Team No. 36 United States Court of Appeals

For the Twelfth Circuit LACONIC BAYKEEPER, INC., IMA FISHER, AND SAM SCHWIMMER, Appellants – Cross-Appellees,

v.

CA. No. 07-1001

STEPHEN JOHNSON, ADMINISTRATOR, U.S. Environmental Protection Agency, Appellees – Cross-Appellants.

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

v.

CA. No. 07-1002

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

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW UNION

BRIEF OF THE APPELLEE-ADMINISTRATOR

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

i

TABLE OF CONTENTS

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

ISSUES PRESENTED................................................................................................................1

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

STATUTORY AND REGULATORY BACKGROUND ............................................................3

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

STANDARD OF REVIEW.........................................................................................................5

SUMMARY OF THE ARGUMENT ..........................................................................................6

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

I. ENVIRONMENTAL AND INDUSTRY PETITIONERS HAVE NOT MET THE "CASE OR CONTROVERSY" REQUIREMENT UNDER ARTICLE III OF THE UNITED STATES CONSTITUTION TO BRING THE CLAIMS AT BAR. ....................7

A. Environmental Petitioners Failed to Meet Their Burden of Demonstrating the Existence of Requisite Standing Elements. ....................................................................7

1. The Court Below Misapplied the Facts of this Case and the Controlling Statutes to Find Injury-in-Fact. .........................................................................................................8

2. Since Petitioners Did Not Demonstrate Injury-in-Fact, Their Alleged Injury Is Not Fairly Traceable to EPA’s Conduct and This Court Cannot Redress Relief. .....................9

B. The Industry Petitioners' Challenge to the EPA's Determination that Pesticide Applications Contrary to "Pertinent FIFRA Requirements" are "Pollutants" Subject to the Clean Water Act is Not Ripe for Judicial Review Under the Doctrine Set Forth in Abbott Laboratories v. Gardner.....................................................................................................10

1. The Industry Petitioners’ challenge is not fit for judicial decision. ..........................11

a. .The questions presented are not purely legal because further factual development is required to determine if the pesticide applications challenged are FIFRA-compliant..............................................................................................................12

b. The Pesticide Rule is not a final agency action that affects the Industry Petitioners.............................................................................................................12

2. The Industry Petitioner's Challenge Exhibits No Hardship to Petitioners Through Enforcement of the Statute, Nor is There Hardship to the Petitioners if the Court Withholds Consideration of the Issues Presented for Review. ........................................14

ii

II. THE CLEAN WATER ACT GRANTS EXCLUSIVE REVIEW OF REGULATORY ACTIONS REGARDING EFFLUENT LIMITATIONS, OTHER LIMITATIONS OR THE ISSUING OR DENYING OF PERMITS IN THE CIRCUIT COURT OF APPEALS UNDER A STRICT STATUTE OF LIMITATIONS THAT MAY NOT BE EQUITABLY TOLLED. ...........................................................................16

A. The Pesticide Rule is an Effluent Limitation or Other Limitation Under CWA Section 509(b)(1)(E). .....................................................................................................................17

B. The Pesticide Rule is the Issuance or Denial of a Permit Under CWA Section 509(b)(1)(F). .....................................................................................................................19

C. The Statute of Limitations in Section 509(b)(1) of the Clean Water Act Should Not be Equitably Tolled Because of the Petitioners' Failure to Bring their Action in the Court of Appeals. ............................................................................................................................22

III. THE DISTRICT COURT ERRED IN FAILING TO GRANT AGENCY DEFERENCE WHERE THE EPA'S DECISION WAS NOT ARBITRARY AND CAPRICIOUS AND THEREFORE IN ACCORDANCE WITH ITS GRANTED AUTHORITY......................................................................................................................23

A. Agency Deference Is Necessary Because EPA’s Interpretation is Based on a Reasonable and Permissible Construction of the Statute. ...................................................24

B. Pursuant to the APA Section 706, the Pesticide Rule's Exemption of Specified Pesticide Application Activities from the Clean Water Act Permitting Program was Not Arbitrary, Capricious, an Abuse of Discretion, or Otherwise Not in Accordance with the Law...................................................................................................................................25

1. The EPA was not arbitrary or capricious in promulgating the Pesticide Rule exemption to the Clean Water Act Section 402..............................................................26

2. EPA's reasonable interpretation of CWA Section 402 controls because it is not arbitrary or capricious....................................................................................................30

CONCLUSION.........................................................................................................................32

iii

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES

Abbott Laboratories v. Gardner, 387 U.S. 136, 148-54 (1967)................................... 7, 10, 11, 14 Alaska Department of Environmental Conservation v. EPA, 540 U.S. 461 (2004).....................27 Baltimore Gas and Electric Co. v. NRDC, 462 U.S. 67 (1983) ..................................................26 Bates v. Dow Agrosciences II, 544 U.S. 431 (2005)....................................................................8 Burnett v. New York Central R. Co., 380 U.S. 424, 432 (1965).................................................22 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .............................................................................5 Chemical Manufacturers Association v. NRDC, 470 U.S. 116 (1985) .......................................28 Chevron U.S.A., Inc. v. Natural Resource Defense Council, 467 U.S. 837 (1984)… .......... passim Christensen v. Harris County, 529 U.S. 576 (2000) ...................................................................23 Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 196 (1980) ............................................ 19, 20 E.I. DuPont de Nemours & Co. v. Train, 430 U.S. 112, 136 (1977)...........................................20 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ..........................................25 FTC v. Standard Oil of Cal., 449 U.S. 232 (1980) .....................................................................13 Ford Motor Credit Co. v. Milhollin, 444 U.S. 555 (1980)..........................................................28 Franklin v. Massachusetts, 505 U.S. 788 (1992)........................................................................12 Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-1 (2000) ...............................................................................................................................7 Household Credit Services, Inc. v. Pfennig, 541 U.S. 232 (2004) ..............................................23 Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992)...........................................................7 Motor Vehicle Manufacturers Association of United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983) .................................................................. passim NLRB v. Hearst Publications, 322 U.S. 111 (1944)...................................................................28

iv

National Park Hospitality Association v. Department of Interior, 538 U.S. 803 (2003)..............11 Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Serv., 545 U.S. 967 (2005) ......................23 Nw. Airlines, Inc. v. Trans. Workers, 451 U.S. 77 (1981) ...........................................................7 Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726 (1998) ..................................................13 SEC v. Chenery Corp., 332 U.S. 194 (1947) .............................................................................26 Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735 (1996) ................................................23 Texas v. U.S., 523 U.S. 296, 300 (1998) ...................................................................................14 Thomas v. Union Carbide Agr. Products Co., 473 U.S. 568 (1985) ..........................................11 Toilet Goods Association, Inc. v. Gardener, 387 U.S. 158 (1967)..............................................13 United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) ................................................. 23, 24

UNITED STATES COURT OF APPEALS CASES America Forest & Paper Association v. EPA, 137 F.3d 291 (5th Cir.1998) ...............................14 American Coke and Coal Chemicals Institute v. EPA, 452 F.3d 930, 945 (D.C. Cir. 2006) .................................................................................................................................. 30, 31 American Mining Congress v. EPA, 965 F.2d 759 (9th Cir. 1992) ............................................16 American Petroleum Institute v. EPA, 216 F.3d 50, 57-8 (D.C. Cir. 2000) .......................... 26, 30 American Trucking v. EPA, 283 F.3d 355, 372-4 (D.C. Cir. 2002)................................ 26, 30, 31 Anaconda Co. v. Ruckelshaus, 482 F.2d 1301 (10th Cir. 1973) .................................................19 Cablevision Systems Development Co. v. Motion Picture Association of America, Inc., 836 F.2d 599 (D.C. Cir. 1988)...................................................................................................23 CEC Energy Co., Inc. v. Public Service Com'n of Virgin Islands, 891 F.2d 1107 (3rd Cir. 1989) ........................................................................................................................................12 Central & Southwest Services v. EPA, 220 F.3d 683 (5th Cir. 2000).........................................14 Churchill Truck Lines, Inc. v. United States, 624 F.2d 63 (8th Cir. 1980)..................................25

