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Team No. 36 United States Court of Appeals
For the Twelfth Circuit LACONIC BAYKEEPER, INC., IMA FISHER, AND SAM SCHWIMMER, Appellants – Cross-Appellees,
v.
CA. No. 07-1001
STEPHEN JOHNSON, ADMINISTRATOR, U.S. Environmental Protection Agency, Appellees – Cross-Appellants.
NEW UNION FARMERS INSTITUTE, UNION OF NEW UNION PESTICIDE APPLICATORS, HAPPY VALLEY FARM, INC., AND WICCILLUM COPTERS, INC., Appellants,
v.
CA. No. 07-1002
STEPHEN JOHNSON, ADMINISTRATOR, U.S. Environmental Protection Agency, Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW UNION
BRIEF OF THE APPELLEE-ADMINISTRATOR
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES..................................................................................................... iii
ISSUES PRESENTED................................................................................................................1
STATEMENT OF THE CASE ...................................................................................................2
STATUTORY AND REGULATORY BACKGROUND ............................................................3
STATEMENT OF FACTS..........................................................................................................3
STANDARD OF REVIEW.........................................................................................................5
SUMMARY OF THE ARGUMENT ..........................................................................................6
ARGUMENT..............................................................................................................................7
I. ENVIRONMENTAL AND INDUSTRY PETITIONERS HAVE NOT MET THE "CASE OR CONTROVERSY" REQUIREMENT UNDER ARTICLE III OF THE UNITED STATES CONSTITUTION TO BRING THE CLAIMS AT BAR. ....................7
A. Environmental Petitioners Failed to Meet Their Burden of Demonstrating the Existence of Requisite Standing Elements. ....................................................................7
1. The Court Below Misapplied the Facts of this Case and the Controlling Statutes to Find Injury-in-Fact. .........................................................................................................8
2. Since Petitioners Did Not Demonstrate Injury-in-Fact, Their Alleged Injury Is Not Fairly Traceable to EPA’s Conduct and This Court Cannot Redress Relief. .....................9
B. The Industry Petitioners' Challenge to the EPA's Determination that Pesticide Applications Contrary to "Pertinent FIFRA Requirements" are "Pollutants" Subject to the Clean Water Act is Not Ripe for Judicial Review Under the Doctrine Set Forth in Abbott Laboratories v. Gardner.....................................................................................................10
1. The Industry Petitioners’ challenge is not fit for judicial decision. ..........................11
a. .The questions presented are not purely legal because further factual development is required to determine if the pesticide applications challenged are FIFRA-compliant..............................................................................................................12
b. The Pesticide Rule is not a final agency action that affects the Industry Petitioners.............................................................................................................12
2. The Industry Petitioner's Challenge Exhibits No Hardship to Petitioners Through Enforcement of the Statute, Nor is There Hardship to the Petitioners if the Court Withholds Consideration of the Issues Presented for Review. ........................................14
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II. THE CLEAN WATER ACT GRANTS EXCLUSIVE REVIEW OF REGULATORY ACTIONS REGARDING EFFLUENT LIMITATIONS, OTHER LIMITATIONS OR THE ISSUING OR DENYING OF PERMITS IN THE CIRCUIT COURT OF APPEALS UNDER A STRICT STATUTE OF LIMITATIONS THAT MAY NOT BE EQUITABLY TOLLED. ...........................................................................16
A. The Pesticide Rule is an Effluent Limitation or Other Limitation Under CWA Section 509(b)(1)(E). .....................................................................................................................17
B. The Pesticide Rule is the Issuance or Denial of a Permit Under CWA Section 509(b)(1)(F). .....................................................................................................................19
C. The Statute of Limitations in Section 509(b)(1) of the Clean Water Act Should Not be Equitably Tolled Because of the Petitioners' Failure to Bring their Action in the Court of Appeals. ............................................................................................................................22
III. THE DISTRICT COURT ERRED IN FAILING TO GRANT AGENCY DEFERENCE WHERE THE EPA'S DECISION WAS NOT ARBITRARY AND CAPRICIOUS AND THEREFORE IN ACCORDANCE WITH ITS GRANTED AUTHORITY......................................................................................................................23
A. Agency Deference Is Necessary Because EPA’s Interpretation is Based on a Reasonable and Permissible Construction of the Statute. ...................................................24
B. Pursuant to the APA Section 706, the Pesticide Rule's Exemption of Specified Pesticide Application Activities from the Clean Water Act Permitting Program was Not Arbitrary, Capricious, an Abuse of Discretion, or Otherwise Not in Accordance with the Law...................................................................................................................................25
1. The EPA was not arbitrary or capricious in promulgating the Pesticide Rule exemption to the Clean Water Act Section 402..............................................................26
2. EPA's reasonable interpretation of CWA Section 402 controls because it is not arbitrary or capricious....................................................................................................30
CONCLUSION.........................................................................................................................32
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TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT CASES
Abbott Laboratories v. Gardner, 387 U.S. 136, 148-54 (1967)................................... 7, 10, 11, 14 Alaska Department of Environmental Conservation v. EPA, 540 U.S. 461 (2004).....................27 Baltimore Gas and Electric Co. v. NRDC, 462 U.S. 67 (1983) ..................................................26 Bates v. Dow Agrosciences II, 544 U.S. 431 (2005)....................................................................8 Burnett v. New York Central R. Co., 380 U.S. 424, 432 (1965).................................................22 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .............................................................................5 Chemical Manufacturers Association v. NRDC, 470 U.S. 116 (1985) .......................................28 Chevron U.S.A., Inc. v. Natural Resource Defense Council, 467 U.S. 837 (1984)… .......... passim Christensen v. Harris County, 529 U.S. 576 (2000) ...................................................................23 Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 196 (1980) ............................................ 19, 20 E.I. DuPont de Nemours & Co. v. Train, 430 U.S. 112, 136 (1977)...........................................20 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ..........................................25 FTC v. Standard Oil of Cal., 449 U.S. 232 (1980) .....................................................................13 Ford Motor Credit Co. v. Milhollin, 444 U.S. 555 (1980)..........................................................28 Franklin v. Massachusetts, 505 U.S. 788 (1992)........................................................................12 Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-1 (2000) ...............................................................................................................................7 Household Credit Services, Inc. v. Pfennig, 541 U.S. 232 (2004) ..............................................23 Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992)...........................................................7 Motor Vehicle Manufacturers Association of United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983) .................................................................. passim NLRB v. Hearst Publications, 322 U.S. 111 (1944)...................................................................28
iv
National Park Hospitality Association v. Department of Interior, 538 U.S. 803 (2003)..............11 Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Serv., 545 U.S. 967 (2005) ......................23 Nw. Airlines, Inc. v. Trans. Workers, 451 U.S. 77 (1981) ...........................................................7 Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726 (1998) ..................................................13 SEC v. Chenery Corp., 332 U.S. 194 (1947) .............................................................................26 Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735 (1996) ................................................23 Texas v. U.S., 523 U.S. 296, 300 (1998) ...................................................................................14 Thomas v. Union Carbide Agr. Products Co., 473 U.S. 568 (1985) ..........................................11 Toilet Goods Association, Inc. v. Gardener, 387 U.S. 158 (1967)..............................................13 United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) ................................................. 23, 24
UNITED STATES COURT OF APPEALS CASES America Forest & Paper Association v. EPA, 137 F.3d 291 (5th Cir.1998) ...............................14 American Coke and Coal Chemicals Institute v. EPA, 452 F.3d 930, 945 (D.C. Cir. 2006) .................................................................................................................................. 30, 31 American Mining Congress v. EPA, 965 F.2d 759 (9th Cir. 1992) ............................................16 American Petroleum Institute v. EPA, 216 F.3d 50, 57-8 (D.C. Cir. 2000) .......................... 26, 30 American Trucking v. EPA, 283 F.3d 355, 372-4 (D.C. Cir. 2002)................................ 26, 30, 31 Anaconda Co. v. Ruckelshaus, 482 F.2d 1301 (10th Cir. 1973) .................................................19 Cablevision Systems Development Co. v. Motion Picture Association of America, Inc., 836 F.2d 599 (D.C. Cir. 1988)...................................................................................................23 CEC Energy Co., Inc. v. Public Service Com'n of Virgin Islands, 891 F.2d 1107 (3rd Cir. 1989) ........................................................................................................................................12 Central & Southwest Services v. EPA, 220 F.3d 683 (5th Cir. 2000).........................................14 Churchill Truck Lines, Inc. v. United States, 624 F.2d 63 (8th Cir. 1980)..................................25
v
