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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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"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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Biolgocial opinions, with subsequent effects on pesticides, can be challenged, says U.S. Circuit Court

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DOW AGROSCIENCES LLC, v. NATIONAL MARINE FISHERIES SERVICE, No. 09-1968, 2011 WL 711855 (4th Cir., Mar. 2, 2011).
The question presented by this appeal is whether a “biological opinion” issued by the National Marine Fisheries Service to the Environmental Protection Agency (EPA) pursuant to the Fisheries Service's consulting role under the Endangered Species Act is subject to judicial review in the district court under the Administrative Procedure Act (APA), 5 U.S.C. § 704. The Fisheries Service, which provided the biological opinion to the EPA as part of the EPA's process of reregistering for sale and use the insecticides chlorpyrifos, diazinon, and malathion, concluded that the insecticides will destroy or harm Pacific salmonids and their habitat....  In this appeal from the district court's dismissal order, we conclude that, under Bennett v. Spear, 520 U.S. 154 (1997), the Fisheries Service's biological opinion is a final agency action and that deferring judicial review of the biological opinion until the EPA acts on reregistration of the insecticides would not provide the manufacturers adequate review of the biological opinion. Accordingly, we conclude that the Fisheries Service's biological opinion is judicially reviewable under § 704 of the APA. We reverse and remand for further proceedings in the district court.

EXCERPT RE: CONDITIONS OF THE BIOP. The final BiOp concluded that chlorpyrifos, diazinon, and malathion would jeopardize numerous salmonid species and adversely affect critical habitat for them. Specifically, it found that the exposure to these pesticides will kill salmonids and, even at low exposure levels, will reduce salmonid growth, reduce the availability of prey, and impair salmonids' swimming and olfactory senses. In short, the Fisheries Service's BiOp concluded that reregistration of the insecticides would jeopardize the survival of 27 of 28 listed salmonid species and adversely affect the critical habitat of 25 of the 26 species for which critical habitat had been designated. The BiOp, however, recommended a “reasonable and prudent alternative” to the current registrations by (1) requiring setbacks for the application of insecticides that would be 500 feet away from salmonid habitats for ground applications and 1,000 feet for aerial application; (2) limiting application in high wind; (3) requiring a 20-foot strip of vegetation near surface waters connected to salmonid habitats; (4) requiring regular reports concerning fish mortality; and (5) limiting application when soil moisture is, or is likely to become, high. The BiOp also issued an “Incidental Take Statement” requiring that the EPA implement a Fisheries Service approved effectiveness monitoring plan.

A court ruling between Washington Toxics Coalition and the Environmental Protection Agency requires vendors to post warning signs on all products containing seven pesticides that pose threats to salmonids (for more information about this case go to www.watoxics.org).The WATER Institute's Salmon Safe Pesticide Awareness Campaign supports retailers in upholding this ruling by posting the required hazard signs and invite them to consider selling less harmful alternatives.

KEITHINKING: The court offered six detailed points in furtherance of its reasoning that the biop was indeed final agency action.  This case will probably provide a template for any future litigation involving the finality of a biological opinion (and perhaps other federal actions too):
  • First, the BiOp has immediate and independent legal consequences that cannot be changed on later review of the EPA's action on reregistration, even if the EPA relies on the BiOp…
  • Second, if the EPA were to choose not to rely on the Fisheries Service's BiOp, then the BiOp would not be subject to any review in a judicial proceeding challenging the FIFRA reregistration order. Yet, the BiOp would still exist, having significant legal consequences, as we have noted, because it makes final findings and defines the safe harbor from civil and criminal liability…
  • Third, when a court of appeals reviews the EPA's reliance on a BiOp issued by the Fisheries Service, the court's review would not be the same as if the district court were to review the BiOp itself directly under the APA…
  • Fourth, if the EPA were to choose to follow the Fisheries Service's BiOp, any challenge to the EPA's reliance on the BiOp on judicial review could not itself cause the EPA to alter the BiOp…
  • Fifth, the plain language of FIFRA's judicial review provisions does not contain “clear and convincing evidence” that Congress intended FIFRA's judicial review provisions to govern review of a BiOp issued by a different agency-the Fisheries Service, which is within the Department of Commerce.
See also Living on Earth and ESAblawg, and Washington State University.