v

Citizens for Better Forestry v. USDA, 341 F.3d 961 (9th Cir. 2003)............................................7 City of Las Vegas, Nevada v. Clark County, Nevada, 755 F.2d 697 (9th Cir. 1984) ....................5 Clay v. Arizona Interscholastic Association, Inc., 779 P.2d 349 (9th Cir. 1989) ........................25 Continental Air Lines, Inc. v. C. A. B, 522 F.2d 107, 126 (D.C. Cir. 1975) ......................... 14, 15 Cronin v. F.A.A., 73 F.3d 1126 (D.C. Cir. 1996)................................................................. 14, 15 Defenders of Wildlife v. EPA, 420 F.3d 946 (9th Cir. 2005) .......................................................7 Eagle-Picher Industries, Inc. v. EPA, 759 F.2d 905, 913 (D.C. Cir. 1985) .................................22 Environmental Defense Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003)....................................16 Fairhurst v. Hagener, 422 F.3d 1146, 1151-2 (9th Cir. 2005)............................................... 28, 29 First National Bank of Fayetteville v. Smith, 508 F.2d 1371 (8th Cir. 1974)..............................26 Fox Television Stations, Inc. v. Federal Communications Com'n, 489 F.3d 444 (3rd Cir. 2007) ........................................................................................................................................26 Granite Steel Co. v. EPA, 501 F.2d 925 (7th Cir. 1974) ............................................................19 Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 (9th Cir. 2001) .............. 3, 28, 29, 31 International Fabricare Institute v. EPA, 972 F.2d 384 (D.C. Cir. 1992)....................................26 Maloley v. R.J. O'Brien & Associates, Inc., 819 F.2d 1435 (8th Cir. 1987) ...............................28 National Association of Regulatory Utility Comm'rs v. U.S. Department of Energy, 851 F.2d 1424 (D.C. Dir. 1988) .......................................................................................................15 Native Ecosystem Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005)...........................5 Nat. Resource Defense Council v. Abraham, 355 F.3d 179 (2nd Cir. 2004)...............................16 Nat. Resource Defense Council v. EPA, 656 F.2d 768, 775 (D.C. Cir. 1981) ................ 17, 18, 20 Nat. Resource Defense Council v. EPA, 673 F.2d 392 (D.C. Cir. 1980) ....................................18 Nat. Resource Defense Council v. EPA, 673 F.2d 400-6 (D.C. Cir. 1982) ..........16, 17, 18, 19, 22 Nat. Resource Defense Council v. EPA, 966 F.2d 1292 (9th Cir. 1992)............................... 16, 20

vi

Nuclear Info. and Res. Serv. v. U.S. Dep’t of Transp. Research and Special Problems Admin., 457 F.3d 956 (9th Cir. 2006) .......................................................................................16 Peabody Coal Co. v. Train, 518 F.2d 940 (6th Cir. 1975) ..........................................................22 Pozzie v. United States Department of Housing & Urban Develop., 48 F.3d 1026 (7th Cir. 1995) ...................................................................................................................................5 Res. Investment, Inc. v. U.S. Army Corps of Engineers, 151 F.3d 1162 (9th Cir. 1998) ............31 Scott v. Pasadena Unified Sch. District, 306 F.3d 646, 655-56 (9th Cir. 2002) ...................... 9, 10 Sierra Club v. Johnson, 436 F.3d 1269 (11th Cir. 2006) ............................................................30 Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 520-21 (D.C.Cir. 1983) .................................................................................................................................. 26, 30 Solar Turbines Inc. v. Seif, 879 F.2d 1073 (3rd Cir. 1989) ........................................................13 State of Tex. v. U.S. Department of Energy, 764 F.2d 278 (5th Cir. 1985) ................................12 Stoianoff v. Montana, 695 F.2d 1214 (9th Cir. 1983) ..................................................................9 Suburban O'Hare Commission v. Dole, 787 F.2d 186 (7th Cir. 1986)........................................16 Sun Enterprises, Ltd. v. Train, 532 F.2d 280, 290-291 (2nd Cir. 1976)................................ 19, 22 Tennessee v. Herrington, 806 F.2d 642, 650 (6th Cir. 1986)................................................ 16, 17 Texas v. U.S., 497 F.3d 491 (5th Cir. 2007) ..............................................................................11 Thomas Brooks Chartered v. Burnett, 920 F.2d 634 (10th Cir. 1990) ........................................25 VEPCO v. Costle, 566 F.2d 446 (4th Cir. 1977)........................................................................17 Wisconsin Electric Power Co. v. Reilly, 893 F.2d 901 (7th Cir. 1990) ......................................24

UNITED STATES DISTRICT COURT CASES Industrial Highway Corp. v. Danielson, 796 F. Supp. 121 (D.N.J. 1992) ...................................13 Laconic Baykeeper, Inc. v. Johnson, No. 07CV1015 (RNR) .................................... 8, 13, 16, 18 Northwest Envtl. Advocates v. EPA, 2005 U.S. Dist. LEXIS 5373 (N.D. Cal. 2005)..... 18, 19, 21

vii

No Spray Coal., Inc. v. City of New York, 2000 WL 1401458 (S.D.N.Y. 2000), aff'd, 252 F.3d 148 (2d Cir. 2001) ......................................................................................................10 Save Ardmore Coalition v. Lower Merion Township, 419 F. Supp. 2d 663 (E.D.Pa. 2005) ........................................................................................................................................12 United States v. Corbin Farm Service, 444 F. Supp. 510 (E.D. Cal. 1978)...................................8

STATE CASES Golden Cheese Co. v. Voss, 281 Cal. Rptr. 587 (4th Dir. 1991) ................................................25 McPeck v. Colorado Department of Social Services, 919 P.2d 942 (Colo. Ct. App. 1996).........26

UNITED STATES CONSTITUTION

U.S. Const. Art. III ...........................................................................................................................7

FEDERAL STATUTES AND REGULATIONS 5 U.S.C. §§ 551-706 ............................................................................................................... 1, 5, 30

5 U.S.C. § 706(2)(A) ............................................................................................................ 5, 25, 30

5 U.S.C. § 706(2)(c) .........................................................................................................................5 7 U.S.C. §§ 136-136(v).....................................................................................................................8

7 U.S.C. § 136(BB)...........................................................................................................................8

7 U.S.C. § 136(j)(a)(2)(G) ............................................................................................................8, 9

28 U.S.C. § 1291 ..............................................................................................................................1

28 U.S.C. § 1331 ..............................................................................................................................1 28 U.S.C. § 2201 ..............................................................................................................................1 28 U.S.C. § 2203 ..............................................................................................................................1

viii

33 U.S.C. § 1251 ..............................................................................................................................3

33 U.S.C. § 1311(a) ..........................................................................................................................3

33 U.S.C. § 1342 ..................................................................................................................... passim 33 U.S.C. §§ 1251-1387 .................................................................................................................23 33 U.S.C. § 1361 ............................................................................................................................23 33 U.S.C. § 1362(6)..........................................................................................................................3 33 U.S.C. § 1362(7)..........................................................................................................................3 33 U.S.C. § 1362(11) ......................................................................................................................17 33 U.S.C. § 1369(b)(1) ............................................................................................................ passim

40 C.F.R. § 122.3(h) ............................................................................................................... 4, 5, 24

40 C.F.R. § 201.15............................................................................................................................3

40 C.F.R. § 201.16............................................................................................................................3

71 Fed. Reg. 68,483 (Nov. 27, 2006) ....................................................................................... passim

1

STATEMENT OF JURISDICTION

On February 23 and 24, 2007, Environmental Petitioners and Industry Petitioners,

respectively and severally, filed suit against the U.S. Environmental Protection Agency ("EPA")

under Administrative Procedure Act ("APA"), 5 U.S.C. § 706. The suits were consolidated, and

Petitioners sought to invoke the subject matter jurisdiction of the United States District Court for

the District of New Union pursuant to 28 U.S.C. §§ 1331, 2201, 2203 and 5 U.S.C. § 706.

Despite its ruling to the contrary, the District Court lacked subject matter jurisdiction since

jurisdiction over EPA actions regarding effluent limitations, other limitations, and the issuance or

denial of permits lies exclusively with the Court of Appeals under § 509(b)(1) of the Clean

Water Act ("CWA"), 33 U.S.C. § 1369(b)(1).

This Court has jurisdiction over this appeal under 28 U.S.C. § 1291. The District Court

issued an opinion sustaining its own jurisdiction, granting Environmental Petitioners partial

summary judgment, and denying Industry Petitioners' claim for lack of ripeness. Environmental

and Industry Petitioners filed notices of appeal. The EPA cross-appealed from the final order of

Summary Judgment for Environmental petitioners and from the determination of jurisdiction by

the New Union District Court.

ISSUES PRESENTED

1. Have the Petitioners met the "case or controversy" requirements under Article III

of the U.S. Constitution, which demand that Petitioners have both standing and a ripe

claim?

2. Should the Petitioners' claims be brought in the Court of Appeals, and if so,

should the court equitably toll the 120 day statute of limitations?

3. Is the Pesticide Rule's limited exclusion of certain water-based pesticide

2

applications arbitrary or capricious?

STATEMENT OF THE CASE

On February 23, 2007, Laconic Baykeeper, a not-for-profit environmental organization,

together with Ima Fisher and Sam Schwimmer (“Environmental Petitioners”), filed suit in the

District of New Union against the EPA. R. at 7. The action sought declaratory judgment,

declaring the EPA's exclusion of certain water-based pesticide applications from CWA

permitting requirements (“Pesticide Rule”) invalid. R. at 7. On February 24, 2007, the New

Union Farmers Institute (“NUFI”), the Union of New Union Aerial Pesticide Applicators

(“UNUAPA”), Happy Valley Farms, and Wiccillum Copters (collectively, “Industry

Petitioners”) also filed suit in the District of New Union against the EPA. R. at 7. The action also

sought declaratory judgment, requiring the EPA to include certain pesticide applications within

the exclusions of the Pesticide Rule. R. at 7. These two suits were consolidated, with

Environmental Petitioners and Industry Petitioners intervening as defendants by consent in each

others' actions. R. at 2. Both sets of Petitioners made cross motions for summary judgment. R. at

7.

The District Court dismissed Industry Petitioners' claim for lack of ripeness. R. at 10. The

District Court rejected EPA's argument that jurisdiction lies exclusively in the Court of Appeals.

R. at 9. The District Court granted Environmental Petitioners' motion for summary judgment in

part, holding that the EPA disobeyed the intent of Congress in exempting biological pesticides

from CWA permitting requirements. R. at 13. Both sets of Petitioners appealed. R at 2. The EPA

timely filed its notice of appeal to this Court. R. at 2.