Citizens for Better Forestry v. USDA, 341 F.3d 961 (9th Cir. 2003)............................................7 City of Las Vegas, Nevada v. Clark County, Nevada, 755 F.2d 697 (9th Cir. 1984) ....................5 Clay v. Arizona Interscholastic Association, Inc., 779 P.2d 349 (9th Cir. 1989) ........................25 Continental Air Lines, Inc. v. C. A. B, 522 F.2d 107, 126 (D.C. Cir. 1975) ......................... 14, 15 Cronin v. F.A.A., 73 F.3d 1126 (D.C. Cir. 1996)................................................................. 14, 15 Defenders of Wildlife v. EPA, 420 F.3d 946 (9th Cir. 2005) .......................................................7 Eagle-Picher Industries, Inc. v. EPA, 759 F.2d 905, 913 (D.C. Cir. 1985) .................................22 Environmental Defense Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003)....................................16 Fairhurst v. Hagener, 422 F.3d 1146, 1151-2 (9th Cir. 2005)............................................... 28, 29 First National Bank of Fayetteville v. Smith, 508 F.2d 1371 (8th Cir. 1974)..............................26 Fox Television Stations, Inc. v. Federal Communications Com'n, 489 F.3d 444 (3rd Cir. 2007) ........................................................................................................................................26 Granite Steel Co. v. EPA, 501 F.2d 925 (7th Cir. 1974) ............................................................19 Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 (9th Cir. 2001) .............. 3, 28, 29, 31 International Fabricare Institute v. EPA, 972 F.2d 384 (D.C. Cir. 1992)....................................26 Maloley v. R.J. O'Brien & Associates, Inc., 819 F.2d 1435 (8th Cir. 1987) ...............................28 National Association of Regulatory Utility Comm'rs v. U.S. Department of Energy, 851 F.2d 1424 (D.C. Dir. 1988) .......................................................................................................15 Native Ecosystem Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005)...........................5 Nat. Resource Defense Council v. Abraham, 355 F.3d 179 (2nd Cir. 2004)...............................16 Nat. Resource Defense Council v. EPA, 656 F.2d 768, 775 (D.C. Cir. 1981) ................ 17, 18, 20 Nat. Resource Defense Council v. EPA, 673 F.2d 392 (D.C. Cir. 1980) ....................................18 Nat. Resource Defense Council v. EPA, 673 F.2d 400-6 (D.C. Cir. 1982) ..........16, 17, 18, 19, 22 Nat. Resource Defense Council v. EPA, 966 F.2d 1292 (9th Cir. 1992)............................... 16, 20
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Nuclear Info. and Res. Serv. v. U.S. Dep’t of Transp. Research and Special Problems Admin., 457 F.3d 956 (9th Cir. 2006) .......................................................................................16 Peabody Coal Co. v. Train, 518 F.2d 940 (6th Cir. 1975) ..........................................................22 Pozzie v. United States Department of Housing & Urban Develop., 48 F.3d 1026 (7th Cir. 1995) ...................................................................................................................................5 Res. Investment, Inc. v. U.S. Army Corps of Engineers, 151 F.3d 1162 (9th Cir. 1998) ............31 Scott v. Pasadena Unified Sch. District, 306 F.3d 646, 655-56 (9th Cir. 2002) ...................... 9, 10 Sierra Club v. Johnson, 436 F.3d 1269 (11th Cir. 2006) ............................................................30 Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 520-21 (D.C.Cir. 1983) .................................................................................................................................. 26, 30 Solar Turbines Inc. v. Seif, 879 F.2d 1073 (3rd Cir. 1989) ........................................................13 State of Tex. v. U.S. Department of Energy, 764 F.2d 278 (5th Cir. 1985) ................................12 Stoianoff v. Montana, 695 F.2d 1214 (9th Cir. 1983) ..................................................................9 Suburban O'Hare Commission v. Dole, 787 F.2d 186 (7th Cir. 1986)........................................16 Sun Enterprises, Ltd. v. Train, 532 F.2d 280, 290-291 (2nd Cir. 1976)................................ 19, 22 Tennessee v. Herrington, 806 F.2d 642, 650 (6th Cir. 1986)................................................ 16, 17 Texas v. U.S., 497 F.3d 491 (5th Cir. 2007) ..............................................................................11 Thomas Brooks Chartered v. Burnett, 920 F.2d 634 (10th Cir. 1990) ........................................25 VEPCO v. Costle, 566 F.2d 446 (4th Cir. 1977)........................................................................17 Wisconsin Electric Power Co. v. Reilly, 893 F.2d 901 (7th Cir. 1990) ......................................24
UNITED STATES DISTRICT COURT CASES Industrial Highway Corp. v. Danielson, 796 F. Supp. 121 (D.N.J. 1992) ...................................13 Laconic Baykeeper, Inc. v. Johnson, No. 07CV1015 (RNR) .................................... 8, 13, 16, 18 Northwest Envtl. Advocates v. EPA, 2005 U.S. Dist. LEXIS 5373 (N.D. Cal. 2005)..... 18, 19, 21
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No Spray Coal., Inc. v. City of New York, 2000 WL 1401458 (S.D.N.Y. 2000), aff'd, 252 F.3d 148 (2d Cir. 2001) ......................................................................................................10 Save Ardmore Coalition v. Lower Merion Township, 419 F. Supp. 2d 663 (E.D.Pa. 2005) ........................................................................................................................................12 United States v. Corbin Farm Service, 444 F. Supp. 510 (E.D. Cal. 1978)...................................8
STATE CASES Golden Cheese Co. v. Voss, 281 Cal. Rptr. 587 (4th Dir. 1991) ................................................25 McPeck v. Colorado Department of Social Services, 919 P.2d 942 (Colo. Ct. App. 1996).........26
UNITED STATES CONSTITUTION
U.S. Const. Art. III ...........................................................................................................................7
FEDERAL STATUTES AND REGULATIONS 5 U.S.C. §§ 551-706 ............................................................................................................... 1, 5, 30
5 U.S.C. § 706(2)(A) ............................................................................................................ 5, 25, 30
5 U.S.C. § 706(2)(c) .........................................................................................................................5 7 U.S.C. §§ 136-136(v).....................................................................................................................8
7 U.S.C. § 136(BB)...........................................................................................................................8
7 U.S.C. § 136(j)(a)(2)(G) ............................................................................................................8, 9
28 U.S.C. § 1291 ..............................................................................................................................1
28 U.S.C. § 1331 ..............................................................................................................................1 28 U.S.C. § 2201 ..............................................................................................................................1 28 U.S.C. § 2203 ..............................................................................................................................1
viii
33 U.S.C. § 1251 ..............................................................................................................................3
33 U.S.C. § 1311(a) ..........................................................................................................................3
33 U.S.C. § 1342 ..................................................................................................................... passim 33 U.S.C. §§ 1251-1387 .................................................................................................................23 33 U.S.C. § 1361 ............................................................................................................................23 33 U.S.C. § 1362(6)..........................................................................................................................3 33 U.S.C. § 1362(7)..........................................................................................................................3 33 U.S.C. § 1362(11) ......................................................................................................................17 33 U.S.C. § 1369(b)(1) ............................................................................................................ passim
40 C.F.R. § 122.3(h) ............................................................................................................... 4, 5, 24
40 C.F.R. § 201.15............................................................................................................................3
40 C.F.R. § 201.16............................................................................................................................3
71 Fed. Reg. 68,483 (Nov. 27, 2006) ....................................................................................... passim
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STATEMENT OF JURISDICTION
On February 23 and 24, 2007, Environmental Petitioners and Industry Petitioners,
respectively and severally, filed suit against the U.S. Environmental Protection Agency ("EPA")
under Administrative Procedure Act ("APA"), 5 U.S.C. § 706. The suits were consolidated, and
Petitioners sought to invoke the subject matter jurisdiction of the United States District Court for
the District of New Union pursuant to 28 U.S.C. §§ 1331, 2201, 2203 and 5 U.S.C. § 706.
Despite its ruling to the contrary, the District Court lacked subject matter jurisdiction since
jurisdiction over EPA actions regarding effluent limitations, other limitations, and the issuance or
denial of permits lies exclusively with the Court of Appeals under § 509(b)(1) of the Clean
Water Act ("CWA"), 33 U.S.C. § 1369(b)(1).
This Court has jurisdiction over this appeal under 28 U.S.C. § 1291. The District Court
issued an opinion sustaining its own jurisdiction, granting Environmental Petitioners partial
summary judgment, and denying Industry Petitioners' claim for lack of ripeness. Environmental
and Industry Petitioners filed notices of appeal. The EPA cross-appealed from the final order of
Summary Judgment for Environmental petitioners and from the determination of jurisdiction by
the New Union District Court.
ISSUES PRESENTED
1. Have the Petitioners met the "case or controversy" requirements under Article III
of the U.S. Constitution, which demand that Petitioners have both standing and a ripe
claim?
2. Should the Petitioners' claims be brought in the Court of Appeals, and if so,
should the court equitably toll the 120 day statute of limitations?
3. Is the Pesticide Rule's limited exclusion of certain water-based pesticide
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applications arbitrary or capricious?
STATEMENT OF THE CASE
On February 23, 2007, Laconic Baykeeper, a not-for-profit environmental organization,
together with Ima Fisher and Sam Schwimmer (“Environmental Petitioners”), filed suit in the
District of New Union against the EPA. R. at 7. The action sought declaratory judgment,
declaring the EPA's exclusion of certain water-based pesticide applications from CWA
permitting requirements (“Pesticide Rule”) invalid. R. at 7. On February 24, 2007, the New
Union Farmers Institute (“NUFI”), the Union of New Union Aerial Pesticide Applicators
(“UNUAPA”), Happy Valley Farms, and Wiccillum Copters (collectively, “Industry
Petitioners”) also filed suit in the District of New Union against the EPA. R. at 7. The action also
sought declaratory judgment, requiring the EPA to include certain pesticide applications within
the exclusions of the Pesticide Rule. R. at 7. These two suits were consolidated, with
Environmental Petitioners and Industry Petitioners intervening as defendants by consent in each
others' actions. R. at 2. Both sets of Petitioners made cross motions for summary judgment. R. at
7.
