Amicus Curiae Brief — CropLife America v. Baykeeper

[Supteme Coun, US

‘LED

DEC 4 - 2009

OFFICE OF THE CLERK

Nos. 09-533 and 09-547

IN THE

Supreme Court of the United States

CROPLIFE AMERICA, ET AL., PETITIONERS

Uv.

BAYKEEPER, ET AL.

AMERICAN FARM BUREAU

FEDERATION, ET AL., PETITIONERS

v.

BAYKEEPER, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF MEMBERS OF CONGRESS

AS AMICI CURIAE SUPPORTING PETITIONERS

DOUGLAS D. GEYSER THOMAS S. LEATHERBURY

VINSON & ELKINS LLP Counsel of Record

2801 Via Fortuna VINSON & ELKINS LLP

Suite 100 Trammell Crow Center

Austin, TX 78746-7568 7901 Ross Avenue

Suite 3700

(512) 542-8400 Dallas, TX 75201-2975

(214) 220-7700

Counsel for Amici Curiae

December 4, 2009

i

QUESTION PRESENTED

Whether the Sixth Circuit erred in concluding

that the “plain language” of the Clean Water Act

unambiguously prohibits an Environmental Protec-

tion Agency (“EPA”) rule that, consistent with more

than 35 years of agency practice, provides that the

application of a federally approved pesticide to or

over water for its intended purpose and in accor-

dance with the requirements of the EPA’s pesticide

regulatory program is not a “discharge of a pollut-

ant.”

lil

TABLE OF CONTENTS

Page

Interest Of CRO ANbICE CUTIGE ..ccsccscscrsscecssssesccsenss 1

Reasons for Granting the Petitions................... 3

A. The Sixth Circuit has substituted

its deeply flawed reading of the

Clean Water Act for that of the

re NE vi ccaerecens coed ss drabsdedseetecricasexess 4

B. The Sixth Circuit’s decision will

have grave practical consequences........ 14

C. Review is warranted now regardless

of whether EPA plans to maintain

Se I a icpracictenckc sxcvingsckpentadesnwheemmelcimeastxnes 21

NE osc vaacendcees occas madenercaoes 23

TABLE OF AUTHORITIES

Cases:

Aluminum Co. of Am. v. Cent. Lincoln

Peoples’ Util. Dist., 467 U.S. 380 (1984)......... 13

Ass'n to Protect Hammersley, Eld, & Totten

Inlets v. Taylor Res., Inc., 299 F.3d 1007

ee a sis 11

Brown v. Duchesne, 60 U.S. (19 How.) 183

ey 7

Burlington Northern & Santa Fe Ry. v.

United States, 129 S. Ct. 1870 (2009)............. 5, 23

Cardinal Chem. Co. v. Morton Int'l, Inc.,

Oe rc Me I oa cna ca each va cual eptascecnsisansienadas 23

Chevron, U.S.A., Inc. v. Natura! Resources

Defense Council, 467 U.S. 837 (1984)............. 4

1V

Cases—Continued:

EEOC v. Associated Dry Goods Corp.,

BOM TG, GO CIGD ooo sucess cesscseseissscervescesdsess,

Entergy v. Riverkeeper, Inc., 129 S. Ct. 1498

sells

Envtl. Integrity Project v. EPA, 425 F.3d 992

al awins

Exportal Ltda. v. United States, 902 F.2d 45

A sod sce cna pinoviseneetervenns

FCC v. Fox Television Stations, Inc.,

ee Be ke Br I vittceressceciwisvesncncescscscs veces

FDA v. Brown & Williamson Tobacco Corp.,

Be ee I is shcesbiindensscevedaxeooacensasnss

FHA v. Darlington, Inc., 358 U.S. 84 (1958).....

Good Samaritan Hosp. v. Shalala,

508 U.S. 402 (1998) ....cccccccecccceseseceseseseseeseseevees

Kokoszka v. Belford, 417 U.S. 642 (1974)..........

Lindahl v. OPM, 470 U.S. 768 (1985) ...............

Molycorp, Inc. v. EPA, 197 F.3d 543

I a cc wsc nds peupntncsdstiernievenss

Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29 (1983).........

Nat'l Ass’n of Home Builders v. Defenders

of Wildlife, 551 U.S. 644 (2007)................00008

Nat? Cable & Telecomms Ass’n v. Brand

X Internet Servs., 545 U.S. 967 (2005) ...........

No Spray Coalition v. City of New York,

253 F.3d 148 (2d Cir. 2001) ......cccccccssccessvaceess.

Radzanower v. Touche Ross & Co., 426 U.S.

ee cece ns

Train v. Colo. Pub. Interest Research

Group, Inc., 426 U.S. 1 (1976) ................

Cases—Continued: Page

Udall v. Tallman, 380 U.S. 1 (1965) ................. 13

United States v. Rutherford, 442 U.S. 544

i REA CREE A Satan Bsa Rap Spo hO Rae DEA 14

Whitman v. American Trucking Ass'ns, Inc.,

ee ie MEE EE hn ckcceececnectaccucnxuakeceuvessiasious 9

Statutes and regulations:

Clean Water Act of 1977, Pub. L. No.

te We I, BI a oiicccecescevicescsvciscecesesosenes 13

Consolidated Appropriations Act, 2001,

Pub. L. No. 106-554, 114 Stat. 2763

esheets cesaacdialciussisedadianteuvecesdueuoons 13

Federal Insecticide, Fungicide, and

Rodenticide Act, Pub. L. No. 80-104,

NN csc acdincacinicssncaceniodedessesisnacny passim

Water Quality Act of 1987, Pub. L. No.