3

STATUTORY AND REGULATORY BACKGROUND

The CWA provides a basis for the protection of the Nation's waters. The CWA's

stated purpose is “to restore and maintain the chemical, physical, and biological integrity of the

Nations' waters.” 33 U.S.C. § 1251 (2002). In keeping with these goals, the CWA prohibits the

discharge of pollutants into waters of the United States. See 33 U.S.C §§ 1311(a), 1362(7). In

order to determine whether a pollutant is being discharged, the CWA defines a "pollutant" in

Section 502(6) as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage

sludge, munitions, chemical waste, biological materials, radioactive materials, heat, wrecked or

discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste

discharge into water.” 33 U.S.C. § 1362(6). The EPA has further defined what constitutes a

"pollutant" in the toxic and conventional pollutant lists found at 40 C.F.R. § 201.15 and 40

C.F.R. §201.16, respectively. If the discharge is not found on the lists, the more general

definition must be applied in order to determine whether the CWA applies to a given discharge.

The CWA provides statutory exemptions, such as the National Pollutant Discharge

Elimination System ("NPDES") permit program, that allows a polluter who obtains a permit to

discharge a specified amount of a pollutant. See 33 U.S.C. § 1342. Congress gave the EPA the

authority to administer the NPDES permit program. 33 U.S.C. § 1342. Under the NPDES

program, EPA may issue permits on a case-by-case basis, taking into account local

environmental conditions, or create a uniform national standard. Headwaters, Inc. v. Talent

Irrigation District, 243 F.3d 526, 530 (9th Cir. 2001).

STATEMENT OF FACTS

In response to many judicial decisions questioning whether the discharge of FIFRA-

compliant pesticides directly to waters required a separate NPDES permit, EPA promulgated the

4

Pesticide Rule under the authority of 33 U.S.C. § 1342. In 2003, EPA issued an "interim

guidance" document, which stated that pesticides applied directly to water or directly over water,

in compliance with all FIFRA labeling requirements, do not require NPDES permits because

they are not "pollutants" under the CWA. EPA received comments and issued a "final guidance

"document in 2005. The "final guidance" document was then subject to the rigorous public

comment of many interested individuals, businesses, and organizations. Arguments were heard

in favor of and in opposition to the Rule. On November 27, 2006, EPA issued the Final

Pesticide Rule. "Application of Pesticides to Waters of the United States in Compliance with

FIFRA," 71 Fed. Reg. 68,483 (Nov. 27, 2006) (codified at 40 C.F.R. § 122.3(h)).

After the issuance of the Pesticide Rule, Environmental Petitioners became concerned

over the City of Progress' response to a possible West Nile Virus outbreak. The City of Progress

established a "Mosquito Control Plan" (“MCP”) to kill all mosquitoes in the area of Laconic

Bay. The Plan, when enacted, will apply two pesticides to kill mosquitoes in their larval and

adult stages. Environmental Petitioners use Laconic Bay for recreational and commercial

activities. They claim that the application of pesticides near Laconic Bay will severely dampen

their ability to use it for their individual purposes.

One of the pesticides, known as BTI, is a biological bacterial larvicide that will be

applied to the saltmarshes surrounding the Bay to kill mosquitoes in their larval form. BTI is

generally considered to be safe for aquatic life. The second pesticide, known as Anvil 10 + 10, is

a chemical adulticide that will be applied directly to the saltmarshes by helicopter to kill

mosquitoes in their adult form. The use of Anvil 10 + 10 in this manner does not comply with its

FIFRA labeling, which explicitly states: "for terrestrial uses, do not apply directly to water, to

areas where surface water is present or to intertidal areas below the mean high water mark."

5

As of the filing of this appeal, the City of Progress Health Department has identified

West Nile-infected birds and mosquito populations in the tidal marshes of Laconic Bay. The

MCP has not yet been implemented.

Industry Plaintiffs are an amalgam of representatives from the farming and pesticide

applying community. The New Union Farmer's Institute (NUFI) represents members of the New

Union farming community that engage in the aerial application of pesticides near surface water

bodies that flow into Laconic Bay. Despite their spraying activities near these waters, none of

NUFI's members have ever been required by the EPA to obtain an NPDES permit. As of the date

of this appeal, NUFI's members remain free of any explicit obligation to obtain a permit, despite

the enactment of the Pesticide Rule.

STANDARD OF REVIEW

The district court's jurisdictional ruling and grant of summary judgment are reviewed de

novo. Native Ecosystem Council v. U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir. 2005). A

motion for summary judgment may be granted only if there is no genuine issue as to any material

fact and the moving party is therefore entitled to judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986).

This action arises under the APA, 5 U.S.C. §§ 551-706. In particular, Industry Petitioners

contend that EPA’s actions in promulgating the permitting exemption contained at 40 C.F.R. §

122.3(h) is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law

under 5 U.S.C. § 706(2)(A) and in excess of statutory jurisdiction, authority, or limitations under

5 U.S.C. § 706(2)(c). Consequently, the EPA’s interpretation of the statute would be reviewable,

if at all, under the APA's arbitrary and capricious standard. 5 U.S.C. § 706. City of Las Vegas,

Nevada v. Clark County, Nevada, 755 F.2d 697, 704 (9th Cir. 1984). This standard presumes the

6

validity of the agency action and upholding the agency’s interpretation if minimum standards of

rationality are satisfied. Pozzie v. United States Dept. of Housing & Urban Develop., 48 F.3d

1026, 1029 (7th Cir. 1995).

SUMMARY OF THE ARGUMENT

Petitioners have not met the "case or controversy" requirement set forth in Article III of

the U.S. Constitution, stating that cases brought in federal court, inter alia, must be ripe and the

parties must have standing. Industry Petitioners' claim is not ripe because it is not fit for judicial

review and fails to demonstrate any present or future hardship in withholding court

consideration. Further, Environmental Petitioners do not met their burden to demonstrate the

requisite elements of standing. This Court cannot redress Environmental Petitioners relief

because there is no injury-in-fact and the alleged injury is not fairly traceable to the EPA's

conduct.

Even if Petitioners did have standing to sue, review of their claims in the District Court

was improper. The claims challenge regulatory actions regarding effluent limitations, other

limitations, and the issuance or denial of permits, which require exclusive review in the Court of

Appeals under CWA § 509(b)(1). Since Petitioners claim was brought in the wrong court, the

statute of limitations has expired and should not be equitably tolled.

EPA's Pesticide Rule is not arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with the law. EPA promulgated the Rule by reasonably interpreting the CWA

through gaps that Congress left in the statutory text. EPA made a permissible interpretation of

CWA and FIFRA mandates to strike an appropriate and protective balance.

7

ARGUMENT

I. ENVIRONMENTAL AND INDUSTRY PETITIONERS HAVE NOT MET THE "CASE OR CONTROVERSY" REQUIREMENT UNDER ARTICLE III OF THE UNITED STATES CONSTITUTION TO BRING THE CLAIMS AT BAR.

The federal courts are “courts of limited jurisdiction that have not been vested with

unlimited open-ended lawmaking powers.” Northwest Airlines, Inc. v. Trans. Workers, 451 U.S.

77, 95 (1981). Federal court jurisdiction is limited by the constitutional limitations on judicial

power, such as the “case or controversy” requirement of Article III and by prudential

considerations. U.S. Const. Art. III; Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967).

A. Environmental Petitioners Failed to Meet Their Burden of Demonstrating the Existence of Requisite Standing Elements.

The requirement of Article III standing is an essential component of the separation of

powers. Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992). Article III standing is not a

“mere pleading requirement but rather an indispensable part of the plaintiff's case” and that “each

element must be supported in the same way as any other matter on which the plaintiff bears the

burden of proof, i.e., with the manner and degree of evidence required at the successive stages of

the litigation.” Id. at 562.

To establish standing, a plaintiff must show (1) it has suffered an “injury in fact” that is

(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2)

the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as

opposed to merely speculative, that the injury will be redressed by a favorable decision. Citizens

for Better Forestry v. USDA, 341 F.3d 961, 969 (9th Cir. 2003) (citing Friends of the Earth, Inc.

v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, (2000)). In other words, to have

standing a plaintiff must “allege (1) personal injury (2) fairly traceable to the defendant’s

allegedly unlawful conduct and (3) [that is] likely to be redressed by the requested relief.”

8

Defenders of Wildlife v. EPA, 420 F.3d 946, 956 (9th Cir. 2005) (citing Friends of the Earth,

528 U.S. at 180-81).

Environmental Petitioners have not met any element of this test. Petitioners challenge the

validity of the Pesticide Rule by claiming injury from the City of Progress’ MCP. As explained

below, Petitioners cannot show injury-in-fact, that their alleged injury is fairly traceable to EPA

conduct, nor that this Court can redress relief.

