Posted by: Lawyer Sanders | March 23, 2009

Kentucky environmental lawyer Sanders says U.S. Sixth Circuit vacates EPA rule exempting pesticides from NPDES requirements of Clean Water Act.

Did you know that the U.S. Court of Appeals for the Sixth Circuit vacated EPA’s rule exempting the application of pesticides from the NPDES permit requirements of the Clean Water Act in National Cotton Council of America et al. v. United States environmental Protection Agency?  The Sixth Circuit held that EPA’s regulation exempting pesticides from the Clean Water Act contravene the “clear and unambiguous” language of the statute. 

If EPA cannot win an appeal of its action in Cincinnati, the federal agency is in real trouble.  The U.S. Sixth Circuit is a very conservative court that is, at times, openly hostile to visiting environmental groups. Thus, the ruling against EPA is an amazing win for environmentalists, who had unsuccessfully attempted to move the appeal to the Ninth Circuit.

The EPA issued the challenged Final Rule on November 27, 2007.  EPA attempt to exempt pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) from the Clean Water Act’s permitting requirements.  See 71 Fed.Reg. 68,483 (Nov. 27, 2006).   

In its appellate briefs, EPA argued that the terms of the Clean Water Act are ambiguous and that the Final Rule is a reasonable construction of the Clean Water Act entitled to deference from the Court. EPA’s rather disengenous legal argument supporting the Rule was succinctly slammed by the appellate panel.

The three member judicial panel disagreed and wrote, “We cannot agree. The Clean Water Act is not ambiguous. Further, it is a fundamental precept of this Court that we interpret unambiguous expressions of Congressional will as written. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). Therefore, we hold that the EPA’s Final Rule is not a reasonable interpretation of the Act and vacate the Final Rule.”

The opinion is at: http://www.ca6.uscourts.gov/opinions.pdf/09a0004p-06.pdf

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