Team No. 32

Civ. App. Nos. 07-1001, 07-1002______________________________________________

UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT

______________________________________________

LACONIC BAYKEEPER, INC., IMA FISHER,and SAM SCHWIMMER,

Appellants—Cross-Appellees,

v.

STEPHEN JOHNSON, ADMISTRATOR, U.S. Environmental Protection Agency,

Appellee—Cross Appellant.

NEW UNION FARMERS INSTITUTE, UNION OF NEW UNION PESTICIDE APPLICATORS, HAPPY VALLEY FARM, INC., and WICCILLUM COPTERS, INC.,

Appellants,

v.

STEPHEN JOHNSON, ADMINISTRATOR,U.S. Environmental Protection Agency,

Appellee.

_______________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW UNION________________________________________________

Oral Argument Requested_________________________________________________

BRIEF FOR APPELLANTS, NEW UNION FARMERS INSTITUTE, UNION OF NEW UNION PESTICIDE

APPLICATORS, HAPPY VALLEY FARM, INC., and WICCILLUM COPTERS, INC.

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................................................................................iii

JURISDICTIONAL STATEMENT ..............................................................................................1

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ................................................1

STATEMENT OF THE CASE .....................................................................................................2

STATEMENT OF FACTS ...........................................................................................................3

SUMMARY OF THE ARGUMENT ............................................................................................4

STANDARD OF REVIEW ...........................................................................................................6

ARGUMENT ................................................................................................................................7

I. ENVIRONMENTAL PLAINTIFFS DO NOT HAVE STANDING TO SEEK INVALIDATION OF THE PESTICIDE RULE ....................................................................7

A. Standing—Constitutional limits on federal jurisdiction ....................................................7

B. Environmental Plaintiffs have suffered no injury in fact ..................................................8

C. Environmental Plaintiffs have shown no causal connection between the Rule and any injury ...............................................................................................................................10

D. Invalidation of the Rule is not likely to redress any injury Environmental Plaintiffs may suffer ...............................................................................................................................10

II. THE DISTRICT COURT HAS ORIGINAL JURISDICTION TO HEAR THIS CLAIM ..12

A. The Pesticide Rule is not an “effluent limitation or other limitation” .............................11

B. Pesticide exemptions are not equivalent to the “issuance or denial of a permit” ...........13

C. No relevant ambiguities apply ........................................................................................15

D. To grant direct appellate review court review in this case would create judicialinefficiency .....................................................................................................................16

III. IF THE DISTRICT COURT LACKED JURISDICTION, THIS COURT SHOULD EQUITABLY TOLL THE 120 DAY STATUTE OF LIMITATIONS ...............................17

ii

A. Tolling the statute of limitations is not contrary to Congressional intent .......................17

B. CWA case law supports tolling under these circumstances ............................................18

C. Equitable considerations militate for tolling the statute .................................................19

IV. INDUSTRY PLAINTIFFS’ CHALLENGES TO THE CONTENT AND SCOPE OF THE PESTICIDE RULE ARE RIPE FOR REVIEW ...................................................................20

A. Ripeness—fitness and hardship ......................................................................................20

B. Industry Plaintiffs’ challenge to the scope of the Rule is ripe ........................................23

C. Industry Plaintiffs’ challenge to the content of the Rule is ripe .....................................24

V. THE PESTICIDE RULE’S EXEMPTION OF SPECIFIC PESTICIDE APPLICATION ACTIVITIES FROM THE CWA PERMITTING PROGRAM WAS REASONABLE AND PERMISSIBLE .....................................................................................................................26

A. Administrative law—judicial deference .........................................................................26

B. The Pesticide Rule fills an explicit gap ...........................................................................27

C. The Pesticide Rule carries the force of law ....................................................................28

D. EPA’s definition of pesticides applied to or near water in compliance with FIFRA as neither chemical wastes nor biological materials is reasonable ......................................29

E. EPA’s definition of point source pollutant as dependent on the character and purpose of the discharge at the moment of discharge is reasonable .................................................32

VI. THE PESTICIDE RULE’S FAILURE TO EXTEND ITS RATIONALE TO SIMILAR APPLICATION ACTIVITIES WAS UNREASONABLE ..................................................33

A. Chevron deference applies to the non-exemption of residues and applications not in compliance with FIFRA; Skidmore deference applies to the non-exemption of terrestrial applications ......................................................................................................................33

B. The Pesticide Rule’s non-exemptions are unpersuasive, arbitrary, capricious, and an abuse of discretion ..........................................................................................................34

CONCLUSION............................................................................................................................35

iii

TABLE OF AUTHORITIES

SUPREME COURT DECISIONS

Abbott Labs. v. Gardner, 387 U.S. 136, 154 (1967).............................................1, 3, 5, 20-21, 23

Burnett v. New York Cent. R. Co., 380 U.S. 424 (1965)..............................................................17

Chevron U.S.A., Inc. v. Natural Res. Def. Counsel, Inc., 467 U.S. 837 (1984)............6, 26-28, 33

Christensen v. Harris County, 529 U.S. 576 (2000)....................................................................27

Crown Simpson Pulp Co. v. Costle, 445 U.S. 193 (1980) .....................................................14-15

Duke Power Co. v. Carolina Envtl Study Group, 438 US 59 (1978) ....................................22, 26

E.I. Dupont de Nemours & Co. v. Train, 430 U.S. 112 (1977) ...................................................15

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) .....................................8

Gardner v. Toilet Goods Ass’n, 387 U.S. 167 (1967)............................................................20, 21

Holmberg v. Armbrecht, 327 U.S. 392 (1946).............................................................................17

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .............................................................4, 7-9

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) ...................32

Nike v. Kasky, 539 U.S. 654 (2003).............................................................................................21

Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998) ..........................................................21

Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342 (1944) ..........................17

Park v. Forest Serv., 205 F.3d 1034 (2000)...............................................................................7, 9

Skidmore v. Swift, 323 U.S. 134 (1944)........................................................................6, 27-29, 33

Toilet Goods Ass’n v. Gardner, 387 U.S. 158 (1967)............................................................20, 21

United States v. Mead Corp., 533 U.S. 218 (2001) .....................................................................27

United States v. Morton, 467 U.S. 822 (1984).............................................................................28

United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973) .....7

iv

Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982).......................................................................................................................7

Whitmore v. Arkansas, 495 U.S. 149 (1990) .................................................................................8

UNITED STATES COURT OF APPEALS DECISIONS

American Ass'n of Meat Processors v. Costle, 556 F.2d 875 (8th Cir. 1977) .............................18

American Mining Cong., 965 F.2d 762 (9th Cir. 1992)...............................................................14

APHETI v. Taylor Res., Inc., 299 F.3d 1007 (2002)....................................................................30

Appalachian Power Co. v. Train, 566 F.2d 451 (9th Cir. 1977) .................................................18

Bethlehem Steel Corp. v. EPA. 538 F.2d 513 (2d Cir. 1976).......................................................15

Cleveland Branch N.A.A.C.P. v. City of Parma, Ohio, 263 F3d 513 (6th Cir. 2001) ...................6

Cont’l Air Lines v. CAB, 522 F.2d 107 (D.C. Cir. 1975).......................................................22, 23

Earth Island Inst. v. Ruthenbeck, 490 F.3d 687 (2007) ...............................................................20

Envtl Def. Ctr. v. EPA, 344 F.3d 759 (9th Cir. 2003)..................................................................14

Fairhurst v. Hagener, 422 F.3d 1146 (9th Cir. 2005) .................................................................29

Friends of the Earth v. EPA, 333 F.3d 184 (D.C. Cir. 2003) ......................................................15

Georgia-Pacific Corp. v. EPA, 671 F.2d 1235 (9th Cir. 1982) ...................................................18

Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th Cir. 2001)..................................31

Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620 (2d Cir. 1976) ...............................15

Hudson River Fisherman’s Ass’n v. City of New York, 751 F. Supp. 1088 (S.D.N.Y. 1990), aff’d,940 F.2d 649 (2d Cir. 1991)...................................................................................................32, 33

Justice v. U.S., 6 F.3d 1474 (11th Cir. 1993)...............................................................................17

Longview Fibre Co. v. Rasmussen, 980 F.2d 1307 (9th Cir. 1992)............................12, 15-16, 19

Moore v. Curtis, 736 F.2d 1260 (8th Cir. 1984) ............................................................................6

Nat’l Ass’n of Home Builders v. Army Corps of Eng’rs, 440 F.3d 459 (D.C. Cir. 2006) ...........22

v

Nat’l Wildlife Fed’n v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988) ............................30

Natural Res. Def. Council v. EPA, 656 F.2d 768 (D.C. Cir. 1981) ..................................12, 14-15

Natural Res. Def. Council v. EPA, 673 F.2d 400 (D.C. Cir. 1982) ........................................12, 13

Natural Res. Def. Council v. EPA, 859 F.2d 156 (D.C. Cir. 1988) ..................................21-22, 24

Powder River Basin Res. Council v. Babbitt, 54 F.3d 1477 (10th Cir.1995) ................................6

Provecto San Pablo v. I.N.S., 189 F.3d 1130 (9th Cir. 1999)........................................................1

State of Tennessee v. Herrington, 806 F.2d 642 (6th Cir. 1986) .................................................16

Suburban O'Hare Comm’n v. Dole, 787 F.2d 186 (7th Cir. 1986)..............................................16

Texas v. United States, 497 F.3d 491 (5th Cir. 2007)..................................................................22

Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir. 1984) ..........................................................13

UNITED STATES DISTRICT COURT DECISIONS

Envtl Protection Info. Ctr. v. Pacific Lumber Co., 266 F. Supp. 2d 1101 (N.D. Cal. 2003).12, 13

Long Island Soundkeeper Fund, Inc. v. N.Y. Athletic Club, 1996 WL 131863 (S.D.N.Y. Mar. 22, 1996) ............................................................................................................................................32

Nw. Envtl Advocates v. EPA, 2005 WL 756614 (N.D. Cal. Mar. 30, 2005) .........................12, 13

U.S. PIRG v. Atlantic Salmon, 215 F. Supp. 2d 239 (D. Maine 2002)........................................30

UNITED STATES STATUTES

5 U.S.C. § 704 (2007) ....................................................................................................................5

7 U.S.C. §§ 136a(c)(1), (c)(5) (2007) ..........................................................................................31

7 U.S.C. § 136j(a)(2)(G) (2007) ............................................................................................31, 35

7 U.S.C. § 136l(b)(2) (2007)........................................................................................................31

28 U.S.C. § 1291 (2007) ................................................................................................................1

28 U.S.C. § 1331 (2007) ............................................................................................................1, 5

33 U.S.C. § 502(12)(A) (2007)........................................................................................29-30, 35

vi

33 U.S.C. § 1251(a)(2) (2007) .....................................................................................................31

33 U.S.C. § 1251(e) (2007)..........................................................................................................18

33 U.S.C. § 1311(a) (2007)..........................................................................................................29

33 U.S.C. §§ 1311(g)(4), (g)(5) (2007) .......................................................................................18

33 U.S.C. § 1312(a) (2007)..........................................................................................................28

33 U.S.C. § 1312(b)(2) (2007)...............................................................................................28, 31

33 U.S.C. § 1317(a)(1) (2007) .....................................................................................................28

33 U.S.C. § 1319(a) (2007)..........................................................................................................28

33 U.S.C. § 1361(a) (2007)..........................................................................................................28

33 U.S.C. § 1362(6) (2007) .........................................................................................................28

33 U.S.C. § 1362(a)(19) (2007) ...................................................................................................31

33 U.S.C. § 1365 (2007) ..............................................................................................................24

33 U.S.C. § 1369(b)(1)(E)-(F) (2007) ................................................................2, 5, 11-16, 18-19

40 C.F.R. § 122 (2007) ..............................................................................................................2, 3

42 U.S.C. § 10139, 10161(h) (2007) ...........................................................................................16

Pub. L. No. 100-4. § 505(a) .........................................................................................................18

RULES AND REGULATIONS

FED. R. CIV. P. 56(c) .................................................................................................................7, 20

71 Fed. Reg. 68,483 (Nov. 27, 2006) (to be codified at 40 C.F.R. pt. 122) .....3, 23, 25, 29-33, 35

LEGISLATIVE HISTORY

S. Rep. No. 92-414 (1971) ...........................................................................................................18

OTHER AUTHORITIES

CHILDRESS & DAVIS, FEDERAL STANDARDS OF REVIEW § 2.13 (3d ed. 1999) ..............................6

vii

Mary Jane Angelo, Genetically Engineered Plant Pesticides, 7 U. FLA. J.L. & PUB. POL’Y 257 (1996)...........................................................................................................................................30

Black’s Law Dictionary (7th ed. 1999)........................................................................................12

New Oxford American Dictionary (2001)...................................................................................29

1

JURISDICTIONAL STATEMENT

This case arises under 28 U.S.C. § 1331, which provides that “[t]he district court shall

have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of

the United States.” Unless otherwise provided in a statute, the district courts have jurisdiction to

review final agency action as part of their “general federal question jurisdiction.” Provecto San

Pablo v. I.N.S., 189 F.3d 1130, 1136 n.5 (9th Cir. 1999). This Court has jurisdiction over this

appeal from the district court’s final judgment. See 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

1. Whether the Environmental Plaintiffs have standing to challenge the Pesticide Rule.

2. Whether the challenges to the Pesticide Rule should have been brought directly in the

Court of Appeals pursuant to CWA § 509(b)(1), precluding District Court jurisdiction

over any challenge to the Pesticide Rule.

3. Whether, if this Court determines these cases should have been brought in the Court of

Appeals, the Court should equitably toll the 120 day statute of limitations of CWA §

509(b)(1).

4. Whether Industry Plaintiffs’ challenge is ripe under Abbott Laboratories v. Gardner.

5. Whether the Pesticide Rule’s exemption of specified pesticide application activities from

the CWA permitting program was arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.

6. Whether the failure of the Pesticide Rule to include within its exemption pesticide

residues, pesticides applied in violation of FIFRA requirements, and pesticides applied

distant from water but which drift into water was arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.

2

STATEMENT OF THE CASE

This is an appeal from an order of the United States District Court for the District of New

Union granting partial summary judgment in favor of Laconic Baykeeper, Inc. (LBK), Ima

Fisher, and Sam Schwimmer (Environmental Plaintiffs), as well as granting summary judgment

dismissing the complaint of New Union Farmers Institute (NUFI), the Union of New Union

Aerial Pesticide Applicators (UNUAPA), Happy Valley Farm, Inc., and Wiccillum Copters, Inc.

(Industry Plaintiffs). Record (R.) at 5. In No. 07-1001, Environmental Plaintiffs brought suit

against the United States Environmental Protection Agency (EPA), challenging its authority

under the Clean Water Act (CWA) to exempt any pesticide application activities from permitting

requirements. R. at 2. Specifically, Environmental Plaintiffs questioned the validity of an

amendment to 40 C.F.R. § 122 known as the “Pesticide Rule” (Rule) at 71 Fed. Reg. 68,483

(Nov. 27, 2006). R. at 2. In No. 07-1002, Industry Plaintiffs also brought suit, challenging the

limited scope of the Rule and seeking declaratory judgment that pesticide residues, pesticides

applied in violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and

pesticides applied distant from water but which drift into water should all be exempted from

CWA permitting requirements. R. at 2. The EPA argued that claims by both plaintiffs were

precluded by 33 U.S.C. § 13691(b)(1), which gives exclusive jurisdiction to the Court of Appeals

for challenges to certain EPA regulatory actions. R. at 2.

Rejecting the EPA’s arguments, the District Court consolidated the two cases and

asserted jurisdiction over the plaintiffs claims. Id. The court first granted partial summary

judgment in favor of Environmental Plaintiffs, reasoning that the Rule’s exemption of biological

pesticides and non-aquatic pesticides contradicted the express intent of Congress. Id. Next,

rather than reaching Industry Plaintiffs’ challenges, the court found their claims were not ripe

3

under Abbot Laboratories v. Gardner, 387 U.S. 136 (1967). R. at 2. Environmental Plaintiffs

and Industry Plaintiffs appealed, and the EPA cross-appealed.

STATEMENT OF FACTS

On November 27, 2006, the EPA issued the “Pesticide Rule,” which amended the Code

of Federal Regulations, 40 C.F.R. pt. 122, to exempt the following two classes of pesticide

applications from regulation under CWA § 301 when they are applied in compliance with the

relevant FIFRA requirements: 1) pesticides applied directly to water to control pests in water,

and 2) pesticides applied over or near water when it is inevitable that they will deposit in water.

R. at 1−2. The exemptions followed from the EPA’s interpretation of “pollutant.” R at 2. In the

Rule, the EPA also defined pollutant to include pesticide residues and pesticides applied without

complying with relevant FIFRA requirements.1 The EPA did not address terrestrial applications

of pesticides in its definition of pollutant, but described its “workgroup” approach to analyzing

such applications as a matter of policy. 71 Fed.Reg. 68,483, 68,488.

Environmental Plaintiff LBK is a non-profit environmental group whose members

include Plaintiffs Ima Fisher and Sam Schwimmer. Fisher uses Laconic Bay (Bay) as a

commercial fisherperson and Schwimmer uses the Bay for swimming and birdwatching. R. at 5.

Industry Plaintiffs NUFI and Happy Valley Farm depend on pesticides to protect their

dairy operations and their corn, soybean, and cotton crops. R. at 5. Members of UNUAPA and

1 The EPA expressly defines pesticide residues as pollutants. 71 Fed.Reg. 68483, 68487 (noting that “residual should be treated as a nonpoint source pollutant”). Pesticides applied inconsistent with FIFRA requirements are impliedly defined as pollutants. Pesticides applied consistent with FIFRA “are not wastes (and therefore not pollutants)” because they are applied in compliance with FIFRA, and thus are being applied for their “intended, beneficial purpose.” Id. at 68488. It follows that pesticides not applied for their intended purposes (which, because FIFRA requirements define the beneficial uses for which pesticides may be applied, includes all applications not in compliance with FIFRA) are defined as wastes, and therefore pollutants. Id.

4

Wiccillum Copters apply pesticides for NUFI’s members. R. at 5. Prior to the promulgation of

the Pesticide Rule, Industry Plaintiffs were not regulated under the CWA. R. at 5.

The City of Progress (City) developed a mosquito control plan (Plan) to apply BTI, a

biological pesticide, and Anvil 10 + 10, a chemical pesticide not approved for aquatic use, to the

Bay in the event that “significant numbers” of birds or mosquitoes infected with West Nile Virus

are discovered in New Union, and entered into a conditional contract (Contract) with Wiccillum

Copters to apply those pesticides. R at 5−6. The City has not yet applied either pesticide to

Laconic Bay. West Nile had not been found in New Union at the time the complaint was filed

(on February 23, 2007), but several infected birds and mosquito populations were subsequently

identified in New Union (in July 2007). R at 6−7.