I Fon ss ceacoascnusvacundasinadacs bats 13

Water Resource Development Act of 1992,

Pub. L. No. 102-580, 106 Stat. 4797............... 13

T U.S.C. § TSB NE) CASTE)... .ccesccccsccsscesses 8

7 U.BC. § TEBE) (1970)... ..cccrcccscosceccccsscocce 8

T UGG. © ASG G) CAST) .n.cnecceccccccscccsscoceccsce 8

Fe BN ED vvccneiscccoscarssvensessccccsonses 8

Fe I I iiss caseviceacecs<sssaceenuvstursecnsee 8

ee oad coisa rcvcauseseskncncasersnczanisxsonsinane 8

(Ros Fe brs Fuse 5

Fee ee aioviiecnvasnensscccevecssacccsnsness 4

7 U.S.C. § 136j(a)(2)(G) ....ccecccccseccececcesssescesseeseee: 8

er soos ga cv cccecesnecstvovonssvsadasnunkassee 6

BAT BP ose ssoxsiesscessscssesasessscacsicveccons 18

Lik oe Be nen 4

vi

Statutes and regulations—Continued:

33 U.S.C. § 1362(6) (Supp. [V 1975).............

ee Ey Pe iarvnevasvenvsiessissssnsnesssssencers

EPA, Application of Pesticides to Waters

of the United States in Compliance with

with FIFRA, 71 Fed. Reg. 68,483 (Nov.

eg i a hen ccangusin'sens

40 C.F.R. § 19.4 (2008).....ccccccccessesesseeeeseseseee

40 C.F.R. § 122.28(b)(2)(i) (2008).....0....cc000e.

Miscellaneous:

H.R. Rep. No. 92-911 (1972) cccccsesscsseseseeeveves

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

gg pik Sot oe E.G | ere

EPA, Interim Statement and Guidance

on Application of Pesticides to Waters

of the United States in Compliance

with FIFRA, 68 Fed. Reg. 48,385 (Aug.

Be I cic uantucusuceuuusssnuscasdadadmeemestiniacdedaxts

EPA, Office of Prevention, Pesticides, and

Toxic Substances, Pesticide Regulation

Notice 93-10 re: Effluent Discharge

Labeling Statements (July 29, 1993) ........

EPA, Policy and Criteria Notice 2180.1

AE T Baaieirdcacinva craked iebsncac gua csalnvcoabateeneeresuiéess

EPA & U.S. Centers for Disease Control

& Prevention, Joint Statement on

Mosquito Control in the U.S. (Apr. 10,

gd a On er OES a RRC TO TE

Iowa Dep’t of Natural Res., How to File

a Complete Notice of Intent for NPDES

General Permit (2007)

Vii

Miscellaneous—Continued:

Irrigation System Aquatic Weed Control

National Pollutant Discharge

Elimination System and State Waste

Discharge General Permit (Feb. 20,

ET Aci taints taek add ee abab hupiatnisendsénenenterecncess

Nat'l Ass’n of State Dep’ts of Agric.,

NPDES Permits for Pesticide

Applications Near Water (Sept. 28,

SEITE stannic comnasuncdicsasstddasnialessiniatduatauthiereetroctses

S.C. Dep’t of Health and Envtl. Control

Notice of Intent NPDES General Permit

for Vehicle Wash Water Discharges

SCG750000 (2002) ....eccccececsecsssssescesceseecereeeee:

Washington State Governor’s Office

of Reyulatory Assistance, Environmental

Permit Handbook, NPDES Aquatic

Pesticides General Permit........................

Water Quality Div., Ariz. Dep’t of Envtl.

Quality, Arizona Pollutant Discharge

Elimination System, General Permit for

Discharge from Small Municipal Separate

Storm Sewer Systems to Waters of the

Br | Eb ty |

Page

17

IN THE

Supreme Court of the United States

No. 09-533

CROPLIFE AMERICA, ET AL., PETITIONERS

VU.

BAYKEEPER, ET AL.

No. 09-547

AMERICAN FARM BUREAU

FEDERATION, ET AL., PETITIONERS

v.

BAYKEEPER, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF MEMBERS OF CONGRESS

AS AMICI CURIAE SUPPORTING

PETITIONERS

INTEREST OF TERE AMICI CURIAE'

Amici are a bipartisan group of Members of Con-

gress with a strong interest in the implementation

! Pursuant to Rule 37.6, no counsel for any party authored

this brief, in whole or part, and no counsel for a party or party

made a monetary contribution to fund the preparation or sub-

mission of this brief. No entity or person, aside from the amici

curiae and their counsel, made any monetary contribution for

the preparation or submission of this brief. Counsel of record

for the parties received timely notice of the intent to file this

brief, and their letters consenting to the filing of this brief have

been filed with the Clerk.

2

and interpretation of the Clean Water Act (“CWA”)

and the Federal Insecticide, Fungicide, and Rodenti-

cide Act (“FIFRA”). Senator James M. Inhofe is the

Ranking Member, and Senators Christopher S. Bond

and David Vitter are members, of the Senate Com-

mittee on Environment and Public Works. Represen-

tative John L. Mica is the Ranking Member, and

Representative Howard Coble is a member, of the

House Committee on Transportation and Infrastruc-

ture. Representative John Boozman is the Ranking

Member on the Water Resources and Environment

Subcommittee of the House Committee on Transpor-

tation and Infrastructure. These committees (and

subcommittee) have jurisdiction over water pollution

and other issues related to the CWA. Senators Mike

Johanns and E, Benjamin Nelson are members of the

Senate Committee on Agriculture, Nutrition and For-

estry, which has jurisdiction over issues relating to

FIFRA. Representative Frank D. Lucas is Ranking

Member, and Representatives Dennis A. Cardoza,

Travis W. Childers, K. Michael Conaway, Lincoln

Davis, Larry Kissell, Blaine Luetkemeyer, Cynthia

M. Lummis, Eric J.J. Massa, Mike McIntyre, Randy

Neugebauer, David P. Roe, and Kurt Schrader are

members, of the House Committee on Agriculture,

which has jurisdiction over issues relating to FIFRA.

