The Conflict between Pesticide Law and Wildlife Protection Law

Chapter 12
The Conflict between Pesticide Law and Wildlife Protection Law

The problem with EPA’s inability to effectively regulate the use of pesticides under specific geographic and temporal conditions is highlighted by the conflict that exists with regard to FIFRA and wildlife protection statutes, such as the Endangered Species Act (ESA) and the Migratory Bird Treaty Act (MBTA). In the decades since the ban of DDT and its relatives, pesticides have caused the deaths of literally millions of birds, fish, and other wildlife, and have placed hundreds of threatened and endangered species at risk of extinction. The Center for Biological Diversity recently released a report that found that EPA has approved registrations for pesticides that put more than 375 Endangered Species Act (ESA) listed species at risk.1 In the past several years, EPA has come under considerable attack for its failure to adequately address risks to certain species listed under the ESA2 from pesticide uses. Unfortunately, the laws governing pesticides conflict in a number of significant ways with the laws designed to protect wildlife, including threatened and endangered species. Specifically, the species protection laws and pesticide laws differ dramatically in their goals, standards, focus, and methods, making it virtually impossible for EPA, as the agency charged with implementing the pesticide laws, to comply with species protection laws. When coupled with EPA’s institutional bias in favor of registering pesticides, its generic bureaucratic inertia, and the George W. Bush Administration’s hostility towards species protection, these conflicting laws have thrown EPA into a chaotic mixture of defensive entrenchment and regulatory paralysis, resulting in an utter failure to comply with the species protection laws such as the ESA. The unwitting casualties of EPA’s failure are the countless species, including threatened and endangered species, that have been placed in harm’s way.

Although the legal wrangling over the pesticide/species protection conflict has simmered for decades, in the past several years, the battles have intensified. Recently, a number of environmental organizations have sued EPA over its failure to comply with the ESA. In response to such suits, EPA has evoked every legal defensive strategy and become even more entrenched in its position of non-compliance with the ESA. All three branches of the federal government have entered the fray, with the judiciary attempting to resolve the conflicts inherent between the ESA and FIFRA, the regulatory agencies attempting to regulate their way out of ESA compliance, and Congress attempting to make the problem go away by exempting pesticide regulatory decisions from the ESA. To complicate matters more, in July 2007 the Supreme Court ruled in National Ass’n of Home Builders v. Defenders of Wildlife,3 that federal agencies are not required to undergo the consultation process provided for in section 7 of the ESA unless their action is a discretionary one. Thus, the relationship between federal pesticide law and federal species protection law has been thrown into even greater disarray.

Starting in the late 1970s, the US brought a number of lawsuits involving the issue of pesticides harming protected species. The earliest cases involved liability under the MBTA. In United States v. FMC Corporation,4 the Second Circuit considered whether the defendant corporation’s manufacture and subsequent release of toxic pesticides that killed 92 migratory birds violated the MBTA.5 The government pursued 36 individual violations pursuant to specific dates of bird kills, of which the jury found the corporation guilty on 18 counts.6 The MBTA makes it unlawful to kill migratory birds and makes such unlawful killings a misdemeanor.7 The key issue was whether a violation of the MBTA could be predicated on an intentional action without specific intent to kill protected birds, or if a violation required that the defendant possess mens rea to kill migratory birds.8

FMC owned a pesticide-manufacturing facility in upstate New York, producing and storing dithiocarbamate pesticides on site.9 A 10-acre pond on site served as a wastewater conduit for pesticide production.10 Although pesticides were to be treated before entry into the pond, pesticides were being dumped directly into the pond; as a result the water body had a concentration of carbofuran 200 times greater than the amount required to cause a significant probability of bird kills.11 Unfortunately, the size of the water body attracted migrating birds, and as a result of the high concentration levels, numerous bird deaths were found over a two-month span in 1975.12

The Second Circuit acknowledged that hunting issues had predominated MBTA cases, and that these were fairly inapposite to the instant case.13 The court noted further, however, that even though FMC did not know that its release of carbofuran was the cause of the bird deaths, FMC’s product directly caused the deaths.14 FMC argued that it not only lacked the intent to kill the birds, it also took no affirmative act causing the deaths and, as a result, did not violate the MBTA. The court disagreed, noting that the “term ‘act’ itself is ambiguous,” and citing cases in which even a failure to act in light of a duty itself creates liability as a criminal action.15 The court stressed that FMC had acted when it manufactured a toxic pesticide and that FMC had failed to prevent the pesticide’s release in spite of its affirmative duty.16 The court analogized the release to a strict liability offense in tort law, citing the Restatement (Second) of Torts, which made individuals carrying on abnormally dangerous activities liable for injury regardless of due care shown.17 Thus, the court reasoned, FMC’s manufacture of pesticides constituted an abnormally dangerous activity, and FMC’s failure to prevent a toxic release leading to bird deaths made it strictly liable regardless of the care it might have shown.18

