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Court Clears Way for Pesticide Makers to Challenge NMFS by Mateusz Perkowski Capital Press, March 11, 2011

Companies, EPA said opinion not based on best science

Pesticide manufacturers will be able to challenge the National Marine Fisheries Service's determination that chlorpyrifos, diazinon and malathion jeopardize endangered and threatened fish.

The 4th U.S. Circuit Court of Appeals has ruled that several pesticide companies should be allowed to pursue a legal complaint against the agency over the determination, known as a biological opinion.

The decision overturns a federal judge's order dismissing the pesticide firms' lawsuit in 2009 on jurisdictional grounds. The case stems from a long-running controversy over the effect of these and other pesticides on fish protected under the Endangered Species Act.

In 2002, a federal court ruled the Environmental Protection Agency violated that statute by approving the sale of numerous pesticides without consulting the National Marine Fisheries Service about the potential threat to protected salmon and steelhead.

After further litigation, NMFS released a biological opinion in 2008 which found that the three insecticides harmed fish species by slowing their growth, impairing their senses and depleting their food sources.

The agency proposed several new restrictions on the pesticides, including 500- to 1,000-foot application buffers around streams and curtailments on spraying during high winds or high soil moisture.

Several pesticide manufacturers -- Dow AgroSciences, Makhteshim Agan of North America and Cheminova -- filed suit against NMFS, alleging the biological opinion wasn't based on the best available science, as required by the Endangered Species Act.

The EPA also had doubts about the biological opinion's findings.

In a 2008 letter to NMFS, an EPA official said the agency didn't believe the data supported the conclusion that chlorpyrifos, diazinon and malathion jeopardize fish species.

However, a federal judge dismissed the pesticide manufacturers' lawsuit because the biological opinion doesn't have a binding effect on the companies unless the EPA decides to adopt the report's recommendations.

If EPA does implement those restrictions, the companies could then challenge the action in a federal appeals court, the judge said.

The 4th Circuit has now reversed that order, ruling that the biological opinion is a final agency action that can be reviewed by a district court.

The determination has legal effects whether or not it's adopted by EPA, and the EPA doesn't have the authority to alter the report, according to the 4th Circuit.

In a statement, Dow AgroSciences said it plans to move forward with its lawsuit and demonstrate that the biological opinion is based on flawed science.

There's no consensus that the restrictions will help fish, but there is "no doubt that, if implemented, they will disrupt agriculture, take prime cropland out of production and also impose needless harm on affected farmers," the statement said.

Meanwhile, the Northwest Coalition for Alternatives to Pesticides, an environmental group, is moving forward with a lawsuit against the EPA. The group claims the agency has violated the Endangered Species Act by failing to formally adopt any of the biological opinion's recommendations.

Related Pages:
Ag Groups File Petition Challenging Pesticide/Salmon Decisions by Staff, Columbia Basin Bulletin, 9/17/10
'Pesticide Cocktails' Make a Deadly Synergy for Salmon by Staff, Columbia Basin Bulletin, 3/6/9
Pesticide Damage Can't Be Ignored by Editorial Board, The Daily Astorian, 8/19/8
Buffers Will Take Unfair Toll on Family Farmers by Steve Appel, Capital Press, 4/2/4