Representatives Leonard L. Boswell, Sam Graves,

and Betsy Markey are members of both the House

Transportation and Infrastructure and Agriculture

Committees. Representatives Marion Berry, F. Allen

Boyd, Jr., Lincoln Davis, Jo Ann Emerson, Jack

Kingston, and John T. Salazar are members of the

House Committee on Appropriations, which has ju-

risdiction over matters relating to revenue and ex-

penditures of all federal programs, including those

under the CWA and FIFRA. Representatives Roy

Senators blanche Lincoln and Saxby Chambliss, the

Chairman and Ranking Member of the Senate Committee on

Agriculture, Nutrition, and Forestry, also join this brief.

3

Blunt, Jeff Flake, Wally Herger, Lynn Jenkins, Wal-

ter B. Jones, Jr., Doug Lamborn, Sue Myrick, and

Mike Ross represent districts with strong interests in

agriculture, pesticide use, and pest control.

The Sixth Circuit’s decision implicates important

concerns involving environmental protection, public

health, and economic growth. Amici have a strong

interest in preserving the traditional understanding

of the relationship between the CWA and FIFRA,

which appropriately balances these objectives, and

which was embodied in the Environmental Protection

Agency (“EPA”) rule invalidated by the Sixth Circuit.

Amici also have an interest in preserving the role

Congress originally created for the EPA under the

CWA, which would allow the agency to bring its ex-

pertise to bear in interpreting and implementing its

ambiguous terms. Finally, amici have a strong inter-

est in protecting their constituents who apply pesti-

cides in accordance with FIFRA from unreasonable

legal liability, and in protecting their constituents

from the many harms threatened by the Sixth Cir-

cuit’s unreasonable restrictions on pesticide use.

REASONS FOR GRANTING THE PETITIONS

Since the CWA’s enactment in 1972, the EPA has

never required a National Pollutant Discharge

Elimination System (“NPDES”) permit for the appli-

cation of FIFRA-registered pesticides to or over the

waters of the United States” After notice and two

rounds of public comment, the EPA formally promul-

gated a rule (the “EPA Rule”), 71 Fed. Reg. 68,483

(Nov. 27, 2006) (reproduced at Pet. App. 68a-111a?),

that “codified what had been EPA’s practice during

the more than 35 years EPA has administered the

2 References to “Pet. App.” are to the petitioners’ appendix in

American Farm Bureau Federation v. Baykeeper, No. 09-547.

4

Clean Water Act,” EPA Mot. for Stay of Mandate at 9

(reproduced at Pet. App. 122a). For the reasons set

forth below, the Sixth Circuit’s holding that the CWA

unequivocally prohibits the EPA Rule—and, by im-

plication, that it unequivocally mandates treating

FIFRA-registered pesticides used for their approved

purpose as “waste,” even when applied under condi-

tions that EPA has found to be consistent with pre-

venting “unreasonable adverse effects on the envi-

ronment,” 7 U.S.C. § 136a(c)(5)(C)—urgently war-

rants review.

A. The Sixth Circuit Has Substituted Its

Deeply Flawed Reading Of The Clean Wa-

ter Act For That Of The Expert Agency

Amici would not be filing this brief if this were a

close case. This is not an instance where the court of

appeals carefully analyzed an administrative rule

under Chevron, U.S.A., Inc. v. Natural Resources De-

fense Council, 467 U.S. 837 (1984), and mistakenly,

but reasonably, concluded that the rule was not enti-

tled to deference. Indeed, the Sixth Circuit’s reading

is sufficiently unreasonable that it can be understood

only as that court substituting its judgment for that

of the expert agency charged with implementation of

the statute, contrary to the clear intent of Congress.

1. Meaning of “Chemical Waste.” The Sixth Circuit

held that the CWA’s term “chemical waste,” 33

U.S.C. § 1362(6), unambiguously includes FIFRA-

approved chemical pesticides that leave some residue

after serving their “beneficial purpose,” Pet. App.

19a, even where applied to control pests consistent

with labeling EPA has found sufficient to prevent en-

vironmental harm, and even where the applicator is

unaware of (and does not intend to dispose of) any

residue. The court acknowledged that the term

5

“chemical waste” ordinarily means “discarded,” “su-

perfluous,” or “refuse or excess” chemicals. Jd. at

17a-18a. The court nonetheless concluded that al-

though such pesticides are not “discarded” or “refuse”

at the time of application, they are “waste” if residue

remains after the pesticide has served its purpose.

Id. Because “virtually all applications of chemical

pesticides leave * * * residule],” under the Sixth Cir-

cuit’s holding, “almost all applications of chemical

pesticides to, over, or near waters will now require

NPDES permits.” Pet. App. 121a.

The conclusion that a beneficial product, which

EPA itself carefully regulates under a detailed re-

gime that explicitly considers effects on water quality

and the environment, see 7 U.S.C. § 136a(c)(5), is

“waste” at the time it is used for its intended purpose,

is facially suspect. As the Second Circuit concluded,

“pesticides are not being discarded when sprayed

*** with the design of effecting their intended pur-

pose.” No Spray Coalition v. City of New York, 252

F.3d 148, 150 (2d Cir. 2001) (per curiam). And,

nearly four months after the Sixth Circuit’s decision

in this case, this Court concluded in Burlington

Northern & Santa Fe Ry. v. United States, 129 S. Ct.

1870, 1880 (2009), that a company was not liable un-

der the Comprehensive Environmental Response,

Compensation, and Liability Act for “arrang[ing] the

disposal” of a hazardous substance because it did not

intend to “dispose” of the pesticide at the time some

spilled during commercial distribution.

To reach its patently mistaken conclusion, the

Sixth Circuit disregarded several bedrock principles

of statutory construction.