1. The Court Below Misapplied the Facts of this Case and the Controlling Statutes to Find Injury-in-Fact.

FIFRA establishes a comprehensive regulatory scheme governing the use, sale, and

labeling of pesticides. Federal Insecticide, Fungicide, Rodenticide Act, 7 U.S.C. §§ 136-136v;

Bates v. Dow Agrosciences II, 544 U.S. 431, 436-437 (2005). FIFRA requires all pesticides sold

or distributed in the United States to be registered with the EPA. To obtain a registration, the

applicant typically must submit extensive test data and proposed labeling to the EPA. In

registering any pesticide product, EPA ensures that the labeling is adequate to protect human

health and safety and determines whether a pesticide will cause “unreasonable adverse effects on

the environment” when used to perform its intended function. 7 U.S.C. § 136(bb). FIFRA makes

it unlawful for any person to use any registered pesticide in a manner inconsistent with its EPA

approved labeling. 7 U.S.C. § 136(j)(a)(2)(G). “Inconsistent with FIFRA labeling” occurs when

a person of ordinary intelligence would consider the use as disregarding label instructions or

otherwise not in accordance with such instructions which might endanger the safety of others or

the environment. Senate committee report. United States v. Corbin Farm Service, 444 F.Supp.

510 (E.D. Cal. 1978), aff'd on other grounds, 578 F.2d. 259 (9th Cir. 1978) (defining

"inconsistent" as "contrary to" or "incompatible with," and stating that the statute is violated if it

was clear enough that one should not apply a pesticide in a way contrary to the label’s

9

directions).

Under the City’s MCP, Anvil 10 + 10 will be sprayed over Laconic Bay. Anvil’s FIFRA

label expressly states, “for terrestrial uses, do not apply directly to water, to areas where surface

water is present or to intertidal areas below the mean high water mark.” Laconic Baykeeper, Inc.

v. Johnson, No. 07CV1015 (RNR). Spraying Anvil into Laconic Bay is a manner inconsistent

with its approved labeling requirements. The City will be in violation of FIFRA if it executes the

MCP and will be subject to criminal misdemeanor charges and civil penalties. 7 U.S.C. §

136(j)(a)(2)(G). Even if FIFRA labeling requirements are not enough to stop the City's MCP, the

spraying would fall out of the Pesticide Rule exception and the City would be in violation of

CWA. The Pesticide Rule accomplishes its stated purpose of finding balance between FIFRA

and CWA and adequately protects the waters of the United States. 71 Fed. Reg. 68,483. When

FIFRA fails to protect waters, the plaintiffs are free to challenge the rule. This is not however,

the circumstance presently before this Court. In this case, FIFRA is adequately protecting the

waters and will stop the spray of pesticides. Therefore, the court below erred in finding that there

is injury-in-fact.

2. Since Petitioners Did Not Demonstrate Injury-in-Fact, Their Alleged Injury Is Not Fairly Traceable to EPA’s Conduct and This Court Cannot Redress Relief.

“The mere existence of a statute, which may or may not ever be applied to plaintiffs, is not

sufficient to create a case or controversy within the meaning of Article III.” Stoianoff v.

Montana, 695 F.2d 1214, 1223 (9th Cir. 1983). Under the injury-in-fact requirement, Petitioners

must allege that they have:

[S]uffered some threatened or actual injury resulting from the putatively illegal action . . . A plaintiff may allege a future injury in order to comply with this requirement, but only if he or she is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury is both real and immediate, not conjectural or hypothetical.

10

Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 655-56 (9th Cir. 2002) (internal quotation

marks and citations omitted).

Accordingly, Environmental Petitioners must demonstrate a concrete and particularized

injury which affects them in a personalized way, as opposed to asserting a generalized grievance.

Further, Environmental Petitioners must show that their danger of injury is "a result of the

challenged official conduct and the injury or threat of injury is both real and immediate, not

conjectural or hypothetical.” Scott, 306 F.3d at 655-56 (internal quotation marks and citations

omitted). Mere speculation about a possible future injury is not sufficient. Id. In the case at bar,

where pesticides will be in violation of FIFRA if sprayed, there is only mere speculation that

injury will occur. The city is barred under FIFRA from spraying and will likely modify its plan.

It is purely hypothetical to assume that they will spray under the current MCP.

Further, contrary to standing requirements, the Petitioners alleged personal injury is not

fairly traceable to the EPA’s decision. If the City follows through with the current MCP, the

Petitioners alleged injury will be caused by the City’s violation of FIFRA. Thus, it is the City’s

official conduct, not the EPA’s, that petitioners are challenging and this Court cannot redress the

City’s potential violation. FIFRA provides no private cause of action and the Petitioners

attempted to circumvent FIFRA by alleging CWA violations. Congress intended to leave the

regulation of pesticides to the EPA through the use of FIFRA’s technical label requirements. No

Spray Coal., Inc. v. City of New York, 2000 WL 1401458 (S.D.N.Y. 2000), aff'd, 252 F.3d 148

(2d Cir. 2001). Congress’ intent must be left intact to effectuate the proper regulation of

pesticides.

B. The Industry Petitioners' Challenge to the EPA's Determination that Pesticide Applications Contrary to "Pertinent FIFRA Requirements" are "Pollutants"

11

Subject to the Clean Water Act is Not Ripe for Judicial Review Under the Doctrine Set Forth in Abbott Laboratories v. Gardner.

The Industry Petitioners’ challenge to the EPA's ruling that pesticides applied contrary to

FIFRA requirements are pollutants is not ripe for judicial review under the doctrine in Abbott

Labs., 387 U.S. at 149. In Abbott Labs., the court established that ripeness is determined by a

two-step test. Id. The court is required to look at both (1) the fitness of the issues for judicial

decision and (2) the hardship to the parties of withholding court consideration. Id. The test was

established to remove the court from premature adjudication, administrative policies, and to keep

the court from deciding on a non-final agency action. Id. at 148.

The Industry Petitioners’ challenge is not fit for judicial review. They have suffered no

hardship to date and would not be harmed by the court deferring judgment on the challenged

issue. Both prongs of the ripeness test under Abbott Labs. v. Gardner have not been met,

therefore the Industry Petitioners challenge to the EPA's determinations in the Pesticide Rule are

not ripe for judicial intervention.

1. The Industry Petitioners’ challenge is not fit for judicial decision. The first part of the ripeness test addresses the fitness of the issues for judicial decision.

Challenges to administrative regulations are fit for review if four requirements are met: (a) the

questions presented are "purely legal ones," (b) the regulations being challenged are the "final

agency action," (c) further factual development would not "significantly advance [the court's]

ability to deal with the legal issues presented," and (d) the resolution of the issues will promote

effective enforcement and administration by the agency. Texas v. U.S., 497 F.3d 491, 498 (5th

Cir. 2007) (quoting Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803 (2003); Abbott

Labs., 387 U.S. at 149-54).

12

a. The questions presented are not purely legal because further factual development is required to determine if the pesticide applications challenged are FIFRA-compliant.

The Industry Petitioners' claim is not a purely legal question, because it addresses factual

questions about the proper interpretation of a broad statutory definition. A purely legal question

is one that cannot be clarified by further factual development. Thomas v. Union Carbide Agr.

Prods. Co., 473 U.S. 568 (1985). Both a factually-complete record and the framework to apply

the record to must be present for the issue to be purely legal. State of Tex. v. U.S. Dept. of

Energy, 764 F.2d 278 (5th Cir. 1985) (where the court requested both the factual documents

regarding the claim and the framework used to determine if two sites in Texas were acceptable as

nuclear waste repositories under the Nuclear Waste Policy Act).

Here, the questions presented are not purely legal. Industry Petitioners have not stated if

their pesticides are being applied contrary to FIFRA requirements. This is a key element of the

factual record since the EPA has stated that it will not enforce NPDES permits for FIFRA-

compliant agricultural pesticide applications. 71 Fed. Reg. 68,487. Without knowledge of their

FIFRA-compliance, the court cannot properly examine the legal issues presented. The factual

record is not complete, therefore the court cannot conduct a proper analysis of the Pesticide

Rule’s application in this case.

b. The Pesticide Rule is not a final agency action that affects the Industry Petitioners.

The Pesticide Rule is not a final agency action that directly affects the Industry

Petitioners. Finality depends not only on whether the agency's decision-making process is

complete, but also if the regulations will "directly affect the parties.” Franklin v. Massachusetts,

505 U.S. 788, 797 (1992) (emphasis added); Save Ardmore Coalition v. Lower Merion

13

Township, 419 F.Supp.2d 663 (E.D.Pa. 2005). The Third Circuit has listed numerous factors that

must be considered in assessing finality, which overlap significantly with the factors for ripeness.

See CEC Energy Co., Inc. v. Public Service Com'n of Virgin Islands, 891 F.2d 1107 (3rd Cir.

1989). The finality factors include: (1) whether the decision represents the agency's definitive

position on the question; (2) whether the decision has the status of law with the expectation of

immediate compliance; (3) whether the decision has immediate impact on the day-to-day

operations of the party seeking review; (4) whether the decision involves a pure question of law

that does not require further factual development; and (5) whether immediate judicial review

would speed enforcement of the relevant act. Solar Turbines Inc. v. Seif, 879 F.2d 1073, 1080

(3rd Cir. 1989) (citing FTC v. Standard Oil of Cal., 449 U.S. 232 (1980)). Dubbed the "Solar

Turbines factors," a court must apply the five factors to determine if an agency action is final.

