Federal Judge Rejects No Spray Lawsuit 2002, but leaves door open for appeal under Clean Water Act

November 26, 2002

Federal Judge Rejects No Spray Coalition lawsuit against indiscriminate spraying of pesticides, but leaves door open for Clean Water Act Appeal.

Coalition Vows to Appeal and fight on, Funds Needed Immediately

NO SPRAY COALITION, INC., NATIONAL COALITION AGAINST THE MISUSE OF PESTICIDES, INC., DISABLED IN ACTION, INC., SAVE ORGANIC STANDARDS NEW YORK by its President Howard Brandstein, VALERIE SHEPPARD, MITCHEL COHEN, ROBERT LEDERMAN, and EVA YAA ASANTEWAA, Plaintiffs,

v.

THE CITY OF NEW YORK, MICHAEL BLOOMBERG, as Mayor of the City of New York, THE DEPARTMENT OF HEALTH OF THE CITY OF NEW YORK, THOMAS FRIEDEN, Commissioner of the Department of Health of the City of New York, THE OFFICE OF EMERGENCY MANAGEMENT OF THE CITY OF NEW YORK, and JOHN THOMAS ODERMATT, Commissioner of the Office of Emergency Management for the City of New York, Defendants.

00 Civ. 5395 (JSM)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

2002 U.S. Dist. LEXIS 22936

November 26, 2002, Decided

November 26, 2002, Filed

DISPOSITION:
[*1] Defendants’ motion to dismiss — granted and plaintiffs’ motion for summary judgment — denied.

COUNSEL:
For Plaintiffs: Karl S. Coplan, Pace Environmental Litigation Clinic, Inc., White Plains, NY.

For Plaintiffs: Joel R. Kupferman, New York, NY.

For Defendants: Inga Van Eysden, Corporation Counsel of the City of New York, New York, NY.

JUDGES:
JOHN S. MARTIN, JR., U.S.D.J.

OPINION BY:
JOHN S. MARTIN, JR.

OPINION:

OPINION AND ORDER

JOHN S. MARTIN, Jr., District Judge:
Plaintiffs instituted this action to enjoin New York City’s program of ground and aerial spraying designed to eradicate mosquitoes that spread the West Nile Virus. In an earlier Opinion and Order, the Court denied Plaintiffs’ motion for a preliminary injunction and granted, in part, Defendants’ motion to dismiss. No Spray Coalition, Inc. v. City of New York, 2000 U.S. Dist. LEXIS 13919, No. 00 Civ. 5395, 2000 WL 1401458, (S.D.N.Y. Sept. 25, 2000) (hereinafter “No Spray I”).

In No Spray I, id., the Court held that the spraying of insecticides in conformity with their labels as approved by the Environmental Protection Agency (“EPA”) did not violate the Clean Water Act. The Court noted, however:

It is no doubt true that the use of a pesticide for a purpose or in a manner well beyond that for which it was approved could result in a violation of either the Clean Water Act or RCRA. For example, if a pilot, who had finished spraying pesticide, dumped any pesticide remaining in the tank into a navigable stream, he could not defend an action under the Clean Water Act on the ground that the use of pesticides could only be regulated under FIFRA.

Since the labels for insecticides being used by the City indicated that it was to be used for “residential and recreational areas where adult mosquitos are present in annoying numbers in vegetation surrounding parks, woodlands, swamps, marshes, overgrown areas and golf courses,” and there had been no discovery, the Court in No Spray I, stated that it would “leave for another day the question of whether the spraying of insecticides directly over the rivers, bays, sound, and ocean surrounding New York City as part of a prevention program would violate the Clean Water Act.”

That day has arrived. Both sides have now moved for summary judgment with respect to the remaining claims.