In another MBTA case, United States v. Corbin,19 the Eastern District of California held that the Migratory Bird Treaty Act’s prohibition on bird killings applied to poisonings even in the absence of actual intent to kill protected bird species.20 In a lengthy opinion, the court considered whether the terminology of FIFRA with regard to certain provisions was unconstitutionally vague, and whether the appropriate basis for an individual violation of MBTA was each bird death or each act resulting in a bird death, regardless of actual birds killed.21 The court held that FIFRA clauses pertaining to user liability were not unconstitutionally vague.22 In light of the statutory ambiguities of the MBTA, the court agreed with the defendants that the appropriate number of charged counts should be predicated on the number of actual applications of the pesticide, not the number of birds killed as a result of that one act.23

The court first addressed whether the MBTA prohibited only hunting deaths by noting that while the Act was primarily intended by Congress to address hunting of migratory birds, section 703 of the MBTA, in broad language, made it illegal to kill a migratory bird in any manner.24 Furthermore, the court noted, song birds were among the protected species even though such birds were not commonly hunted, indicating an intention by Congress to broadly safeguard the protected species.25

The defendants had also contended that violations of the MBTA required an intent on their part to kill migratory birds.26 The court examined prior case law outside of the hunting context but found little of precedential value. The court briefly reviewed United States v. Union Texas Petroleum,27 and United States v. FMC Corp 28 but found neither truly applicable, as Union Texas was settled with guilty pleas, whereas FMC Corporation involved a bench determination.29 The court then focused on bait-hunting, noting that prior courts did not require knowledge of the poisoned bait itself as an element of the crime.30 The defendants argued that bait-hunting materially differed from the instant conduct as placing baits inherently involved a party with intent to kill protected birds whereas the defendants claimed they lacked such intent.31 The defendants predicated their argument on two fronts: first, by reference to the Bald and Golden Eagle Protection Act’s (BGEPA) scienter requirement and, secondly, by claiming the government’s MBTA rationale would require some individuals to be liable upon the death of any protected bird as a result of human contact.32

The court rejected both defenses. The court found that while the BGEPA has a scienter requirement, the MBTA is silent on this element. A defendant must have acted “knowingly or with wanton disregard for the consequences of (their acts).”33 The second argument was easily rejected, as the court noted that the defendant, as a pesticide applicator, had far more control in terms of preventing the death of a bird than a random automobile driver who had struck a bird with his car.34 The court analogized the scienter requirement to that of FIFRA, and stated “the guilty act alone [was] sufficient to make out the crime,” and that requiring reasonable care was appropriate under the Constitution.35 Because the reasonableness of the defendants’ actions had not yet been decided at trial, the court did not address whether a defendant who had acted with reasonable care could be held liable without intent to kill.36 The court then held that the MBTA could be applied constitutionally against defendants lacking intent to kill migratory birds.37

While both FMC and Corbin imposed liability for pesticides that caused harm to protected species under the MBTA, neither addressed the issue of whether EPA, the regulatory agency responsible for registering pesticides, could be liable as a non-pesticide user based on its conduct in approving the registration of a pesticide later used by another party that caused harm to protected species. As described above, in FMC the liable party was the manufacturer of the pesticides that handled the waste products in such a way as to cause harm, and in Corbin the liable party was the user of the pesticide product. It was not until 1989 that a court addressed the issue of whether EPA could be liable for approving a pesticide registration that ultimately resulted in harm to a protected species.