SUMMARY OF THE ARGUMENT

Environmental Plaintiffs do not have standing to seek invalidation of the Rule because

they have not alleged that they are likely to suffer harm from pesticide applications to Laconic

Bay as a result of the adoption of the Rule. At the time they filed their complaint, the record

showed merely that Anvil 10 + 10 is harmful when applied to water and that the City has a plan

to apply Anvil 10 + 10 to Laconic Bay if West Nile Virus is discovered in New Union. This is

insufficient to establish injury in fact, causation, or redressability. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560−61 (1991). Injury to the plaintiff must be “certainly impending,” id.

at 563 n.2, and Plaintiffs failed to show that it was likely, much less certain, that Anvil 10 + 10

would be applied to the Bay. Furthermore, because the City’s Plan existed prior to the Rule’s

promulgation and because its activation depends on the occurrence of events unrelated to the

Rule, even the speculative injury asserted by Plaintiffs is not “fairly traceable” to the Rule. Id. at

590 (alteration omitted). Finally, invalidation of the rule is not “likely” to redress the Plaintiffs’

5

supposed injury because the City’s Plan existed prior to the Rule, and the existence of the Rule

therefore has no effect on it. Id. at 561.

The district court has original jurisdiction to hear challenges to the Pesticide Rule

pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 704. Citing 33 U.S.C. 1369(b)(1)(E)−(F), the EPA

argues that the courts of appeals have exclusive review of challenges to a regulation that wholly

exempts pesticides applied to, over, or near water from NPDES permitting. The EPA’s

argument fails because an exemption is equivalent to neither a limitation under CWA § 1369

(b)(1)(E) nor an “issuance or denial” of a permit under 33 U.S.C. § 1369(b)(1)(F). Moreover,

because Plaintiff-Appellants acted diligently by filing a timely complaint with the district court,

the statute of limitations should be tolled if this Court should determine that the district court did

not have original jurisdiction.

Industry Plaintiffs’ challenges to the content and the scope of the Pesticide Rule are ripe

for review. The challenge to the Rule’s content (i.e., the definition of pesticide residues and

pesticides applied inconsistently with FIFRA requirements as pollutants) is ripe because it is

purely a legal question of statutory interpretation that was promulgated after notice and comment

and carries the force of law, and it creates hardship in the form of complex and intrusive

regulation. Abbott Laboratories v. Gardner, 387 U.S. 136, 149−54. The challenge to the Rule’s

scope (i.e., EPA’s decision that terrestrial application of pesticides, unlike aquatic applications,

cannot be answered by the statute) is ripe because no further factual development is necessary to

evaluate the reasonableness of that final decision, and it places Industry Plaintiffs in the present

dilemma of changing behavior or facing legal challenges without the benefit of a previously

available defense.

6

Environmental Plaintiff’s claims must fail under Chevron deference standards because

the EPA’s rationale for exempting certain classes of pesticide from the definition of pollutant is

reasonable. First, the EPA reasonably distinguishes chemical pesticides, which are used for a

designed purpose, from “chemical waste” pollutants, which serve no purpose. Second, the EPA

also reasonably distinguishes “biological material[]” pollutants from biological pesticides, which

are designed to pose fewer hazards to human health and the environment than do chemical

pesticides. Third, the EPA reasonably interprets the CWA to look at the moment of discharge

from a point source, as well as the intended use, in determining whether materials are pollutants.

Industry Plaintiff’s claims, on the other hand, must succeed. Although the EPA’s

rationale for exempting some applications of pesticides is reasonable, its decision not to extend

that rationale to pesticide residues and pesticides applied in violation of FIFRA is not reasonable.

The EPA’s logic concerning the time and purpose of discharge inescapably exempts pesticide

residues and drift. Nor was it reasonable to address terrestrial applications of pesticides apart

from the definition of pollutant. The former non-exemptions (residues and non-compliant

applications) merit Chevron deference, but the latter (terrestrial drift) merits only Skidmore

deference.

STANDARD OF REVIEW

All claims pressed on appeal herein are subject to de novo review. See Cleveland Branch

N.A.A.C.P. v. City of Parma, Ohio, 263 F3d 513, 523 (6th Cir. 2001) (standing); Powder River

Basin Res. Council v. Babbitt, 54 F.3d 1477, 1483 (10th Cir.1995) (ripeness); Moore v. Curtis,

736 F.2d 1260, 1262 (8th Cir. 1984) (district court conclusions regarding correctness of an

agency’s statutory interpretations); CHILDRESS & DAVIS, FEDERAL STANDARDS OF REVIEW § 2.13

(3d ed. 1999) (meaning of a statute conferring jurisdiction).

7

ARGUMENT

I. ENVIRONMENTAL PLAINTIFFS DO NOT HAVE STANDING TO SEEK INVALIDATION OF THE PESTICIDE RULE

A. Standing—Constitutional limits on federal jurisdiction

By defining what constitutes a “case or controversy” under Article III, the elements of

standing delineate the federal courts’ jurisdictional reach. Valley Forge Christian College v.

Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982). The

“irreducible minimum” of standing, id. at 472, requires that the plaintiff establish (1) injury in

fact, (2) a causal connection between the injury and the defendant’s conduct, and (3) that the

requested relief will redress that injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560−61

(1992). The presence of these elements ensures that the power to set the judiciary in motion is

not placed in the hands of those who would use it as a “vehicle for the vindication of . . . value

interests.” United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412

U.S. 669, 687 (1973).

The plaintiff bears the burden of proof for each of these elements, and must support them

“with the manner and degree of evidence required at the successive stages of the litigation.”

Lujan, 504 U.S. at 561. Thus, upon a motion for summary judgment, the plaintiff can resist

dismissal only by demonstrating that a genuine issue of material fact exists for each element.

FED. R. CIV. P. 56(c). Furthermore, the plaintiff bears this burden for each element as of the time

the complaint was filed. In other words, the plaintiff may not “use evidence of what happened

after the commencement of the suit” to create jurisdiction that did not exist at that time. Park v.

Forest Serv., 205 F.3d 1034, 1037 (2000) (finding no standing where plaintiff failed to show

likelihood of constitutional violation in complaint, although violation later occurred).

8

First, the plaintiff must show an injury in fact—“an invasion of a legally protected

interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or

hypothetical.” Lujan, 504 U.S. at 560 (internal quotes and citations omitted). An injury is

“concrete and particularized” when it “affect[s] the plaintiff in a personal and individual way.”

Id. at 560 n.1. Environmental plaintiffs must show harm to their own personal interests, not

harms or possible harms to the environment generally. Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs., 528 U.S. 167, 181 (2000). An injury is “actual or imminent” when it has already

occurred or is “certainly impending,” Lujan, 504 U.S. at 560, but not when it is merely a

“possible future injury.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990). Furthermore, where

the “asserted injury arises from the government’s allegedly unlawful regulation (or lack of

regulation) of someone else, . . . [standing] is ‘substantially more difficult’ to establish.” Lujan,

504 U.S. at 562 (emphasis in original). In other words, an indirect injury requires a stronger

showing of immediacy than a direct injury. Id. at 564 n.2 (observing that “in such circumstances

[courts] have insisted that the injury proceed with a high degree of immediacy”).

Second, the alleged injury must be “fairly traceable” to the defendant’s actions, not

independently caused by a third party. Id. at 560 (alteration omitted). In other words, the

plaintiff must show that the challenged action has caused or will cause the third party to take the

actions that directly injure the plaintiff. Id. at 562. Finally, an alleged injury is redressable when

it is “‘likely,’ as opposed to merely ‘speculative,’ that [the injury] will be ‘redressed by a

favorable decision.’” Id. at 561.

B. Environmental Plaintiffs have suffered no injury in fact.

Plaintiffs have not alleged an injury sufficient to confer standing. In ruling to the

contrary, the district court relied on the fact that the City had, after the motions for summary

9

judgment were briefed, announced its intention to discharge pesticides into the Bay. R. at 9.

Because standing must exist at the time the complaint is filed and may not be created by

subsequent events, Park, 205 F.3d at 1037, the district court’s reliance on that announcement

was error.

Plaintiffs have not alleged a “concrete and particularized” injury. At the time the

complaint was filed, Environmental Plaintiffs had merely a general political interest in the

Administrator’s definition of “pollutant”—no more concrete than any other commercial

fisherpersons or recreational swimmers who use waters subject to the EPA’s jurisdiction under

the CWA. Environmental Plaintiffs’ affidavits evince a general concern over the effects of

aquatic pesticide applications in other places, R. at 6 (Anvil 10 + 10 causes die-offs of fish,

effects on sexual development of crabs), but they have not alleged that the challenged Rule

makes them any more likely to be injured by a local application of pesticides. Moreover, even

assuming that their alleged injury from Anvil 10 + 10 (which is not FIFRA approved for aquatic

use) were personal enough to support a challenge, Environmental Plaintiffs have not alleged that

aquatic use of BTI (which is FIFRA approved for aquatic use) are harmful, so they have no

standing to challenge the portion of the Rule that pertains to pesticides applied in compliance

with FIFRA.

