US District Court Judge Kaplan Response in No Spray v. NYC – 2000



October 2, 2000
Judge Kaplan

In the last two years the spread of the West Nile Virus has caused increasing concern among federal, state, and local health officials. Acting in coordination with the federal Centers for Disease Control and Prevention and the Environmental Protection Agency (the “EPA”), along with the New York State Departments of Health and Environmental Conservation, the City of New York, like many other cities and counties, is engaged in an extensive spraying of insecticides in an attempt to eradicate the mosquitos that carry the disease.

Despite the unusual unanimity of governmental agency opinion that this spraying program is in the best interests of preserving the public health, the plaintiffs in this action seek to enjoin the spraying program because they contend that it poses a substantial danger to human health and the environment. Armed with their own medical and environmental experts and aided by able counsel, Plaintiffs argue that the spraying program is both ineffective and a danger to the community.

It is not the role of the Court to resolve the policy question of whether the benefits of the spraying program outweigh the danger that it poses for individuals or the environment. Fortunately for the community, that question is to be decided by public health and environmental officials who are far better qualified to weigh the competing interests. The role of the Court is limited to determining whether in carrying out its mosquito control program, the City has violated any federal statute that Congress has authorized the plaintiffs to sue to enforce.

Emphasis is placed on the question of whether there has been a violation of which Plaintiffs can complain because the statute that most clearly applies to the City’s insecticide spraying program, the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. ¤¤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. LEXIS 16830, at *6 (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. Under FIFRA, a pesticide can only be registered for use if the Administrator determines that:

(C) it will perform its intended function without unreasonable adverse effects on the environment; and

(D) when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment.

7 U.S.C. ¤136a(5). The products that the City is using in its mosquito eradication program have been approved by the EPA for both ground and aerial spraying.

Recognizing the fact that Congress chose to leave the enforcement of FIFRA to government officials, Plaintiffs have attempted to turn alleged violations of FIFRA into violations of the Clean Water Act, 33 U.S.C. ¤1251 et seq., and the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. ¤6901 et seq. While counsel is to be commended for their skill in attempting to fit the present facts within the holdings of prior cases under these statutes, the basic problem with their arguments is that they fly in the face of the regulatory scheme established by Congress and require a strained reading of the statutory language.

The Clean Water Act prohibits the (1) discharge (2) of a pollutant (3) from a point source (4) into the waters of the United States. 33 U.S.C. ¤1311(a). Plaintiffs allege that (1) the spraying is a discharge; (2) the trucks and helicopters from which the pesticides are sprayed are point sources; and (3) the pesticides are pollutants that are (4) discharged into waters of the United States. Plaintiffs’ argument stretches the language of the Clean Water Act beyond its reasonable meaning and results in a conflict with the apparent purpose of Congress to leave the regulation of the use of pesticides to the EPA and the Attorney General under FIFRA. To paraphrase the Tenth Circuit Court of Appeals in Chemical Weapons Working Group, Inc. v. Department of the Army, 111 F.3d 1485 (10 th Cir. 1997):

Because Plaintiffs’ interpretation of ¤301(f) of the Clean Water Act is inconsistent with congressional intent, leads to irrational results, and creates a conflict between the Clean Water Act and [in this case FIFRA], we decline to construe that provision in the broad manner proposed by Plaintiffs.

Id. at 1490; see also Morton v. Mancari, 417 U.S. 535, 550-51, 94 S. Ct. 2474, 2483 (1974).
Plaintiffs contend that the unintended drift of minuscule particles of the City’s pesticide spray into the waters surrounding New York City violates the Clean Water Act. However, this is the natural consequence of the use of the pesticides for the very purpose for which they were approved by the EPA. The label which specifies the uses for which the pesticide has been approved expressly states that it may be used for ground or aerial use where mosquitos are present “in vegetation surrounding parks, woodlands, swamps, marshes · .” See Notice of Motion to Dismiss the Compl. Ex. 6. Given the broad definition of navigable waters in the Clean Water Act, see 33 U.S.C. ¤1362(7); 40 C.F.R. ¤122.2, any approved use of the pesticide, other than in a desert, will inevitably result in a drift of the spray into navigable waters. Because the EPA in registering the pesticide has made a determination that aerial use will not have “unreasonable adverse effects on the environment,” it would frustrate the intent of the regulatory scheme to hold that such an approved use violates the Clean Water Act. See Chemical Weapons, 111 F.3d at 1490-91.