6

a. First, the court plainly disregarded its obliga-

tion to consider the definition of “pollutant” in the

context of the regulatory scheme. “In making the

threshold determination under Cheuron” whether a

statute is ambiguous, “‘a reviewing court should not

confine itself to examining a particular statutory pro-

vision in isolation,” but rather must interpret the

provisions “‘in context.’” Nat'l Ass’n of Home Build-

ers uv. Defenders of Wildlife, 551 U.S. 644, 666 (2007)

(quoting FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 132 (2000)). Although the court gave lip

service to the notion that the meaning of language

must be determined in the context of the statute as a

whole, Pet. App. 16a, it considered the words “chemi-

cal waste” in isolation. See id. at i17a-20a.

The court failed to consider what section 104(/) of

the CWA, the sole provision that specifically refers to

the effects of pesticides on water quality, indicates

about whether using approved pesticides to control

pests constitutes the sort of pollutant discharge that

the CWA’s National Pollutant Discharge Elimination

System seeks to “eliminate.” That provision does not

classify pesticides as “pollutants”; rather, it requires

studying “methods to control the release of pesticides

into the environment [including] examination of the

persistency of pesticides in the water environment,”

and calls for the President to report the results of

that study to Congress together with “recommenda-

tions for any necessary legislation.” 33 U.S.C.

§ 1254(]). That language does not suggest an intent

to eliminate the application of pesticides to water.

Indeed, the Act’s legislative history indicates that

“[t}he use of pesticides * * * will undoubtedly retain a

high level of importance in agriculture for the fore-

seeable future” because “[p]esticides provide substan-

7

tial benefits to mankind by protecting plants and

animals from pest losses.” S. Rep. No. 92-414, at 92

(1971) (supplemental views of Sen. Dole), reprinted in

1972 U.S.C.C.A.N. 3668, 3760. The legislative his-

tory suggests that residue from pesticides is to be ad-

dressed not through the NPDES system, but through

the regulation of nonpoint sources. See, e.g., H.R.

Rep. No. 92-911, at 1275 (1972); id. at 1293-94 (stat-

ing that “[a]gricutural pollution control” concerns,

among other things, “[p]esticides, fungicides, and

herbicides,” and that “[m]Jost of the problems of agri-

cultural pollution deal with * * * nonpoint sources”;

noting that efforts under FIFRA “are paying off in

securing registration and adherence to recommended

usages’); id. at 1298.

b. Moreover, the Sixth Circuit failed to consider

the meaning of “pollutant” and “chemical waste” in

light of other federal regulatory efforts, particularly

the system Congress specifically established decades

before the CWA to regulate pesticide use, FIFRA.

See Pub. L. No. 80-104, ch. 125, 61 Stat. 163 (1947).

“When ‘interpreting a statute, the court will not look

merely to a particular clause in which general words

may be used, but will take in connection with it the

whole statute (or statutes on the same _ subject)

*** ’” Kokoszka v. Belford, 417 U.S. 642, 650 (1974)

(quoting Brown v. Duchesne, 60 U.S. (19 How.) 183,

194 (1856)). It is important to consider a provision in

light of the entire regulatory structure, because “the

meaning of one statute may be affected by other Acts,

particularly where Congress has spoken subse-

quently and more specifically to the topic at hand.”

Brown & Williamson, 529 U.S. at 133. Although the

Sixth Circuit noted the FIFRA regulatory scheme in

passing at the beginning of its opinion, see Pet. App.

8

5a, it failed to consider its parallel regulatory scheme

as relevant context in interpreting the CWA. That

was error.

At the time that Congress took up the legislation

that became the CWA, FIFRA required the registra-

tion of all pesticides that moved in interstate com-

merce and required all registered pesticides to bear a

warning label bearing directions “adequate to pre-

vent injury to living man and other vertebrate ani-

mals, vegetation, and useful invertebrate animals.” 7

U.S.C. §§ 135(z)(2)(d) (1970), 135a(a)(5) (1970); see

also id. § 135(z)(2)(g) (1970). As relevant here,

FIFRA provided that the EPA Administrator would

register a pesticide if “its labeling and other material

required to be submitted” were sufficient, id.

§ 135b(b) (1970), to “prevent injury to * * * vertebrate

animals * * * and useful invertebrate animals.” Id.

§ 135(z)(2)(d).

Three days after enacting the CWA, Congress en-

acted comprehensive revisions to FIFRA. As

amended, FIFRA continues to require that any pesti-

cide sold in the United States must first be registered

with the EPA. See 7 U.S.C. §§ 136 et seg. EPA may

approve a pesticide only after it has made a detailed

empirical assessment of its potential adverse envi-

ronmental impacts, including specifically those “on

aquatic resources (e.g., fish, invertebrates, plants,

and other species in fresh water, estuarine, and ma-

rine environments),” Pet. App. 93a, and the agency

has imposed any restrictions on its use that are nec-

essary to prevent “unreasonable adverse effects on

the environment.” 7 U.S.C. § 136a(c). The statute

does not require users to seek government authoriza-

tion before applying a registered pesticide. Rather,

necessary restrictions are reproduced on the pesticide

9

label, and users must comply with those restrictions

in applying the pesticide or risk liability. See 7

U.S.C. § 136}(a)(2)(G).

It seems extraordinarily unlikely that Congress in-

tended, through the CWA’s use of the general term

“chemical waste,” to sweep into the NPDES program

the application of pesticides that were already subject

to comprehensive regulation under legislation specifi-

cally governing pesticide use, even when applied sub-

ject to restrictions that EPA had found sufficient to

prevent “unreasonable adverse effects on the envi-

ronment.” At a minimum, one would expect Congress

to speak clearly before subjecting such conduct to an

additional layer of regulation. “Congress * * * does

not alter the fundamental details of a regulatory

scheme in vague terms or ancillary provisions.”

Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457,

468 (2001); cf. Radzanower v. Touche Ross & Co., 426

U.S. 148, 153-54 (1976) (absent “clear intention oth-

erwise, “a statute dealing with a narrow, precise,

and specific subject is not submerged by a later en-

acted statute covering a more generalized spectrum”).

