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A Victory Against Indiscriminate Mosquito Spraying
(Beyond Pesticides, December 12, 2003) The Second Circuit Court of Appeals in New York City reversed a lower court decision and upheld the right of environmental and public health organizations to sue the city of New York under the Clean Water Act for the indiscriminate spraying of pesticides to kill mosquitoes.

Earlier this year, U.S. District Court Judge John S. Martin dismissed the lawsuit under the Clean Water Act saying that the Act was not meant to deal with pesticide spraying since that issue is dealt with by other laws.

But on Tuesday, December 9, a three-judge Appeals Court panel overturned the lower court's ruling, stating that the Clean Water Act clearly "authorizes 'any citizen' to bring suit to enforce its requirements, regardless of whether the alleged violation of CWA also constitutes a substantial violation" of other laws. "We therefore vacate the judgment and remand for further proceedings," the judges wrote.

In July 2000, Beyond Pesticides joined with the No Spray Coalition, Disabled in Action, NY Save Organic Standards, the National Preparedness Network, and several individuals to file suit in a federal court against the City of New York for violating federal and state environmental statutes designed to protect public health and the environment with the broadcast spraying of toxic pesticides in its West NIle virus spray program.

The activists argue that the city's mosquito-control pesticide-spray program puts the health of residents at serious risk and threatens critical environmental wildlife habitat and is in violation of the approved labels and law. The suit lists a series of violations associated with the 1999 spraying in which hazardous insecticides were sprayed from helicopters and trucks. The pesticides used by the city are known to cause dizziness, headaches, nausea, vomiting, skin irritation, loss of coordination, twitching and seizures, as well as delayed long-term neurotoxic effects, including optic and peripheral neuropathy. The pesticides may also be a cause of breast cancer. (See the 2000 Press Release.)

Previous court decisions narrowed the lawsuit, which started with charges under three Acts - the Clean Water Act, the Resource Conservation and Recovery Act, and the Federal Insecticide, Fungicide and Rodenticide Act - down to only one: the Clean Water Act.

Mitchel Cohen, an individual plaintiff in the case and a coordinator of the No Spray Coalition, was ecstatic over the ruling. “Our lawsuit is aimed to put an end to the government's reckless disregard for the health and safety of people and the environment," he said.

"On every front, the health and safety of people and the preservation of the environment are being devastated by the enormous tonnage of pesticides dumped, engineered, and sprayed on us. Thousands of people have been made seriously ill by the indiscriminate spraying of malathion and pyrethroids in New York City and around the country, ostensibly to kill mosquitoes said to be carrying West Nile virus. This 'cure' is far worse than the disease, considering the huge numbers of people being poisoned by the spraying,” said Mr. Cohen.

The lawyers for the plaintiffs, Karl Coplan of the Pace Environmental Litigation Clinic, and Joel Kupferman of the New York Environmental Law and Justice Project, were also pleased by the decision: "The Second Circuit re-asserted the right of the average person to sue in the Courts under the Clean Water Act," Mr. Coplan said. "This is a terribly important ruling; it stops a bad situation from being made even worse."

Jay Feldman, executive director of Beyond Pesticides/National Coalition Against the Misuse of Pesticides, called the decision "an important step in the effort to stop pesticide abuse." "It is critically important that unnecessary hazardous pesticide use stop, especially in light of the availability of alternatives that do not poison people," said Mr. Feldman.

The lawsuit is now remanded back to the lower court where it will most likely be heard in time for next year's round of spraying.

[Full text of decision]

For more information contact Jay Feldman, Beyond Pesticides, (202) 543-5450.