In 1989, EPA was dealt a stunning blow when the Eighth Circuit found it liable for a take under ESA section 9 for allowing the continued registration of a pesticide that caused harm to a listed species. In Defenders of Wildlife v. Administrator, Environmental Protection Agency,38 the court considered a citizen suit brought under the ESA against EPA for harm caused to listed species by the application of strychnine, a FIFRA-registered pesticide.39 In the 1970s EPA reviewed the above-ground use of strychnine and consulted with the FWS about the impact of the pesticide on listed species.40 The consultation culminated in a 1979 FWS Biological Opinion with findings that the continued use of above-ground strychnine would jeopardize listed species.41 EPA initiated a cancellation process for several registered uses for strychnine after several environmental groups intervened in the FIFRA process. The groups, Defenders of Wildlife and the Sierra Club, intervened, as did the Farm Bureau, FWS and the United States Department of Agriculture.42 The discussions among the parties continued from 1984 until 1986.43 Most of the intervenors settled with EPA, but Defenders of Wildlife and the Sierra Club refused, and along with Friends of Animals filed suit under the ESA’s citizens’ suit provision, alleging that the continued registration of strychnine was a take under the ESA.44

EPA argued that because the plaintiffs sought cancellation of a pesticide, the plaintiff’s suit had to be brought under FIFRA.45 While the Eighth Circuit acknowledged that an action for pesticide cancellation alone should be sought under the FIFRA legislations,46 the court held that FIFRA did not permit EPA to ignore the ESA when regulating pesticides.47 The Eighth Circuit then considered whether EPA’s continued registration of strychnine constituted an illegal taking under the ESA.48 EPA did not dispute that the distribution of strychnine had caused the death of endangered species.49 Noting that the definition of a take is quite broad and that distribution of strychnine could only occur upon registration of the pesticide, the court held that EPA action had caused the deaths of endangered species and, as a result, an illegal taking had occurred.50

It is important to note that EPA is not the only federal agency that has been reluctant to comply fully with section 7 of the ESA. For example, there has been an ongoing battle between environmental organizations and the Federal Emergency Management Agency (FEMA) regarding FEMA’s ESA obligations in administering the National Flood Insurance Program (NFIP). In Florida Key Deer v. Brown,51 the National Wildlife Federation, Florida Wildlife Federation and Defenders of Wildlife sued Michael Brown, in his official capacity as the head of FEMA, and Gale Norton in her official capacity as Secretary of the Interior, seeking a judicial order requiring FEMA to consult with the FWS concerning its NFIP for the Florida Keys. In 1994, the court ordered FEMA to consult with the FWS, and in 1997 the FWS issued a BiOp that the FEMA program “was jeopardizing” several endangered species. Among the nine jeopardized species were the Key deer, Key Largo cotton mouse, Key Largo woodrat, Key tree-cactus, and the Lower Keys marsh rabbit. After a series of subsequent consultations, each of which was challenged by environmental organizations, the court ultimately granted the plaintiffs’ request to enjoin FEMA from issuing flood insurance for any new developments in the listed species’ suitable habitats in Monroe County.52

As described in detail below, EPA’s loss in the 1989 Defenders of Wildlife case did little to prod EPA into ESA compliance. Despite decades of noncompliance with the ESA, it was not until the early 2000s that a number of environmental organizations started to bring or threaten suit against EPA. Although most of these cases settled, the cases in which the courts rendered decisions demonstrate the courts’ frustration with EPA’s noncompliance with the ESA. Indeed, the courts have attempted to impose the types of geographic use restrictions on pesticide usage that FIFRA is so poorly designed to accommodate and which EPA has resisted implementing. In fact, as further described below, in one of the most extensively litigated cases, the court recognized that species protection must occur on a geographic basis and took it upon itself to impose very site-specific buffer requirements for spraying certain pesticides near water bodies containing certain listed salmon species.

In addition to the lawsuits against EPA for its failure to comply with the ESA when making FIFRA regulatory decisions, the early 2000s also saw a rush of litigation against federal agencies that used pesticides that put listed species at risk as part of their federal land management practices. In Oregon Natural Resources Council v. Keys II,53 plaintiffs filed suit against the Bureau of Reclamation (BOR), claiming that its application of acrolein and copper-containing pesticides in areas near the Lost River jeopardized the shortnose sucker and thus violated section 7(a)(2) of the ESA. After a series of consultations and lawsuits, BOR reinitiated consultation with the FWS mooting the ongoing litigation.54 In San Juan Audubon Society v. Veneman,55 plaintiffs filed suit against the Secretary of Agriculture and the Services (defendants), alleging that the defendants’ use of sodium cyanide ejectors violated restrictions set by EPA as the ejectors were frequently misused and led to the deaths of the California condor and other endangered species. The sodium cyanide ejectors, labeled M-44s, are designed to kill predatory animals for the protection of livestock, but because of the nature of the device it also poisoned scavenging condors.56 As a result, EPA regulated the use of M-44s and required the defendants to follow maps prepared by the FWS to prevent poisonings of listed species. The plaintiffs alleged that the defendants failed to follow these maps when applying M-44s in the condor’s area.57 The defendants filed a 12(b)(1) motion, arguing that the court lacked subject-matter jurisdiction over the dispute because there had not been a final agency action for the plaintiffs to appeal.58 The court denied the motion, stating that the “particular agency actions at issue in this case are the defendants’ approvals and individual decisions to place the M-44s” in areas causing harm to listed species without consulting the FWS maps as required by EPA. Furthermore, the placement of M-44s in the areas in question constituted the climax of the “defendants’ decision-making process,” and the failure to review the FWS maps when using the M-44s provided the plaintiffs with the right to sue.59 Because the plaintiffs only challenged these discrete agency actions and not the M-44s program as a whole, the court held that the plaintiffs could sue under the APA and that the motion to dismiss was improper.60

