Federal Judge Strikes Down Rule
by Gene Johnson
SEATTLE -- A federal judge on Thursday rejected a Bush administration decision to weaken rules governing pesticide use, saying the change reflected a "total lack" of scientific justification and that there were "disturbing indications" that the administration deliberately muted dissent from government scientists.
It was the second time in recent years that U.S. District Judge John C. Coughenour chastised federal agencies for failing to follow the Endangered Species Act in licensing pesticides for sale.
In 2001, environmental groups sued over the Environmental Protection Agency's failure to consult with the National Marine Fisheries Service or the U.S. Fish and Wildlife Service before allowing certain pesticides to be sold. Coughenour ordered the EPA to conduct such consultations in determining whether 55 of the pesticides were likely to harm salmon.
Instead, in 2004, the administration created a new rule allowing it to ignore the "consultation" requirement of the Endangered Species Act - a part of the law it had been ignoring for at least a decade. With hundreds of pesticides and endangered species across the country, requiring multiple agencies to agree on their potential effect could be a logistical nightmare; officials reasoned the EPA should decide on its own whether pesticides were likely to harm protected species.
The environmental groups sued again, and on Thursday, Coughenour threw out the new rule, saying the government could not simply ignore the requirements of the Endangered Species Act. The likely result would be harm to protected species, he said.
"The administrative record is striking in its total lack of any evidence of technical or scientific support for the policy positions ultimately adopted," Coughenour wrote.
He noted that in 2004 the EPA asked fisheries service scientists to support its findings that 28 pesticides were not likely to harm protected species.
The agency's Washington state office did not agree in any of the 28 cases, according to an internal fisheries service letter. Nevertheless, that agency and Fish and Wildlife agreed to the rules change "knowing of the substantial flaws in EPA's methodologies and knowing that these flaws were highly likely (if not certain) to result in an overall under-protection of listed species," the judge said.
In a footnote, Coughenour added: "The court feels compelled to note that there are disturbing indications in the record that the very structure of the service-EPA cooperation was engineered (by EPA) to conceal or minimize the positional differences between the services and EPA."
He cited internal fisheries service writings concerning EPA's "anxiety over written records" that might be used in lawsuits against the agency.
The EPA did not immediately return calls seeking comment Thursday, and spokesmen for the Fish and Wildlife Service and the National Marine Fisheries Service said they had not had time to review the ruling.
Earthjustice lawyer Jan Hasselman, who represented the Washington Toxics Coalition and other environmental groups in the lawsuit, said EPA should be working with the agency scientists to determine the safety of the pesticides for endangered species around the country.
"Instead of addressing that in a serious way, they've been looking for shortcuts," he said. "This problem is not going to get solved tomorrow, but if EPA rolls up its sleeves, prioritizes the worst pesticides first, works with us and sets a schedule, they can get through this in a reasonable time frame."
Russell Brooks of the Pacific Legal Foundation, which intervened on behalf of the federal agencies, called the ruling "a shame for the on-the-ground users of pest-control and crop-protection products."
"We want to protect the environment, but we have to realize these products are highly useful," Brooks said. "We're talking about the crops that feed our nation. When you're messing around with that you have to be careful."
Heather Hansen, executive director of Washington Friends of Farms and Forests, suggested that the more difficult it is for the EPA to approve new pesticides, the tougher it will be to introduce more environmentally sensitive pesticides to market.
"You'd think that would be counterproductive to what Washington Toxics Coalition would like," she said.
Text of Judge's Decision
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