Industrial Highway Corp. v. Danielson, 796 F.Supp. 121, 127 (1992). Where no actual damages

have been proven, or if damage is minimal, the case is not ripe because the agency action did not

affect the parties. Toilet Goods Ass'n, Inc. v. Gardener, 387 U.S. 158, 159 (1967) (holding that

the challenge to the Commissioner's regulations were not ripe because the penalties for not

adhering to the rule were minimal and there was no actual damage yet); see also Ohio Forestry

Ass'n, Inc. v. Sierra Club, 523 U.S. 726 (1998) (holding that challenge to forced service

regulation as too liberal towards logging was not ripe for review).

As in Toilet Goods, the rule at bar is not a final agency action that affects the parties.

While the EPA has completed its decision-making process, the outcome will not affect the

Industry Petitioners. The Pesticide Rule creates an exception for pesticides that are applied

directly to, or over and near waters. Industry Petitioners are not applying their pesticides directly

to water. They simply fear that the drift from their pesticide applications will end up in those

14

waters thus subjecting them to NPDES permitting requirements. The Pesticide Rule, however,

does not change their situation. The Industry Petitioners have not had to attain permits in the past

and the Pesticide Rule is silent regarding whether they will have to get permits in the future. 71

Fed. Reg. 68,487; Laconic Baykeeper, Inc., No. 07CV1015 (RNR).

If the Industry Petitioners are ever required to acquire NPDES permits as a result of the

Pesticide Rule, they can certainly challenge the determination. Until that occurs, the parties are

not affected by this regulation, and as such it is not a final agency action that directly affects the

parties.

2. The Industry Petitioner's Challenge Exhibits No Hardship to Petitioners Through Enforcement of the Statute, Nor is There Hardship to the Petitioners if the Court Withholds Consideration of the Issues Presented for Review.

The second prong of the ripeness test focuses on the hardship to the parties. Here, there is

no hardship to the Industry Petitioners. While courts state that the fitness and hardship prongs

must be balanced, the petitioning party must show some hardship in order to establish ripeness.

Am. Forest & Paper Ass'n v. EPA, 137 F.3d 291, 296 (5th Cir. 1998); Cent. & Sw. Servs. v.

EPA, 220 F.3d 683, 690 (5th Cir. 2000) (holding plaintiffs must show hardship to establish

ripeness). The Supreme Court of the United States has held that the aggrieved parties must show

that they have felt the effects of the administrative policy in question "in a concrete way" in order

for a party's challenge to be ripe. Abbott Labs., 387 U.S. at 148-49; Continental Air Lines, Inc. v.

C. A. B., 522 F.2d 107 (D.C. Cir. 1975).

Here, there is no "immediate and practical impact" to the challenging parties. Continental

Air Lines, Inc., 522 F.2d 107. There is no proof in the record or otherwise to show that the

Industry Petitioners have been directly harmed by the Pesticide Rule since it does not change

their obligation to obtain a permit. Without the EPA explicitly requiring permits, the Industry

15

Petitioners cannot prove that any harm will definitely result from the promulgation of the Rule.

Without an immediate impact to the Industry Petitioners, their only claim is for possible

future injuries, which are not actionable. A “claim is not ripe for adjudication if it rests upon

contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas

v. U.S., 523 U.S. 296, 300 (1998). This point was addressed in Cronin v. F.A.A., 73 F.3d 1126

(D.C. Cir. 1996), in which labor organizations filed suit against administrative agencies to have

agency determinations reviewed for their constitutionality. The court in Cronin found that "the

primary injury alleged by petitioners is not a present hardship resulting from the regulations

themselves, but rather a future injury that may result from enforcement of the regulations in

circumstances where procedural due process is not satisfied.” Cronin, 73 F.3d 1126 (citing Nat'l

Ass'n of Regulatory Util. Comm'rs v. U.S. Dept. of Energy, 851 F.2d 1424, 1429 (D.C. Dir.

1988)).

Here, the primary injury alleged by petitioners is also not a present hardship resulting

from the regulations themselves, since there has been no actual injury to the Petitioners yet, nor

is there proof that such injury will ever occur. The injuries for Industry Petitioners are merely

"future injur[ies]," that may result from the enforcement of NPDES permitting regulations,

independent of the Pesticide Rule.

Some courts assert that regulations are ripe for review if they force one to "choose

between disadvantageous compliance and risking serious penalties." See Continental, 522 F.2d at

126. However, such a rule is inapplicable in this case. This regulation does not force the

Industry Petitioners to choose between compliance or penalty because the Petitioners’ pesticide

application are not affected by the Pesticide Rule. Any choice between compliance and penalty

that Industry Petitioners currently face was just as tangible before the Pesticide Rule was

16

enacted. Petitioners will not be injured, let alone affected, by the court withholding consideration

on this issue.

II. THE CLEAN WATER ACT GRANTS EXCLUSIVE REVIEW OF REGULATORY ACTIONS REGARDING EFFLUENT LIMITATIONS, OTHER LIMITATIONS OR THE ISSUING OR DENYING OF PERMITS IN THE CIRCUIT COURT OF APPEALS UNDER A STRICT STATUTE OF LIMITATIONS THAT MAY NOT BE EQUITABLY TOLLED.

The CWA provides for exclusive review of EPA actions in the United States courts of

appeals when the EPA is “approving or promulgating any effluent limitation or other limitation”

under CWA § 509(b)(1)(E), 33 U.S.C. § 1369(b)(1)(E), or “issuing or denying a permit” under

CWA § 509(b)(1)(F), 33 U.S.C. § 1369(b)(1)(F). The District Court for the District of New

Union held that it had jurisdiction to review the Pesticide Rule under the APA § 704 because the

provisions of the rule do not constitute “effluent limitations or other limitations” nor do they

issue or deny a permit. Laconic Baykeeper at 9-10. Because APA § 704 provides for review only

when no other means exist and review has been provided for in the courts of appeals, this

decision was in error and should be reversed.

Whenever it is ambiguous as to whether jurisdiction exists in the district courts or the

court of appeals, the ambiguity must be resolved in favor of the court of appeals. Nuclear

Information and Res. Serv. v. U.S. Dept. of Transp. Research and Special Problems Admin., 457

F.3d 956, 960 (9th Cir. 2006); Nat. Res. Def. Council v. Abraham, 355 F.3d 179, 193 (2nd Cir.

2004); Tennessee v. Herrington, 806 F.2d 642, 650 (6th Cir. 1986); Suburban O’Hare Comm’n

v. Dole, 787 F.2d 186, 192 (7th Cir. 1986). Ambiguity exists here because other courts of

appeals have exerted jurisdiction over rules and regulations involving permit exemptions similar

to the Pesticide Rule at bar. Environmental Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003);

Nat. Res. Def. Council v. EPA, 966 F.2d 1292 (9th Cir. 1992) (“NRDC-92”); American Mining

17

Congress v. EPA, 965 F.2d 759 (9th Cir. 1992). Hence, the District Court should have dismissed

the case in favor of jurisdiction in the Court of Appeals.

Finding exclusive jurisdiction in the courts of appeals is consistent with the Supreme

Court of the United States’s determination that § 509 of the CWA must be given a “practical

rather than a cramped construction.” Nat. Res. Def. Council v. EPA, 673 F.2d 400, 405 (D.C.

Cir. 1982) (“NRDC-82”) (citing generally Crown Simpson Pulp Co. v. Costle, 445 U.S. 193

(1980)). Exclusive jurisdiction avoids “duplicative review and the attendant expense involved” in

allowing disputes over regulations to proceed in the district courts. Herrington, 806 F.2d at 650.

This Court should reverse the District Court’s decision and take jurisdiction in the case at bar.

A. The Pesticide Rule is an Effluent Limitation or Other Limitation Under CWA Section 509(b)(1)(E).

The CWA empowers the courts of appeals to review the approval or promulgation of

“any effluent limitation or other limitation” made by the EPA under Sections 301, 302 or 306 of

the act. CWA § 509(b)(1)(E), 33 U.S.C. § 1369(b)(1)(E). “Effluent limitation” is defined in the

Act as “any restriction . . . on quantities, rates, and concentrations of chemical, physical,

biological, and other constituents which are discharged . . . including schedules of compliance.”

CWA § 502(11), 33 U.S.C. § 1362(11). Although this definition identifies court of appeals

review for numerical limitations on pollutants, the statute “has a wider range.” NRDC-82, 673

F.2d at 403. The term “other limitations,” which is not defined in the CWA, along with the

definition of “effluent limitation” as “any restriction,” gives the courts of appeals the power to

review a broad range of regulations. Id.; Nat. Res. Def. Council v. EPA, 656 F.2d 768, 775 (D.C.

Cir. 1981) (“NRDC-81”); VEPCO v. Costle, 566 F.2d 446, 450 (4th Cir. 1977).

The Court of Appeals for the D.C. Circuit has held that courts of appeals have original

jurisdiction to review exceptions to standard permitting requirements. Exceptions are “effluent

18

limitations or other limitations” under CWA § 509(b)(1)(E) when they set limits on who may

take advantage of them. In NRDC-81, the D.C. Circuit took initial authority under Section 509

(b)(1)(E) to review EPA regulations that allowed certain municipalities to apply for a “variance

from the normal requirement of secondary sewage treatment.” NRDC-81, 656 F.2d 768, 775

(D.C. Cir. 1981). The regulations “restrict[ed] the discharge of sewage by limiting the

availability of a variance to a class of applicants which [did] not include all coastal

municipalities.” Id. Similarly, in NRDC-82, the D.C. Circuit again took initial authority to

review the EPA’s Consolidated Permit Regulations (CPR’s). NRDC-82, 673 F.2d at 401, 402.