The current wave of litigation over the wildlife impacts to protected species from pesticide use started in 2002, when 40 environmental groups, including the American Bird Conservancy and Defenders of Wildlife, sent the EPA a Notice of Intent to Sue for violations of the ESA, MBTA, and Administrative Procedures Act (APA) concerning the registration of the pesticide fenthion due to the high risks fenthion posed to a number of bird species. Later in 2002, the US Fish and Wildlife Service recommended that EPA cancel existing registrations for fenthion immediately, due to the unreasonable adverse effects fenthion posed to avian species protection under ESA61 and MBTA.62 EPA failed to take action to reduce the risks as requested by the plaintiffs and as recommended by FWS. Consequently, in October of 2002 Defenders of Wildlife, the American Bird Conservancy and the Florida Wildlife Federation filed suit against EPA in federal district court alleging EPA had violated the ESA and MBTA. EPA was let off the hook when in 2003 the manufacturer of fenthion voluntarily canceled its registration of fenthion, rendering the lawsuit moot.63

In September of 2004, environmentalists won a significant victory when the Ninth Circuit Court of Appeals issued a decision affirming a January 2004 US District Court for the Western District of Washington order, which found that EPA had violated the ESA because it had failed to take steps to ensure that the registration of 54 pesticides would not jeopardize the survival of listed salmon species. The court’s ruling upheld the district court’s injunction, which imposed detailed buffer zones restricting the use of more than 30 pesticides along listed salmon-supporting waters in California, Oregon, and Washington states.64 The buffer zones adopted by the court came directly from the reasonable and prudent alternatives recommended by the Services in the 1989 BiOps. The attorney representing the environmental organizations in the case recommended to the judge that the minimum buffers from the 1989 BiOp would be appropriate because the Services had already evaluated the pesticides at issue and determined that use of these buffers would avoid jeopardy.

In its brief to the Ninth Circuit, EPA argued that the district court had erred in its decision that created mandatory buffer zones for application of the 55 active ingredients in question, and had required the EPA to provide written notifications to accompany pesticides sold in urban areas.65 The notification was headed “Salmon Hazard,” with the following text: “This product contains pesticides that may harm salmon or steelhead. Use of this product in urban areas can pollute salmon streams.” EPA claimed several grounds for appellate relief, focusing mainly on the relationship of its FIFRA duties with its responsibilities under the ESA.66 EPA first argued that since it had already granted a FIFRA license, any action that would result in a cancellation or modification of that license must be according to the statutory requirements of FIFRA.67 Furthermore, EPA claimed that FIFRA, when read in conjunction with the ESA, already took into account any concerns that registration might affect listed species.68 EPA argued that although the ESA had a citizen’s suit provision, it should not be read so as to provide citizen plaintiffs’ greater ability to enjoin pesticide registration than EPA itself possessed. EPA also sought a determination that the plaintiffs had not fully exhausted their administrative remedies,69 and that the district court, under the doctrine of primary jurisdiction, should have deferred to EPA as the agency with the necessary experience to fashion appropriate orders regarding the complexities of pesticide regulations. Under the doctrine of primary jurisdiction a court should abstain from ruling on certain issues that fall within the primary responsibilities of the acting agency.70 EPA proposed that the citizen plaintiffs should have first petitioned EPA to suspend registration of the offending active ingredients, and only upon an EPA decision of that petition should a lawsuit have been allowed.

