A U.S. District Court in California has dismissed a suit by citizens groups alleging that the Environmental Protection Agency violated the Endangered Species Act (“ESA”) by failing to consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service regarding the effects of 382 registered pesticides on endangered and threatened species.  The court ruled in Center for Biological Diversity v. Environmental Protection Agency that the groups had not alleged any specific actions taken by the EPA that called for such consultation.  Chemical manufacturers, farmers, and other pesticide users expressed relief.  “You would be hard-pressed to think of anything that could have happened to this industry that would have been more disruptive than if they had prevailed in that lawsuit,” said Bob Rosenberg of the National Pest Management Association.  Voicing disappointment, the citizens groups said they are considering whether to amend their complaint and try again or appeal.

The ESA protects listed species and their habitat in two general ways.  First, the Act prohibits any person from “taking” an endangered or threatened species without authorization by the pertinent Service.  Second, the Act calls on federal agencies, in consultation with the Services, to ensure that any actions they authorize, fund, or carry out are not likely to “jeopardize” the continued existence of any listed species or result in the “destruction or adverse modification” of the designated “critical habitat” of any such species.  Toward this end, the Services’ implementing regulations have long provided that whenever a federal agency finds that its “action,” such as issuance of a permit, “may affect” listed species or designated critical habitat, the agency must initiate “formal consultation” with the pertinent Service about that action—unless the agency informally consults with the Service and finds, with the Service’s concurrence, that the action is “not likely to adversely affect” the species.  If the agency and the Service proceed with formal consultation, that process concludes with the Service’s issuance of a “biological opinion” on whether the agency’s action would jeopardize the continued existence of the species or destroy or adversely modify its critical habitat and whether the action would “take” any members of the species, in which case the Service prescribes alternatives to avoid jeopardy or measures to minimize the effect of any such take.

Citizens groups sued the EPA in 2011 alleging that it violated the ESA by failing to consult with the Services regarding 382 currently registered pesticides.  After being allowed to intervene in the suit, industry groups moved to dismiss it on several procedural grounds.

The district court granted their motion.  It first ruled that the citizens groups failed to allege any specific “action” by the EPA that would trigger a requirement to consult under the ESA.  Allegations that the EPA merely retains discretionary control and authority over pesticides and that it “may” undertake various actions do not establish, said the court, that the EPA ever affirmatively authorized, funded, or carried out any action.  Moreover, added the court, the citizens groups cannot simply fault the EPA for not consulting with respect to hundreds of pesticides; rather they “must allege a separate ESA claim corresponding to an affirmative act with respect to each of the 382 pesticides.”

The court also ruled that the citizens groups failed to allege facts showing that they had “standing” to sue in court.  Because the Constitution empowers courts only to hear a “cases or controversies,” courts insist that plaintiffs show, at a minimum, that they have suffered injury in fact caused by the challenged conduct and that the injury will be redressed with a favorable decision.  Brushing aside the citizens groups’ generalized claims of injury across the nation, the court emphasized that the groups must allege an affirmative act of the EPA with respect to each pesticide and must show that they have standing with respect to each pesticide.

Finally, the court held that the citizens groups had failed to allege facts establishing that the court had jurisdiction over their claims.  Noting that the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”) vests exclusive jurisdiction in the court of appeals over the EPA’s actions following a public hearing, the court found that the citizens groups’ “core objections” were to the pesticide registrations themselves, which are governed by FIFRA.  To present an ESA claim, the court said, they must plead facts showing that a challenged action falls outside the ambit of FIFRA.

Although the court has afforded the citizens groups an opportunity to amend their complaint, the prospect of pleading facts of the sort the court demands appears slim.  It may be, thus, that the only recourse for those dissatisfied with the EPA’s registration of pesticides is to participate in the administrative and judicial review process prescribed under FIFRA.

As it happens, the National Academy of Sciences is poised to issue a report on various issues regarding endangered species assessments and the EPA’s pesticide program.  As calls for reform of that program have increased, the NAS report may offer suggestions or otherwise lead to efforts along that line.

 

David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.

 

Stay Informed

Subscribe to our e-Newsletter.


Unsubscribe from our mailing list