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May. 8, 2013

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May. 8, 2013

ESA consultation lawsuit dismissed

The Northern California District Court dismissed the most recent and far reaching lawsuit on Endangered Species Act (ESA) consultation. Under the ESA, US EPA is required to consult with the Fish and Wildlife and the National Marine Fisheries Service (the “Services”) when registering pesticides. Litigation has been active in this area since the Washington Toxics case in 2004, creating regulatory confusion and obstacles for registrants and users alike.

In Jan. 2011, the Center for Biological Diversity and the Pesticide Action Network (Plaintiffs) filed suit against EPA for failing to consult with the Services regarding the effects of 306 registered pesticides on 216 endangered species throughout the United States (hence the name “Megasuit”). Of the listed pesticides, 17 are the most commonly used agricultural pesticides, such as 2-4D, aldicarb, atrazine, methyl bromide and its alternatives.

Plaintiffs asked the court to 1) require EPA to initiate and complete the consultation process and 2) compel EPA to restrict pesticide uses that may result in their entering endangered species’ occupied or critical habitat until the consultation process is complete. This action would have disrupted every type of agriculture – from row crops to specialty crops – nationwide.

Because of this potential impact on agriculture, the NCC, American Farm Bureau Federation, the National Alliance of Forest Owners, the National Corn Growers Assoc., the National Agricultural Aviators Assoc., the Washington Farm Forestry Assoc., USA Rice, the National Council of Farmer Cooperatives and CropLife America were all granted status as interveners in order to participate in settlement discussions.

The order granting the motion to dismiss was important for several reasons. The court found that plaintiffs must show a specific agency action – not just the ongoing agency discretion underlying pesticide registration – for each of the 382 pesticides.

The court rejected the plaintiff’s assertion that the statute of limitations does not apply, finding that the six-year statute does apply to each affirmative act alleged to each pesticide. Perhaps most importantly, the court held that where pesticide registrations are at issue, the Federal Insecticide, Fungicide & Rodenticide Act applies with regard to subject matter jurisdiction and that plaintiffs need to make specific pleadings supporting district court versus federal court as the proper venue. Again, these pleadings would need to be specific to every pesticide in question. Plaintiffs can appeal this decision or file an amended complaint within 30 days.

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