Nor is any injury sufficiently imminent to confer standing. Because any possible harm to

Fisher or Schwimmer would result from a failure to regulate third parties (pesticide applicators),

Plaintiffs must show a “high degree of immediacy.” Lujan, 504 U.S. at 564 n.2. The only

possible footing on which an allegation of imminent injury might stand is the existence of the

City’s Plan and the Contract for mosquito control between the City and the UNUAPA members.

By their very nature, however, the Plan and Contract fail to satisfy the imminence requirement.

10

The Plan is not imminent because it becomes active only if “significant numbers” of infected

mosquitoes or birds are identified. R. at 6. Nor can the consummation of the Contract be

considered “certainly impending,” Lujan, 504 U.S. at 560, unless the condition on which it is

premised (presumably, the activation of the City’s Plan) is certain. At the time the complaint

was filed, there was no evidence of West Nile Virus in New Union, and the City’s plans to apply

pesticides to Laconic Bay could by no means be characterized as “certain.”

C. Environmental Plaintiffs have shown no causal connection between the Rule and any injury.

Furthermore, even the possibility that the Plan and the Contract will become active—

Environmental Plaintiff’s strongest argument for the existence of an imminent injury—is not

causally related to the challenged Rule. Only if the EPA’s action in some way affected the

City’s Plan could this causal requirement be met. If the Plan and Contract were to become active

upon EPA approval, for instance, then the Rule might fairly be characterized as a “cause” of the

pesticide applications. Instead, the City’s Plan and its Contract with UNUAPA members was

developed independently of this rule, and their activation is solely dependent on occurrences

outside the EPA’s control (viz., identification of West Nile Virus in New Union). R. at 6.

Therefore, no possible harm to Fisher or Schwimmer can be traced to the challenged action.

D. Invalidation of the Rule is not likely to redress any injury Environmental Plaintiffs may suffer.

Finally, invalidation of the rule would not redress any cognizable injury to the plaintiffs.

Because the Rule is not the cause of the possible applications of pesticides to Laconic Bay, its

invalidation cannot be the solution that prevents such applications.

Environmental Plaintiffs seek to invalidate the Rule in the hopes that a more favorable

rule will be adopted after reconsideration—a rule that defines pesticides, whether applied in

11

compliance with the relevant FIFRA requirements or not, as pollutants requiring NPDES

permits. The plaintiffs are threatened (albeit in a conjectural way) by the possible application of

Anvil 10 + 10 to Laconic Bay, which would violate FIFRA. A more favorable rule cannot make

the City’s Plan to apply Anvil 10 + 10 to water any less illegal, but might enable Plaintiffs to

bring a citizen suit against pesticide applicators under the CWA. Therefore, whether the

invalidation of the Rule will redress plaintiff’s alleged injury (characterized generously as the

relative uncertainty of their ability to bring a citizen suit against the applicators for failure to get

an NPDES permit) depends on the likelihood of such a rule’s adoption. Unfortunately, such a

rule is highly unlikely to be adopted. If the EPA required NPDES permits for applications not in

compliance with FIFRA, the question of whether to require an NPDES permit, which must be

obtained before the pesticide is applied, would depend on whether the pesticide was applied in

compliance with the relevant FIFRA requirements (an inquiry that can only be conducted after

the application). Such a requirement, to put it mildly, would be strained and illogical.

Therefore, invalidation of the Rule is unlikely to redress even the plaintiffs’ most tenuous alleged

injury.

II. THE DISTRICT COURT HAS ORIGINAL JURISDICTION TO HEAR THIS CLAIM

Relying on 33 U.S.C. § 1369(b)(1), the EPA argues that Plaintiffs incorrectly filed their

complaints and should have sought review in the circuit court. In relevant part, 1369(b)(1)

states:

Review of administrator's action…(E) in approving or promulgating any effluent limitation or other limitation under §§ 1311, 1312, 1316, or 1345 of this title, [or] (F) in issuing or denying any permit under § 1342 of this title…may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district.

12

EPA’s reliance on this provision is misplaced because 1) the Pesticide Rule is not an effluent

limitation or other limitation; 2) it is not equivalent to an issuance or denial of a permit; 3) no

relevant ambiguities apply; and 4) judicial efficiency militates in favor of direct review by the

district court.

A. The Pesticide Rule is not an "effluent limitation or other limitation"

Courts have generally given § 1369(b)(1)(E) a narrow reading. See Longview Fibre Co.

v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir. 1992). The Pesticide Rule does not “limit”

anything; instead, it excludes a whole class of pollutants. A wholesale exemption of a class of

discharges2 is not an effluent limitation or other limitation.3 Nw. Envtl Advocates (NEA) v. EPA,

2005 WL 756614 *4-5 (N.D. Cal. Mar. 30, 2005) (noting that regulations exempting ballast

water are not limitations because an exemption4 does not limit anything); EPIC v. Pacific

Lumber Co., 266 F. Supp. 2d 1101, 1115 (N.D. Cal. 2003) (holding that EPA regulation

exempting certain silvicultural activities from definition of "point source" is not a limitation).

Although some courts include within the scope of 1369(b)(1)(E) regulations that govern

underlying permitting procedures, the Pesticide Rule does not fall within this limited exception.

In Natural Res. Def. Council v. EPA, 673 F.2d 400 (D.C. Cir. 1982) (NRDC II), the court read §

1369(b)(1)(E) broadly to include NPDES regulations that involve underlying permitting

procedures. The court applied the reasoning it used in Natural Res. Def. Council v. EPA, 656

F.2d 768, 775 (D.C. Cir. 1981) (NRDC I): A regulation creates a "perverse situation" if a circuit

court is able to review the issuance or denial of a permit under 1369(b)(1)(F) but lacks “the

2 "Discharge of a pollutant…means…any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 502(12)(A).3 A "limitation" is defined as "[t]he act of limiting; the state of being limited" or "a restriction." Black’s Law Dictionary (7th ed. 1999). 4 An "exemption" means "[f]reedom from a duty, liability, or other requirement." Id.

13

authority to review directly the regulations on which the permit is based." Id. at 775. See also

Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir. 1984) (granting review under § 1369(b)(1)(E)

of underlying procedures that concerned the burden of proof in a permit hearing).

Even assuming that 1369(b)(1) includes underlying permitting procedures, a wholesale

exclusion from permitting is not procedural. NEA, 2005 WL 75661, at *6. In NRDC II, the

court found that the EPA's rejection of permitting procedures authorized by the state of

California were "functionally equivalent" to denying a permit, which created the "perverse

situation" wherein the Appellate Court would not be able to review the regulation. 673 F.2d at

405-406. In NEA, however, the court distinguished cases involving wholesale exclusions of

discharges: "Because [plaintiff] challenges a decision that in effect excludes sources from the

NPDES program, the circuit court will never have to confront the issuance or denial of a permit

for these sources." NEA, 2005 WL 756614, at *7; See also EPIC v. Pacific Lumber Co., 266 F.

Supp. 2d 1101, 1115 (N.D. Cal. 2003) ("there can be no underlying permit procedures for

silvicultural sources, because they are not subject to an NPDES program").

Here, unlike in NRDC II, the appellate court will not be precluded from reviewing

regulations that affect underlying permitting procedures because pesticides applied to or near

water have been excluded from permitting entirely.

B. Pesticide exemptions are not equivalent to the "issuance or denial of a permit"

Exempting a whole class of discharges is not equivalent to the issuance or denial of a

permit, because an issuance or denial presupposes a pollutant that is subject to permitting. See

NEA, 2005 WL 756614, at *6 ("the EPA could never issue or deny a permit for ballast water

discharges given that they are exempt from the NPDES permit requirements and absolutely no

procedures exists to provide such permits").

14

Further, there is no precedent that gives the circuit court original jurisdiction over

regulations expanding the scope of activities covered by NPDES permitting. Even if this were

so, the Pesticide Rule does not expand the scope of activities but rather narrows the types of

applications subject to NPDES permitting. The EPA relies on Crown Simpson Pulp Co. v.

Costle, 445 U.S. 193 (1980) to argue otherwise. In Crown Simpson, the court interpreted §

1369(b)(1)(F) to include review of the “functional equivalent” of an issuance or denial of a

permit. Id. at 1095. In that case, the EPA had vetoed state-issued permits that would have

granted a pulp mill a variance from EPA's effluent limitation standards. Id. at 1093−94. In an

unanimous decision, the court held that the EPA's rejection of the state-issued permitting plan

was the "functional equivalent" of a denial of the pulp-mill's permit because the "precise effect of

its action [was] to 'den[y]' a permit within the meaning of § 509(b)(1)(F)." Id. at 1095.

EPA erroneously extends the holding of Crown Simpson to argue that regulations

expanding the scope of activities covered by the NPDES permit program are subject to direct

review by the circuit court. To make this argument, the EPA relies on American Mining Cong.,

965 F.2d 762, 763 (9th Cir. 1992) ("[1369(b)(1)(F)] allows us to review the regulations

governing the issuance of permits," NRDC I, 656 F.2d at 768, (Circuit courts “have the power to

review rules that regulate the underlying procedures”), and Envtl Def. Ctr. v. EPA, 344 F.3d 759,

775 (9th Cir. 2003).

Unlike the Pesticide Rule, which permanently exempts applications to water, the above

cases involve temporary exemptions of specific discharges. In American Mining, the EPA issued

regulations for inactive mines but granted temporary permitting exceptions pending expiration of

a stormwater permit moratorium. 965 F.2d at 762. Similarly, in NRDC I, the Ninth Circuit

reviewed an EPA regulation that granted an exclusion of point sources from immediate

15

permitting requirements for 5 years. 656 F.2d at 768. In Envtl Def. Ctr. v. EPA, 344 F.3d at 759,

the court granted direct review of a case involving a challenge to the temporary moratorium on

the permitting of stormwater discharges pending the results of studies.

