must seek and respond to input from States, other

federal agencies, and the public at large. Both the

process and the results may not afford pesticide

applicators the certainty that they need. More

fundamentally, it is unclear how EPA can possibly

reconcile Congress’s objective to eventually eliminate

pollutants with the necessity of generally permitting

pesticide application.

14

Second, under the Sixth Circuit’s decision, EPA

simply does not have the authority to authorize

pesticide application in the vast majority of the

country. As EPA acknowledges, a general permit

“will provide permit coverage only in the four States

in which EPA is the permitting authority, plus the

United States’ territories, tribal lands and federal

facilities.” EPA Mot. for Stay at 14—15, CropLife Pet.

App. 118a. Thus, there is no easy fix for the problem

created by the decision below. Even States that wish

to follow suit may face additional procedural hurdles.

And there is no certainty that States always have the

appropriate incentives to address the pesticide

application problem—pesticides prevent national

outbreaks of disease and crop infestation that

transcend state boundaries, which is why they are

regulated nationally under FIFRA.

Finally, general permits do not account for the full

flexibility that pesticide applicators require to combat

infestations that suddenly threaten crops due to

unanticipated confluences of aggravating factors.

Take the example of aerial application businesses.

Although there are approximately 1,600 such

businesses in the United States, the average number

of aircraft per business is only 2.2, and each such

business typically has between three and five

employees. These aerial applicators are often asked

to make an application for mosquito abatement or for

a crop just minutes before the application is needed—

making it impossible to file CWA _ paperwork,

including a notice of intent, in advance. And under

general permits, the applicator could be required to

do follow-up water monitoring to make sure the

application had no negative effects. This requirement

would force aerial applicators to trespass on private

property, to which they have no legitimate access. In

15

contrast, such applicators are trained to handle

pesticides in compliance with FIFRA, which strictly

regulates such applications but does not require

anticipating applications well in advance of their

necessity and does not require follow up visits.

This simple example illustrates vividly the

immediate and acute nature of the harms caused by

the Sixth Circuit's decision. Similar examples

abound. Thus, cranberry growers whose crop grows

in the waters of the United States obviously will be

directly harmed by this new regulatory regime that

Congress never enacted. The bottom line point is

straightforward, many livelihoods that are represent-

ed by the associations participating as amici in this

case are now in serious jeopardy and only review by

this Court can protect them.

In sum, the decision below threatens pesticide

applicators with unpredictable and potentially fatal

harm, and thus places our nation’s forest, housing,

and agricultural resources in danger.

16

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

CARTER G. PHILLIPS*

ANGUS MACBETH

JAMES W. COLEMAN

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, DC 20005

(202) 736-8000

Counsel for Amici Curiae

December 4, 2009 * Counsel of Record