In support of their motion, Plaintiffs have pointed to the following facts: 1) spray maps used by the city to designate areas to be sprayed indicate that spraying was to occur over protected water; 2) testimony that on one occasion in 1999 and one occasion in 2000, a helicopter spraying over City Island “came out a little bit too far” and continued to spray as it was over a marina; PL. Ex. 15, p. 9; 3) testimony that a helicopter spraying over Staten Island did not turn off its sprayer as it went over Loretto pond and wetlands; 4) testimony from an employee of one of the contractors used for ground spraying that the spray trucks were tested by turning on the sprayers in the company’s lot which backed onto the Bronx River and that he had observed the spray mist from his truck spreading out over various waters as a result of his spraying over land near those waters.

For its part, the City has produced evidence that while the spray maps were used to identify generally the areas to be sprayed, 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 the ground spraying were directed to cease spraying when they came within 100 feet of water.

The legal framework for deciding the present motions is found in the Court’s opinion in No Spray I. In that opinion, the Court said:

[HN1] the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. ß ß 136-136(y), does not provide for a private right of action, see Almond Hill Sch. v. United States Dep’t of Agric., 768 F.2d 1030, 1035 (9th Cir. 1985); Safe Alternatives for Fruit Fly Eradication v. Berryhill, No. 84-1662, 1984 U.S. Dist. (C.D.Cal. May 9, 1984).

In enacting FIFRA, Congress implemented a detailed statutory scheme to regulate pesticides such as those being used by the City to eradicate mosquitos.

**** The fact that these two regulatory schemes were before Congress at the same time establishes beyond doubt that 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.

Further, the Court rejected Plaintiffs’ argument that if the spraying was not done in strict compliance with the approved label, a private party could bring suit under the Clean Water Act, stating:

“adoption of Plaintiffs’ argument would mean that practically every technical violation of the label of an insecticide would result in a violation of the Clean Water Act and RCRA. Such a rule would do violence to the intent of Congress not to provide a private right of action for FIFRA violations.” (1)

(1) The relationship between FIFRA and the Clean Water Act was not at issue in League of Wilderness Defenders v. Forsgren, 309 F.3d 1181 (9th Cir. 2002), on which Plaintiffs rely. Thus, even if the helicopters used in the spraying are “point sources,” their use in spraying the insecticides is consistent with the use approved by the EPA. Also, League of Wilderness involved the spraying over water of insecticides that were being used to kill moths in trees. Here, the insecticides were approved for use in “swamps [and] marshes,” and thus the EPA clearly anticipated their use over protected waters.

The incidents on which Plaintiffs rely are just the type of “technical violation” which the Court indicated would not be actionable in No Spray I. Since the labels for the insecticides at issue say they are to be used on “swamps [and] marshes” it is far from clear that spraying of insecticides over waters close to the shore like the City Island marinas or over ponds on Staten Island would be inconsistent with their approved use. Indeed, the EPA has determined that “the aerial application of adulticides is acceptable over water including flood waters and does not constitute a misuse of the product.” DEF. EX. 23. As the Court noted in No Spray I, “any approved use of the pesticides …. will inevitably result in a drift of spray into navigable water.”

Although the testing of the spraying equipment near the Bronx River might violate FIFRA, that conduct remains within the ambit of the exclusive jurisdiction of the EPA and the Attorney General. In any event, even if the contractor’s testing of its equipment was a violation of the Clean Water Act, there would be no basis to hold the City Defendants liable for that conduct. These tests were apparently done for the contractor’s benefit for, as the witness explained, the drivers did not want to travel a substantial distance to a spraying site and then discover that they had to return to their garage because the equipment was not working. There is no evidence that any of these Defendants authorized, or were even aware of this testing of equipment.

In sum, accepting as true all of the evidence on which the Plaintiffs rely, it establishes no more than minor technical violations of the Federal Insecticide, Fungicide, and Rodenticide Act, which, if actionable at all, are only actionable if the action is commenced by the Attorney General or the EPA.

For the foregoing reasons, the Defendants’ motion to dismiss is granted and the Plaintiffs’ motion for summary judgment is denied.

SO ORDERED.
Dated:
November 26, 2002
JOHN S. MARTIN, JR., U.S.D.J.

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