Federal Judge in D.C. says ESA dispute over EPA's FIFRA registration of Rozol will proceed
Defenders of Wildlife v. Jackson, CV 09-1814, 2011 U.S. Dist. LEXIS 62461 (D.D.C., June 14, 2011).
BACKGROUND: The U.S. Environmental Protection Agency (EPA) registered Rozol under the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) on May 13, 2009 and did not consult with FWS before approving its registration.
ISSUE: Plaintiffs, Defenders of Wildlife (Defenders) and The Natural Resources Defense Council (NRDC), sought both declaratory and injunctive relief under the ESA and sought an order declaring that EPA’s FIFRA registration of Rozol was not in accordance with the ESA because the EPA had failed to consult with FWS. More specifically, Defenders requested an order requiring EPA to engage in formal consultation prior to issuing the registration. The NRDC requested an order requiring the EPA to engage in and complete formal consultation prior to registering Rozol. The EPA had begun consultation with FWS on September 30, 2010 (a week after the suit was filed) and had argued that plaintiffs’ claims were therefore moot. Plaintiffs had argued that EPA remains in violation of the ESA until it finishes consulting with FWS and the court could provide an effective remedy by vacating the registration and ordering the EPA not to register Rozol without completing consultation.
RULING: The court found that Defender’s request was moot because EPA had already begun consulting. NRDC’s request, however, was not moot because consultation had not yet been completed and therefore an effective remedy would be possible and appropriate: the cessation of the use of a deadly chemical that may jeopardize the continued survival of endangered species until the EPA complies with the mandates of the ESA.
According to Audubon of Kansas, a participant in the litigation, Rozol is a Poison that Keeps on Killing. "The most disturbing element of Rozol (chlorophacinone) use is its hazard of secondary poisoning for predators that eat the poisoned animals. Prairie dogs poisoned with Rozol die from internal bleeding. In one non-sanctioned poisoning in South Dakota investigators gathered several hundred of the animals that were continuing to die above ground for three weeks after application." Image available from Audubon of Kansas