Moreover, as the district court noted, these cases do not provide a rationale as to why

exclusive appellate review was granted, so the EPA’s rationale—that by granting review in these

cases the appellate courts expanded the scope of § 1369(b)(1)(F) to include those regulations that

extend the reach of permitting activities—is merely conjectural. Another possible explanation

could be that the court saw temporary exemptions as "functionally equivalent" to the issuance or

denial of a future permit—a reading consistent with Crown Simpson. Here, the Pesticide Rule

does not provide for future permitting. Finally, even if the EPA was correct to interpret

§1369(b)(1)(F) as granting exclusive circuit court review of regulations expanding the scope of

permitting activities, the Pesticide Rule narrows (rather than expands) the types of applications

subject to NPDES by leaving out certain pesticide applications.

C. No relevant ambiguities apply

The district court found that there is no ambiguity in the language of 1369(b)(1). R. at

10. Indeed, even though some courts have grappled with ambiguities found within § 1369(b)(1),

none of those ambiguities is relevant here. See Longview Fibre; E.I. du Pont de Nemours & Co.

v. Train, 541 F.2d 1018 (4th Cir. 1976); Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d

620 (2d Cir. 1976); Bethlehem Steel Corp. v. EPA. 538 F.2d 513, 517 (2d Cir. 1976); Friends of

the Earth v. EPA, 333 F.3d 184, 193 (D.C. Cir. 2003).

Nevertheless, the EPA relies on Suburban O'Hare to assert that any ambiguity as to

whether jurisdiction lies with a district court or with the appellate court should be resolved in

favor of the appeals court. In Suburban O'Hare Comm’n v. Dole, 787 F.2d 186 (7th Cir. 1986),

16

the appellate court heard a challenge to its jurisdiction because one of the four orders issued by

the FAA was subject to district court review while the other three were subject to appeals court

review. Id. at 192. ("When an agency decision has two distinct bases, one of which provides for

exclusive jurisdiction in the courts of appeals, the entire decision is reviewable exclusively in the

appellate court.")

The EPA also relies on State of Tennessee v. Herrington, 806 F.2d 642 (6th Cir. 1986), in

which the court dealt with a provision that provided for exclusive appeals court review for all

actions arising under 42 U.S.C. § 10139(a). Another section (§ 10161(h)) incorporated §

10139(a), which created an ambiguity as to whether actions arising under § 10161(h) were

subject to appellate review. Legislative history argued in favor of appellate review.

The case here is distinguishable from both Suburban O'Hare and Herrington. The EPA

claims only one basis for its Rule—the interpretation of a statutory term. Therefore, the only

question is whether the interpretive action falls within the ambit of § 1369(b)(1). Moreover, the

Court is not asked to determine whether another CWA section incorporates § 1369(b)(1).

D. To grant direct appellate court review in this case would create judicial inefficiency

We agree with the district court that Congress should determine whether an appellate

court has original jurisdiction over this matter. Plainly, Congress intended that only a limited

number of cases should be brought directly to an appeals court. See Longview Fibre, 980 F.2d at

1314. The reasoning in Longview Fibre Co. that 1369(b)(1) should be read narrowly is

compelling. 980 F.2d 1307. First, when an EPA action is subject to direct appellate review, civil

or criminal proceedings for enforcement may be foreclosed. Id. at 1309. Second, a more

expansive reading of 1369(b)(1) would create confusion, lead to inadvertent mistakes in

jurisdictional filings, and cause undue delays. Id. See also, American Paper Institute v. EPA,

17

882 F.2d 287, 289 (7th Cir.1989). Third, blurring the line between a limitation (or issuance and

denial of a permit) and wholesale exclusions of the statute, would add greater confusion to an

already "complex and difficult review scheme.” Id. at 1314.

Based on the foregoing analysis, the amendments to the Pesticides Rule do not involve

the promulgation of a limitation nor are they equivalent to the issuance or denial of a permit. To

rule otherwise would unnecessarily blur the line between district and appellate court review and

lead to judicial inefficiency.

III. IF THE DISTRICT COURT LACKED JURISDICTION, THE COURT SHOULD EQUITABLY TOLL THE 120 DAY STATUTE OF LIMITATIONS.

Assuming that this Court holds that it should have had jurisdiction, the Court should

equitably toll the statute of limitations because 1) tolling the statute of limitations is not contrary

to Congressional intent, 2) CWA case law supports tolling under these circumstances, and 3)

equitable considerations support tolling the statute.

Statutes of limitations protect defendants from "stale claims." Order of R.R.

Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348−49 (1944). However, according to

the doctrine of equitable tolling, courts have the ability to extend federal statutes of limitations.

Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946). The doctrine applies to every federal statute

of limitation, Id., whenever a plaintiff has filed a petition in the wrong court but otherwise acted

with due diligence. Justice v. United States, 6 F.3d 1474 (11th Cir. 1993).

A court generally makes two inquiries to determine whether to toll: 1) whether tolling

would give effect to the congressional purpose of the Act, Burnett v. New York Cent. R. Co., 380

U.S. 424 (1965); and 2) whether fairness and justice would be served by tolling the statute under

the circumstances. Justice v. U.S., 6 F.3d at 1474. Of course, prior case law is also persuasive.

A. Tolling the statute of limitations is not contrary to Congressional intent

18

Although Congress expressed in the CWA its desire for a clear and prompt time schedule

for applications for judicial review5, denying plaintiffs a hearing because of a technical mistake

runs counter to Congress's express intent to provide for "public participation in the development,

revision, and enforcement of any regulation." 33 U.S.C. § 1251(e) (emphasis added). Indeed,

Congress reinforced this concern by extending the statute of limitations from 90 to 120 days.

See Pub. L. No. 100-4, § 505(a). Congress further provides that late applications shall toll the

statute when "based solely on grounds which arose after such 120th day." See 33 U.S.C.

1369(b)(1).

B. CWA case law supports tolling under these circumstances

Second, CWA case law favors tolling the statute of limitations when a plaintiff, while

acting with due diligence, mistakenly files in the wrong court. See American Ass'n of Meat

Processors v. Costle, 556 F.2d 875, 876−77 (8th Cir. 1977).6 Further, courts have tolled §

1369(b)(1) when a regulation lacks definiteness so as to provide insufficient notice to a plaintiff

as to the reasons for which a permit has been denied. See Georgia-Pacific Corp. v. EPA, 671

F.2d 1235 (9th Cir. 1982). Moreover, courts have tolled the statute when a plaintiff objects to

the manner in which permits are issued or denied before permitting procedures have commenced.

See Appalachian Power Co. v. Train, 566 F.2d 451 (9th Cir. 1977).

Here, plaintiffs filed timely petitions in the district court and (assuming that it was the

wrong jurisdiction) should be able to re-file in this court. If this court construes an exemption as

5 See S.Rep. No. 92-414, 92d Cong. 1st Sess. (1971).6 Plaintiffs in American Ass'n of Meat Processors challenged EPA guidelines after the 90 day period stipulated in 1369(b)(1), but petitioned the court to toll the statute of limitations because of "substantial uncertainty" as to which court to file. The court denied the petition because the petitioners failed to file in any court. The court noted that "[t]he situation would be different had petitioners originally sought to challenge the guidelines in a timely manner." Id. at 877.

19

equivalent to the issuance or denial of a permit (or a limitation), then the Pesticide Rule lacks

sufficient definitiveness and does not give plaintiffs adequate notice as to which court to file the

action. Lastly, if the Court rules that the Pesticide Rule was effectively an "issuance or denial"

of a permit, then the 120 day statute of limitations should not begin to run until permit

determinations have been made.

C. Equitable considerations militate for tolling the statute

Plaintiffs acted diligently by filing their complaint in the district court. The EPA issued

the final rule on November 27, 2006 and Industrial Plaintiffs filed their action on February 24,

2007—well within the statutory period of 120 days provided for in 1369(b)(1). Further, the

policy of "promot[ing] justice by preventing surprises" is not relevant here because the EPA was

a party to the original suit. Finally, if plaintiffs’ application is denied, it will be under what the

Ninth Circuit has described as a "gnarled and hazardous" and oft-confusing judicial review

provision. Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir. 1992).

Based on the foregoing analysis, the Court should toll the statute of limitations if it finds

that the district court did not have original jurisdiction. While Congress may have intended

prompt review of CWA regulations, it did not expressly prohibit courts from tolling the statute of

limitations when plaintiffs simply file in the wrong court. To the contrary, the weight of

authority gives the plaintiffs the right to re-file when they timely but mistakenly file in the wrong

court. In fact, plaintiffs had reasonable basis for filing in the district court and acted diligently

with respect to the action. Moreover, direct review by this court would not work an injustice

against the EPA since it was a party to the original suit.

20

IV. INDUSTRY PLAINTIFFS’ CHALLENGES TO THE CONTENT AND SCOPE OF THE PESTICIDE RULE ARE RIPE FOR REVIEW

A. Ripeness—fitness and hardship

On appeal from summary judgment, the reviewing court asks whether the plaintiffs have

shown a genuine issue of material fact that the claim was ripe at the time the complaint was filed.

