Summary of a Recent
Judicial Development in
Environmental Law

Court Holds FIFRA's Non-Allowance of Enforcement by Citizen Suit
Takes Precedence over CWA's Citizen Suit Enforcement Provision

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In No Spray Coalition, Inc. v. City of New York, No. 00 Civ.5395 JSM, 2002 WL 31682387 (S.D.N.Y. Nov. 26, 2002), the United States District Court for the Southern District of New York granted the City's motion for summary judgment. The plaintiffs brought action against New York City for alleged violations of the Clean Water Act (CWA) stemming from the City's application of pesticides to control the spread of West Nile Virus. The plaintiffs claimed that the City was discharging a pollutant without a pollution discharge permit. The court held that spraying minor amounts of insecticides directly over New York City's waters to prevent the spread of West Nile Virus did not violate the CWA.

Background

In response to outbreaks of the West Nile Virus, a virus commonly carried by mosquitoes, in all five boroughs of New York City, the City, in conjunction with the Centers for Disease Control and Prevention (CDC), the Environmental Protection Agency (EPA), and state agencies, instituted a spraying program to stop the virus from spreading. To carry out the program, helicopters and trucks sprayed three FIFRA-regulated pesticides throughout the boroughs. Id. at *1. The City did not seek or obtain the type of permit which the CWA required as a prerequisite to the discharge of a pollutant into navigable waterways. Id. On July 20, 2000, the plaintiffs, seeking to enjoin the City's spraying program, filed suit alleging that the program violated the CWA's prohibition against discharging pollutants without a permit. Id. On Sept. 25, 2000, the district court denied the plaintiffs' request for preliminary injunction; however, the court allowed the plaintiffs to conduct additional discovery regarding their CWA allegations. Id. After the additional discovery period concluded, both parties moved for summary judgment. Id.

Arguments

Plaintiffs presented evidence that showed that the City planned to spray over protected waters, that applicators did in fact spray over protected waters, and that employees witnessed discharges of pesticides into protected waters. Id. The City argued that "those doing the aerial spraying were instructed to turn off the spraying when they were within 300 feet of a body of water and those involved in ground spraying were directed to cease spraying when they came within 100 feet of water." Id. Beginning its analysis, the court first noted that FIFRA did not contain a private right of action. Id. at *2. Furthermore, the court pointed out that Congress had debated both FIFRA and the CWA simultaneously; therefore, the court reasoned, "when Congress made a deliberate decision not to provide a private right of action under FIFRA, it did not intend to permit private parties to circumvent that decision through an action under the Clean Water Act." Id. Ultimately, the court granted the defendants' motion for summary judgment, holding that the spraying which the plaintiffs claimed as violations of the CWA either did not violate FIFRA, or constituted mere "technical violations" of FIFRA that were only actionable by the Attorney General or the EPA. Id.

Analysis and Holdings

Beginning its analysis, the court first noted that FIFRA did not contain a private right of action. Id. at *2. Furthermore, the court pointed out that Congress had debated both FIFRA and the CWA simultaneously; therefore, the court reasoned, "when Congress made a deliberate decision not to provide a private right of action under FIFRA, it did not intend to permit private parties to circumvent that decision through an action under the Clean Water Act." Id. Ultimately, the court granted the defendants' motion for summary judgment, holding that the spraying which the plaintiffs claimed as violations of the CWA either did not violate FIFRA, or constituted mere "technical violations" of FIFRA that were only actionable by the Attorney General or the EPA. Id.

The case was decided on November 26, 2002.