The District Court dismissed Industry Petitioners' claim for lack of ripeness. R. at 10. The
District Court rejected EPA's argument that jurisdiction lies exclusively in the Court of Appeals.
R. at 9. The District Court granted Environmental Petitioners' motion for summary judgment in
part, holding that the EPA disobeyed the intent of Congress in exempting biological pesticides
from CWA permitting requirements. R. at 13. Both sets of Petitioners appealed. R at 2. The EPA
timely filed its notice of appeal to this Court. R. at 2.
3
STATUTORY AND REGULATORY BACKGROUND
The CWA provides a basis for the protection of the Nation's waters. The CWA's
stated purpose is “to restore and maintain the chemical, physical, and biological integrity of the
Nations' waters.” 33 U.S.C. § 1251 (2002). In keeping with these goals, the CWA prohibits the
discharge of pollutants into waters of the United States. See 33 U.S.C §§ 1311(a), 1362(7). In
order to determine whether a pollutant is being discharged, the CWA defines a "pollutant" in
Section 502(6) as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical waste, biological materials, radioactive materials, heat, wrecked or
discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste
discharge into water.” 33 U.S.C. § 1362(6). The EPA has further defined what constitutes a
"pollutant" in the toxic and conventional pollutant lists found at 40 C.F.R. § 201.15 and 40
C.F.R. §201.16, respectively. If the discharge is not found on the lists, the more general
definition must be applied in order to determine whether the CWA applies to a given discharge.
The CWA provides statutory exemptions, such as the National Pollutant Discharge
Elimination System ("NPDES") permit program, that allows a polluter who obtains a permit to
discharge a specified amount of a pollutant. See 33 U.S.C. § 1342. Congress gave the EPA the
authority to administer the NPDES permit program. 33 U.S.C. § 1342. Under the NPDES
program, EPA may issue permits on a case-by-case basis, taking into account local
environmental conditions, or create a uniform national standard. Headwaters, Inc. v. Talent
Irrigation District, 243 F.3d 526, 530 (9th Cir. 2001).
STATEMENT OF FACTS
In response to many judicial decisions questioning whether the discharge of FIFRA-
compliant pesticides directly to waters required a separate NPDES permit, EPA promulgated the
4
Pesticide Rule under the authority of 33 U.S.C. § 1342. In 2003, EPA issued an "interim
guidance" document, which stated that pesticides applied directly to water or directly over water,
in compliance with all FIFRA labeling requirements, do not require NPDES permits because
they are not "pollutants" under the CWA. EPA received comments and issued a "final guidance
"document in 2005. The "final guidance" document was then subject to the rigorous public
comment of many interested individuals, businesses, and organizations. Arguments were heard
in favor of and in opposition to the Rule. On November 27, 2006, EPA issued the Final
Pesticide Rule. "Application of Pesticides to Waters of the United States in Compliance with
FIFRA," 71 Fed. Reg. 68,483 (Nov. 27, 2006) (codified at 40 C.F.R. § 122.3(h)).
After the issuance of the Pesticide Rule, Environmental Petitioners became concerned
over the City of Progress' response to a possible West Nile Virus outbreak. The City of Progress
established a "Mosquito Control Plan" (“MCP”) to kill all mosquitoes in the area of Laconic
Bay. The Plan, when enacted, will apply two pesticides to kill mosquitoes in their larval and
adult stages. Environmental Petitioners use Laconic Bay for recreational and commercial
activities. They claim that the application of pesticides near Laconic Bay will severely dampen
their ability to use it for their individual purposes.
One of the pesticides, known as BTI, is a biological bacterial larvicide that will be
applied to the saltmarshes surrounding the Bay to kill mosquitoes in their larval form. BTI is
generally considered to be safe for aquatic life. The second pesticide, known as Anvil 10 + 10, is
a chemical adulticide that will be applied directly to the saltmarshes by helicopter to kill
mosquitoes in their adult form. The use of Anvil 10 + 10 in this manner does not comply with its
FIFRA labeling, which explicitly states: "for terrestrial uses, do not apply directly to water, to
areas where surface water is present or to intertidal areas below the mean high water mark."
5
As of the filing of this appeal, the City of Progress Health Department has identified
West Nile-infected birds and mosquito populations in the tidal marshes of Laconic Bay. The
MCP has not yet been implemented.
Industry Plaintiffs are an amalgam of representatives from the farming and pesticide
applying community. The New Union Farmer's Institute (NUFI) represents members of the New
Union farming community that engage in the aerial application of pesticides near surface water
bodies that flow into Laconic Bay. Despite their spraying activities near these waters, none of
NUFI's members have ever been required by the EPA to obtain an NPDES permit. As of the date
of this appeal, NUFI's members remain free of any explicit obligation to obtain a permit, despite
the enactment of the Pesticide Rule.
STANDARD OF REVIEW
The district court's jurisdictional ruling and grant of summary judgment are reviewed de
novo. Native Ecosystem Council v. U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir. 2005). A
motion for summary judgment may be granted only if there is no genuine issue as to any material
fact and the moving party is therefore entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
This action arises under the APA, 5 U.S.C. §§ 551-706. In particular, Industry Petitioners
contend that EPA’s actions in promulgating the permitting exemption contained at 40 C.F.R. §
122.3(h) is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law
under 5 U.S.C. § 706(2)(A) and in excess of statutory jurisdiction, authority, or limitations under
5 U.S.C. § 706(2)(c). Consequently, the EPA’s interpretation of the statute would be reviewable,
if at all, under the APA's arbitrary and capricious standard. 5 U.S.C. § 706. City of Las Vegas,
Nevada v. Clark County, Nevada, 755 F.2d 697, 704 (9th Cir. 1984). This standard presumes the
6
validity of the agency action and upholding the agency’s interpretation if minimum standards of
rationality are satisfied. Pozzie v. United States Dept. of Housing & Urban Develop., 48 F.3d
1026, 1029 (7th Cir. 1995).
SUMMARY OF THE ARGUMENT
Petitioners have not met the "case or controversy" requirement set forth in Article III of
the U.S. Constitution, stating that cases brought in federal court, inter alia, must be ripe and the
parties must have standing. Industry Petitioners' claim is not ripe because it is not fit for judicial
review and fails to demonstrate any present or future hardship in withholding court
consideration. Further, Environmental Petitioners do not met their burden to demonstrate the
requisite elements of standing. This Court cannot redress Environmental Petitioners relief
because there is no injury-in-fact and the alleged injury is not fairly traceable to the EPA's
conduct.
Even if Petitioners did have standing to sue, review of their claims in the District Court
was improper. The claims challenge regulatory actions regarding effluent limitations, other
limitations, and the issuance or denial of permits, which require exclusive review in the Court of
Appeals under CWA § 509(b)(1). Since Petitioners claim was brought in the wrong court, the
statute of limitations has expired and should not be equitably tolled.
EPA's Pesticide Rule is not arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law. EPA promulgated the Rule by reasonably interpreting the CWA
through gaps that Congress left in the statutory text. EPA made a permissible interpretation of
CWA and FIFRA mandates to strike an appropriate and protective balance.
7
ARGUMENT
I. ENVIRONMENTAL AND INDUSTRY PETITIONERS HAVE NOT MET THE "CASE OR CONTROVERSY" REQUIREMENT UNDER ARTICLE III OF THE UNITED STATES CONSTITUTION TO BRING THE CLAIMS AT BAR.
The federal courts are “courts of limited jurisdiction that have not been vested with
unlimited open-ended lawmaking powers.” Northwest Airlines, Inc. v. Trans. Workers, 451 U.S.
77, 95 (1981). Federal court jurisdiction is limited by the constitutional limitations on judicial
power, such as the “case or controversy” requirement of Article III and by prudential
considerations. U.S. Const. Art. III; Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967).
A. Environmental Petitioners Failed to Meet Their Burden of Demonstrating the Existence of Requisite Standing Elements.
The requirement of Article III standing is an essential component of the separation of
powers. Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992). Article III standing is not a
“mere pleading requirement but rather an indispensable part of the plaintiff's case” and that “each
element must be supported in the same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence required at the successive stages of
the litigation.” Id. at 562.
To establish standing, a plaintiff must show (1) it has suffered an “injury in fact” that is
(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2)
the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision. Citizens
for Better Forestry v. USDA, 341 F.3d 961, 969 (9th Cir. 2003) (citing Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, (2000)). In other words, to have
standing a plaintiff must “allege (1) personal injury (2) fairly traceable to the defendant’s
allegedly unlawful conduct and (3) [that is] likely to be redressed by the requested relief.”
8
Defenders of Wildlife v. EPA, 420 F.3d 946, 956 (9th Cir. 2005) (citing Friends of the Earth,
528 U.S. at 180-81).
Environmental Petitioners have not met any element of this test. Petitioners challenge the
validity of the Pesticide Rule by claiming injury from the City of Progress’ MCP. As explained
below, Petitioners cannot show injury-in-fact, that their alleged injury is fairly traceable to EPA
conduct, nor that this Court can redress relief.