In this regard, the Sixth Circuit’s conclusion con-

flicts with this Court’s decision in Train v. Colorado

Public Interest Research Group, Inc., 426 U.S. 1

(1976), which involved a neighboring term in the very

same definition of “pollutant” at issue here. See 33

U.S.C. § 13862(6) (Supp. IV 1975). There, the court of

appeals had held that the general term “radioactive

materials” was “plain and unambiguous” in its sweep,

and unequivocally encompassed “all radioactive ma-

terials,” including source, byproduct, and special nu-

clear materials that had long been regulated under

the Atomic Energy Act. Thus, it held that those nu-

clear materials were “pollutants” under the Federal

10

Water Pollution Control Act (“FWPCA”), as the CWA

was then known. This Court reversed, holding that it

was “abundantly clear” that Congress had not “in-

tended the Act to encompass” those materials, rea-

soning that “[t]o have included these materials under

the [Act] would have marked a significant alteration

of the pervasive regulatory scheme embodied in the

[Atomic Energy Act].” 426 U.S. at 23-24. Absent a

“clear indication of legislative intent,” the Court

would not read the FWPCA’s general language to

have “significant[ly] alter[ed]” the regulatory land-

scape. Id. at 24. Train compels the conclusion that

Congress did not, through the CWA’s use of the gen-

eral term “chemical waste,” intend to substantially

alter the regulatory regime by requiring users to ob-

tain an NPDES permit before applying federally reg-

istered pesticides to or over water in accordance with

their labels.

2. Meaning of “Biological Materials.” The Sixth

Circuit likewise erred in concluding that “‘biological

materials’ cannot be read to exclude biological pesti-

cides or their residuals,” Pet. App. 21a, thus subject-

ing all biologicai pesticides to NPDES permitting, re-

gardless of whether they leave residue after their use

is complete. Jd. at 121a. Under Train, the use of the

general term “biological materials” is insufficient to

indicate that Congress intended to sweep within the

NPDES program pesticides that were already subject

to exacting environmental regulation under FIFRA.

See pp. 9-10, supra. It is evident from the face of the

statute that the term is not meant to include “biologi-

cal materials” of whatever kind, a reading that, as

the EPA noted, “could arguably mean that activities

such as fishing with bait would constitute the addi-

tion of a pollutant.” Interim Statement and Guidance

1]

on Application of Pesticides to Waters of the United

States in Compliance with FIFRA, 68 Fed. Reg.

48,385, 48,388 (Aug. 13, 2003). The Ninth Circuit

thus has concluded that the “the statute is ambigu-

ous on whether ‘biological materials’ means all bio-

logical matter * * * or whether the term is limited to

biological materials that are a waste product of some

human process.” Ass’n to Protect Hammersley, Eld, &

Totten Inlets v. Taylor Res., Inc., 299 F.3d 1007, 1016

(9th Cir. 2002).

While the term “materials” in the abstract is

broader than “wastes,” it is “unlikely that Congress

intended to include biological pesticides * * * [as] pol-

lutants, while chemical pesticides used in the same

circumstances” would not be. Pet. App. 83a. The dif-

ferent language simply reflects the fact that biologi-

cal pesticides were uncommon in 1972 and thus were

not the focus of the definition. As EPA noted in

promulgating the Rule, “[s]ince biologically and

chemically based pesticides * * * are both EPA-

evaluated products, treating them differently under

the Clean Water Act is not warranted.” Jd. More-

over, because “biological pesticides in use today are

generally reduced-risk products, * * * it would not

make sense, and would be inconsistent with the goals

of the Clean Water Act, to discourage the[ir] use

ore” I

3. The Sixth Circuit also failed to consider the ex-

pert agency's longstanding practice in determining

the meaning of the words “chemical waste” or “bio-

logical materials.” The very first words in the EPA’s

brief before the Sixth Circuit set forth the agency’s

long-held position:

Since the enactment of the Clean Water Act in

1972, EPA has not required persons applying

12

pesticides directly to or over waters of the United

States for the purpose of controlling pests in or

over those waters to obtain a Clean Water Act

[NPDES] permit. This position reflected a gen-

eral understanding that Congress did not intend

to regulate under the Clean Water Act properly

applied pesticides to control pests in or over wa-

ters when those pesticides had been approved by

EPA for such use under [FIFRA] regulations.

EPA Br. at 3, National Cotton Council of Am. v. EPA,

No. 06-4630; accord Pet. App. 73a (EPA Rule). Al-

though the agency clearly apprised the Sixth Circuit

of its contemporaneous and longstanding interpreta-

tion, the court did not so much as mention it in reach-

ing its conclusion.®

An agency’s contemporaneous and consistently

maintained interpretation of a statute is “[o]f particu-

lar relevance” in construing its meaning, “which ‘we

have allowed... to carry the day against doubts that

might exist from a reading of the bare words of a

statute.’” Good Samaritan Hosp. v. Shalala, 508

U.S. 402, 414 (1993) (quoting FHA v. Darlington,

3 The court did note an agency statement that pesticides

could not be “‘discharge[d] into lakes, streams, ponds, or public

waters unless in accordance with an NPDES permit.” Pet.

App. 6a (quoting EPA, Policy and Criteria Notice 2180.1 (1977)).

That policy statement, however, involves waste effluent dis-

charges that may contain a pesticide, not the application of pes-

ticides to control pests. See generally EPA, Office of Prevention,

Pesticides, and Toxic Substances, Pesticide Regulation Notice

93-10 re: Effluent Discharge Labeling Statements (July 29,

1993), available at http://www.epa.gov/PR_Notices/pr93-10.pdf.

The quoted policy statement is consistent with the EPA Rule,

which itself noted that a “pesticide may become a ‘pollutant’ at a

later time (e.g., after the pesticide product has served its in-

tended purpose).” Pet. App. 87a.

13

Inc., 358 U.S. 84, 90 (1958)). Particularly where, as

here, the agency was involved in developing the legis-

lation in question, such a construction represents the

considered view of those in the agency whom Con-

gress “‘charged with responsibility of setting its ma-

chinery in motion.’” Aluminum Co. of Am. v. Cent.

