Court Rulings Endanger Farmers’ Use of Pesticides

Published August 1, 2004

Farmers who apply their own pesticides, and state legislators who represent them, should be aware of two key environmental cases making their way through the federal court system, as well as a legislative response from a coalition of agricultural and industry groups.

Legal Assault Underway

Some environmentalists are waging a two-pronged legal assault on pesticide applicators by attempting to expand the reach of two federal environmental statutes.

In the first case, environmental groups want to require pesticide applicators to apply for water permits, even when the applicator complies with the law that traditionally governs use of pesticides.

In late 2003, a federal appeals court ruled that a “citizen group” can bring a lawsuit pursuant to the Clean Water Act (CWA), requiring a pesticide applicator to obtain an additional water permit even when the applicator has complied with the requirements of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Applicators of pesticides typically have been spared the additional red tape and expense of applying for federal water permits once they’ve demonstrated compliance with FIFRA, the nation’s most comprehensive statute regulating pesticide use.

Salmon Buffer Zone

At the same time, some environmental groups are seeking to establish “spray barriers” pursuant to the Endangered Species Act (ESA), even when the Environmental Protection Agency (EPA) has not yet determined the toxicity or nontoxicity of a given pesticide.

On January 22, a U.S. District Court in Washington State ordered EPA to establish 20- and 100-yard buffer zones for ground and aerial spraying, respectively, of 38 pesticides around waterways that contain salmon protected by the ESA.

The case, Washington Toxics Coalition v. EPA, arose when an environmental group sued the agency for not consulting the National Marine and Fisheries Service (NMFS) about “the impacts of pesticides on endangered Pacific salmon,” and therefore violating the ESA. Pesticides manufacturers plan to appeal the federal judge’s order.

The federal court order constitutes the first of its kind because federal regulatory action determining the toxicity of the pesticides is still pending at EPA. Spokesmen for the Washington Farm Bureau and Croplife America have criticized the court for “substituting its own judgment for those of scientists at EPA,” who are charged by federal statute to determine whether a given pesticide has toxic effects on an endangered species.

Circumventing Courts

Interestingly, EPA has recently announced it will seek to rescind rules pursuant to the ESA requiring the agency to consult with other government agencies, including the NMFS, when reviewing the toxicity of a given pesticide. The good news for agriculture, and any other party engaged in the spraying of pesticides, is that EPA’s revision of the ESA regulations may render moot any future injunctions by activist judges such as the one who created the spraying buffer zones.

An official with the U.S. Department of Justice, which represented EPA in the case, said the administration does not yet know whether it will appeal the ruling.

While government officials have been indecisive with respect to the spray barrier issue, a coalition representing the pesticides industry has drafted legislation clarifying the reach of the CWA with respect to the spraying of pesticides.

The coalition, which represents farming groups and pesticide sprayers, has held meetings with congressional staff this year to solicit sponsors of the proposed amendment to FIFRA. The draft bill states, “a product registered under this act, when used in accordance with the relevant requirements of this act, does not constitute the discharge of a pollutant that requires a NPDES permit under the CWA.”

If the group succeeds in having its draft amendment enacted into law, clarification of the environmental statutes will prevent courts from mandating additional red tape on law-abiding, taxpaying farmers and pesticide sprayers.

Gary Baise and Bryan Brendel are attorneys with the Washington, DC-based law firm of Baise and Miller PC specializing in legislative and regulatory affairs focusing on energy, environment, and agricultural issues. Baise’s email address is [email protected].