FED. R. CIV. P. 56(c); Abbott Labs. v. Gardner, 387 U.S. 136, 154 (1967) (“This action at its

inception was properly brought and this subsequent representation of the Department of Justice

should not suffice to defeat it.”).

The ripeness doctrine exists to “prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract disagreements over administrative policies,

and also to protect the agencies from judicial interference until an administrative decision has

been formalized and its effects felt in a concrete way by the challenging parties.” Id. at 148−49.

To achieve those goals, courts consider fitness of the question for resolution and the hardship to

the parties of delaying review. Id. at 149.

Factors to be considered in whether a pre-enforcement challenge is fit for judicial review

are (1) whether the question is legal or factual and (2) whether the agency action is final. Id.

A legal question is one that “c[an] be resolved on the record as it st[ands], without

reference to more specific facts.” Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 695 (2007). If

a question can be competently resolved either in a pre-enforcement challenge or in the context of

a specific application, then it meets this criterion: it can be resolved on the existing record. The

test for whether a court can competently hear a challenge is whether unknown facts would be

material to its resolution. Compare Toilet Goods Ass’n v. Gardner (Toilet Goods I), 387 U.S.

158, 163 (1967) (finding issue was not purely legal because the success or failure of the

challenge “w[ould] depend on” not only questions of statutory construction, but also factors that

21

were yet unclear), with Gardner v. Toilet Goods Ass’n (Toilet Goods II), 387 U.S. 167, 171

(1967) (finding challenge was purely legal because “the only question raised” was one of

statutory interpretation, and was “susceptible of” judicial review without “inquiry into factual

issues”).

An agency action is final unless there is a “real” as opposed to “theoretical” possibility

that the agency will refine its policy before it causes a concrete injury. Ohio Forestry Ass’n v.

Sierra Club, 523 U.S. 726, 735−36 (1998) (not final because procedures by which the rule could

be refined had to be followed before any concrete harm occurred). Finality under the APA is a

“pragmatic” question. Nike v. Kasky, 539 U.S. 654, 671 (2003). Two especially significant

factors in this inquiry are whether the rule was promulgated after notice and comment and

whether it is expected to carry the force of law. Abbott Labs, 387 U.S. at 151 (noting that rule

was “promulgated in a formal manner” and “compliance was expected”).

In the context of a pre-enforcement challenge brought under the APA, delaying review

creates a hardship on the plaintiff when it harms her “direct[ly]” or “immediate[ly]” in a legal or

practical way. Id. at 152. If a regulation carries the force of law, it is not relevant that

enforcement is initiated by a third party; a change in the plaintiff’s legal position is a hardship.

Id. at 152. If the regulation causes the plaintiff to change her “primary conduct” immediately,

postponing review will be a hardship. Toilet Goods I, 387 U.S. at 164 (observing that primary

conduct includes, for instance, negotiation of contracts, day to day affairs, and record-keeping).

Often, a regulation will have both a legal and practical dimension—forcing the plaintiff to

choose between changing his behavior and incurring liability. Natural Res. Def. Council v. EPA,

859 F.2d 156 (D.C. Cir. 1988) (opining that such a choice is the “paradigmatic hardship”).

22

Hardships, of course, lie along a continuum from minor to serious. To find a challenge

ripe, “the interest of the court and agency in postponing review until the question arises in some

more concrete and final form [must] be outweighed by the interest of those who seek relief” from

the hardship it poses. Cont’l Air Lines v. CAB, 522 F.2d 107, 125 (D.C. Cir. 1975). Where the

court doubts the fitness of a challenge, it weighs the hardship to the parties of delaying review

against its concerns about the fitness (e.g., the possibility that the agency may change course

before causing harm or that the court might be able to deal with the legal issues more

competently in the context of a specific application). Nat’l Ass’n of Home Builders v. Army

Corps of Eng’rs, 440 F.3d 459, 465 (D.C. Cir. 2006). On the other hand, if the challenge is fit

(i.e., a purely legal challenge of a final agency decision), the court and agency interests in

delaying review will necessarily be low, so that there must be only “some hardship” in order to

find the challenge ripe. Texas v. United States, 497 F.3d 491, 498 (5th Cir. 2007); see also Nat’l

Ass’n of Home Builders, 440 F.3d at 464−65 (remarking that legal challenge to final action is

“presumptively reviewable,” and “lack of hardship” does not defeat ripeness).

Where a plaintiff will lose a legal defense as a result of the agency’s action, that loss is a

hardship sufficient to overcome weaknesses in fitness. Natural Res. Def. Council, 859 F.2d 156.

In that case, the challenge to an EPA rule denying the availability of the “upset defense” to

plaintiffs was ripe for pre-enforcement review, even though the court doubted that the claim was

purely legal. Id. at 181, 206 (claim could only “fairly be viewed” as legal, but the court

characterized another claim as “purely legal”). In addition, if delay would “foreclose any relief”

for the plaintiff, then such a hardship “argue[s] strongly” for immediate review. Duke Power Co.

v. Carolina Envtl Study Group, 438 US 59, 82 (1978).

23

Finally, as the court in Cont’l Air Lines, Inc. v. CAB noted, “[t]here is always some

danger in accelerating the review process, and always some hardship in delaying it.” 522 F.2d at

128. But when the question is a close one, “doubts . . . are resolved by the presumption of

reviewability which . . . permeates the Abbott Laboratories ruling.” Id. (internal quotes omitted).

B. Industry Plaintiffs’ challenge to the scope of the Rule is ripe

First, Industry Plaintiffs’ claim that terrestrial applications of pesticides should have been

exempted from the definition of pollutant is legal in nature, and further factual development is

unnecessary to facilitate judicial review. Industry Plaintiffs do not seek to compel the EPA to

conclude its policy assessment of terrestrial pesticide application in their favor, but rather argue

that this question is not one of policy. In other words, the EPA may not purport to divine

Congress’ intent regarding pesticides applied over/near water but refuse to extend the same

reasoning to pesticides applied terrestrially, at least without an explicit finding that Congress had

such intent with regard to the former, but not the latter.7 The court has all the facts that it needs

to evaluate the reasonableness of the EPA’s failure to exclude terrestrial applications of

pesticides from the definition of pollutant; the EPA provides those facts in its final Rule. To

dismiss this claim as unripe is to accept the EPA’s faulty characterization of the definition of

pollutant as both strictly legal and impossibly fact-bound at the same time. The reasonableness

of this characterization should be addressed on the merits, not in the ripeness inquiry.

Second, the EPA’s decision not to address the issue of terrestrial pesticide application is

final. To be sure, the EPA has assembled a “workgroup” to allow stakeholders to participate in a

policy discussion about that very issue, but the EPA is not considering whether to revisit its

decision to define pollutant without regard to terrestrial applications of pesticides. 71 Fed.Reg.

7 See discussion supra Parts V.−VI. for further arguments on the merits.

24

68,483, 68,488. Instead, the challenged rule is the EPA’s final definition of pollutant with regard

to pesticide. The EPA’s determination that terrestrial applications should be addressed as a

matter of policy is itself a final action. And, since compliance with this Rule is expected, its

omission of terrestrial applications carries the force of law—a fact further demonstrated by the

legal consequences of the rule on Industry Plaintiffs, as described below.

Finally, if the court delays review of their claim that the EPA should have included

terrestrial applications of pesticides in the exemption, Industry Plaintiffs will suffer hardship.

While FIFRA does not authorize citizen suits, the CWA does. 33 U.S.C.A. § 1365. Industry

Plaintiffs, therefore, will be subject to citizen enforcement suits where pesticides applied

terrestrially find their way into waters protected by the CWA. Although such suits were possible

even before the Rule was promulgated, the Rule forecloses a strong defense that previously

could have been employed by applicators—viz., that terrestrial pesticide applications are exempt

from the CWA’s definition of pollutant. Furthermore, although the EPA may eventually (as a

policy decision) exempt terrestrial applications of pesticides from CWA regulation, such an

exemption will come too late to prevent the harm—Industry is faced with the present dilemma of

curbing their terrestrial pesticide applications (virtually impossible in modern industrialized

agriculture) or facing citizen suits without the benefit of what might have been their strongest

legal defense. Such a hardship is more than sufficient to ripen Industry Plaintiffs’ challenge. As

in NRDC, the loss of a legal defense is a hardship sufficient to ripen even a marginally fit

challenge. The case for ripeness is even stronger where, as here, the claim is purely legal and the

agency action is final.

C. Industry Plaintiffs’ challenge to the content of the Rule is ripe

25

The EPA states that pesticide residues are pollutants. 71 Fed. Reg. 68,483, 68,487. In

addition, the EPA concludes that pesticide applications in compliance with FIFRA are not

pollutants because they are applied in compliance with FIFRA. Id. at 68,488. In this way, the

EPA negatively defines pesticide applications not in compliance with FIFRA as pollutants. They

are therefore not exempted by the Rule from CWA regulation. Industry’s challenge to this

interpretation is strictly legal and amenable to immediate review. To decide whether the EPA’s

decision is reasonable, the court needs no facts other than those existing when Industry Plaintiffs

filed their complaint. The EPA itself argues that this is purely a question of legal interpretation.

