September 2009 Articles

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Court Decision could affect pesticide application rules

Court decision could affect pesticide application rules
Agricultural organizations across the United States are intently watching developments in a federal court case that could add more regulation to pesticide applications. The case was a result of a federal lawsuit filed by several environmental groups against the U.S. Environmental Protection Agency across the nation, and all of the litigation was consolidated in the U.S. 6th Circuit Court of Appeals. A three-judge panel of the court determined in January that applying pesticides on or near streams and other bodies of water are point-source releases that require a permit. Although the EPA has requested a two-year stay of the implementation of the ruling to allow time for rule making, no decision has been made on the request. If the ruling stands, a farmer would have to get a permit under the Clean Water Act to use pesticides. The LSU AgCenter has been monitoring the case. Dr. Paul Coreil, LSU AgCenter vice chancellor for extension, said the EPA has asked the court for a two-year delay for implementing the judges’ decision. He said the court’s ruling would mean applying fertilizer and pesticides that protect plants from damaging insects and diseases would require federal permits that could be time consuming and costly. “The delay requested by the EPA would allow for the continued implementation of research-based best management practices that effectively protect soil and water resources on farmland and in gardens, yards and neighborhoods across the state,” Coreil said. “If this stands, it is going to be extremely difficult and onerous for ag producers,” said Dr. Steve Linscombe, LSU AgCenter Southwest Region director. Had the ruling gone into effect immediately, “every pesticide application in Louisiana would have been illegal,” said Dr. Roger Leonard, LSU AgCenter entomologist. Leonard said the ruling would require a permit under the Clean Water Act for spraying for agricultural pests, mosquito abatement and even homeowners trying to control lawn and garden problems. “A lot of things could happen in the next two years,” Leonard said. “The bottom line is that nothing has been changed at this point.” If the ruling were to be effective immediately, Leonard said, “I’m not sure we could farm.” Food prices would increase, insects and crop diseases would increase exponentially and human health would be threatened, he said. Leonard said the two-year stay, if granted, would allow Congress to find a remedy. “I think that’s what everyone is hoping for,” he said “The good news is it doesn’t look like there will be any changes for this year’s growing season.” Several agricultural industry groups are asking the U.S. Court of Appeals for the 6th Circuit to reconsider its ruling or delay implementation.
Kathy Szmuszkovicz, an environmental attorney with the law firm Beveridge and Diamond in Washington, D.C., said it is uncertain what would happen under the best- and worst-case scenarios. “That’s the $64 million question,” Szmuszkovicz said. She said a delay in implementing the decision could allow time for the EPA to formulate new policy that would simplify permitting. “Even better would be that Congress decides this is just not what they intended,” Szmuszkovicz said. That could result in Congress enacting a new law to exempt pesticide applications from the permitting process, she said. In 2007, the EPA determined that the Clean Water Act did not apply to pesticide applications. Environmental groups disagreed and sued the EPA in lawsuits across the United States that were consolidated before the 6th Circuit. The court ruled in January that pesticide applications are from a “point source,” a key factor in the Clean Water Act that determines whether a permit is required.