Lincoln Peoples’ Util. Dist., 467 U.S. 380, 390 (1984)

(quoting Udall v. Tallman, 380 U.S. 1, 16 (1965)).

“While not conclusive, it surely tends to show that

the EPA’s current practice is a reasonable and hence

legitimate exercise of its discretion * * * that the

agency has been proceeding in essentially this fash-

ion for over 30 years.” Entergy Corp. v. Riverkeeper,

Inc., 129 S. Ct. 1498, 1509 (2009).

Moreover, it is significant that Congress has not

seen fit to modify the statute during the intervening

37 years. “Congress is presumed to be aware of an

administrative * * * interpretation of a statute,” and

“when it reenacts a statute without change,” it is an

indication that the agency has correctly determined

Congress's intent. Lindahl v. OPM, 470 U.S. 768,

782 n.15 (1985). Since 1972, Congress has twice

made major amendments to the NPDES program,‘

and on other occasions it has made minor changes to

it.6 But at no time has Congress seen fit to amend

the statute to require EPA to control the application

of pesticides through the NPDES program. Under

”

4 See Clean Water Act of 1977, Pub. L. No. 95-217, §§ 33(c),

54(c)(1), 65, 66, 91 Stat. 1566, 1577, 1591, 1599, 1600; Water

Quality Act of 1987, Pub. L. No. 100-4, tit. IV, §§ 401-04(a), (c),

(d), 405, 101 Stat. 7, 65-69.

6 See Water Resource Development Act of 1992, Pub. L. No.

102-580, tit. III, § 364, 106 Stat. 4797, 4862; Consolidated Ap

propriations Act, 2001, Pub. L. No. 106-554, § 1(a)(4), App. D,

Div. B, tit. I, § 112, 114 Stat. 2763, 2763A-224 (2000).

14

this Court’s precedents, that is a compelling indica-

tion that EPA has correctly interpreted Congress’s

intent. See United Siates v. Rutherford, 442 U.S.

544, 553-54 (1979) (holding that Congress’s failure to

overrule the FDA’s decision not to make an exception

for drug licensing for drugs used by the terminally ill

reflects Congress’s ratification of that position). “In

the [37] years during which” the EPA has taken this

consistent interpretation, “Congress has never ex-

pressed its disapproval, and its silence in this regard

suggests its consent to the [EPA’s] practice.” EEOC

vu. Associated Dry Goods Corp., 449 U.S. 590, 600 n.17

(1981).

4. The most natural reading of the CWA, in light

of all traditional tools of statutory construction, is the

one embodied by the EPA Rule: the Clean Water

Act’s NPDES permit requirement does not encom-

pass the application of FIFRA-registered pesticides to

or over water in accordance with labeling restrictions.

But at a minimum, it cannot be said that the opposite

conclusion is compelled by the text of the statute.

B. The Sixth Circuit’s Decision Will Have

Grave Practical Consequences

1. Review is also warranted because of the breath-

taking practical consequences the Sixth Circuit’s de-

cision will have. The EPA’s analysis suggests that

the Sixth Circuit’s judgment likely will result in the

single greatest expansion in the history of the NPDES

program, resulting in approximately 5.6 million cov-

ered pesticide applications per year by 365,000 appli-

cators. Pet. App. 124a. That figure is vastly greater

than the current number of facilities authorized to

discharge under individual permits (45,700), the

number of facilities authorized for non-storm water

15

discharges under general permits (120,000), the

number of industria] storm-water point sources

(96,500), and even the number of storm water point

sources associated with construction (250,000). Pet.

App. 14la-142a. The current number of NPDES

permittees is 411,470 facilities. Jd. at 142a. Thus, in

a single stroke, the Sixth Circuit’s decision virtually

doubles the number of entities subject to NPDES

permitting.

It provides little comfort that the EPA “believes it

can conform its conduct to comply with the [Sixth

Circuit’s} decision.” EPA Response to Petition for

Rehearing En Banc 2 (filed June 3, 2009) (emphasis

added). Even assuming that the EPA’s predictions

about its ability to create a general permitting

scheme are borne out, the EPA’s compliance repre-

sents just a small fraction of the total cost of the

Sixth Circuit’s exorbitant mandate. Forty-five states,

many of them already under severe budgetary pres-

sure, face the daunting administrative task of devel-

oping and issuing general permits to implement the

Sixth Circuit’s decision.

2. The Sixth Circuit’s decision also imposes tre-

mendous burdens on pesticide users. It will increase

by orders of magnitude the difficulty and cost for pes-

ticide applicators to comply with the law. For small

applicators, many of whom can ill afford expert envi-

ronmental counsel, efforts at compliance will go from

a simple matter of following instructions on a pesti-

cide label to the vastly more complex process of iden-

tifying the relevant general permit, filing with the

regulatory authority a valid notice of intent to comply

with the general permit, see 40 £C.F.R.

§ 122.28(b)(2)() (2008), and complying with all the

permit’s conditions and restrictions.

16

Completing a notice of intent alone can be compli-

cated and time-consuming. While we understand

that EPA has not yet finalized the requirements of

general permits governing aquatic pesticide applica-

tion, the following excerpts of general permit applica-

tions illustrate the often exacting requirements of no-

tices of intent:

For the discharge described * * *, please provide

concentrations of the following parameters [Total

Suspended Solids,” “Oil and Grease,” “pH (give high

and low in range),” and “Surfactants”] and indicate

whether the data is based on actual sampling results

or, if estimated, a source of the estimated value.