1. The Court Below Misapplied the Facts of this Case and the Controlling Statutes to Find Injury-in-Fact.
FIFRA establishes a comprehensive regulatory scheme governing the use, sale, and
labeling of pesticides. Federal Insecticide, Fungicide, Rodenticide Act, 7 U.S.C. §§ 136-136v;
Bates v. Dow Agrosciences II, 544 U.S. 431, 436-437 (2005). FIFRA requires all pesticides sold
or distributed in the United States to be registered with the EPA. To obtain a registration, the
applicant typically must submit extensive test data and proposed labeling to the EPA. In
registering any pesticide product, EPA ensures that the labeling is adequate to protect human
health and safety and determines whether a pesticide will cause “unreasonable adverse effects on
the environment” when used to perform its intended function. 7 U.S.C. § 136(bb). FIFRA makes
it unlawful for any person to use any registered pesticide in a manner inconsistent with its EPA
approved labeling. 7 U.S.C. § 136(j)(a)(2)(G). “Inconsistent with FIFRA labeling” occurs when
a person of ordinary intelligence would consider the use as disregarding label instructions or
otherwise not in accordance with such instructions which might endanger the safety of others or
the environment. Senate committee report. United States v. Corbin Farm Service, 444 F.Supp.
510 (E.D. Cal. 1978), aff'd on other grounds, 578 F.2d. 259 (9th Cir. 1978) (defining
"inconsistent" as "contrary to" or "incompatible with," and stating that the statute is violated if it
was clear enough that one should not apply a pesticide in a way contrary to the label’s
9
directions).
Under the City’s MCP, Anvil 10 + 10 will be sprayed over Laconic Bay. Anvil’s FIFRA
label expressly states, “for terrestrial uses, do not apply directly to water, to areas where surface
water is present or to intertidal areas below the mean high water mark.” Laconic Baykeeper, Inc.
v. Johnson, No. 07CV1015 (RNR). Spraying Anvil into Laconic Bay is a manner inconsistent
with its approved labeling requirements. The City will be in violation of FIFRA if it executes the
MCP and will be subject to criminal misdemeanor charges and civil penalties. 7 U.S.C. §
136(j)(a)(2)(G). Even if FIFRA labeling requirements are not enough to stop the City's MCP, the
spraying would fall out of the Pesticide Rule exception and the City would be in violation of
CWA. The Pesticide Rule accomplishes its stated purpose of finding balance between FIFRA
and CWA and adequately protects the waters of the United States. 71 Fed. Reg. 68,483. When
FIFRA fails to protect waters, the plaintiffs are free to challenge the rule. This is not however,
the circumstance presently before this Court. In this case, FIFRA is adequately protecting the
waters and will stop the spray of pesticides. Therefore, the court below erred in finding that there
is injury-in-fact.
2. Since Petitioners Did Not Demonstrate Injury-in-Fact, Their Alleged Injury Is Not Fairly Traceable to EPA’s Conduct and This Court Cannot Redress Relief.
“The mere existence of a statute, which may or may not ever be applied to plaintiffs, is not
sufficient to create a case or controversy within the meaning of Article III.” Stoianoff v.
Montana, 695 F.2d 1214, 1223 (9th Cir. 1983). Under the injury-in-fact requirement, Petitioners
must allege that they have:
[S]uffered some threatened or actual injury resulting from the putatively illegal action . . . A plaintiff may allege a future injury in order to comply with this requirement, but only if he or she is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury is both real and immediate, not conjectural or hypothetical.
10
Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 655-56 (9th Cir. 2002) (internal quotation
marks and citations omitted).
Accordingly, Environmental Petitioners must demonstrate a concrete and particularized
injury which affects them in a personalized way, as opposed to asserting a generalized grievance.
Further, Environmental Petitioners must show that their danger of injury is "a result of the
challenged official conduct and the injury or threat of injury is both real and immediate, not
conjectural or hypothetical.” Scott, 306 F.3d at 655-56 (internal quotation marks and citations
omitted). Mere speculation about a possible future injury is not sufficient. Id. In the case at bar,
where pesticides will be in violation of FIFRA if sprayed, there is only mere speculation that
injury will occur. The city is barred under FIFRA from spraying and will likely modify its plan.
It is purely hypothetical to assume that they will spray under the current MCP.
Further, contrary to standing requirements, the Petitioners alleged personal injury is not
fairly traceable to the EPA’s decision. If the City follows through with the current MCP, the
Petitioners alleged injury will be caused by the City’s violation of FIFRA. Thus, it is the City’s
official conduct, not the EPA’s, that petitioners are challenging and this Court cannot redress the
City’s potential violation. FIFRA provides no private cause of action and the Petitioners
attempted to circumvent FIFRA by alleging CWA violations. Congress intended to leave the
regulation of pesticides to the EPA through the use of FIFRA’s technical label requirements. No
Spray Coal., Inc. v. City of New York, 2000 WL 1401458 (S.D.N.Y. 2000), aff'd, 252 F.3d 148
(2d Cir. 2001). Congress’ intent must be left intact to effectuate the proper regulation of
pesticides.
B. The Industry Petitioners' Challenge to the EPA's Determination that Pesticide Applications Contrary to "Pertinent FIFRA Requirements" are "Pollutants"
11
Subject to the Clean Water Act is Not Ripe for Judicial Review Under the Doctrine Set Forth in Abbott Laboratories v. Gardner.
The Industry Petitioners’ challenge to the EPA's ruling that pesticides applied contrary to
FIFRA requirements are pollutants is not ripe for judicial review under the doctrine in Abbott
Labs., 387 U.S. at 149. In Abbott Labs., the court established that ripeness is determined by a
two-step test. Id. The court is required to look at both (1) the fitness of the issues for judicial
decision and (2) the hardship to the parties of withholding court consideration. Id. The test was
established to remove the court from premature adjudication, administrative policies, and to keep
the court from deciding on a non-final agency action. Id. at 148.
The Industry Petitioners’ challenge is not fit for judicial review. They have suffered no
hardship to date and would not be harmed by the court deferring judgment on the challenged
issue. Both prongs of the ripeness test under Abbott Labs. v. Gardner have not been met,
therefore the Industry Petitioners challenge to the EPA's determinations in the Pesticide Rule are
not ripe for judicial intervention.
1. The Industry Petitioners’ challenge is not fit for judicial decision. The first part of the ripeness test addresses the fitness of the issues for judicial decision.
Challenges to administrative regulations are fit for review if four requirements are met: (a) the
questions presented are "purely legal ones," (b) the regulations being challenged are the "final
agency action," (c) further factual development would not "significantly advance [the court's]
ability to deal with the legal issues presented," and (d) the resolution of the issues will promote
effective enforcement and administration by the agency. Texas v. U.S., 497 F.3d 491, 498 (5th
Cir. 2007) (quoting Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803 (2003); Abbott
Labs., 387 U.S. at 149-54).
12
a. The questions presented are not purely legal because further factual development is required to determine if the pesticide applications challenged are FIFRA-compliant.
The Industry Petitioners' claim is not a purely legal question, because it addresses factual
questions about the proper interpretation of a broad statutory definition. A purely legal question
is one that cannot be clarified by further factual development. Thomas v. Union Carbide Agr.
Prods. Co., 473 U.S. 568 (1985). Both a factually-complete record and the framework to apply
the record to must be present for the issue to be purely legal. State of Tex. v. U.S. Dept. of
Energy, 764 F.2d 278 (5th Cir. 1985) (where the court requested both the factual documents
regarding the claim and the framework used to determine if two sites in Texas were acceptable as
nuclear waste repositories under the Nuclear Waste Policy Act).
Here, the questions presented are not purely legal. Industry Petitioners have not stated if
their pesticides are being applied contrary to FIFRA requirements. This is a key element of the
factual record since the EPA has stated that it will not enforce NPDES permits for FIFRA-
compliant agricultural pesticide applications. 71 Fed. Reg. 68,487. Without knowledge of their
FIFRA-compliance, the court cannot properly examine the legal issues presented. The factual
record is not complete, therefore the court cannot conduct a proper analysis of the Pesticide
Rule’s application in this case.
b. The Pesticide Rule is not a final agency action that affects the Industry Petitioners.
The Pesticide Rule is not a final agency action that directly affects the Industry
Petitioners. Finality depends not only on whether the agency's decision-making process is
complete, but also if the regulations will "directly affect the parties.” Franklin v. Massachusetts,
505 U.S. 788, 797 (1992) (emphasis added); Save Ardmore Coalition v. Lower Merion
13
Township, 419 F.Supp.2d 663 (E.D.Pa. 2005). The Third Circuit has listed numerous factors that
must be considered in assessing finality, which overlap significantly with the factors for ripeness.
See CEC Energy Co., Inc. v. Public Service Com'n of Virgin Islands, 891 F.2d 1107 (3rd Cir.
1989). The finality factors include: (1) whether the decision represents the agency's definitive
position on the question; (2) whether the decision has the status of law with the expectation of
immediate compliance; (3) whether the decision has immediate impact on the day-to-day
operations of the party seeking review; (4) whether the decision involves a pure question of law
that does not require further factual development; and (5) whether immediate judicial review
would speed enforcement of the relevant act. Solar Turbines Inc. v. Seif, 879 F.2d 1073, 1080
(3rd Cir. 1989) (citing FTC v. Standard Oil of Cal., 449 U.S. 232 (1980)). Dubbed the "Solar
Turbines factors," a court must apply the five factors to determine if an agency action is final.
