ESA litigation in 2011: it could be a very big year.
In a lawsuit of nationwide scale, the Center for Biological Diversity sued the U.S. Environmental Protection Agency under the Endangered Species Act, alleging that EPA failed to consult with federal wildlife agencies regarding the impacts of hundreds of pesticides upon more than 200 endangered and threatened species. See Press Release. CBD views widespread pesticide use as Silent Spring Revisited. As the lawsuit states: "EPA must register and authorize pesticides before they can be used. Once in the environment, pesticides impact species through acute and chronic effects, and contamination of their habitats. Absent EPA’s registration and oversight of pesticides, they could not be used and would not be negatively impacting listed species. EPA’s failure to ensure that its actions regarding pesticides do not impact endangered species and their habitats harms Plaintiffs’ members’ interests in the species. If EPA engaged in consultation as required, the Service would detail how the pesticides are affecting listed species and their habitats and, if necessary, would suggest reasonable and prudent alternatives to protect the species. 16 U.S.C. § 1536(a)(3)." Importantly, this lawsuit could trigger a settlement with EPA, FWS and NOAA, affecting, in turn, nationwide agricultural operations. See KFGO. In fact, in litigation over pesticide consultations in the Pacific Northwest, CBD obtained relief requiring NOAA to review 37 regionally used pesticides and evaluate their effects upon salmonid species. See NOAA.
While CBD's lawsuit is just beginning, two other ESA cases may be about to reach a dramatic end, with petitions for certiorari pending before the U.S. Supreme Court. First, Arizona Cattle Growers’ Ass’n v. Salazar, Docket: 10-454, asks (1) whether the Fish and Wildlife Service (FWS) was required to analyze and consider all of the economic impacts that result from designating a particular area as a "critical habitat" under section 4(b)(2) of the Endangered Species Act, including impacts that also may be related to the species being listed as "threatened" or "endangered"; and 2) whether it is lawful for a court to substitute its own rationale for the rationale provided by the FWS to affirm the agency's determination that a particular area, designated as a "critical habitat," is occupied by a threatened or endangered species. Relatedly, Home Builders Ass’n of Northern California v. United States Fish and Wildlife Service, Docket: 10-605, asks whether, under section 4 of the Endangered Species Act, the government must analyze all of the economic impacts of a “critical habitat” designation (regardless of whether the impacts are co-extensive with, or cumulative of, other causes), or instead only those impacts for which “critical habitat” designation is a “but for” cause. See SCOTUS blog, petition of the day.
Finally, it was the end of the road in Southwest Center for Biological Diversity v. Bartel, Case No. 06-56851, 2011 WL 148785 (9th Cir. Jan. 18, 2011), in which Intervenor-Appellants from the building industry sought to appeal the district court's injunction barring “pending and future development projects” that might affect seven species found in San Diego's “vernal pool habitat.” The district court had invalidated parts of an Incidental Take Permit (“ITP”) granted to the City of San Diego in July 1997. However, on April 20, 2010, the City relinquished portions of the ITP covering the vernal pool species, and one month later, the Service cancelled those portions of the ITP. Rejecting the argument that intent to apply for a new ITP could keep the litigation alive, the 9th Circuit held that "Because the relevant portions of the ITP no longer exist, it is unclear how there remains a live case or controversy. The City, the Service, and Intervenors agree that the action is moot."