Id. (“EPA is not [making a policy decision] . . . . Rather, the EPA is exercising its authority to

interpret a term in a statute it administers.”). The EPA dismisses comments regarding its policies

as irrelevant to this “legal interpretation” (“[C]omments regarding the adequacy of EPA’s

pesticide regulatory program do not pertain to the legal interpretation of whether a pesticide is a

‘chemical waste’ or a ‘biological material’ for purposes of the definition of ‘pollutant’ under the

CWA.”). Id. Beyond the interpretive discussion in the final Rule, the court has access to the

legislative history, previous judicial decisions on point, and the EPA’s prior statements of

guidance. Although a challenge could be brought against the EPA’s definition in a later

enforcement proceeding, the factual context of such a challenge would not be material to the

legal question here presented. As such, this question can be competently resolved at this time.

Second, the EPA’s definition of pesticide applications not in compliance with FIFRA and

residues from FIFRA-compliant applications as pollutants is final. It is the consummation of the

EPA’s decision-making process, promulgated after notice and comment as a “final rule”—a

“comprehensive statement of EPA’s legal position.” Id. at 68,490. In addition, this rule carries

the force of law. It is an interpretation of a statute that the EPA administers and purports to settle

26

“substantial uncertainty” regarding the legal rights and responsibilities of pesticide applicators

and the agencies that supervise them. Id. at 68,485.

Finally, Industry Plaintiffs will suffer serious hardship if the court delays review of their

challenge to the EPA’s decision to define applications contrary to FIFRA and residual pesticides

as pollutants. Although state agencies previously followed their “longstanding practice[s]” of

not regulating pesticide applications under the CWA, they must now regulate these applications

as pollutants. Id. Furthermore, such regulation is likely to be overly intrusive and complex, due

to the regulators’ need to determine whether pesticide applicators will comply with relevant

FIFRA requirements, including labeling requirements, as a threshold matter for determining

whether particular applications are pollutants under the CWA. Moreover, and perhaps most

importantly, if Industry Plaintiffs are denied review now, they will never be able to procure

effective review of these decisions. If the court hears Environmental Plaintiffs’ challenge

without the benefit of Industry Plaintiffs’ perspective, its judgment will be skewed. Judicial

lithification of the current rule or one even less favorable to Industry means that, essentially,

saying “not now” is tantamount to saying “never.” Such hardship is more than sufficient to find

the challenge ripe. Industry faces new and intrusive regulation—an immediate hardship. And as

in Duke Power, 438 U.S. at 81, the fact that a delay would effectively foreclose judicial review

“argue[s] strongly” for immediate review.

V. THE PESTICIDE RULE’S EXEMPTION OF SPECIFIC PESTICIDE APPLICATION ACTIVITIES FROM THE CWA PERMITTING PROGRAM WAS REASONABLE AND PERMISSIBLE

A. Administrative law—judicial deference

When an agency interprets the federal regulation that it administers, judicial review of

that interpretation is guided by a two-step analysis. See Chevron U.S.A., Inc. v. Natural Res.

27

Def. Counsel, Inc., 467 U.S. 837, 842−43 (1984). On one hand, if Congress speaks directly to

the question at issue, then both the court and the agency must “give effect to the unambiguously

expressed intent of Congress.” Id. Legislative intent may be divined through the usual tools of

statutory construction, including the text of the statute, the purpose of the statute, and legislative

history. Id. at 843 n.9. On the other hand, the statute may be silent or ambiguous as to the

question at issue. If Congress has explicitly left this “gap for the agency to fill,” then the court

must enforce an agency’s interpretation that is not “arbitrary, capricious, or manifestly contrary

to the statute.” Id. at 843−44. Likewise, if Congress has implicitly delegated its gap-filling

authority, the court must uphold an agency’s “permissible construction.” Id. at 843.

In clarifying the scope of Chevron, the Supreme Court of the United States held that an

agency’s interpretation warrants substantial deference “only 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.”

United States v. Mead Corp., 533 U.S. 218, 226−27 (2001). Furthermore, a “very good indicator

of delegation meriting Chevron treatment” is an agency’s express authority to engage in

adjudication or notice-and-comment rulemaking. Id. at 229. Where an interpretation does not

demonstrate such force of law, the less-deferential Skidmore analysis applies instead. See id. at

228; Christensen v. Harris County, 529 U.S. 576, 588 (2000). Under Skidmore, a court gives

weight to an interpretation only in proportion to “the thoroughness evident in its consideration,

the validity of its reasoning, its consistency with earlier and later pronouncements, and all those

factors which give it power to persuade. Skidmore v. Swift, 323 U.S. 134, 140 (1944).

B. The Pesticide Rule fills an explicit gap

28

The EPA Administrator is expressly given broad “authoriz[ation] to prescribe such

regulations as necessary to carry out his functions” under the CWA. 33 U.S.C. § 1361(a). In

United States v. Morton, 467 U.S. 822 (1984), analogous language was interpreted as “explicitly

delegated authority to construe the statute by regulation . . . .” Id. at 835. Within the CWA’s

broad, enumerated definition of pollution, Congress failed to specifically address pesticides,

instead leaving a gap in the statute. See 33 U.S.C. § 1362(6). The EPA filled this gap with two

specific interpretations in the Pesticide Rule, pursuant to subsection 1361(a); therefore, Chevron

deference clearly applies.

C. The Pesticide Rule carries the force of law

Pursuant to this explicitly delegated authority, the text generally gives the EPA great

interpretive discretion in administering the CWA. “Whenever, in the judgment of the

Administrator . . . discharges of pollutants . . . would interfere” with water quality goals, the

Administrator should establish effluent limitations “reasonably expected” to advance these goals.

33 U.S.C. § 1312(a) (emphasis added). “[I]n his discretion,” the Administrator promulgates final

effluent standards. 33 U.S.C. § 1317(a)(1). The Administrator “may issue” permits upon a

showing of “no reasonable relationship” between factors in a cost-benefit analysis. 33 U.S.C. §

1312(b)(2) (emphasis added).

The CWA also makes further grants that support authority for the Rule’s drafting.

Subsections 1311(g)(4) and (g)(5), for example, provide procedures for adding to and removing

from the list of pollutants under that subsection. Additionally, subsection 1319(a) provides for

enforcement mechanisms and compliance orders that would give the EPA’s pronouncements the

“force of law.” More specifically, the CWA authorizes the EPA to issue NPDES permits for

point source discharges of “pollutants” into waters of the United States, under section 402(a). 33

29

U.S.C. 1311(a). Acting within that authority, the EPA issued the Pesticide Rule, an

interpretation of “pollutants.” 71 Fed. Reg. 68,483.

The foregoing textual analysis demonstrates that Congress envisioned an Administrator

with the kind of broad discretionary authority that was exercised in formulating the Pesticide

Rule. The Rule is the final iteration of several previous interpretive statements. Id. The EPA

provided public notice of and requested public comment on the first Interim Statement, and

incorporated that input into the Interpretive Statement. Id. Again, the EPA solicited comment,

which it incorporated into the final Pesticide Rule. Id. EPA’s definitions with respect to which

pesticides are pollutants, therefore, carry the force of law, and the modest deferential standards

of Skidmore analysis are clearly inappropriate.

D. EPA’s definition of pesticides applied to or near water in compliance with FIFRA as neither chemical wastes nor biological materials is reasonable.

Within the CWA’s definition of pollutant in section 502(6), the only items that could

encompass pesticides are “chemical wastes” and “biological materials.” The EPA could

reasonably have concluded that the term “chemical wastes” does not refer to chemical pesticides.

The New Oxford American Dictionary (2001) defines “waste” as something “eliminated or

discarded as no longer useful or required after the completion of a process.” By contrast,

pesticides are “EPA-evaluated products designed, purchased and applied to perform their

intended purpose of controlling target organisms in the environment.” Fairhurst v. Hagener, 422

F.3d 1146, 1150 (9th Cir. 2005).

The EPA could also have reasonably concluded that “biological materials” does not refer

to biological pesticides. The district court opines that “Congress presumably had a reason to

classify ‘chemicals’ as pollutants only if they were wastes, while classifying all ‘biological

materials’ as pollutants.” R. at 12. However, it was only after the CWA was adopted in 1972

30

that biological pesticides became prevalent. 71 Fed. Reg. 68,486. Thus, Congress no more

ignored biological pesticides in drafting the CWA than the Framers ignored digital

communications under the First Amendment. Moreover, current biological pesticides generally

have been designed to produce less environmental harm as a result of “their greater specificity to

the target pest, their tendency to have lower toxicity than chemical pesticides, and their tendency

to have limited persistence in the environment.” Mary Jane Angelo, Genetically Engineered

Plant Pesticides, 7 U. FLA. J.L. & PUB. POL’Y 257, 259 (1996). Finally, as an argument in the

alternative, both biological and chemical pesticides fall within the purview of FIFRA regulations,

and thus, the CWA would have no reason to regard them inconsistently. Under each of these

foregoing rationales, the EPA could reasonably have concluded that encouraging the use of

biological pesticides via the Pesticide Rule would be consistent with Congress’ purpose for the

CWA. 71 Fed. Reg. 68,486−87.

Case law does not contradict this conclusion. Where courts found biological materials to

be pollutants, those materials were deemed to be wastes at the time of discharge from a point

source. E.g. U.S. PIRG v. Atlantic Salmon, 215 F. Supp. 2d 239, 247−49 (D. Maine 2002)

(salmon feces exiting net pens); Nat’l Wildlife Fed’n v. Consumers Power Co., 862 F.2d 580,

585 (6th Cir. 1988) (fish remains released from turbine). What these courts did not conclude,

importantly, was that biological materials used for their intended purposes might constitute

pollution. 71 Fed. Reg. 68,486. To the contrary, the Ninth Circuit specifically found that the

enumerated items in section 502(6) support an interpretation that “biological materials”

encompasses only waste produces of human processes. APHETI v. Taylor Res., Inc., 299 F.3d

1007, 1015 (9th Cir. 2002). This interpretation fits well with the CWA’s definition of pollution

31

in subsection 1362(a)(19) as “man-made or man-induced,” and with its explicit purpose of

“protection and propagation of . . . shellfish.” 33 U.S.C. § 1251(a)(2).

