No Spray Coalition

In No Spray Coalition v. City of New York, NYELJP, jointly with Pace Law School’s Environmental Litigation Clinic, pursued federal litigation against the City of New York for its haphazard spraying of pesticides in contravention of the Clean Water Act, Resource Conservation Recovery Act, and the State Environmental Quality Review Act. In addition, NYELJP represented 8 spray workers, who were not given adequate safety training or protective gear, and who consequently suffered from pesticide poisoning.

The Project, with other environmental organizations, zealously reviewed and commented upon city and state Environmental Impact Statement for the pesticide spraying program. Out inquiries into the dangers of the pesticide spraying initiated federal/state investigation into spraying malfeasance and led to significant and mostly unprecedented fines: the NYS Department of Conservation (DEC) levied a million dollar fine against the manufacturer/contractor upon our urging, and the EPA imposed an additional $500,000 fine. A decision by the federal District Court (Eastern District of New York) has upheld the Clean Water Act restrictions and permit requirements for spraying over water. Later, a Sixth Circuit court decision upheld our premise that a Clean Water Act permit was necessary, as was adherence to pesticide labels pursuant to the Toxic Substances Control Act.

Timeline
-August 1999: Several Queens residents contract the West Nile virus, a viral encephalitis transmitted by mosquitoes. The City, in coordination with the NY State Department of Health (DOH), the NY State Department of Environmental Protection (DEP), the U.S. Environmental Protection Agency (EPA), and the federal Center for Disease Control (CDC), initiated an emergency spraying program using three pesticides: malathion (under the trade name Fyfanon), resmethrin (Scourge), and sumithrin (Amvil), all of which are regulated under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
-July 20th, 2000: A coalition of environmental nonprofits, grassroots community groups, and civil rights organizations, files a Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) against the City of New York in the Southern District Court of New York, seeking immediate injunctive relief against the spraying. claiming that the spraying program involved the discharge of a pollutant into a waterway, and was executed without a permit, in direct contradiction with the Clean Water Act (CWA).
-September 25th, 2000: District judge John S. Martin denies the coalition’s request for a preliminary injunction and dismisses the RCRA case in a first opinion and order. However, he allows for discovery on the CWA allegations of discharge of a pollutant into a waterway, and without a permit.
-June 5th, 2001: The second circuit of the United States Court of Appeals confirms the denial of the preliminary injunction to stop the spraying and the dismissal of claims made under the RCRA.
-November 26th, 2002: District Court Judge John Martin issues an order granting dismissing the coalition’s Clear Water Act claims, stating that the spraying either did not violate FIFRA or represented mere “technical violations” of FIFRA. The reasoning was that FIFRA, which does not allow for citizen enforcement suits, was intended to be the primary statute governing pesticide use, and therefore should take precedence over the CWA, which does allow for such suits.
-December 9th, 2003: The second circuit of the United States Court of Appeals overthrows the district court’s decision, stating that the CWA’s citizen provision could operate regardless of whether or not the FIFRA was also violated, and remands the case back to the district court
-June 7th, 2005: The US District Court of NY denies both the plaintiffs’ and the defendants’ motions for summary judgement.
-April 12th, 2007: The coalition puts forth a settlement, agreed to by the defendants, that includes the following main points:
(1) The City of New York agrees to pay $80,000, divided among 5 nonprofit organizations, and to be used for environmental protection purposes
(2) The Defendants agree to pay the plaintiffs’ legal fees
(3) The City of New York and the Department of Health and Mental Hygiene (NYCDHMH) agree to meet with the plaintiffs during two three-hour sessions to discuss concerns over pesticides and alternative, non-toxic approaches to pest management.

 

Court Documents:

–Court ruling and settlement (Apr 2007)

 

Further Information:

New York City Department of Health and Mental Hygiene, Comprehensive Mosquito Surveillance and Control Plan (2016)