Court Closes Pesticide Loophole
Cincinnati, OH — On Jan. 7, NELC helped remove a dark vestige of the Bush administration when a federal appellate court invalidated a 2006 EPA regulation that exempted applications of aquatic pesticides – many of which contain harmful chemicals or biological agents – from the Clean Water Act’s permit program.
Significant negative effects have been documented in areas where pesticides have been sprayed into lakes, ponds and streams. But in the early 2000s, pesticide manufacturers and agribusiness groups began pressuring the EPA to allow them, without a Clean Water Act permit, to spray chemical and biological pesticides into the nation’s waters.
When Bush regulators adopted the industry position in 2006, NELC filed a petition on behalf of Environment Maine and the Toxics Action Center to challenge the EPA’s regulatory exemption.
NELC’s lawsuit was consolidated with several other challenges to the regulation and was transferred to the U.S. Court of Appeals for the Sixth Circuit in Cincinnati.
In a forcefully-worded, unanimous opinion, the Sixth Circuit rejected the EPA’s efforts to contort the law and the pesticide industry’s attempt to escape regulation. It ruled that the EPA’s exemption violated “the plain language of the Clean Water Act” and was “contrary to the purpose of the permitting program, which is to prevent harmful discharges into the nation’s waters.”
The court’s ruling should help avoid these harmful impacts. Under a permit program, pesticide dischargers will have to comply with in-stream water quality standards and may be required to consider non-toxic alternatives to chemical pesticides. Monitoring and reporting the effects of pesticide applications should improve, and the public will have greater input in establishing and enforcing pesticide discharge standards.
However, while the new EPA administration has accepted the opinion and is moving to develop a comprehensive permit program for pesticides, the industry has requested the Sixth Circuit to “rehear” the case and may well seek Supreme Court review if rebuffed.