National+Cotton+Council+v+EPA

National+Cotton+Council+v+EPA - Page 1 LEXSEE 553 F.3D 927...

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Page 1 LEXSEE 553 F.3D 927 THE NATIONAL COTTON COUNCIL OF AMERICA, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. Nos. 06-4630;07-3180/07-3181/07-3182/07-3183/07-3184/07-3185/07-3186/07-3187/07- 3191/07-3236 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 09a0004p.06; 553 F.3d 927 ; 2009 U.S. App. LEXIS 45 ; 2009 FED App. 0004P (6th Cir.) April 29, 2008, Argued January 7, 2009, Decided January 7, 2009, Filed PRIOR HISTORY: [*1] On Petition for Review of Final Action of the United States Environmental Protection Agency. Nos. OW- 2003-0063; 40 CFR Part 122. COUNSEL: ARGUED: Charles Tebbutt, WEST EN- VIRONMENTAL LAW CENTER, Eugene, Oregon, for Petitioners. Alan D. Greenberg, UNITED STATES DE- PARTMENT OF JUSTICE, Denver, Colorado, for Re- spondent. Claudia M. O'Brien, LATHAM & WATKINS, Washington, D.C., Kirsten L. Nathanson, CROWELL & MORING, Washington, D.C., for Intervenors. ON BRIEF: Charles Tebbutt, WEST ENVIRONMENT- AL LAW CENTER, Eugene, Oregon, Lauren E. Brown, WATERKEEPER ALLIANCE, Irvington, New York, Daniel E. Estrin, PACE ENVIRONMENTAL LITIGA- TION CLINIC, White Plains, New York, Reed W. Su- per, MORNINGSIDE HEIGHTS LEGAL SERVICES, INC., COLUMBIA UNIVERSITY SCHOOL OF LAW, New York, New York, Steven Schatzow, LAW OF- FICES OF STEVEN SCHATZOW, Washington, D.C., for Petitioners. Alan D. Greenberg, UNITED STATES DEPARTMENT OF JUSTICE, Denver, Colorado, for Respondent. Claudia M. O'Brien, Kenneth W. Weinstein, Davis B. Tyner, LATHAM & WATKINS, Washington, D.C., Kirsten L. Nathanson, Ellen Steen, CROWELL & MORING, Washington, D.C., for Intervenors. Elliot Sil- verman, McDORMOTT WILL & [*2] EMERY LLP, Irvine, California, for Amicus Curiae. JUDGES: Before: GUY, SUHRHEINRICH, and COLE, Circuit Judges. OPINION BY: COLE OPINION [**2] COLE, Circuit Judge. These proceedings in- volve a final regulation issued by the Environmental Pro- tection Agency (the "EPA") under the Clean Water Act, 33 U.S.C. § 1251 et seq. The Clean Water Act regulates the discharge of "pollutants" into the nation's waters by, among other things, requiring entities that emit "pollut- ants" to obtain a National Pollutant Discharge Elimina- tion System ("NPDES") permit. Id . §§ 1311(a) , 1342 . On November 27, 2007, the EPA issued a Final Rule con- cluding that pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (the "FIFRA") are exempt from the Clean Water Act's per- mitting requirements. See 71 Fed. Reg. 68,483 (Nov. 27, 2006) (the "Final Rule"). Two different groups of Peti- tioners--one representing environmental interest groups and the other representing industry interest groups--op- pose the EPA's Final Rule as exceeding the EPA's inter- pretive authority. The EPA defends the Final Rule by ar- guing that the terms of the Clean Water Act are ambigu- ous and that the Final Rule is a reasonable construction of the Clean [*3] Water Act entitled to deference from this Court. We cannot agree. The Clean Water Act is not
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This note was uploaded on 02/18/2010 for the course ESP 161 taught by Professor Staff during the Spring '08 term at UC Davis.

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National+Cotton+Council+v+EPA - Page 1 LEXSEE 553 F.3D 927...

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