Plaintiffs argue that, if the spraying is not done in strict compliance with the approved label, then private groups should be able to bring suit under the Clean Water Act or RCRA. As will be demonstrated below, 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.

In this regard, it is worth noting that, although both FIFRA and the Clean Water Act had their origins in legislation enacted in the late 1940s, the broad regulatory framework that exists today is the result of comprehensive amendments to each of these statutes which were enacted within three days of each other in 1972. See Pub. L. No. 92-516, 86 Stat. 975 (Oct. 21, 1972) (FIFRA); Pub. L. No. 92-500, 86 Stat. 816 (Oct. 18, 1972) (Clean Water Act). 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. As the Supreme Court stated in the closely analogous case of Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S. Ct. 2615 (1981): In view of these elaborate enforcement provisions it cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens suing under MPRSA and FWPCA. As we stated in Transamerica Mortgage Advisors, · ‘it is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.’ · In the absence of strong indicia of a contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate · .

Id. at 14-15, 101 S. Ct. at 2623 (citations omitted).

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. However, so long as the use is within the category of uses for which the EPA has approved the pesticide, Congress intended to leave it to the EPA and the Attorney General to determine whether there has been compliance with the technical requirements of the label.

Even if FIFRA did not bar their claims, Plaintiffs’ argument that drift caused by the spraying of a pesticide from a truck or helicopter would constitute a discharge of a pollutant into navigable waters in violation of the Clean Water Act would not square with the Act’s definition of discharge of a pollutant:

The term ‘discharge of a pollutant’ and the term ‘discharge of pollutants’ each means (A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source · . 33 U.S.C. ¤1362(12).

While the trucks and helicopters used to spray insecticides may be point sources, see 33 U.S.C. ¤1362(14), they discharge the insecticides into the atmosphere and not into navigable waters. It would be stretching the language of the statute well beyond the intent of Congress to hold that the de minimus incidental drift over navigable waters of a pesticide is a discharge from a point source into those waters. The fact that a pollutant might ultimately end up in navigable waters as it courses through the environment does not make its use a violation of the Clean Water Act. See Chemical Weapons, 111 F.3d at 1490. To so hold would bring within the purview of the Clean Water Act every emission of smoke, exhaust fumes, or pesticides in New York City. Plaintiffs have cited no case that supports such a strained reading of the language of the Clean Water Act. The cases on which they rely each involved a deliberate discharge of a pollutant into navigable waters. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S. Ct. 1798 (1982) (bombs dropped directly into the water as part of training exercise); Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114 (2d Cir. 1994) (liquid manure flowing directly from truck into a stream); Connecticut Coastal Fishermen’s Assoc. v. Remington Arms. Co., 989 F.2d 1305 (2d Cir. 1993) (discharge of lead shot and clay target debris into Long Island Sound); Hudson River Fishermen’s Assoc. v. City of New York, 751 F. Supp. 1088 (S.D.N.Y. 1990) (discharge of pollutants directly into navigable waters), aff’d, 940 F.2d 649 (2d Cir. 1991).

The Court will 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. Although Plaintiffs contend that the City has sprayed its pesticides directly over these areas, the City denies that it has. Moreover, state and federal environmental authorities are carefully monitoring the City’s spraying to help ensure that the pesticide will not be sprayed over such areas. Plaintiffs have failed to offer any persuasive evidence that the City is in fact spraying directly over navigable waters. Therefore, there is no factual basis for granting a preliminary injunction to enjoin this alleged spraying. The Court will, however, deny Defendants’ motion to dismiss Plaintiffs’ claim that the City is violating the Clean Water Act by spraying insecticides directly over the rivers, bays, sound, and ocean, in order to give Plaintiffs the opportunity to conduct discovery on this issue.

