National Cotton Council of America v. United States Environmental Protection Agency
68 ERC (BNA) 1129, 553 F.3d 927, 39 Envtl. L. Rep. (Envtl. Law Inst.) 20006 (2009)
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Rule of Law:
The discharge of biological pesticides, or of excess and residual chemical pesticides, into the waters of the United States constitutes the addition of a 'pollutant' from a 'point source' under the Clean Water Act (CWA). Therefore, such discharges require a National Pollutant Discharge Elimination System (NPDES) permit, and the Environmental Protection Agency (EPA) may not create a regulatory exemption for them.
Facts:
- The Clean Water Act (CWA) prohibits the discharge of 'pollutants' from a 'point source' into U.S. waters without an NPDES permit.
- The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requires pesticides to be registered with the EPA and used according to approved labels.
- For nearly thirty years, EPA policy and pesticide labels required an NPDES permit for discharging pesticides into public waters.
- Various entities apply chemical and biological pesticides directly to, over, or near U.S. waters to control pests such as mosquito larvae and aquatic weeds.
- These applications often result in excess pesticides or pesticide residues remaining in the water after their intended pest-control purpose is completed.
- On November 27, 2006, the EPA issued a Final Rule exempting pesticides applied in compliance with FIFRA from the CWA's NPDES permit requirement.
- The Final Rule reasoned that the pesticide itself is not a 'pollutant' because it is a useful product, not a 'waste'.
- The Rule further reasoned that any leftover 'pesticide residue,' while a pollutant, does not come from a 'point source' because it only becomes waste after being discharged into the water.
Procedural Posture:
- The Environmental Protection Agency (EPA) issued a Final Rule on November 27, 2006.
- Industry Petitioners and Environmental Petitioners filed petitions for review of the Final Rule in eleven different U.S. Courts of Appeals.
- The Judicial Panel on Multidistrict Litigation consolidated all petitions for review in the U.S. Court of Appeals for the Sixth Circuit.
- The Environmental Petitioners filed a motion to dismiss for lack of subject matter jurisdiction, which the court deferred.
- The consolidated petitions challenging the Final Rule are now before the U.S. Court of Appeals for the Sixth Circuit.
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Issue:
Does the Environmental Protection Agency's Final Rule, which exempts the application of pesticides compliant with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) from the Clean Water Act's (CWA) permitting requirements, constitute a permissible interpretation of the CWA?
Opinions:
Majority - Cole, Circuit Judge
No, the EPA's Final Rule is not a permissible interpretation of the Clean Water Act because the Act unambiguously requires permits for the discharge of these pesticides. Applying the first step of the Chevron analysis, the court found that Congress spoke directly to the issue and the CWA's text is not ambiguous. First, the statutory definition of 'pollutant' plainly includes the substances at issue. Biological pesticides are 'biological materials,' and any excess or leftover chemical pesticide is a 'chemical waste.' The court noted that Congress's choice to use 'biological materials' but 'chemical wastes' indicated an intent to treat them differently, making all discharged biological pesticides pollutants, regardless of whether they are 'waste.' Second, the EPA's argument that pesticide residue is not from a 'point source' is contrary to the CWA's text and purpose. The court rejected the EPA's attempt to inject a temporal requirement into the definition, holding that the proper inquiry is a 'but for' test: but for the discharge from the point source (the applicator), the pollutant (the residue) would not have been added to the water. Because the CWA's text is clear, the EPA's contradictory rule is invalid and must be vacated.
Analysis:
This decision reaffirms the principle that an administrative agency's interpretation of a statute is subordinate to the clear and unambiguous text of the statute itself, constraining agency authority under the first step of the Chevron framework. The court's holding prevents the EPA from creating a regulatory exemption that conflicts with the plain language of the Clean Water Act, even where another regulatory scheme like FIFRA is involved. The ruling clarifies that biological pesticides and residual chemical pesticides are pollutants requiring NPDES permits, significantly impacting agricultural, public health, and other industries that apply pesticides in or near water by requiring them to adhere to the CWA's permitting process.