Industrial Highway Corp. v. Danielson, 796 F.Supp. 121, 127 (1992). Where no actual damages
have been proven, or if damage is minimal, the case is not ripe because the agency action did not
affect the parties. Toilet Goods Ass'n, Inc. v. Gardener, 387 U.S. 158, 159 (1967) (holding that
the challenge to the Commissioner's regulations were not ripe because the penalties for not
adhering to the rule were minimal and there was no actual damage yet); see also Ohio Forestry
Ass'n, Inc. v. Sierra Club, 523 U.S. 726 (1998) (holding that challenge to forced service
regulation as too liberal towards logging was not ripe for review).
As in Toilet Goods, the rule at bar is not a final agency action that affects the parties.
While the EPA has completed its decision-making process, the outcome will not affect the
Industry Petitioners. The Pesticide Rule creates an exception for pesticides that are applied
directly to, or over and near waters. Industry Petitioners are not applying their pesticides directly
to water. They simply fear that the drift from their pesticide applications will end up in those
14
waters thus subjecting them to NPDES permitting requirements. The Pesticide Rule, however,
does not change their situation. The Industry Petitioners have not had to attain permits in the past
and the Pesticide Rule is silent regarding whether they will have to get permits in the future. 71
Fed. Reg. 68,487; Laconic Baykeeper, Inc., No. 07CV1015 (RNR).
If the Industry Petitioners are ever required to acquire NPDES permits as a result of the
Pesticide Rule, they can certainly challenge the determination. Until that occurs, the parties are
not affected by this regulation, and as such it is not a final agency action that directly affects the
parties.
2. The Industry Petitioner's Challenge Exhibits No Hardship to Petitioners Through Enforcement of the Statute, Nor is There Hardship to the Petitioners if the Court Withholds Consideration of the Issues Presented for Review.
The second prong of the ripeness test focuses on the hardship to the parties. Here, there is
no hardship to the Industry Petitioners. While courts state that the fitness and hardship prongs
must be balanced, the petitioning party must show some hardship in order to establish ripeness.
Am. Forest & Paper Ass'n v. EPA, 137 F.3d 291, 296 (5th Cir. 1998); Cent. & Sw. Servs. v.
EPA, 220 F.3d 683, 690 (5th Cir. 2000) (holding plaintiffs must show hardship to establish
ripeness). The Supreme Court of the United States has held that the aggrieved parties must show
that they have felt the effects of the administrative policy in question "in a concrete way" in order
for a party's challenge to be ripe. Abbott Labs., 387 U.S. at 148-49; Continental Air Lines, Inc. v.
C. A. B., 522 F.2d 107 (D.C. Cir. 1975).
Here, there is no "immediate and practical impact" to the challenging parties. Continental
Air Lines, Inc., 522 F.2d 107. There is no proof in the record or otherwise to show that the
Industry Petitioners have been directly harmed by the Pesticide Rule since it does not change
their obligation to obtain a permit. Without the EPA explicitly requiring permits, the Industry
15
Petitioners cannot prove that any harm will definitely result from the promulgation of the Rule.
Without an immediate impact to the Industry Petitioners, their only claim is for possible
future injuries, which are not actionable. A “claim is not ripe for adjudication if it rests upon
contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas
v. U.S., 523 U.S. 296, 300 (1998). This point was addressed in Cronin v. F.A.A., 73 F.3d 1126
(D.C. Cir. 1996), in which labor organizations filed suit against administrative agencies to have
agency determinations reviewed for their constitutionality. The court in Cronin found that "the
primary injury alleged by petitioners is not a present hardship resulting from the regulations
themselves, but rather a future injury that may result from enforcement of the regulations in
circumstances where procedural due process is not satisfied.” Cronin, 73 F.3d 1126 (citing Nat'l
Ass'n of Regulatory Util. Comm'rs v. U.S. Dept. of Energy, 851 F.2d 1424, 1429 (D.C. Dir.
1988)).
Here, the primary injury alleged by petitioners is also not a present hardship resulting
from the regulations themselves, since there has been no actual injury to the Petitioners yet, nor
is there proof that such injury will ever occur. The injuries for Industry Petitioners are merely
"future injur[ies]," that may result from the enforcement of NPDES permitting regulations,
independent of the Pesticide Rule.
Some courts assert that regulations are ripe for review if they force one to "choose
between disadvantageous compliance and risking serious penalties." See Continental, 522 F.2d at
126. However, such a rule is inapplicable in this case. This regulation does not force the
Industry Petitioners to choose between compliance or penalty because the Petitioners’ pesticide
application are not affected by the Pesticide Rule. Any choice between compliance and penalty
that Industry Petitioners currently face was just as tangible before the Pesticide Rule was
16
enacted. Petitioners will not be injured, let alone affected, by the court withholding consideration
on this issue.
II. THE CLEAN WATER ACT GRANTS EXCLUSIVE REVIEW OF REGULATORY ACTIONS REGARDING EFFLUENT LIMITATIONS, OTHER LIMITATIONS OR THE ISSUING OR DENYING OF PERMITS IN THE CIRCUIT COURT OF APPEALS UNDER A STRICT STATUTE OF LIMITATIONS THAT MAY NOT BE EQUITABLY TOLLED.
The CWA provides for exclusive review of EPA actions in the United States courts of
appeals when the EPA is “approving or promulgating any effluent limitation or other limitation”
under CWA § 509(b)(1)(E), 33 U.S.C. § 1369(b)(1)(E), or “issuing or denying a permit” under
CWA § 509(b)(1)(F), 33 U.S.C. § 1369(b)(1)(F). The District Court for the District of New
Union held that it had jurisdiction to review the Pesticide Rule under the APA § 704 because the
provisions of the rule do not constitute “effluent limitations or other limitations” nor do they
issue or deny a permit. Laconic Baykeeper at 9-10. Because APA § 704 provides for review only
when no other means exist and review has been provided for in the courts of appeals, this
decision was in error and should be reversed.
Whenever it is ambiguous as to whether jurisdiction exists in the district courts or the
court of appeals, the ambiguity must be resolved in favor of the court of appeals. Nuclear
Information and Res. Serv. v. U.S. Dept. of Transp. Research and Special Problems Admin., 457
F.3d 956, 960 (9th Cir. 2006); Nat. Res. Def. Council v. Abraham, 355 F.3d 179, 193 (2nd Cir.
2004); Tennessee v. Herrington, 806 F.2d 642, 650 (6th Cir. 1986); Suburban O’Hare Comm’n
v. Dole, 787 F.2d 186, 192 (7th Cir. 1986). Ambiguity exists here because other courts of
appeals have exerted jurisdiction over rules and regulations involving permit exemptions similar
to the Pesticide Rule at bar. Environmental Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003);
Nat. Res. Def. Council v. EPA, 966 F.2d 1292 (9th Cir. 1992) (“NRDC-92”); American Mining
17
Congress v. EPA, 965 F.2d 759 (9th Cir. 1992). Hence, the District Court should have dismissed
the case in favor of jurisdiction in the Court of Appeals.
Finding exclusive jurisdiction in the courts of appeals is consistent with the Supreme
Court of the United States’s determination that § 509 of the CWA must be given a “practical
rather than a cramped construction.” Nat. Res. Def. Council v. EPA, 673 F.2d 400, 405 (D.C.
Cir. 1982) (“NRDC-82”) (citing generally Crown Simpson Pulp Co. v. Costle, 445 U.S. 193
(1980)). Exclusive jurisdiction avoids “duplicative review and the attendant expense involved” in
allowing disputes over regulations to proceed in the district courts. Herrington, 806 F.2d at 650.
This Court should reverse the District Court’s decision and take jurisdiction in the case at bar.
A. The Pesticide Rule is an Effluent Limitation or Other Limitation Under CWA Section 509(b)(1)(E).
The CWA empowers the courts of appeals to review the approval or promulgation of
“any effluent limitation or other limitation” made by the EPA under Sections 301, 302 or 306 of
the act. CWA § 509(b)(1)(E), 33 U.S.C. § 1369(b)(1)(E). “Effluent limitation” is defined in the
Act as “any restriction . . . on quantities, rates, and concentrations of chemical, physical,
biological, and other constituents which are discharged . . . including schedules of compliance.”
CWA § 502(11), 33 U.S.C. § 1362(11). Although this definition identifies court of appeals
review for numerical limitations on pollutants, the statute “has a wider range.” NRDC-82, 673
F.2d at 403. The term “other limitations,” which is not defined in the CWA, along with the
definition of “effluent limitation” as “any restriction,” gives the courts of appeals the power to
review a broad range of regulations. Id.; Nat. Res. Def. Council v. EPA, 656 F.2d 768, 775 (D.C.
Cir. 1981) (“NRDC-81”); VEPCO v. Costle, 566 F.2d 446, 450 (4th Cir. 1977).
The Court of Appeals for the D.C. Circuit has held that courts of appeals have original
jurisdiction to review exceptions to standard permitting requirements. Exceptions are “effluent
18
limitations or other limitations” under CWA § 509(b)(1)(E) when they set limits on who may
take advantage of them. In NRDC-81, the D.C. Circuit took initial authority under Section 509
(b)(1)(E) to review EPA regulations that allowed certain municipalities to apply for a “variance
from the normal requirement of secondary sewage treatment.” NRDC-81, 656 F.2d 768, 775
(D.C. Cir. 1981). The regulations “restrict[ed] the discharge of sewage by limiting the
availability of a variance to a class of applicants which [did] not include all coastal
municipalities.” Id. Similarly, in NRDC-82, the D.C. Circuit again took initial authority to
review the EPA’s Consolidated Permit Regulations (CPR’s). NRDC-82, 673 F.2d at 401, 402.
