On February 22, 2010, the United States Supreme Court denied cert on two petitions for cert filed by parties challenging the Sixth Circuit’s decision on the applicability of the Clean Water Act and NPDES rules to certain pesticide applications. The press release by CropLife America is as follows:

CROPLIFE AMERICA EXPRESSES DISAPPOINTMENT AT US SUPREME COURT’S DECISION TO NOT REVIEW RULING ON NPDES PERMITTING
WASHINGTON, DC – CropLife America (CLA) expressed its disappointment with the U.S. Supreme Court’s decision not to review a recent ruling from the 6th Circuit Court of Appeals regarding National Pollutant Discharge Elimination System (NPDES) permits. CLA had filed a cert petition asking the Supreme Court to review and reconsider the three-judge panel’s decision which struck down the U.S. Environmental Protection Agency’s (EPA) regulation that NPDES permits are not required when applying pesticides to or near water sources. Historically, agricultural pest management activities have been treated as non-point sources under the Clean Water Act and have not required NPDES permits.

“The panel’s ruling creates another legal burden for our farmers, custom applicators and agricultural dealers, and leads to additional regulations which may well further prevent food growers from maximizing their output,” said Jay Vroom, president and CEO of CLA. “We are disappointed that the 6th Circuit’s decision could cause the U.S. government to continue to practice a precautionary policy which is detrimental not only for farmers, but could prevent the country from producing more food, fuel and fiber for a growing world population.”

The final decision by the 6th Circuit is stayed until April 2011. Despite the Supreme Court’s decision, CLA will continue to pursue additional avenues to contain the 6th Circuit’s ruling. The organization will also continue to work with key stakeholders to ensure that the critical needs of agriculture are best preserved.

“While we recognize that only a very small percentage of cert petitions are accepted for review,” said Douglas Nelson, executive vice president and general counsel of CLA, “we are also aware of decisions of other federal courts in NPDES cases which affirm the regulatory framework of EPA and Congress to treat pesticides as non-point source applications. Regardless, CLA will continue to work with EPA to minimize the burden placed on farmers and reduce the disruption this will cause across the crop protection industry.”

CLA filed the cert petition with the U.S. Supreme Court on November 2, 2009, with support from a host of agricultural allies including: Agribusiness Association of Iowa, BASF Corporation, FMC Corporation, Responsible Industry for a Sound Environment, Southern Crop Production Association and Syngenta Crop Protection, Inc. A separate cert petition challenging the 6th Circuit’s decision was also filed by the American Farm Bureau Federation, American Forest & Paper Association and The National Cotton Council.

Several amici briefs supporting CLA’s cert petition were also filed by various state departments of agriculture and national trade associations. Additionally, over 30 members of Congress, including both Democrats and Republicans, also filed a brief requesting the Supreme Court accept the case.

For more information about CLA and its involvement in the regulatory and policy issues affecting modern agriculture, visit http://www.croplifeamerica.org.

James L. Pray was counsel for one of the parties seeking cert., Agribusiness Association of Iowa.