May 8, 2009
The Honorable Danny J. Boggs
Chief Judge, U.S. Court of Appeals for the Sixth Circuit
540 Potter Stewart U.S. Courthouse
100 East Fifth Street
Cincinnati, Ohio 45202
Re: The National Cotton Council, et al. v. United States Environmental Protection Agency
Dear Judge Boggs:
The members of the National Association of State Departments of Agriculture (NASDA) are gravely concerned with the January 7, 2009 decision by the Court of Appeals for the Sixth Circuit in National Cotton Council v. United States Environmental Protection Agency and respectfully request that the full Court rehear the case. We believe the case was wrongly decided, ignores important elements of the statute, and creates injurious uncertainty for agricultural producers and state regulatory officials. Moreover, the decision appears to be much broader in scope than the case brought before the Court and undercuts long-standing institutional relationships between state and Federal authority.
NASDA represents the commissioners, secretaries, and directors of the state departments of agriculture in all fifty states and four territories. As co-regulators with EPA, our members are the lead state agencies responsible for administering, implementing and enforcing the laws regulating the production, labeling, distribution, sale, use and disposal of pesticides. We are very concerned with the impact this decision will have on the exercise of our responsibilities under such federal statutes as the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). FIFRA established a unique, yet effective, regime in which state lead agencies have primacy in the enforcement of pesticide matters. The Court’s failure to consider this relationship specifically—and FIFRA generally—overlooks the importance of the longstanding regulatory web designed to provide pesticide-related environmental protection. This omission renders the Court’s decision incomplete and necessitates the full Court’s rehearing of the case.
While the omission of issues related to FIFRA alone warrants a rehearing, we are also extremely concerned about other aspects of the Court’s January 7 decision. It is vital to the health and safety of our constituents, as well as to the continued viability of our nation’s agriculture economy, that the full Court rehears this case and considers the following issues:
- Since the enactment of the Clean Water Act, activities on farmland have been considered a potential nonpoint source of pollution. The decision appears to negate that concept. The creation of mini “point sources” (e.g., a nozzle) in areas that have been historically defined as nonpoint sources (e.g., runoff from a farm field) is confusing at best. We are deeply concerned with this change, as well as the Court’s reliance on a “but for” test in determining whether potential pesticide residue would be considered discharged from a point source. We believe these actions undermine the agricultural exemptions of the Clean Water Act and disregard Congressional intent.
- Farmers are taught that the label is the law. A pesticide label is the end result of a pre-market approval process requiring massive research in order to register a use of a pesticide. The environmental fate data and health exposure assessments are important parts of this pre-market approval process. The Court ignored these important requirements and failed to examine the FIFRA registration process. In addition, state and federal laws consider pesticide applications in which the material is applied off target to water or allowed to drift off target as misuses that are subject to enforcement actions under FIFRA.
- The Court’s ruling will require National Pollutant Discharge Elimination System (NPDES) permits for aquatic pesticide applications and many terrestrial applications. Requiring NPDES permits in these circumstances would impose a series of unnecessary, redundant, costly and burdensome requirements on agricultural producers. Additionally, neither EPA nor state regulators have the required resources to review the dramatic increase in permit applications. Because of the time-sensitive nature of pesticide applications, the resulting delays will adversely impact the viability of farming operations across the country. Moreover, by impeding necessary pesticide uses to quickly combat emergency infestations, the Court’s decision could seriously jeopardize the supply of the food and fiber necessary for the health and welfare of our constituents and place our national security at risk.
- We are extremely concerned about serious impacts the Court’s ruling could have on agricultural production across the country. By extending the Court’s decision to terrestrial applications, the Court has placed farmers in legal jeopardy under the Clean Water Act’s citizen-action provisions. Unless the full Court rehears the case, farmers will go into the next growing season under the threat of lawsuits. In fact, a number of the states we represent have already been taken to court in the wake of the Court’s decision.
We sincerely appreciate the Court’s attention to our concerns in this important matter and respectfully request the full Court of Appeals for the Sixth Circuit rehear The National Cotton Council, et al. v. United States Environmental Protection Agency.
Commissioner, Alabama Department of Agriculture & Industries