Summary of a Recent
Judicial
Development in
Environmental Law
Summary Judgment Denied in Dispute over Arial Spraying
of Insecticides without CWA Permit
Eric H. FoyNational AgLaw Center Research Associate
Summary of Decision
In No Spray Coalition, Inc. v. City of New York, No. 00 Civ. 5395(GBD), 2005 WL 1354041 (S.D.N.Y. June 8, 2005), the United States District Court for the Southern District of New York denied both Plaintiffs' and Defendants' motions for summary judgment. Plaintiffs alleged that Defendants discharged pollutants into New York City water bodies contrary to the federal Clean Water Act (CWA). The court held that disputed issues of material fact remained and denied both parties' motions for summary judgment.
Background
In response to West Nile Virus outbreaks in all five boroughs of New York City, resulting from a virus commonly carried by mosquitoes, 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. Id. at *1. To carry out the program, helicopters and trucks sprayed pesticides throughout the boroughs. Id. Plaintiffs, seeking to enjoin the City's spraying program, filed suit. Id. The district court denied Plaintiffs' request to enjoin the spraying program, but did not rule on whether the program violated the CWA. Id. It also dismissed Plaintiffs' claims pursuant to the Resource Conservation and Recovery Act (RCRA) and the State and City Environmental Quality Review Acts (EQRA). Id. The Second Circuit Court of Appeals affirmed. Id.
Thereafter, Plaintiffs pressed forward with discovery in district court regarding their CWA charges, and eventually moved for summary judgment. Id. In their motion, Plaintiffs' argued that "[D]efendants violated Section 301(a) of the CWA by discharging pollutants from helicopters and trucks into the navigable waters of the United States without either a National Pollution Discharge Elimination System (NPDES) permit or a State Pollution Discharge Elimination System (SPDES) permit." Id. In response, Defendants cross-motioned for summary judgment. Id. Denying Plaintiffs' motion and granting Defendants' motion, the district court held that the Federal Insecticide, Fungicide, and Rodenticide Act's (FIFRA) non-allowance of enforcement via citizen suits took precedence over the CWA's allowance of the same. Id. The Second Circuit vacated the district court's opinion, holding that the "CWA authorize[d] any citizen to bring suit to enforce its requirements, regardless of whether the alleged violation of CWA also constitute[d] a substantial violation of FIFRA." Id. at *2. It remanded the case to the instant court where the parties renewed their motions for summary judgment. Id.
Arguments
Plaintiffs argued that the spraying program was covered by the CWA and that Defendants needed to obtain a permit. Id. They alleged that the trucks and helicopters used to spray the pesticide were point sources as defined by the CWA. Id. at *3.
Defendants asserted that the "City's spraying program [did] not constitute the discharge of a pollutant into navigable waters and, therefore, such a permit under the CWA [was] not required," and "they challenge[d] the sufficiency of plaintiffs' evidence" to maintain their claims. Id. at *2. Additionally, Defendants claimed that
the spraying technique they incorporated allowed for atmospheric emissions and not discharges; the helicopters and trucks used to spray the insecticides [were] not point sources under the CWA; the insecticides used in the spraying program [were] not pollutants; and that they did not discharge pesticides over or into waters of the United States.
Id. at 3.
Analysis and Holdings
The CWA prohibits the discharge of pollutants by any person. To be liable for discharging a pollutant, a person must add "any pollutant to navigable waters from any point source." Id. at *4. Defendants first argued that they did not add a pollutant because the spray was administered in very low volumes. Id. at *3. The court reasoned that the CWA did not specify a volume threshold that must be crossed before an activity could be classified as an addition. Id. at *4. It held that "[t]he spraying of pesticides over navigable water . . . can constitute an addition of a pollutant into navigable water." Id.
Defendants next argued that the helicopters and trucks were not point sources because they "had the purpose of spraying pesticide into the air, and not the purpose or obvious effect of systematically conveying pesticide into water." Id. at *5. In other words, they argued that to be classified as a point source, one must intend to add a pollutant to navigable waters. Id. However, Defendants failed to support their argument with any case law. Id. The court held, "[i]f the helicopters and trucks used by the City conveyed pollutants from their original source to the navigable water, they [could] most certainly constitute point sources under the CWA." Id.
Finally, Defendants argued that the pesticides were not pollutants, and that compliance with FIFRA "dismiss[ed] the need for a requirement to obtain a NPDES permit under the CWA." Id. The CWA defines "pollutant" as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." Id. (quoting 33 U.S.C. § 1362(6)). Plaintiffs alleged that the pesticides were chemical wastes, and thus, should be classified as pollutants. Id. On the issue of whether the pesticides should be classified as chemical wastes, the court found that disputed issues of material fact remained. Id. at *8. For this reason, the court denied both parties' motions for summary judgment. Id.
The case was decided on June 8, 2005.