The CPR’s are “procedural rules designed to implement permitting” under five specific pollution
control programs. Nat. Res. Def. Council v. EPA, 673 F.2d 392, 395 (D.C. Cir. 1980). Various
CPR’s “restrict who may take advantage of certain provisions or otherwise guide the setting of
numerical limitations in permits.” NRDC-82, 673 F.2d at 404, 405.
Like the variance regulations in NRDC-81 and the CPR’s in NRDC-82, the Pesticide
Rule is an “effluent limitation or other limitation” under CWA § 509(b)(1)(E) and should be
reviewed in the Court of Appeals. The rule limits the application of pesticides to water from a
point source by restricting an exception to specific pesticide applicators. The Rule’s language
clearly states that “the application of a pesticide in compliance with relevant requirements of
[FIFRA] does not require a [NPDES] permit in two specific circumstances.” 71 Fed. Reg. 68,483
(emphasis added).
The case on which the District Court based its jurisdiction is distinguishable from the
case at bar because the Pesticide Rule limits its own application. In determining that the
Pesticide Rule “eliminates an entire category of discharge from regulation, and cannot be
considered a ‘limitation,’” Laconic Baykeeper at 10, the District Court relied exclusively on Nw.
19
Envtl. Advocates v. EPA, 2005 U.S. Dist. LEXIS 5373 (N.D. Cal. 2005) (“Nw. Environmental”).
There, the court held that a categorical exclusion of vessel discharges from NPDES permit
requirements could not be considered a “limitation” on pollutants. Id. at 5. The Nw.
Environmental court, however, also acknowledged that the blanket vessel discharge exclusion at
issue was different from exclusions that “restrict who may take advantage of certain provisions."
Id. (quoting NRDC-82, 673 F.2d at 404, 405.) The Pesticide Rule clearly restricts its provisions
to specific FIFRA-compliant applicators and is the very type of regulation that the Nw.
Environmental court sought to exclude from its ruling. Therefore, the District Court's
classification of the Pesticide Rule as a blanket exclusion is incorrect and should be reversed.
In addition, the Pesticide Rule expressly creates limitations when it describes the outer
boundaries of its exclusions. The Rule describes circumstances in which the exclusion does not
apply, and a NPDES permit may be required: when pesticides are contained in a waste stream
and are therefore classified as waste materials, or when a pesticide’s residual materials remain in
water after its intended purpose has been completed. 71 Fed. Reg. 68,483, 68,487. Given that
the EPA, before this rule, had never issued an NPDES permit for the application of a pesticide to
water nor given any guidance on the subject, 71 Fed. Reg. 68,483, the Pesticide Rule is plainly
setting limits to be taken into account when applying its exclusions.
B. The Pesticide Rule is the Issuance or Denial of a Permit Under CWA Section 509(b)(1)(F).
The CWA empowers the courts of appeals to review EPA decisions “in issuing or
denying any permit” under Section 402 of the Act. CWA § 509(b)(1)(F), 33 U.S.C. §
1369(b)(1)(F). Many circuit courts recognize that, absent extraordinary circumstances, this
provision provides for exclusive review of issuing or denying permits in the courts of appeals.
See Sun Enters., Ltd. v. Train, 532 F.2d 280 (2nd Cir. 1976); Granite Steel Co. v. EPA, 501 F.2d
20
925 (7th Cir. 1974); Anaconda Co. v. Ruckelshaus, 482 F.2d 1301 (10th Cir. 1973).
The Supreme Court of the United States has held that EPA actions that have the “precise
effect” of permit grants and denials are also reviewable in the courts of appeals. Crown Simpson
Pulp Co. v. Costle, 445 U.S. 193, 196-197. In Crown Simpson, plaintiffs challenged the EPA’s
denial of a variance and veto of effluent limitations contained in a state-issued permit. Id. at 196.
The Court held that the EPA, in disapproving the state’s effluent limitations, effectively “denied”
the plaintiffs a permit within the meaning of CWA § 509(b)(1)(F). Holding otherwise, the Court
reasoned, would have created a “seemingly irrational bifurcated system” in which permits that
were denied directly by the EPA would be reviewed in the courts of appeals and state permits
that were vetoed (effectively denied) by the EPA would be reviewed in the district courts. Id. at
196-197.
After the decision in Crown Simpson, courts of appeals have recognized that CWA §
509(b)(1)(F) review applies to more than just agency grants and denials of specific permit
applications. In NRDC-92, 966 F.2d at 1295, the Ninth Circuit Court of Appeals retained
jurisdiction over regulations excluding certain classes of storm water discharge from permitting.
The court recognized its authority to review not only specific grants and denials of permits under
§ 509(b)(1)(F), but also the “rules that regulate the underlying permit procedures.” (citing E.I.
DuPont de Nemours & Co. v. Train, 430 U.S. 112, 136 (1977); NRDC-81, 656 F.2d at 775). This
broad construction is necessary to avoid the “perverse situation in which the courts of appeals
would review numerous individual actions issuing or denying permits pursuant to § 402 but
would have no power of direct review of the basic regulations governing those individual
actions.” E.I. DuPont, 430 U.S. at 136. In addition, it is consistent with the congressional goal of
quick and expedient review of EPA’s actions. Crown Simpson, 445 U.S. at 196.
21
Like the storm water discharge exemptions in NRDC-92, the Pesticide Rule is a
regulation that underlies the permitting procedure of § 402 and should be reviewed in the courts
of appeals. The Rule describes who may take advantage of its provisions, 71 Fed. Reg. 68,483,
68,483; outlines the FIFRA requirements for the application of the exclusion, Id. at 68,485; and
modifies the EPA’s definition of “pollutant.” Id. at 68,486. The Rule clearly must be considered
when issuing or denying a permit involving the application of water-borne pesticides. Since the
Rule provides a vital framework and modifies the scope of permitting procedures, review is
proper in the Courts of Appeals.
In its decision to retain jurisdiction over the Pesticide Rule, the District Court of New
Union again relied heavily on the reasoning of the District Court for the Northern District of
California in the case of Nw. Envtl. Advocates, 2005 U.S. Dist. LEXIS 5373. In Nw.
Environmental, the District Court held that it had jurisdiction to review a regulation involving a
vessel discharge exclusion from NPDES permitting requirements. Id. at 7. The court
distinguished the storm water exclusion in NRDC-92 as “temporary,” reasoning that a
“permanent” exclusion like the vessel discharges would never force circuit courts “to confront
the issuance or denial of a permit.” Id. at 6. This reasoning creates an unwarranted and arbitrary
distinction between “temporary” and “permanent” exclusions. The court in Nw. Environmental
should have examined the vessel discharge exclusion for its relation to permitting procedures,
not for its permanence.
Even accepting the Nw. Environmental court’s weak distinction between temporary and
permanent exclusions, the Pesticide Rule is clearly akin to the former. The Rule conditions its
exception on compliance with relevant FIFRA labeling requirements. 71 Fed. Reg. 68,485.
Therefore, it is a conditional exception, and in no way permanent. The District Court of New
22
Union, even by its own logic, lacks jurisdiction over the Pesticide Rule.
C. The Statute of Limitations in Section 509(b)(1) of the Clean Water Act Should Not be Equitably Tolled Because of the Petitioners' Failure to Bring their Action in the Court of Appeals.
CWA § 509(b)(1) provides that any application to a Court of Appeals for review of
specified EPA actions “shall be made within 120 days from the date of a such determination,
approval, promulgation, issuance or denial, or after such date only if such application is based
solely on grounds which arose after such 120th day.” Circuit courts have interpreted this
provision as a strict jurisdictional requirement. See NRDC-82, 673 F.2d at 406; Sun Enterprises,
532 F.2d at 290-291; Peabody Coal Co. v. Train, 518 F.2d 940, 943 (6th Cir. 1975).
When deciding whether or not to equitably toll a statute of limitations contained in a
federal statute, the Supreme Court of the United States has held that "the basic inquiry is whether
congressional purpose is effectuated by tolling the statute of limitations in given circumstances."
Burnett v. New York Cent. R. Co., 380 U.S. 424, 427 (1965). Here, CWA § 509(b)(1)'s strict
statute of limitations is a manifestation of Congress’ deliberate intention to make agency actions
final. Eagle-Picher Industries, Inc. v. EPA, 759 F.2d 905 (D.C. Cir. 1985). Congress sought to
protect administrative actions from the constant onslaught of piecemeal rule challenges, which
threaten their effectiveness. Id. at 913. This purpose becomes evident when one looks to the
subsequent Section 509(b)(2), which states that the EPA's actions under 509(b)(1) "shall not be
subject to judicial review in any civil or criminal proceeding for enforcement." 33 U.S.C. §
1369(b)(1).
Equitably tolling the statute of limitations in this case will clearly frustrate the
congressional purpose of the statute. It has been more than a year since the final Pesticide Rule
was introduced and its fate is still uncertain, thanks to petitioners' challenges. Some federal
23
statutes that create jurisdiction bear clear indications that their temporal limitations are flexible.
See Burnett, 380 U.S. at 432. Congress has indicated, however, that the 120 day statute of
limitations in CWA § 509(b)(1) is not one of them. This Court should respect the clear and
unambiguous statute of limitations set by Congress.
