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No Spray Coalition v. New York, City of

ELR Citation: 34 ELR 20007
Nos. No. 02-9484, (2d Cir., 12/09/2003) vacated & remanded

The court vacates and remands a district court ruling that the Clean Water Act's (CWA's) citizen suit provision does not apply to pesticide uses that comply with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). New York City had used three insecticides regulated under FIFRA to address an outbreak of the West Nile virus. Plaintiffs claimed that the spraying program involved the discharge of a pollutant to a navigable waterway and, therefore, violated the CWA and several other statutes. The district court granted the city's motion for summary judgment, ruling that its use of the insecticides in question substantially complied with FIFRA. In contrast to the CWA, FIFRA does not provide for citizen enforcement suits. The district court reasoned that the U.S. Congress intended FIFRA as the primary scheme governing pesticide use, and that where a particular use challenged as a violation of the CWA substantially complied with FIFRA, FIFRA's refusal to allow enforcement by citizen suit should prevail over the CWA's allowance of such suits. Congress, however, intended for the CWA's citizen suit provision to operate regardless of whether the claimed violation of the CWA also violates FIFRA. There is no basis for an interpretation that disallows enforcement of the CWA through a citizen suit unless the alleged activity also violates FIFRA in a substantial manner.

[Prior decisions in this litigation are published at 31 ELR 20707 and digested at 33 ELR 20123.]

Counsel for Plaintiffs
Karl S. Coplan
Pace Environmental Law Clinic
78 N. Broadway, White Plains NY 10603
(914) 422-4343


Counsel for Defendant
George Gutwirth
Office of Corporation Counsel
100 Church St., New York NY 10007
(212) 788-0303