The CPR’s are “procedural rules designed to implement permitting” under five specific pollution

control programs. Nat. Res. Def. Council v. EPA, 673 F.2d 392, 395 (D.C. Cir. 1980). Various

CPR’s “restrict who may take advantage of certain provisions or otherwise guide the setting of

numerical limitations in permits.” NRDC-82, 673 F.2d at 404, 405.

Like the variance regulations in NRDC-81 and the CPR’s in NRDC-82, the Pesticide

Rule is an “effluent limitation or other limitation” under CWA § 509(b)(1)(E) and should be

reviewed in the Court of Appeals. The rule limits the application of pesticides to water from a

point source by restricting an exception to specific pesticide applicators. The Rule’s language

clearly states that “the application of a pesticide in compliance with relevant requirements of

[FIFRA] does not require a [NPDES] permit in two specific circumstances.” 71 Fed. Reg. 68,483

(emphasis added).

The case on which the District Court based its jurisdiction is distinguishable from the

case at bar because the Pesticide Rule limits its own application. In determining that the

Pesticide Rule “eliminates an entire category of discharge from regulation, and cannot be

considered a ‘limitation,’” Laconic Baykeeper at 10, the District Court relied exclusively on Nw.

19

Envtl. Advocates v. EPA, 2005 U.S. Dist. LEXIS 5373 (N.D. Cal. 2005) (“Nw. Environmental”).

There, the court held that a categorical exclusion of vessel discharges from NPDES permit

requirements could not be considered a “limitation” on pollutants. Id. at 5. The Nw.

Environmental court, however, also acknowledged that the blanket vessel discharge exclusion at

issue was different from exclusions that “restrict who may take advantage of certain provisions."

Id. (quoting NRDC-82, 673 F.2d at 404, 405.) The Pesticide Rule clearly restricts its provisions

to specific FIFRA-compliant applicators and is the very type of regulation that the Nw.

Environmental court sought to exclude from its ruling. Therefore, the District Court's

classification of the Pesticide Rule as a blanket exclusion is incorrect and should be reversed.

In addition, the Pesticide Rule expressly creates limitations when it describes the outer

boundaries of its exclusions. The Rule describes circumstances in which the exclusion does not

apply, and a NPDES permit may be required: when pesticides are contained in a waste stream

and are therefore classified as waste materials, or when a pesticide’s residual materials remain in

water after its intended purpose has been completed. 71 Fed. Reg. 68,483, 68,487. Given that

the EPA, before this rule, had never issued an NPDES permit for the application of a pesticide to

water nor given any guidance on the subject, 71 Fed. Reg. 68,483, the Pesticide Rule is plainly

setting limits to be taken into account when applying its exclusions.

B. The Pesticide Rule is the Issuance or Denial of a Permit Under CWA Section 509(b)(1)(F).

The CWA empowers the courts of appeals to review EPA decisions “in issuing or

denying any permit” under Section 402 of the Act. CWA § 509(b)(1)(F), 33 U.S.C. §

1369(b)(1)(F). Many circuit courts recognize that, absent extraordinary circumstances, this

provision provides for exclusive review of issuing or denying permits in the courts of appeals.

See Sun Enters., Ltd. v. Train, 532 F.2d 280 (2nd Cir. 1976); Granite Steel Co. v. EPA, 501 F.2d

20

925 (7th Cir. 1974); Anaconda Co. v. Ruckelshaus, 482 F.2d 1301 (10th Cir. 1973).

The Supreme Court of the United States has held that EPA actions that have the “precise

effect” of permit grants and denials are also reviewable in the courts of appeals. Crown Simpson

Pulp Co. v. Costle, 445 U.S. 193, 196-197. In Crown Simpson, plaintiffs challenged the EPA’s

denial of a variance and veto of effluent limitations contained in a state-issued permit. Id. at 196.

The Court held that the EPA, in disapproving the state’s effluent limitations, effectively “denied”

the plaintiffs a permit within the meaning of CWA § 509(b)(1)(F). Holding otherwise, the Court

reasoned, would have created a “seemingly irrational bifurcated system” in which permits that

were denied directly by the EPA would be reviewed in the courts of appeals and state permits

that were vetoed (effectively denied) by the EPA would be reviewed in the district courts. Id. at

196-197.

After the decision in Crown Simpson, courts of appeals have recognized that CWA §

509(b)(1)(F) review applies to more than just agency grants and denials of specific permit

applications. In NRDC-92, 966 F.2d at 1295, the Ninth Circuit Court of Appeals retained

jurisdiction over regulations excluding certain classes of storm water discharge from permitting.

The court recognized its authority to review not only specific grants and denials of permits under

§ 509(b)(1)(F), but also the “rules that regulate the underlying permit procedures.” (citing E.I.

DuPont de Nemours & Co. v. Train, 430 U.S. 112, 136 (1977); NRDC-81, 656 F.2d at 775). This

broad construction is necessary to avoid the “perverse situation in which the courts of appeals

would review numerous individual actions issuing or denying permits pursuant to § 402 but

would have no power of direct review of the basic regulations governing those individual

actions.” E.I. DuPont, 430 U.S. at 136. In addition, it is consistent with the congressional goal of

quick and expedient review of EPA’s actions. Crown Simpson, 445 U.S. at 196.

21

Like the storm water discharge exemptions in NRDC-92, the Pesticide Rule is a

regulation that underlies the permitting procedure of § 402 and should be reviewed in the courts

of appeals. The Rule describes who may take advantage of its provisions, 71 Fed. Reg. 68,483,

68,483; outlines the FIFRA requirements for the application of the exclusion, Id. at 68,485; and

modifies the EPA’s definition of “pollutant.” Id. at 68,486. The Rule clearly must be considered

when issuing or denying a permit involving the application of water-borne pesticides. Since the

Rule provides a vital framework and modifies the scope of permitting procedures, review is

proper in the Courts of Appeals.

In its decision to retain jurisdiction over the Pesticide Rule, the District Court of New

Union again relied heavily on the reasoning of the District Court for the Northern District of

California in the case of Nw. Envtl. Advocates, 2005 U.S. Dist. LEXIS 5373. In Nw.

Environmental, the District Court held that it had jurisdiction to review a regulation involving a

vessel discharge exclusion from NPDES permitting requirements. Id. at 7. The court

distinguished the storm water exclusion in NRDC-92 as “temporary,” reasoning that a

“permanent” exclusion like the vessel discharges would never force circuit courts “to confront

the issuance or denial of a permit.” Id. at 6. This reasoning creates an unwarranted and arbitrary

distinction between “temporary” and “permanent” exclusions. The court in Nw. Environmental

should have examined the vessel discharge exclusion for its relation to permitting procedures,

not for its permanence.

Even accepting the Nw. Environmental court’s weak distinction between temporary and

permanent exclusions, the Pesticide Rule is clearly akin to the former. The Rule conditions its

exception on compliance with relevant FIFRA labeling requirements. 71 Fed. Reg. 68,485.

Therefore, it is a conditional exception, and in no way permanent. The District Court of New

22

Union, even by its own logic, lacks jurisdiction over the Pesticide Rule.

C. The Statute of Limitations in Section 509(b)(1) of the Clean Water Act Should Not be Equitably Tolled Because of the Petitioners' Failure to Bring their Action in the Court of Appeals.

CWA § 509(b)(1) provides that any application to a Court of Appeals for review of

specified EPA actions “shall be made within 120 days from the date of a such determination,

approval, promulgation, issuance or denial, or after such date only if such application is based

solely on grounds which arose after such 120th day.” Circuit courts have interpreted this

provision as a strict jurisdictional requirement. See NRDC-82, 673 F.2d at 406; Sun Enterprises,

532 F.2d at 290-291; Peabody Coal Co. v. Train, 518 F.2d 940, 943 (6th Cir. 1975).

When deciding whether or not to equitably toll a statute of limitations contained in a

federal statute, the Supreme Court of the United States has held that "the basic inquiry is whether

congressional purpose is effectuated by tolling the statute of limitations in given circumstances."

Burnett v. New York Cent. R. Co., 380 U.S. 424, 427 (1965). Here, CWA § 509(b)(1)'s strict

statute of limitations is a manifestation of Congress’ deliberate intention to make agency actions

final. Eagle-Picher Industries, Inc. v. EPA, 759 F.2d 905 (D.C. Cir. 1985). Congress sought to

protect administrative actions from the constant onslaught of piecemeal rule challenges, which

threaten their effectiveness. Id. at 913. This purpose becomes evident when one looks to the

subsequent Section 509(b)(2), which states that the EPA's actions under 509(b)(1) "shall not be

subject to judicial review in any civil or criminal proceeding for enforcement." 33 U.S.C. §

1369(b)(1).

Equitably tolling the statute of limitations in this case will clearly frustrate the

congressional purpose of the statute. It has been more than a year since the final Pesticide Rule

was introduced and its fate is still uncertain, thanks to petitioners' challenges. Some federal

23

statutes that create jurisdiction bear clear indications that their temporal limitations are flexible.

See Burnett, 380 U.S. at 432. Congress has indicated, however, that the 120 day statute of

limitations in CWA § 509(b)(1) is not one of them. This Court should respect the clear and

unambiguous statute of limitations set by Congress.