Data must be representative of the facility’s current

operation. The average daily value is typically based

on an average of the last 365 days of data.®

* [Provide] [a] stormwater management program

(SWMP), including best management practices

(BMPs) that will be implemented and the

measurable goals for each of the stormwater

minimum control measures specified in Part V,

Section B. fof this application], [and] the

month and year in which the applicant will

start and fully implement each of the mini-

mum control measures or the frequency of the

aon * * *, 7

6 $.C. Dep’t of Health and Envtl. Control, Notice of Intent

NPDES General Permit for Vehicle Wash Water Discharges

SCG750000 at 2 (2002), available at http://www.scdhec.gov/ad-

ministration/library/D-3756.pdf.

7 Water Quality Div., Ariz. Dep’t of Envtl. Quality, Arizona

Pollutant Discharge Elimination System, General Permit for

Discharge from Small Municipal Separate Storm Sewer Systems

to Waters of the United States at & (2002), available at

17

© Provide an estimated start date the discharge

did or is to commence, the name(s) of the re-

ceiving water(s), and check compliance condi-

tions. All applicable compliance conditions

listed must be met for the Notice of Intent to be

considered complete.

xk**x* *& *

Provide the name(s) of the receiving water(s) to

the first uniquely named niver. Explain to

where the storm water runoff will drain (e.g.,

unnamed waterway to road ditch to unnamed

tributary to Mud Creek to Skunk River).®

The administrative burden of complying with gen-

eral permits is illustrated by looking to general per-

mits for aquatic pesticide use in the State of Wash-

ington, which began issuing such permits in 2002.

See Pet. App. 4a. Washington has three general

permits for pesticides involving aquatic plants and

one for mosquito control. See Washington State Gov-

ernor’s Office of Regulatory Assistance, Environ-

mental Permit Handbook, NPDES Aquatic Pesticides

General Permit, available at http://apps.ecy.wa.gov/

permithandbook/permitdetail.asp?id=99 (last visited

Dec. 3, 2009). Applicators seeking to control aquatic

plants must first determine which of three permit

programs applies and then submit an application.

The permits range in length from 22 to 71 pages with

http://www.azdeq.gov/environ/water/permits/download/ms4smal

l.pdf.

8 Iowa Dep't of Natural Res., How to File a Complete Notice

of Intent for NPDES General Permit at 2 (2007), available at

http://www.iowadnr.gov/water/stormwater/forms/how_noi.pdf

(emphasis added).

18

appendices. Even the permit most likely to apply to

farmers (the irrigation system aquatic weed control

permit, see lrrigation System Aquatic Weed Control

National Pollutant Discharge Elimination System

and State Waste Discharge General Permit (Feb. 20,

2008), available at _ http://www.ecy.wa.gov/pro-

grams/wq/pesticides/irrigation/permit-irrig_district-

final.pdf) entails a significant administrative burden,

imposing detailed monitoring requirements, see id. at

8-11, public notice requirements, id. at 12-13, and re-

cordkeeping requirements, id. at 13-15, and requires

submission of both an “Integrated Vegetation Man-

agement Plan” and a “spill control plan.” Jd. at 11.

3. In addition, even a general permit scheme pre-

sents a substantial risk of litigation and ruinous

fines. Efforts at full compliance with the planned

general permit scheme are bound to fall short in

some respects “[gliven that most applicators will not

have ever been subject to an NPDES permit.” Pet.

App. 159a (decl. of James A. Hanlon, Dir., Office of

Wastewater Management, Office of Water, EPA (Apr.

8, 2009)). Applicators face fines of up to $37,500 per

day per violation, plus attorney’s fees. See 33 U.S.C.

§ 1319(d); 40 C.F.R. §19.4 (2008); 33 U.S.C.

§ 1365(d). While the EPA may refrain from prosecut-

ing the enormous class of newly minted NPDES per-

mittees, there is every reason to believe that permit-

tees’ efforts at compliance will be subject to exacting

scrutiny and perceived shortcomings will promptly

become the subject of citizen suits. As the EPA noted

below, in just weeks after the Sixth Circuit’s decision,

dozens of notices of intent to sue were filed involving

mosquito spraying programs alone. Pet. App. 188a-

189a. Those are likely the harbinger of many more

lawsuits. Unless this Court acts, hundreds of thou-

19

sands of small applicators and “farmers will go into

the next growing season under the threat of law-

suits.” Nat'l Ass’n of State Dep’ts of Agric., NPDES

Permits for Pesticide Applications Near Water (Sept.

28, 2009), available at http://www.nasda.org/

File.aspx?id=24468.

4. The Sixth Circuit decision could have grave

implications for public health. While not as time-

consuming as individual permit systems, even a gen-

eral permit scheme can result in significant delays,

increased costs of compliance can divert resources

from pest control, and litigation risks can deter and

delay pest-control efforts. The combination could se-

riously undermine pest-control efforts that are criti-

cal to public health, particularly the control of mos-

quitoes. “[M]osquito-borne illnesses continue to pose

significant risks to parts of the population in the

United States.” EPA & U.S. Centers for Disease Con-

trol & Prevention, Joint Statement on Mosquito Con-

trol in the U.S. (Apr. 10, 2007), available at

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

quitojoint.htm. “Disease carrying mosquito species

are found throughout the U.S.,” id., spreading West

Nile virus, encephalitis, Dengue fever, and other se-

rious diseases. Because pesticide use is an essential

part of mosquito control efforts, if delays, increased

expense, and litigation significantly curtail mosquito

control efforts, the consequences could be deadly.

The Sixth Circuit’s decision likewise could have se-

rious effects on agriculture. The delays inherent in

general permit schemes make them ill suited for

many pest-control efforts, which require rapid re-

sponses to changing conditions.

[PJest problems can develop quickly and require

a prompt response. Failure to apply a pesticide

20

soon after a pest is first detected could result in

recurring and greater pest damage in subsequent

years if a prolific insect were to become estab-

lished in * * * plant hosts. Fungal spores such as

soybean rust can move hundreds of miles in a

few days’ time via the wind * * *.