III. THE DISTRICT COURT ERRED IN FAILING TO GRANT AGENCY DEFERENCE WHERE THE EPA'S DECISION WAS NOT ARBITRARY AND CAPRICIOUS AND THEREFORE IN ACCORDANCE WITH ITS GRANTED AUTHORITY.
When Congress legislates, it delegates the administration of statutes to an agency for
enforcement. It relies on agency action to make “common sense” responses to problems that
arise during legislation implementation as long as those responses are consistent with
congressional intent. Cablevision Systems Development Co. v. Motion Picture Ass'n of America,
Inc., 836 F.2d 599 (D.C. Cir. 1988), cert. denied, 487 U.S. 1235. A two-step methodology is
used to determine whether the EPA’s approach is consistent with congressional intent. Chevron
U.S.A., Inc. v. Natural Res. Def Council, 467 U.S. 837, 842-45 (1984). First, the court must
look to whether Congress has directly addressed the issue in question. Id. at 842-43. If Congress
has not addressed the issue directly, then the agency may reasonably interpret that ambiguity. Id.
Once an agency reasonably interprets an ambiguity, federal courts must "accept [the] agency's
construction of [a] statute, even if [the] agency's reading differs from what [the] court believes is
[the] best statutory interpretation.” Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs.,
545 U.S. 967, 980 (2005). This methodology governs the review of EPA’s actions under the
permitting authority of 33 U.S.C. § 1342, and the administrative authority of 33 U.S.C. § 1361.
Congress has delegated to the EPA the authority to execute and enforce the CWA. 33
U.S.C. §§ 1251-1387. These provisions give the EPA the authority to promulgate binding legal
rules concerning NPDES permitting exclusions. The EPA exercised this authority and issued the
24
Final Pesticide Rule. See Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 238-239
(2004); United States v. Mead Corp., 533 U.S. 218, 231-234 (2001); Christensen v. Harris
County, 529 U.S. 576, 586-588 (2000). Hence, only the reasonable interpretation prong of the
analysis is questioned by Petitioners.
There is a presumption that ambiguity in a statute should be resolved "first and foremost,
by the agency (rather than the courts) to possess whatever degree of discretion the ambiguity
allows.” Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 740-741 (1996). Moreover,
when there is implicit rather than explicit legislative delegation to an agency, "a court may not
substitute its own construction of a statutory provision for a reasonable interpretation made by
the administrator of an agency.” Chevron, 467 U.S. at 844. In the case at bar, the intent of CWA
§ 402 permits EPA to promulgate the Pesticide Rule with its narrow exceptions.
A. Agency Deference Is Necessary Because EPA’s Interpretation is Based on a Reasonable and Permissible Construction of the Statute.
Deference to an agency's interpretation of a statute is due when “it appears that Congress
delegated authority to the agency generally to make rules carrying the force of law, and that the
agency interpretation claiming deference was promulgated in the exercise of that authority.”
Mead Corp., 533 U.S. at 226-27. Additionally, EPA’s interpretations of its own CWA
regulations are entitled to even greater deference. Wisconsin Elec. Power Co. v. Reilly, 893 F.2d
901, 907 (7th Cir. 1990). The NPDES permit exception for only certain types of discharges
promulgated at 40 C.F.R. § 122.3(h) is lawful because it is consistent and in accordance with
EPA’s statutory authority under the CWA.
The EPA is expressly authorized by Congress to administer the NPDES program at a
manageable standard by issuing regulations necessary to fulfill its stated goal. 33 U.S.C. § 1342.
It also appropriately relies on FIFRA registration requirements to limit the discharge of effluents
25
into waters. EPA retains discretion to alter the registration of pesticides for reasons that include
environmental concerns. Thus, the CWA and FIFRA are harmonized with the Pesticide Rule
through the application of the FIFRA label requirements and the enforced goals of the CWA.
Both statutes are given the force and effect that ensure the protection of the Waters of the United
States.
In addition to striking a balance, the Pesticide Rule reduces uncertainty about the
relationship between FIFRA and the CWA. It clarifies when an NPDES permit is required for
pesticide applications, allowing state and local governments to protect their citizens while also
protecting our nation’s waters. Requiring an NPDES for every aquatic application will
jeopardize mosquito and insect control programs. Further, “agencies must be given ample
latitude to adapt their rules and policies to the demands of changing circumstances.” FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000) (quoting Motor Vehicle Mfrs.
Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29 (1983) ("State
Farm")). EPA is obligated to make this narrow exception to allow for the control of dangerous
pests and to protect human health. The Court must grant the EPA the deference necessary to
administer the NPDES progam and protect human health and the environment in all
circumstances.
B. Pursuant to the APA Section 706, the Pesticide Rule's Exemption of Specified Pesticide Application Activities from the Clean Water Act Permitting Program was Not Arbitrary, Capricious, an Abuse of Discretion, or Otherwise Not in Accordance with the Law.
The Pesticide Rule is not arbitrary or capricious. The "arbitrary or capricious" standard
codified in the APA, states that "a reviewing court shall . . . hold unlawful and set aside agency
action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." Administrative Procedure Act § 706, 5 U.S.C. §
26
706(2)(A). Courts will not interfere with factual determinations of administrative agencies
unless those determinations are arbitrary or capricious. Golden Cheese Co. v. Voss, 281
Cal.Rptr. 587 (4th Dir. 1991); Thomas Brooks Chartered v. Burnett, 920 F.2d 634 (10th Cir.
1990); Clay v. Arizona Interscholastic Ass'n, Inc., 779 P.2d 349 (9th Cir. 1989). Agency action
is arbitrary and capricious only where it is not supportable on any rational basis. Churchill Truck
Lines, Inc. v. United States, 624 F.2d 63, 65 (8th Cir. 1980); First Nat'l Bank of Fayetteville v.
Smith, 508 F.2d 1371, 1376 (8th Cir. 1974), cert. denied, 421 U.S. 930 (1975). The agency must
examine the relevant data and articulate a satisfactory explanation for its action including a
rational connection between the facts found and the choice made. Baltimore Gas and Elec. Co. v.
NRDC, 462 U.S. 87 (1983).
The question for the Court is not whether EPA's balancing of statutes and policy
judgments in promulgating the Pesticide rule were wrong or right, Int'l Fabricare Inst. v. EPA,
972 F.2d 384, 400 (D.C. Cir. 1992), but whether EPA's record-based findings conform to
minimal standards of rationality. See American Trucking v. EPA, 283 F.3d 355, 372 (D.C. Cir.
2002); Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 520-21 (D.C.Cir.
1983). They clearly do. EPA’s two exceptions are based on reasonable and consistently
explained analysis.
1. The EPA was not arbitrary or capricious in promulgating the Pesticide Rule exemption to the Clean Water Act Section 402.
In determining whether an agency action is arbitrary and capricious, the Court must
evaluate whether the agency engaged in reasoned decision-making. American Petroleum
Institute v. EPA, 216 F.3d 50, 57-58 (D.C. Cir. 2000) (citing State Farm, 463 U.S. 29).
Reasoned decision-making looks to whether a reasonable person, considering all of the evidence
in the record, would be compelled to reach a different conclusion; if that reasonable person could
27
not reach a different conclusion, no abuse of discretion has occurred and the agency decision
must be upheld. McPeck v. Colorado Dept. of Social Services, 919 P.2d 942 (Colo. Ct. App.
1996). When determining whether an agency action was arbitrary and capricious, a court may
look to the following factors: (1) if the agency failed to address important factors; (2) considered
other aspects that Congress did not intend it to consider; (3) explained its decision in a way
contrary to the available evidence; or (4) is so far-fetched that it could not be the result of agency
expertise. State Farm, 463 U.S. at 43; SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); Fox
Television Stations, Inc. v. Federal Communications Com'n, 489 F.3d 444 (3rd Cir. 2007).
Where there is no analysis or findings to justify a decision, a court cannot support the
agency's findings. State Farm, 463 U.S. at 48. The Pesticide Rule is based on sound findings of
fact and ample consideration.1 Pursuant to its Congressional authority to interpret the definition
of "pollutant" in the CWA, EPA accepted public comment on the issue and explained, through
EPA's prior enforcement history, how the final rule here is congruent with its past practices. 71
Fed. Reg. 68,486. The EPA's analysis and findings justified the regulation.
Here, EPA made a determination based on the broad statutory language of the CWA that
pesticides applied "directly to" waters for the purpose of killing pests "present in" that water are
1 In State Farm, the Supreme Court held that the National Highway Traffic Safety Administration's regulation revoking a passive restraint requirement on motor vehicles was arbitrary and capricious. State Farm, 463 U.S. at 46. The court looked to the NHTSA's consideration when promulgating the rule and found that they did not properly consider airbags as a possible implementation to improve safety requirements. State Farm, 463 U.S. at 49-51. The agency also hastily decided that a passive restraint would improve vehicle safety despite not being able to show a five percent increase in the safety belts' use. Id. at 51. Here, separate from the agency's action in State Farm, the EPA looked properly to necessary considerations and facts. The Rule is a continuation of the EPA's long-standing policy to not require NPDES permits for aquatic pesticide applications. 71 Fed. Reg. 68,483. EPA considered biological pesticides falling under the CWA's definition of a "pollutant," but determined that such Congressional intent would run counter to the language in the statute. Id. EPA considered prior judicial decisions when creating the final rule. 71 Fed. Reg. 68,485.
