Supreme Court Denies 3 High-Profile Environmental Cases

By Gabriel Nelson
The New York Times

In its first set of orders since returning from a monthlong recess, the Supreme Court declined yesterday to consider three separate industry challenges to federal environmental regulations.

Environmentalists hailed the court's decision not to review a year-old ruling requiring farmers to secure Clean Water Act approval for the use of pesticides already permitted under the Federal Insecticide, Fungicide and Rodenticide Act. U.S. EPA is now reviewing the National Pollutant Discharge Elimination System to devise a permitting system that complies with the ruling.

While the agency had claimed that FIFRA approval incorporated compliance with the Clean Water Act, the 6th U.S. Circuit Court of Appeals ruled last year that the government was obligated to ensure that farmers using pesticides were subject to both regulations. The appeals court agreed to stay the decision for two years, until April 2011, while EPA revises its permitting process.

"We're obviously ecstatic, and we think the Supreme Court made the right call," said Joe Mann, a staff attorney for the National Environmental Law Center. "Industry has really been trying to play this as unique in history as an unparalleled expansion of regulatory power, but if you look at the history of the Clean Water Act, a lot of industrial sectors have already been regulated and EPA has been slapped down for trying to exempt other sectors."

But agriculture groups and conservatives criticized the Supreme Court's decision not to review the circuit court decision in National Cotton Council v. EPA, saying it would create redundant bureaucracy and hamper agricultural production by forcing farmers to decide between not applying pesticides and risking legal and enforcement actions for discharging without a permit. Two petitions for review were filed by CropLife America and the American Farm Bureau Federation, a pair of trade groups.

"All farmers know they must use chemicals properly. They also know the label on each chemical they use is the law of the land," said Bob Stallman, president of the American Farm Bureau Federation, in a statement. "Going through redundant bureaucratic red tape for a duplicate permit to apply a safe product is preposterous. That kind of regulatory overkill will not improve food safety or the environment."

Sen. James Inhofe (R-Okla.) issued a statement saying the 6th U.S. Circuit Court of Appeals' ruling in Croplife America v. Baykeeper will eventually "stifle job creation in rural America." He was one of about 40 members of Congress, most of them from agricultural states, who signed a friend-of-the-court brief urging the Supreme Court to accept the case.

"EPA will now have to process 5.6 million new pesticide applications per year, which will hinder farm operations and add significant costs to both producers and consumers of agriculture," said Inhofe, the ranking member of the Senate Environment and Public Works Committee.

CropLife said it would work to "contain" the court's ruling, noting that other federal courts have supported treating pesticides as nonpoint-source applications, which would allow for exemptions. The group also plans to work with EPA as it develops its revised permitting process.

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