# Amicus Curiae Brief — CropLife America v. Baykeeper

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1194%3A6

## Record

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

## Text

® 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
SITE cu.convessesatutatselicauectieais beite nies 4,9

STATUTES AND REGULATIONS

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LEGISLATIVE HISTORY

S. Rep. No. 92-414 (1971), as reprinted in
jig, Bek Toke SG Teieneneecemcnn een een 4,8

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1194%3A6. Public record. Not legal advice.