28
not "pollutants" under the CWA. The Pesticide Rule merely codified the long-standing practice
of the EPA to not require permits for such behavior. Deference is normally afforded to long-
standing agency interpretations. Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 487
(2004). Deference should be accorded to the EPA since they are the agency assigned to interpret
and administer the CWA.
Whether the EPA's action was arbitrary or capricious is a question of fact regarding the
proper interpretation of the broad statutory language in defining the term "pollutant" in the
CWA. A court's function is limited when the question presented is one of broad statutory
language. NLRB v. Hearst Publications, 322 U.S. 111 (1944). If a question involves specialized
knowledge by the agency and Congress has vested in the agency discretion in a technical area,
the courts should recognize the agency's presumed competence and expertise and uphold the
agency's conclusion so long as it is rationally based. Maloley v. R.J. O'Brien & Associates, Inc.,
819 F.2d 1435 (8th Cir. 1987) (citing Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 568
(1980)). The CWA defined "pollutant" broadly, so that EPA could interpret the term based on
scientific data. To allow a court to make determinations based on such questions of fact would
undermine the nature of the administrative agency's deference under Chevron. See Chevron, 467
U.S. 837. The construction adopted by an agency is entitled to substantial deference. Chemical
Mfrs. Ass'n v. NRDC, 470 U.S. 116, 125 (1985). Where different interpretations of a statute are
plausible, so long as EPA's construction is reasonable, the court may not substitute its own
interpretation for that of the agency. Chevron, 467 U.S. at 844-45.
The court in Headwaters argued that a balance between FIFRA and CWA regulations can
be struck because the two statutes had complementary purposes and the two could co-exist.
Headwaters, 243 F.3d at 530-31. The court stated in Headwaters that degradable herbicides
29
applied directly to water require an NPDES permit despite the herbicide already fulfilling FIFRA
label requirements. However, the court's ruling in Headwaters is inapplicable to the case here
because of the distinction stated by Fairhurst v. Hagener, 422 F.3d 1146, 1149 (9th Cir. 2005). In
Fairhurst, the court upheld the application of non-waste producing pesticides applied to water,
distinguishing them from waste producing pesticides. Id. Where Headwaters found that
chemical wastes that are applied to waters in accordance with their FIFRA label are still required
to acquire NPDES permits, Fairhurst found that where the intended application is beneficial to
the water in which it is applied and is FIFRA-compliant, the application material is a pesticide
and not a chemical waste. Id. at 1151-52 (emphasis added). Here, the Pesticide Rule is merely
allowing FIFRA-compliant pesticides that have a beneficial impact to be applied to water: the
exact application that the Fairhurst court spoke of. Since the Pesticide Rule does not mention
degradable herbicides or pesticides applied in contravention of their intended purpose, the
Pesticide Rule is consistent with Headwaters.
Allowing the Pesticide Rule will conserve valuable EPA resources by preventing double
regulation. As stated above, EPA is allowed to promulgate regulations in order to protect the
waters of the United States under manageable standards. 33 U.S.C. § 1342. By addressing
regulatory overlap between FIFRA and CWA, the Pesticide Rule properly creates a manageable
standard for dealing with water-based pesticide applications. Petitioners may argue that such
action is arbitrary or capricious because FIFRA and the CWA have different purposes; FIFRA's
labeling requirements address the manufacture of water-borne pesticides while CWA addresses
the application. This argument, however, is unpersuasive. FIFRA does not apply only to
manufacturers. Applicators can also violate FIFRA labeling requirements and fall outside the
limited scope of the Pesticide Rule, thus triggering CWA protection. The Rule simply promotes
30
regulatory economy by utilizing the inherent ability of another statute to control water quality,
even if it is not the statute's primary purpose. Conserving EPA resources in this way allows the
agency to fully address more compelling threats to our nation's waters.
2. EPA's reasonable interpretation of CWA Section 402 controls because it is not
arbitrary or capricious.
When Congress has not directly addressed the precise question at issue, the agency's
interpretation of a statute is entitled to deference so long as it is “reasonable” and not otherwise
“arbitrary, capricious, or manifestly contrary to the statute.” 5 U.S.C. § 706(2)(A); Chevron, 467
U.S. at 843-44; Sierra Club v. Johnson, 436 F.3d 1269, 1272 (11th Cir. 2006) (internal
quotations omitted). In examining whether an agency has performed arbitrarily and capriciously,
the Court must evaluate whether the agency engaged in reasoned decision-making. American
Petroleum Institute, 216 F.3d at 57-58 (citing State Farm, 463 U.S. 29). Under this analysis, the
Supreme Court of the United States will consider the following factors: if the agency considered
aspects that Congress did not intend it to consider; if the agency explained its decision in way
contrary to the available evidence; or the agency made a decision that is so far-fetched it could
not be the result of agency expertise. See State Farm, 463 U.S at 43.
EPA's technical judgments qualify as reasoned decision-making because they conform to
the minimal standards of rationality. See American Trucking, 283 F.3d at 372; Small Refiner
Lead, 705 F.2d at 520-21. The fact that Industry Petitioners find the Pesticide Rule unacceptably
narrow does not render the standards put forth by EPA arbitrary or capricious. Considering
EPA's carefully reasoned explanation for the exercise of its regulatory authority under the CWA
program, Industry Petitioners cannot demonstrate that EPA's decisions regarding the Pesticide
Rule are arbitrary or capricious. See American Coke and Coal Chemicals Institute v. EPA, 452
31
F.3d 930, 945 (D.C. Cir. 2006) (deferring to EPA's expert policy judgments). EPA fully and
adequately explained why it opted to exclude drift and pesticide residues. See 71 Fed. Reg.
68,492. EPA provided substantive and extensive responses to Industry’s comments addressing
the broader version of the pesticide rule. Id. Its issuance of the Final Rule after considering all
comments was reasonable. EPA determined that “if there are residual materials resulting from
pesticides that remain in the water after the application and its intended purpose (elimination of
targeted pests) have been completed, these residual materials are also pollutants . . . because they
are wastes of the pesticide application.” Id. at 68,487. EPA’s Final Rule is consistent with
Headwaters, which held that residues from the application of herbicides into an irrigation canal
qualified as a pollutant and FIFRA registration did not preclude CWA applicability. Headwaters,
243 F.3d 526.
EPA further reasoned that “[p]esticides applied consistent with relevant FIFRA
requirements are not ‘wastes’ as that term is commonly defined-on the contrary they are products
that EPA has evaluated and registered for the purpose of controlling target organisms, and are
designed, purchased, and applied to perform that purpose” 71 Fed. Reg. 68,486. It would be
contrary to both CWA and FIFRA mandates to allow pesticides to be sprayed not in accordance
with FIFRA. Promulgating that exception would render the rule arbitrary and capricious.
Industry Petitioner's arguments amount to second guessing EPA's expertise and its policy
judgments, which are not grounds for vacating this rule. See American Coke, 452 F.3d at 945
(finding that EPA's “expert policy judgment” was not arbitrary); American Trucking, 283 F.3d at
374 (“we owe deference to an agency's determination regarding the reliability of scientific
evidence” finding that it was reasonable for EPA to rely on other regulatory programs where new
national standards prove ineffective because “no single suite of secondary standards would solve
32
visibility problems everywhere in the country”). Petitioners contend that the Pesticide Rule
opens them up to potential liability. However, the Pesticide Rule creates no additional
responsibilities and potential liability remains the same as it was prior to the enactment of
Rule. The Final Pesticide Rule harmonizes CWA and FIFRA by upholding both goals.
Accordingly, this Court must give credence to each statute in order to preserve the sense and
purpose of both. See Res. Inv., Inc. v. U.S. Army Corps of Engineers, 151 F. 3d 1162, 1165 (9th
Cir. 1998) (holding that when two statutes are capable of co-existence, it is the duty of the courts
to regard each as effective).
The Pesticide Rule qualifies for agency deference because Congress delegated authority
to EPA to take action carrying the force of law. The challenged statutory interpretations were
made through notice and comment proceedings in the exercise of this authority. See Mead, 533
U.S. at 219-29. EPA’s responses to comments are consistent with its final rule. EPA adequately
considered all important aspects of the issues associated with the Final Rule raised by Industry
Petitioners. EPA extensively addressed issues raised by Industry Petitioners. The fact that EPA’s
answers did not provide the precise outcome that Industry Petitioners desired does not mean that
EPA failed to consider an important aspect. The administrative record demonstrates that EPA
conducted an appropriate analysis and made appropriate findings with respect to the rule's
fulfillment of the goals and purposes referenced in 33 U.S.C. Section 1342. 33 U.S.C. § 1342.
CONCLUSION
As a result of the foregoing, Petitioner's appeal should be dismissed and the District
Court's grant of partial summary judgment to Environmental Petitioners should be reversed.
The Petitioners claims do not satisfy the "case or controversy" requirement in Article III
of the U.S. Constitution. The Industry Petitioners’ claim is not ripe for adjudication and the
33
Environmental Petitioners failed to prove the elements of standing.
Even if their claims were reviewable, Petitioners should have brought their claims in the
Court of Appeals. Since the claim was not properly filed, the statute of limitations should not be
equitably tolled.
Furthermore, EPA's promulgation of the Pesticide Rule was not arbitrary and capricious,
nor was it arbitrary and capricious for EPA to exclude terrestrial applications in the Rule. EPA
made a reasonable interpretation of their granted authority and this Court must grant EPA
deference.