CropLife America (CLA) filed on Wednesday, January 27, a reply brief with the U.S. Supreme Court, in which it praised the U.S. government for agreeing that the Sixth Circuit decision in the case National Cotton Council v. EPA violated Supreme Court precedent by failing to provide proper due deference to an agency determination. In its response to the two petitions requesting that the nation’s highest judicial body review and overturn the recent decision of the Sixth Circuit Court of Appeals, the government acknowledged the Appellate Court conducted an improper Chevron analysis of the contested rule from the U.S. EPA.
The Supreme Court’s decision in Chevron U.S.A. v. NRDC established a test for courts to use in cases challenging government regulations that mandated deferring to the government’s expertise and “reasonable” interpretation of a statute. With its brief, the government states that the Sixth Circuit violated Chevron by not deferring at all to EPA.
“The Sixth Circuit erroneously concluded, in conflict with prior decisions of the Supreme Court and other federal circuits, that the Clean Water Act unambiguously forecloses EPA’s Final Rule and improperly substituted its own judgment for that of the expert agency charged with administering the Clean Water Act,” says Douglas Nelson, executive vice president and general counsel of CLA.
CLA is disappointed, however, that the government did not join them and the other petitioners in requesting the Supreme Court to overturn the Sixth Circuit decision. Instead, the government grossly underestimates both its ability to implement the lower court’s decision and the disruption the decision will have on all those who depend on pest control technologies, including public health and mosquito control officials.
This lower court decision virtually supplanted EPA’s long-standing regulation of pesticides through FIFRA (Federal, Insecticide, Fungicide and Rodenticide Act) with the Clean Water Act. Consequently, pesticide applications made to, over and near any bodies of water, no matter how small, will now require NPDES (National Pollutant Discharge Elimination System) permit.
The Supreme Court is expected to decide whether to grant the petition this spring. In the meantime, CLA will continue to monitor all developments and work with key stakeholders toward ensuring that the critical needs of agriculture are preserved.