Even more strained is Plaintiffs’ attempt to prize the facts of the City’s mosquito spraying program into a right to an injunction under RCRA. That statute provides for an injunction where: the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste [ ] may present an imminent and substantial endangerment to health or the environment · .

42 U.S.C. ¤6972(a).

Plaintiffs assert that “[o]nce pesticides are sprayed onto or into the air, land, and waters of New York City they become discarded solid wastes within the meaning of RCRA ¤1004(27), 42 U.S.C. ¤6903(27).” Memorandum of Law in Support of Motion for Preliminary Injunction at 11. An examination of the definition that Plaintiffs cite refutes their argument. Section 6903(27) of Title 42 provides:

The term ‘solid waste’ means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 1342 of Title 33, or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923) [42 U.S.C.A. ¤2011 et seq.]

Once again, it would contort the statutory language and do violence to the intent of Congress in enacting RCRA to hold that pesticide that has been sprayed but has yet to reach the mosquitos or their habitats is “discarded material.” The very Second Circuit Court of Appeals case that Plaintiffs cite, Connecticut Coastal Fishermen’s Association v. Remington Arms Co., 989 F.2d 1305, 1316 (2d Cir. 1993), indicates that material is not discarded until after it has served its intended purpose. Here, the intended purpose of the spray is to drift through the air until coming to rest on the mosquitos and their habitats. Thus, it cannot be said that the insecticide is discarded when it is sprayed, and Plaintiffs’ claims under RCRA are dismissed.

Finally, Plaintiffs request that the Court enjoin the spraying program because the City has failed to prepare an environmental impact statement as required by the State Environmental Quality Review (“SEQRA”). N.Y. Envtl. Conserv. Law Art. 8 (McKinney 1997). Under SEQRA, the City is required to prepare such a statement before engaging in any activity that “may have a significant effect on the environment.” Id. ¤8- 0109(2); see also 62 R.C.N.Y. ¤6 (SEQRA implementing legislation). However, an emergency exception exists to this requirement, which allows actions to be taken without first preparing a statement when “necessary on a limited and temporary basis for the protection or preservation of life, health, property or natural resources, provided that such actions are directly related to the emergency and are performed to cause the least change or disturbance, practicable under the circumstances, to the environment.” 6 N.Y.C.R.R. ¤617.5(c)(33).

While Plaintiffs reference an unofficial guidance issued by the State Department of Environmental Conservation to the effect that an emergency exemption is limited to one season, nothing in the statute precludes application of the exception here. Common sense dictates that the emergence of a mosquito-borne infectious disease, heretofore unknown in the New York City area and resulting in several deaths, constitutes an emergency warranting temporary exemption from compliance with SEQRA. See Board of Visitors – Marcy Psychiatric Ctr. v. Coughlin, 453 N.E.2d 1085, 1088 (N.Y. 1983) (holding that the applicable standard of review is whether the official’s determination that an emergency exists was “irrational or arbitrary or capricious”). Although West Nile Virus first appeared in the area last summer, its longevity and likelihood of return were unknown. As discussed above, the City is working in conjunction with federal and state agencies to ensure that its spraying program is targeted to meet the threat that the Virus poses to the community. In addition, the City began the environmental impact review process last spring in anticipation of a possible return of the virus, and the results of this review process are forthcoming. As such, the Court finds that the emergency exception to SEQRA applies here, and accordingly no basis exists for granting the injunction. The Plaintiffs’ SEQRA claim is dismissed.

For the foregoing reasons Plaintiffs’ application for a preliminary injunction is denied and all claims are dismissed, except the claim that the spraying of insecticide directly over the rivers, bays, sound, and ocean surrounding New York City violates the Clean Water Act.

So Ordered.

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