III. THE DISTRICT COURT ERRED IN FAILING TO GRANT AGENCY DEFERENCE WHERE THE EPA'S DECISION WAS NOT ARBITRARY AND CAPRICIOUS AND THEREFORE IN ACCORDANCE WITH ITS GRANTED AUTHORITY.

When Congress legislates, it delegates the administration of statutes to an agency for

enforcement. It relies on agency action to make “common sense” responses to problems that

arise during legislation implementation as long as those responses are consistent with

congressional intent. Cablevision Systems Development Co. v. Motion Picture Ass'n of America,

Inc., 836 F.2d 599 (D.C. Cir. 1988), cert. denied, 487 U.S. 1235. A two-step methodology is

used to determine whether the EPA’s approach is consistent with congressional intent. Chevron

U.S.A., Inc. v. Natural Res. Def Council, 467 U.S. 837, 842-45 (1984). First, the court must

look to whether Congress has directly addressed the issue in question. Id. at 842-43. If Congress

has not addressed the issue directly, then the agency may reasonably interpret that ambiguity. Id.

Once an agency reasonably interprets an ambiguity, federal courts must "accept [the] agency's

construction of [a] statute, even if [the] agency's reading differs from what [the] court believes is

[the] best statutory interpretation.” Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs.,

545 U.S. 967, 980 (2005). This methodology governs the review of EPA’s actions under the

permitting authority of 33 U.S.C. § 1342, and the administrative authority of 33 U.S.C. § 1361.

Congress has delegated to the EPA the authority to execute and enforce the CWA. 33

U.S.C. §§ 1251-1387. These provisions give the EPA the authority to promulgate binding legal

rules concerning NPDES permitting exclusions. The EPA exercised this authority and issued the

24

Final Pesticide Rule. See Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 238-239

(2004); United States v. Mead Corp., 533 U.S. 218, 231-234 (2001); Christensen v. Harris

County, 529 U.S. 576, 586-588 (2000). Hence, only the reasonable interpretation prong of the

analysis is questioned by Petitioners.

There is a presumption that ambiguity in a statute should be resolved "first and foremost,

by the agency (rather than the courts) to possess whatever degree of discretion the ambiguity

allows.” Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 740-741 (1996). Moreover,

when there is implicit rather than explicit legislative delegation to an agency, "a court may not

substitute its own construction of a statutory provision for a reasonable interpretation made by

the administrator of an agency.” Chevron, 467 U.S. at 844. In the case at bar, the intent of CWA

§ 402 permits EPA to promulgate the Pesticide Rule with its narrow exceptions.

A. Agency Deference Is Necessary Because EPA’s Interpretation is Based on a Reasonable and Permissible Construction of the Statute.

Deference to an agency's interpretation of a statute is due 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.”

Mead Corp., 533 U.S. at 226-27. Additionally, EPA’s interpretations of its own CWA

regulations are entitled to even greater deference. Wisconsin Elec. Power Co. v. Reilly, 893 F.2d

901, 907 (7th Cir. 1990). The NPDES permit exception for only certain types of discharges

promulgated at 40 C.F.R. § 122.3(h) is lawful because it is consistent and in accordance with

EPA’s statutory authority under the CWA.

The EPA is expressly authorized by Congress to administer the NPDES program at a

manageable standard by issuing regulations necessary to fulfill its stated goal. 33 U.S.C. § 1342.

It also appropriately relies on FIFRA registration requirements to limit the discharge of effluents

25

into waters. EPA retains discretion to alter the registration of pesticides for reasons that include

environmental concerns. Thus, the CWA and FIFRA are harmonized with the Pesticide Rule

through the application of the FIFRA label requirements and the enforced goals of the CWA.

Both statutes are given the force and effect that ensure the protection of the Waters of the United

States.

In addition to striking a balance, the Pesticide Rule reduces uncertainty about the

relationship between FIFRA and the CWA. It clarifies when an NPDES permit is required for

pesticide applications, allowing state and local governments to protect their citizens while also

protecting our nation’s waters. Requiring an NPDES for every aquatic application will

jeopardize mosquito and insect control programs. Further, “agencies must be given ample

latitude to adapt their rules and policies to the demands of changing circumstances.” FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000) (quoting Motor Vehicle Mfrs.

Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29 (1983) ("State

Farm")). EPA is obligated to make this narrow exception to allow for the control of dangerous

pests and to protect human health. The Court must grant the EPA the deference necessary to

administer the NPDES progam and protect human health and the environment in all

circumstances.

B. Pursuant to the APA Section 706, the Pesticide Rule's Exemption of Specified Pesticide Application Activities from the Clean Water Act Permitting Program was Not Arbitrary, Capricious, an Abuse of Discretion, or Otherwise Not in Accordance with the Law.

The Pesticide Rule is not arbitrary or capricious. The "arbitrary or capricious" standard

codified in the APA, states that "a reviewing court shall . . . hold unlawful and set aside agency

action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law." Administrative Procedure Act § 706, 5 U.S.C. §

26

706(2)(A). Courts will not interfere with factual determinations of administrative agencies

unless those determinations are arbitrary or capricious. Golden Cheese Co. v. Voss, 281

Cal.Rptr. 587 (4th Dir. 1991); Thomas Brooks Chartered v. Burnett, 920 F.2d 634 (10th Cir.

1990); Clay v. Arizona Interscholastic Ass'n, Inc., 779 P.2d 349 (9th Cir. 1989). Agency action

is arbitrary and capricious only where it is not supportable on any rational basis. Churchill Truck

Lines, Inc. v. United States, 624 F.2d 63, 65 (8th Cir. 1980); First Nat'l Bank of Fayetteville v.

Smith, 508 F.2d 1371, 1376 (8th Cir. 1974), cert. denied, 421 U.S. 930 (1975). The agency must

examine the relevant data and articulate a satisfactory explanation for its action including a

rational connection between the facts found and the choice made. Baltimore Gas and Elec. Co. v.

NRDC, 462 U.S. 87 (1983).

The question for the Court is not whether EPA's balancing of statutes and policy

judgments in promulgating the Pesticide rule were wrong or right, Int'l Fabricare Inst. v. EPA,

972 F.2d 384, 400 (D.C. Cir. 1992), but whether EPA's record-based findings conform to

minimal standards of rationality. See American Trucking v. EPA, 283 F.3d 355, 372 (D.C. Cir.

2002); Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 520-21 (D.C.Cir.

1983). They clearly do. EPA’s two exceptions are based on reasonable and consistently

explained analysis.

1. The EPA was not arbitrary or capricious in promulgating the Pesticide Rule exemption to the Clean Water Act Section 402.

In determining whether an agency action is arbitrary and capricious, the Court must

evaluate whether the agency engaged in reasoned decision-making. American Petroleum

Institute v. EPA, 216 F.3d 50, 57-58 (D.C. Cir. 2000) (citing State Farm, 463 U.S. 29).

Reasoned decision-making looks to whether a reasonable person, considering all of the evidence

in the record, would be compelled to reach a different conclusion; if that reasonable person could

27

not reach a different conclusion, no abuse of discretion has occurred and the agency decision

must be upheld. McPeck v. Colorado Dept. of Social Services, 919 P.2d 942 (Colo. Ct. App.

1996). When determining whether an agency action was arbitrary and capricious, a court may

look to the following factors: (1) if the agency failed to address important factors; (2) considered

other aspects that Congress did not intend it to consider; (3) explained its decision in a way

contrary to the available evidence; or (4) is so far-fetched that it could not be the result of agency

expertise. State Farm, 463 U.S. at 43; SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); Fox

Television Stations, Inc. v. Federal Communications Com'n, 489 F.3d 444 (3rd Cir. 2007).

Where there is no analysis or findings to justify a decision, a court cannot support the

agency's findings. State Farm, 463 U.S. at 48. The Pesticide Rule is based on sound findings of

fact and ample consideration.1 Pursuant to its Congressional authority to interpret the definition

of "pollutant" in the CWA, EPA accepted public comment on the issue and explained, through

EPA's prior enforcement history, how the final rule here is congruent with its past practices. 71

Fed. Reg. 68,486. The EPA's analysis and findings justified the regulation.

Here, EPA made a determination based on the broad statutory language of the CWA that

pesticides applied "directly to" waters for the purpose of killing pests "present in" that water are

1 In State Farm, the Supreme Court held that the National Highway Traffic Safety Administration's regulation revoking a passive restraint requirement on motor vehicles was arbitrary and capricious. State Farm, 463 U.S. at 46. The court looked to the NHTSA's consideration when promulgating the rule and found that they did not properly consider airbags as a possible implementation to improve safety requirements. State Farm, 463 U.S. at 49-51. The agency also hastily decided that a passive restraint would improve vehicle safety despite not being able to show a five percent increase in the safety belts' use. Id. at 51. Here, separate from the agency's action in State Farm, the EPA looked properly to necessary considerations and facts. The Rule is a continuation of the EPA's long-standing policy to not require NPDES permits for aquatic pesticide applications. 71 Fed. Reg. 68,483. EPA considered biological pesticides falling under the CWA's definition of a "pollutant," but determined that such Congressional intent would run counter to the language in the statute. Id. EPA considered prior judicial decisions when creating the final rule. 71 Fed. Reg. 68,485.