Pet. App. 167a (decl. of Teung F. Chin, Acting Direc-

tor, Agricultural Research Service, Office of Pest

Management Policy, U.S. Dep’t of Agric. (Apr. 7,

2009)). Many family farmers and other small appli-

cators lack the resources necessary to comply with a

detailed permit scheme. Delays thus could cripple

American farmers’ emergency pest control efforts and

impede their ability to respond quickly to new infes-

tations. C/. Pet. App. 164a-165a; id. at 203a (discuss-

ing individual permits). As Secretary of Agriculture

Thomas J. Vilsack observed earlier this year, “a per-

mitting system * * * is ill-suited to the demands of

agricultural production.” Id. at 203a.

5. Finally, the Sixth Circuit’s deeply flawed deci-

sion may result in even more widespread liability be-

cause of its understanding of what constitutes the

discharge of a pollutant from a point source. The

Sixth Circuit concluded that excess pesticide and

residue is waste from a “point source” although it was

a useful product at the time it left the nozzle and only

became waste later. Pet. App. 27a. The Sixth Circuit

thereby concluded that something that would not or-

dinarily be deemed “waste” at the time and location

of its release would nonetheless require a NPDES

permit if it becomes “waste” at some point in the in-

determinate future. That conclusion could have

wide-ranging ramifications, and could lead to citizen

suits seeking to require NPDES permits for taupipe

and smokestack emissions that may eventually enter

21

a water body as air deposition (although they are al-

ready subject to regulation under the Clean Air Act),

for the dispensing of road salt, for the application of

domestic fertilizers, and for the use of many other

everyday products that have never before been sub-

ject to NPDES permitting. The Sixth Circuit’s con-

clusion was a necessary step in its reasoning to sup-

port the judgment, and it is likely that litigants will

use it in seeking to expand the scope of NPDES per-

mitting into areas and activities not intended by Con-

gress.

C. Review Is Warranted Now Regardless Of

Whether EPA Plans To Maintain The Rule

Powerful institutional considerations favor review

by this Court, regardless of whether the new Admini-

stration wishes to maintain the Rule. Given the tre-

mendous practical importance of the Rule, review of

the Sixth Circuit’s deeply flawed decision is certainly

warranted if the EPA wishes to retain it. But even if

EPA may wish to depart from its longstanding prac-

tice, review is warranted so the agency can revisit its

decision through traditional administrative proce-

dures, without reliance on a transparently flawed cir-

cuit-court opinion. See generally Motor Vehicle Mfrs.

Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29

(1983). The Sixth Circuit’s holding that the terms

“chemical waste” and “biological waste” are unambi-

guous has significantly curtailed the EPA’s regula-

tory discretion with respect to an extraordinarily

broad range of products. See Pet. App. 121a. Unless

the Sixth Circuit’s unreasonable construction of the

CWA is vacated, its holding that those terms are

“unambiguous” will have a distorting influence on

any future rulemaking the EPA may wish to conduct

in this area. See, e.g., Natl Cable & Telecomms.

22

Assn v. Brand X Internet Servs., 545 U.S. 967, 982

(2005) (“[a] court’s prior judicial construction of a

statute trumps an agency construction * * * if [it]

holds that its construction follows from the unambi-

guous terms of the statute”).

Even if the EPA favored the adoption of a general

permit scheme for aquatic pesticides as a policy mat-

ter, such a significant change should be made

through rulemaking, rather than the shortcut of rely-

ing on the Sixth Circuit’s flawed decision. An agency

is “require[d]” to “provide reasoned explanation for its

action,” FCC v. Fox Television Stations, Inc., 129 S.

Ct. 1800, 1811 (2009), and notice and comment rule-

making ensures “a measure of public accountability

in{] administrative practices.” Exportal Ltda. uv.

United States, 902 F.2d 45, 50 (D.C. Cir. 1990). It

would ill serve interests in regulatory accountability

to permit EPA regulations to be effectively amended

without notice and comment by acquiescence in the

Sixth Circuit’s unreasonable construction of the stat-

ute. Cf. Fox Television Stations, 129 S. Ct. at 1811

(“An agency may not, for example, depart from a

prior policy sub silentio or simply disregard rules that

are still on the books.”); Envil. Integrity Project v.

EPA, 425 F.3d 992, 995 (D.C. Cir. 2005) (an agency

cannot “‘evade notice and comment requirements by

amending a rule under the guise of reinterpreting

it’”) (quoting Molycorp, Inc. v. EPA, 197 F.3d 543,

546 (D.C. Cir. 1999)).

Finally, there is no warrant for denying certiorari

to permit further development of the law in the

courts of appeals. As noted above and in the peti-

tions, Pet. 16-21, CropLife America v. Baykeeper, No.

09-533; Pet. 35-36, American Farm Bureau Federa-

tion v. Baykeeper, No. 09-547, the Sixth Circuit’s de-

23

cision conflicts with decisions of this Court and other

courts of appeals. Moreover, because challenges to

the EPA’s rule from eleven circuits were consolidated

in the Sixth Circuit, see Pet. App. 8a, the decision be-

low constitutes the sole judicial review that the EPA

Rule will receive. As this Court has noted in the

analogous context of courts of exclusive jurisdiction,

under such circumstances, “the rule that [the court of

appeals] applied in this case * * * is a matter of spe-

cial importance to the entire Nation” warranting im-

mediate review. Cardinal Chem. Co. v. Morton Int,

Inc., 508 U.S. 83, 89 (1993).

CONCLUSION

For the reasons stated above, the petitions for a

writ of certiorari should be granted. Alternatively,

this Court should grant, vacate, and remand for fur-

ther consideration in light of the intervening decision

in Burlington Northern.

Respectfully submitted.

DOUGLAS D. GEYSER THOMAS S. LEATHERBURY

VINSON & ELKINS LLP VINSON & ELKINS LLP

tes ne Trammell Crow Center

ulle

Austin, T'X 78746-7568 ove —

(512) 542-8400 “gd

Dallas, TX 75201-2975

(214) 220-7700

Counsel for Amici Curiae

December 4, 2009