by Forrest Laws
Southwest Farm Press
Posted 5/6/2013
California – A U.S. District Court judge in California has ruled that two environmental activist groups did not prove the EPA awarded federal registrations for a host of crop protection chemicals that put endangered species at risk in a lawsuit they filed in 2011.
In granting a motion to dismiss the groups’ “Mega” lawsuit, Judge Joseph C. Spero said the plaintiffs — the Center for Biological Diversity and the Pesticide Action Network North America — had not alleged specific government actions sufficient for the lawsuit to proceed.
The judge gave the plaintiffs 30 days to file an amended complaint or 60 days to appeal the ruling to the 9th U.S. Circuit Court of Appeals.
Jeff Miller, a conservation advocate for the Center for Biological Diversity, said the two organizations were weighing their options, but had not decided on a response.
The CBD and PANNA lawsuit claimed the registration by EPA of more than 380 chemicals without consultations with other agencies could negatively impact 214 endangered species in 49 states.
CropLife America, an umbrella organization representing many of the nation’s largest pesticide manufacturers, and EPA filed the motion to dismiss the lawsuit. “The complaint was certainly too vague and missed the mark on a host of legal factors,” said Jay Vroom, president and CEO of CLA.
The National Corn Growers Association, which also asked to intervene in the case, called its dismissal a “sweeping victory for growers.
Farmers faced with major restrictions
“Many farmers were faced with the possibility of major restrictions on previously approved crop protection products,” NCGA President Pam Johnson said. “This offers reassurance to America’s farmers that they are free to use products which have been deemed safe by the EPA.”
The suit, which was filed in January 2011, specifically alleged that the agency failed to consult with the Fish and Wildlife Service and National Marine Fisheries Service on hundreds of pesticide registrations potentially affecting hundreds of species.
The lawsuit requested the court apply “appropriate restrictions on the use of pesticides where they may affect endangered and threatened species and critical habitats” until consultations had been completed and the product registrations were in compliance with the Endangered Species Act.
If successful, these “appropriate restrictions” could have resulted in the imposition of buffers zones and other product use restrictions that had the potential to dramatically reduce the amount of land available to agriculture, while doing little to protect threatened species and their habitat, according to Johnson. One of the products that could have been affected was atrazine, a major corn herbicide.
Vroom said environmental groups such as PANNA and the Center for Biological Diversity have been challenging crop protection product registrations based on alleged Endangered Species Act violations for more than a decade.
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“Other similar lawsuits are still pending and threatening to limit U.S. agricultural competitiveness by taking away reliable tools that benefit farmers with no demonstrated, commensurate harm to endangered species,” said Joshua Saltzman, assistant general counsel for CLA. “We are hopeful that the dismissal of the ‘Mega’ suit will begin to move these important discussions out of the courtroom and into a more collegial and collaborative venue.”
CLA was granted limited intervenor status in the lawsuit in June 2011. CLA’s motion to dismiss claimed that plaintiffs’ complaint did not provide enough specificity regarding what actions EPA did or did not take, triggering the need for ESA consultations.
The motion to dismiss also argued that the complaint was submitted in the wrong court and outside the statutory deadline established for challenging a pesticide registration decision under FIFRA.
Vroom said the dismissal provides an opportunity to renew discussions on the role of modern farming technologies in endangered species protection.
Next chapter
“This next chapter should look holistically at the entirety of modern agriculture and examine how our nation’s farming systems continue to evolve and improve to benefit all wildlife — including endangered species — and their habitats.”
“This significant decision paves the way for improvements to the ESA consultation process that can serve the needs of both endangered species and agriculture,” added Rachel Lattimore, senior vice president and general counsel for CLA.
“This outcome re-affirms our government’s pesticide registration process under FIFRA and also the work of EPA in protecting threatened and endangered species.”
“Despite today’s ruling, we won’t allow the EPA to ignore its duty to protect endangered species and human health from toxic pesticides,” said the Center for Biological Diversity’s Miller.
“We’ll do everything we can to ensure harmful chemicals aren’t allowed to contaminate the places endangered species rely on for their survival.”
The 2011 lawsuit sought protection from pesticides for 214 endangered and threatened species throughout the United States, including the Florida panther, California condor, piping plover, black-footed ferret, arroyo toad, Indiana bat, bonytail chub and Alabama sturgeon.
Miller said documents from the U.S. Fish and Wildlife Service and EPA, as well as peer-reviewed scientific studies, indicate these species are harmed by the pesticides at issue.
“For decades the EPA has registered pesticides without input from expert federal agencies to evaluate harmful impacts to wildlife. Hundreds of scientific studies document harm to endangered wildlife from pesticides, and there is evidence of widespread contamination of groundwater, drinking water and wildlife habitats throughout the country.”
Miller said EPA has refused to initiate formal consultations required under the Endangered Species Act, preventing the U.S. Fish and Wildlife Service and National Marine Fisheries Service from evaluating pesticide risks to imperiled wildlife and from restricting harmful pesticide uses.
“This is a disappointing ruling for endangered species on Earth Day,” said Miller. “But the court’s decision does not change the fact that the EPA’s pesticide registration program is completely broken and that the agency is not keeping toxic chemicals out of sensitive wildlife habitats.”
Additional co-intervenors in the case include Mid America CropLife Association, Responsible Industry for a Sound Environment, Southern Crop Production Association and the Western Plant Health Association. The American Chemistry Council, the American Farm Bureau Federation and Reckitt Benckiser, among others, are also intervenors in the case.