Moreover, the EPA already extensively regulates pesticides under the statutory

framework of FIFRA, requiring all pesticides sold in the United States to undergo a rigorous

registration process, and imposing criminal sanctions for violations of those rules. 7 U.S.C. §§

136, 136j(a)(2)(G), 136l(b)(2). These measures serve to protect human health and the

environment from unreasonable risks of pesticide use. 7 U.S.C. §§ 136a(c)(1), (c)(5).

Therefore, the EPA could reasonably have concluded that requiring additional EPES permits for

specific pesticides would be essentially redundant to limitations already imposed under FIFRA.

Although in Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 531 (9th Cir.

2001), the EPA acknowledge that FIFRA registration does not provide equivalent protections to

waterways as does EPES permits, these small differences do not compel a conclusion that

inconsistent protections would be unreasonable. To the contrary, the CWA acknowledges that

the EPA must weight economic and social costs against the benefits achieved from effluent

limitations. 33 U.S.C. § 1312(b)(2). In such a cost-benefit analysis, the EPA might reasonably

have concluded that FIFRA requirements are sufficient, where they guard water quality by

controlling “the amounts, concentrations, and viability of substances that may potentially end

up” in the water. 71 Fed. Reg. 68486. Moreover, because the EPA’s amicus briefs in Talent do

not reflect the kind of deliberative consideration that gives the Pesticide Rule its force of law,

and because they do not address the specific legal issues at play here, they cannot be considered

controlling. 71 Fed. Reg. 68485.

Finally, the district court defends the distinction between biological and chemical

pesticides by observing that “Congress might well have concluded that introduction of non-

32

indigenous species . . . posed a greater threat to the ‘integrity’ of the nation’s waters than the

introduction of chemicals that were not ‘chemical wastes.’” R. at 12. The reasonableness of

such a distinction is irrelevant however. It is only significant that the opposite interpretation—

the EPA’s interpretation that biological materials refers only to waste—is entirely reasonable.

This Court, therefore, must uphold the exemptions made by the Rule, and cannot substitute its

own preferred interpretation. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,

545 U.S. 967, 980 (2005).

E. EPA’s definition of point source pollutant as dependent on the character and purpose of the discharge at the moment of discharge is reasonable.

Section 301(a) prohibits the “discharge of any pollutant,” meaning specifically “any

addition of any pollutant to navigable waters from any point source.” The EPA could reasonably

have interpreted this language to prohibit only material that is both a pollutant and from a point

source at the moment of discharge. 71 Fed. Reg. 68487. Thus, for example, non-aquatic

mosquito pesticides discharged from a helicopter would not be waste at the time of discharge,

and would fall beyond the scope of section 301(a). The District Court confuses the issue by

arguing that application of non-aquatic pesticides must be “waste,” and thus pollutants, because

they are “no longer useful” by the time they reach water. See R. at 12. Again, the merit of the

district court’s interpretation is irrelevant, as the EPA’s interpretation is perfectly reasonable.

Two cases cited in support of the district court’s conclusion are not at odds with the Rule.

In Long Island Soundkeeper Fund, Inc. v. N.Y. Athletic Club, 1996 WL 131863 (S.D.N.Y. Mar.

22, 1996), the court found that spent ammunition rounds and broken targets were pollutants

when they were discharged from a point-source firing range. Also, in Hudson River Fisherman’s

Ass’n v. City of New York, 751 F. Supp. 1088 (S.D.N.Y. 1990), aff’d, 940 F.2d 649 (2d Cir.

1991), the court found that chlorine residuals and alum floc were a pollutant, because they had

33

formed by the time they were injected from a “pipe” into a reservoir, and “[a]ll that remain[ed

was] for the floc to settle at the bottom of the lake.” Id. at 1102. Thus, “a pollutant is a

pollutant” at the time it is discharged from a point source, “no matter how useful it once may

have been” prior to the discharge. See id. at 1101. These two conceptions of pollution clearly

comport with the Pesticide Rule, and with the EPA’s and many states’ longstanding practice of

not requiring NPDES permits for pesticides. 71 Fed. Reg. 68485.

VI. THE PESTICIDE RULE’S FAILURE TO EXTEND ITS RATIONALE TO SIMILAR APPLICATION ACTIVITIES WAS UNREASONABLE

A. Chevron deference applies to the non-exemption of residues and applications not in compliance with FIFRA; Skidmore deference applies to the non-exemption of terrestrial applications.

The EPA decided not to exempt residues and non-compliant applications after notice and

comment and long deliberation; therefore, Chevron analysis applies to their review. See 71 Fed.

Reg. 68483, 68487. The Pesticide Rule, as a definitional rule, applies only to a small subset of

pesticide applications. 71 Fed. Reg. 68485. The Rule does not address drift from terrestrial

pesticide applications—an issue instead entrusted to a multi-stakeholder advisory committee

(PPDC). Id. at 68487. Like the EPA’s amicus brief in Talent, this non-exemption is not the

result of the kind of deliberative administrative decision-making used in formulating the

definition of pollutant. Consequently, it does not carry the force of law; Chevron analysis does

not apply; and Skidmore deference must stand in its place. See Christensen, 529 U.S. at 588.

This Court need only consider the Rule’s power to persuade with respect to the EPA’s failure to

extend its rationale to terrestrial applications. See Skidmore, 323 U.S. at 140. This Court may

therefore substitute its own judgment as to whether terrestrial applications should have been

addressed by the EPA as a definitional question rather than a policy question. Id. However,

even under Chevron, each non-exemption is arbitrary and capricious.

34

B. The Pesticide Rule’s non-exemptions are unpersuasive, arbitrary, capricious, and an abuse of discretion

As demonstrated supra Parts I.C.3–.4, the crux of the Rule is its focus on the timing and

purpose of pesticide application, faithful to statements made by the CWA’s primary sponsor that

“[s]ometimes a particular kind of matter is a pollutant in one circumstance, and not in another.”

Fairhurst, 422 F.3d at 1150 (quoting Senate Debate on S. 2770, 117 Cong. Rec. 38,838 (daily

ed. Nov. 2, 1971) (Statement of Senator Muskie)). Contrary to the EPA’s equivocations at 71

Fed. Reg. 68490, the crucial circumstance defining when a material is not a pollutant is its

intended use at the time of discharge from a point source. It is unpersuasive, arbitrary, and

capricious, therefore, that the EPA refuses to extend this reasonable interpretation to pesticide

residues, pesticides applied in violation of FIFRA requirements, and pesticides applied distant

from water but which drift into water.

The EPA clarifies that its exemptions apply where pesticides unavoidably must enter

water in order for the application to achieve its intended purpose of controlling pests near water.

71 Fed. Reg. 68486. For example, pesticides unavoidably deposit into water when applied

aerially to mosquito populations within a forest canopy, and to non-native plant growths near

water. Id. Again, the essence of these examples is the timing and purpose of the application.

The EPA, however, provides no persuasive justifications for failing to extend this reasoning to

Industry Plaintiff’s analogous aerial applications of pesticides to crops near water and to

mosquitoes in tidal marshes. In those circumstances, the pesticides are not pollutants at the time

of their discharge from point sources, and they cannot achieve their purposes without

unavoidably drifting into water. It is arbitrary, capricious, and unpersuasive to exclude these

circumstances from the Rule.

35

Likewise, as pesticides properly “perform their intended purpose of controlling target

organisms in the environment,” residues necessarily result after discharge from a point source.

See Fairhurst, 422 F.3d at 1150. Even if such residue conforms to a common understanding of

waste, it contradicts the CWA’s formulation of “pollution,” which excludes useful materials.

Section 502(6) specifically lists “incinerator residue” as a pollutant. The broader category of

“solid waste” clearly includes this reduced, solid byproduct of incineration. Nonetheless,

Congress apparently felt the need to create a more specific category; it made no similar

enumeration of “pesticide residue.” The very narrow categorization of incinerator residue

strongly suggests that the CWA did not intend to extend the definition of “pollution” to other

specific kinds of residue where the precursors of the residue are not themselves pollutants.

Finally, the EPA reasonably justifies exempting certain pesticides from NPDES permits

on the grounds that they are already regulated by FIFRA requirements. Yet, in the same breath,

it qualifies such exemptions upon adherence to those requirements. In other words, the EPA

simultaneously asserts that criminal liability imposed by FIFRA regulations is sufficient and

insufficient to protect waters. See 7 U.S.C. §§ 136j(a)(2)(G), 136l(b)(2). This contradictory

result is plainly irrational and unpersuasive. The EPA’s failure to include pesticide residues,

spray drift, and pesticides applied in violation of FIFRA regulations therefore represents an

abuse of its discretionary powers.

CONCLUSION

Industry Plaintiffs respectfully request that this Court reverse the district court’s grant of

partial summary judgment in favor of Environmental Plaintiffs, reverse its summary dismissal of

Industry Plaintiffs’ claims, and grant declaratory relief to Industry Plaintiffs requiring the EPA to

exempt the challenged categories of pesticide applications from CWA regulation.