28

not "pollutants" under the CWA. The Pesticide Rule merely codified the long-standing practice

of the EPA to not require permits for such behavior. Deference is normally afforded to long-

standing agency interpretations. Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 487

(2004). Deference should be accorded to the EPA since they are the agency assigned to interpret

and administer the CWA.

Whether the EPA's action was arbitrary or capricious is a question of fact regarding the

proper interpretation of the broad statutory language in defining the term "pollutant" in the

CWA. A court's function is limited when the question presented is one of broad statutory

language. NLRB v. Hearst Publications, 322 U.S. 111 (1944). If a question involves specialized

knowledge by the agency and Congress has vested in the agency discretion in a technical area,

the courts should recognize the agency's presumed competence and expertise and uphold the

agency's conclusion so long as it is rationally based. Maloley v. R.J. O'Brien & Associates, Inc.,

819 F.2d 1435 (8th Cir. 1987) (citing Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 568

(1980)). The CWA defined "pollutant" broadly, so that EPA could interpret the term based on

scientific data. To allow a court to make determinations based on such questions of fact would

undermine the nature of the administrative agency's deference under Chevron. See Chevron, 467

U.S. 837. The construction adopted by an agency is entitled to substantial deference. Chemical

Mfrs. Ass'n v. NRDC, 470 U.S. 116, 125 (1985). Where different interpretations of a statute are

plausible, so long as EPA's construction is reasonable, the court may not substitute its own

interpretation for that of the agency. Chevron, 467 U.S. at 844-45.

The court in Headwaters argued that a balance between FIFRA and CWA regulations can

be struck because the two statutes had complementary purposes and the two could co-exist.

Headwaters, 243 F.3d at 530-31. The court stated in Headwaters that degradable herbicides

29

applied directly to water require an NPDES permit despite the herbicide already fulfilling FIFRA

label requirements. However, the court's ruling in Headwaters is inapplicable to the case here

because of the distinction stated by Fairhurst v. Hagener, 422 F.3d 1146, 1149 (9th Cir. 2005). In

Fairhurst, the court upheld the application of non-waste producing pesticides applied to water,

distinguishing them from waste producing pesticides. Id. Where Headwaters found that

chemical wastes that are applied to waters in accordance with their FIFRA label are still required

to acquire NPDES permits, Fairhurst found that where the intended application is beneficial to

the water in which it is applied and is FIFRA-compliant, the application material is a pesticide

and not a chemical waste. Id. at 1151-52 (emphasis added). Here, the Pesticide Rule is merely

allowing FIFRA-compliant pesticides that have a beneficial impact to be applied to water: the

exact application that the Fairhurst court spoke of. Since the Pesticide Rule does not mention

degradable herbicides or pesticides applied in contravention of their intended purpose, the

Pesticide Rule is consistent with Headwaters.

Allowing the Pesticide Rule will conserve valuable EPA resources by preventing double

regulation. As stated above, EPA is allowed to promulgate regulations in order to protect the

waters of the United States under manageable standards. 33 U.S.C. § 1342. By addressing

regulatory overlap between FIFRA and CWA, the Pesticide Rule properly creates a manageable

standard for dealing with water-based pesticide applications. Petitioners may argue that such

action is arbitrary or capricious because FIFRA and the CWA have different purposes; FIFRA's

labeling requirements address the manufacture of water-borne pesticides while CWA addresses

the application. This argument, however, is unpersuasive. FIFRA does not apply only to

manufacturers. Applicators can also violate FIFRA labeling requirements and fall outside the

limited scope of the Pesticide Rule, thus triggering CWA protection. The Rule simply promotes

30

regulatory economy by utilizing the inherent ability of another statute to control water quality,

even if it is not the statute's primary purpose. Conserving EPA resources in this way allows the

agency to fully address more compelling threats to our nation's waters.

2. EPA's reasonable interpretation of CWA Section 402 controls because it is not

arbitrary or capricious.

When Congress has not directly addressed the precise question at issue, the agency's

interpretation of a statute is entitled to deference so long as it is “reasonable” and not otherwise

“arbitrary, capricious, or manifestly contrary to the statute.” 5 U.S.C. § 706(2)(A); Chevron, 467

U.S. at 843-44; Sierra Club v. Johnson, 436 F.3d 1269, 1272 (11th Cir. 2006) (internal

quotations omitted). In examining whether an agency has performed arbitrarily and capriciously,

the Court must evaluate whether the agency engaged in reasoned decision-making. American

Petroleum Institute, 216 F.3d at 57-58 (citing State Farm, 463 U.S. 29). Under this analysis, the

Supreme Court of the United States will consider the following factors: if the agency considered

aspects that Congress did not intend it to consider; if the agency explained its decision in way

contrary to the available evidence; or the agency made a decision that is so far-fetched it could

not be the result of agency expertise. See State Farm, 463 U.S at 43.

EPA's technical judgments qualify as reasoned decision-making because they conform to

the minimal standards of rationality. See American Trucking, 283 F.3d at 372; Small Refiner

Lead, 705 F.2d at 520-21. The fact that Industry Petitioners find the Pesticide Rule unacceptably

narrow does not render the standards put forth by EPA arbitrary or capricious. Considering

EPA's carefully reasoned explanation for the exercise of its regulatory authority under the CWA

program, Industry Petitioners cannot demonstrate that EPA's decisions regarding the Pesticide

Rule are arbitrary or capricious. See American Coke and Coal Chemicals Institute v. EPA, 452

31

F.3d 930, 945 (D.C. Cir. 2006) (deferring to EPA's expert policy judgments). EPA fully and

adequately explained why it opted to exclude drift and pesticide residues. See 71 Fed. Reg.

68,492. EPA provided substantive and extensive responses to Industry’s comments addressing

the broader version of the pesticide rule. Id. Its issuance of the Final Rule after considering all

comments was reasonable. EPA determined that “if there are residual materials resulting from

pesticides that remain in the water after the application and its intended purpose (elimination of

targeted pests) have been completed, these residual materials are also pollutants . . . because they

are wastes of the pesticide application.” Id. at 68,487. EPA’s Final Rule is consistent with

Headwaters, which held that residues from the application of herbicides into an irrigation canal

qualified as a pollutant and FIFRA registration did not preclude CWA applicability. Headwaters,

243 F.3d 526.

EPA further reasoned that “[p]esticides applied consistent with relevant FIFRA

requirements are not ‘wastes’ as that term is commonly defined-on the contrary they are products

that EPA has evaluated and registered for the purpose of controlling target organisms, and are

designed, purchased, and applied to perform that purpose” 71 Fed. Reg. 68,486. It would be

contrary to both CWA and FIFRA mandates to allow pesticides to be sprayed not in accordance

with FIFRA. Promulgating that exception would render the rule arbitrary and capricious.

Industry Petitioner's arguments amount to second guessing EPA's expertise and its policy

judgments, which are not grounds for vacating this rule. See American Coke, 452 F.3d at 945

(finding that EPA's “expert policy judgment” was not arbitrary); American Trucking, 283 F.3d at

374 (“we owe deference to an agency's determination regarding the reliability of scientific

evidence” finding that it was reasonable for EPA to rely on other regulatory programs where new

national standards prove ineffective because “no single suite of secondary standards would solve

32

visibility problems everywhere in the country”). Petitioners contend that the Pesticide Rule

opens them up to potential liability. However, the Pesticide Rule creates no additional

responsibilities and potential liability remains the same as it was prior to the enactment of

Rule. The Final Pesticide Rule harmonizes CWA and FIFRA by upholding both goals.

Accordingly, this Court must give credence to each statute in order to preserve the sense and

purpose of both. See Res. Inv., Inc. v. U.S. Army Corps of Engineers, 151 F. 3d 1162, 1165 (9th

Cir. 1998) (holding that when two statutes are capable of co-existence, it is the duty of the courts

to regard each as effective).

The Pesticide Rule qualifies for agency deference because Congress delegated authority

to EPA to take action carrying the force of law. The challenged statutory interpretations were

made through notice and comment proceedings in the exercise of this authority. See Mead, 533

U.S. at 219-29. EPA’s responses to comments are consistent with its final rule. EPA adequately

considered all important aspects of the issues associated with the Final Rule raised by Industry

Petitioners. EPA extensively addressed issues raised by Industry Petitioners. The fact that EPA’s

answers did not provide the precise outcome that Industry Petitioners desired does not mean that

EPA failed to consider an important aspect. The administrative record demonstrates that EPA

conducted an appropriate analysis and made appropriate findings with respect to the rule's

fulfillment of the goals and purposes referenced in 33 U.S.C. Section 1342. 33 U.S.C. § 1342.

CONCLUSION

As a result of the foregoing, Petitioner's appeal should be dismissed and the District

Court's grant of partial summary judgment to Environmental Petitioners should be reversed.

The Petitioners claims do not satisfy the "case or controversy" requirement in Article III

of the U.S. Constitution. The Industry Petitioners’ claim is not ripe for adjudication and the

33

Environmental Petitioners failed to prove the elements of standing.

Even if their claims were reviewable, Petitioners should have brought their claims in the

Court of Appeals. Since the claim was not properly filed, the statute of limitations should not be

equitably tolled.

Furthermore, EPA's promulgation of the Pesticide Rule was not arbitrary and capricious,

nor was it arbitrary and capricious for EPA to exclude terrestrial applications in the Rule. EPA

made a reasonable interpretation of their granted authority and this Court must grant EPA

deference.