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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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Another Center for Biological Diversity lawsuit, with an unusual settlement agreement, leads to new regulations governing pesticides

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Center for Biological Diversity v. U.S. Environmental Protection Agency, No. C07-02794 JCS, 2010 WL 2143658 (N.D.Cal., May 17, 2010).

On May 30, 2007, CBD filed a complaint for declaratory and injunctive relief pursuant to Section 7 of the Endangered Species Act (“ESA”) in the Northern District of California, which alleged that the EPA had failed to comply with Section 7 regarding the potential impacts of 43 pesticide active ingredients upon multiple federally protected species listed as endangered or threatened under the ESA. In response, EPA maintained that it cannot determine the effects, if any, of the Pesticides on the species, and define appropriate protective measures, if any, until they have completed further scientific analyses, which may include, but are not limited to, further review under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), §§ 7 U.S.C. 136-136(y), effects determinations made pursuant to the ESA, or consultation with the United States Fish and Wildlife Service (“FWS”) under the ESA, as appropriate.  As a result, CBD and EPA agreed to a stipulation establishing procedures, and even new federal requirements, relating to the use of pesticides and their regulation.  

EXCERPT: "Pursuant to the schedule {delineated in this agreement} the EPA shall make effects determinations and initiate consultation, as appropriate, with the United States Fish and Wildlife Service, pursuant to applicable regulations in effect at the time when the determination is made, regarding the potential effects of the Pesticides on the tidewater goby, delta smelt, California clapper rail, salt marsh harvest mouse, California tiger salamander, San Francisco garter snake, California freshwater shrimp, San Joaquin kit fox, Alameda whipsnake, valley elderberry longhorn beetle, and Bay checkerspot butterfly in the greater San Francisco Bay Area, including the Bay Delta, specifically covering the following California counties - Marin, Sonoma, Napa, Solano, Contra Costa, Alameda, Santa Clara, and San Mateo."

KEITHINKING:  The remainder of the settlement agreement committed EPA to specific schedules for completing the pesticide reviews.  For example, for one group of pesticides, EPA must complete its Effects Determinations at a minimum rate of four per quarter, with the first quarter ending on March 31, 2010 so that EPA completes these effects determinations by March 31, 2012.  For a second group, EPA shall make effects determinations for the following pesticides for the specific species listed at a minimum rate of no less than three per quarter, with the first quarter ending June 30, 2012, so that EPA completes all effects determinations by September 30, 2014.  The settlement also looks much like a rule, with specific guidelines and restrictions for multiple pesticides, tailored to individual species.  This settlement continues a trend in EPA litigation, and policy making, and one that water lawyers will recognize from TMDL and numeric criteria litigation.  See, e.g. recent Chesapeake Bay settlement.   Increasingly, court-ordered settlement agreements seem to be a tool for EPA to establish new policies.  This approach, however, creates consequences, including: (a) diminished public scrutiny outside of the usual APA rulemaking process; (b) preventing policy changes by future administrations; (c) making changes to the schedules difficult by requiring judicial approval, and (d) exposing the agency to judicial contempt proceedings if the deadlines are not met.  Notably, in this case, EPA subjected its own settlement agreement to notice and comment procedures in the Federal Register.