Peconic Great South Baykeeper

Baykeeper, Inc. v. U.S. EPA

No. 06-4630 (6th Cir.)

The United States Court of Appeals for the 6th Circuit has handed us a complete victory in this case where we sued the EPA for promulgating an illegal rule that exempted certain pesticide applications from liability under the federal Clean Water Act. The result is that the rule we challenged has been annulled.

The rule exempted applicators from liability in two circumstances: 1) where the pesticide is applied directly to water as intended to kill aquatic organisms without leaving other waste residues; and, 2) where the label permits applying the pesticide as an aerosol over water where "necessary" to control flying insects, such as mosquitoes. These labels are issued under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"). The rule stated that such pesticides cannot be pollutants regulated under the CWA. Our complaint is that the rule can and does exclude what may be factually "pollutants" under the CWA, an exclusion that EPA is not authorized to make. The Court agreed with all of our arguments.

We are one of several environmental organizations that are plaintiffs/petitioners in this litigation. In vacating the rule, the 6th Circuit rejected all of EPA’s arguments relied upon by Judge Spatt in our suit in the Eastern District of New York which was dismissed November 11, 2008. We are now appealing that decision. (Read about the case). 

We are waiting to learn whether the EPA or industry intervenors will seek further judicial review (either petitioning the U.S. Supreme Court for certiorari, or moving for rehearing en banc in the 6th Circuit).

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