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Federal Judges Vacate Controversial NMFS Pesticides Biological Opinion by Jeremy P. Jacobs E & E, February 22, 2013

Federal judges yesterday threw out a controversial National Marine Fisheries Service report that said three pesticides threaten the survival of endangered salmon and steelheads in the Pacific Northwest.

The 4th U.S. Circuit Court of Appeals said NMFS's biological opinion, or BiOp, on the effects of chlorpyrifos, diazinon and malathion was based on faulty assumptions and, therefore, was "arbitrary and capricious."

"The Fisheries Service's November 2008 BiOp relied on a selection of data, tests, and standards that did not always appear to be logical, obvious, or even rational," wrote Judge Paul Niemeyer of the Richmond, Va.-based court.

A series of lawsuits from environmental groups forced NMFS to issue the biological opinion. The report led to more stringent requirements on the pesticides when U.S. EPA re-registered them.

The three pesticides are organophosphates, a potent class of neurotoxic chemicals. Environmentalists and public health advocates have long called for them to be more strictly regulated.

NMFS concluded that the use of the three pesticides was likely to jeopardize the existence of 27 species of endangered or threatened salmon and steelheads. It put forth a series of recommendations, including 1,000-foot buffer zones to absorb natural pesticide runoff before it reaches vulnerable streams (E&ENews PM, Nov. 18, 2008).

But industry members sharply criticized the report, arguing that it was based on false assumptions and faulty science. They also charged that NMFS failed to take into account other mitigation measures that were already in place, such as a voluntary phaseout of chlorpyrifos, existing buffer zones and reduced application rates for all three chemicals.

EPA also expressed reservations about NMFS's science when the report was issued.

The biological opinion has also been the subject of scrutiny on Capitol Hill, with congressional Republicans holding hearings on the issue (E&E Daily, May 4, 2011).

A key sticking point appeared to be NMFS's reliance on various estimates of how many days the fish would be continually exposed to the pesticides. NMFS said at one point that the fish would be subjected to a lethal dose of the chemicals for a four-day period.

Pesticide makers, including Dow AgroSciences LLC, Makhteshim Agan of North America Inc. and Cheminova Inc., argued in court that the report failed to rely on the most complete and accurate data as required by the Endangered Species Act.

The court agreed with the industry's arguments and reversed a lower court decision that backed NMFS. The three-judge panel vacated the biological opinion, sending it back to NMFS for review.

Agribusiness immediately praised the ruling, which could have far- reaching effects in the Northwest.

"This decision reinforces the need for comprehensive, science-based information that allows EPA and the Services to make informed decisions about the registrations of crop protection products and responsible use," said Jay Vroom, president of CropLife America. "The court's ruling helps all stakeholders ensure the protection of endangered species and their habitats."