The Ninth Circuit rejected EPA’s position, and agreed with the Eighth Circuit’s logic in Defenders of Wildlife v. EPA,71 stating that FIFRA does not allow EPA to exempt itself from the requirements of the ESA, and that EPA must comply with the ESA if its registration of pesticides will affect listed species.72 The court held that while the statutes have different purposes and different calculations, EPA could not avoid its duties under the ESA simply “because it is bound to comply with another statute that has consistent, complementary objectives.”73 The ESA, on the other hand, provides a virtual blanket prohibition against the takings of endangered species. The court then summarily dismissed another of EPA’s arguments; namely that EPA lacked discretion to cancel registration except under the statutory requirements of FIFRA.74 The court simply noted that the cases EPA cited involved completed agency actions in which there was “no ongoing regulatory authority.”75 These cases were not dispositive, however, as the court noted that EPA under FIFRA maintains continuing discretion to register pesticides, or in the alternative, modify or even cancel registration.76 The court similarly dismissed EPA’s argument that the plaintiffs had not adequately exhausted their administrative remedies, noting that FIFRA does not require a plaintiff to exhaust a FIFRA remedy before seeking relief under another statute.77

EPA primarily argued that it was bound only to apply the provisions of FIFRA, which had its own statutory language relating to endangered species. Under FIFRA section 6(c)(1)-(2), EPA may suspend registration of a pesticide for an immediate hazard, which per FIFRA section 2(l) can include its effect on endangered species.78 As such, EPA argued that it did not have an independent duty under section 7(a)(2) to consult with the FWS or the NMFS.79 The Ninth Circuit upheld the district court’s injunctive relief, noting that because it was the “maintenance of the ‘status quo’ that [was] alleged to be harming the endangered species,”80 the injunction was appropriate pending EPA compliance with the ESA. Furthermore, the court placed the burden of proof on EPA to show that its action was non-jeopardizing to the listed species, finding that such burden-shifting was appropriate under the ESA for agency actions that have violated section 7(a)(2).81

In September 2005, CropLife America petitioned for writ of certiorari to the United States Supreme Court seeking to have the Ninth Circuit’s decision in Washington Toxics Coalition v. EPA reversed.82 The petitioner argued that the Ninth Circuit had misapplied the scope of judicial review pertaining to agency actions under the APA, FIFRA and section 7 of the ESA. Principally, the petitioner argued that the district court and Ninth Circuit misapplied the judicial standard of review by applying a de novo standard to the challenged pesticide regulations.83 In conjunction with its main argument, the petitioner argued that since the EPA violation was procedural in nature, EPA was not substantively violating the ESA and therefore APA guidelines should have governed the judicial review.84 Furthermore, the petitioner asserted that until EPA had made a determination that the registration of pesticides “may affect” a listed species, there was no duty to consult with the NMFS.85 The petitioner’s final argument criticized the lower court rulings for failure to apply FIFRA requirements to a pesticide suspension.86 The majority of the petition argued, much like the petitioner’s brief to the Ninth Circuit, that the lower court failed to apply the pre-set judicial standards and deference to the acting agency throughout the judicial review process.87 The petitioner first noted that other circuits addressing the standard of review for the ESA’s citizen suit provisions had held that section 706 of the APA still applied (rather than a de novo standard).88 Because the district court applied a de novo standard, the court did not review the administrative record with regard to each pesticide registration, which the petitioner argued was relevant with regards to the “unreasonable adverse effects on the environment” as required by FIFRA.89 In addition, the refusal to apply the APA also meant that the APA remedies were not available—instead of simply compelling the EPA to make the appropriate effects determination, the petitioner argued, the court improperly enjoined the registration process and supplanted FIFRA.90 Not applying the APA was improper, the petitioner claimed, because the ESA “does not specify a standard of review … and therefore the agency action continues to be governed by the arbitrary and capricious standard of the APA.”91 The petitioner further argued that the court did not appropriately delineate between a substantive and procedural violation by EPA of the ESA as it held EPA to be a regulated party rather than an administrative agency.92 The petitioner argued that because EPA was only in procedural violation of the ESA (through its unreasonable delay in making effects determinations), the APA should have governed the cause of action.93 The petitioner’s non-APA argument first stated that the decision to consult with the NMFS must be predicated upon a decision by EPA that its actions may affect listed species.94 Since there had been no such determination, consultation should not have been required. In its second non-APA argument, the petitioner claimed that FIFRA’s substantive registration procedures, which provide for suspension due to an unreasonable hazard to a listed species, should not be bypassed by ESA injunction.95 The petitioner argued that FIFRA provides the necessary due process projections and procedures that reflect the balancing concerns Congress meant for when it enacted the statute. As a result of these concerns, the petitioner argued, the Supreme Court should review the below case.

The Supreme Court declined to hear the Washington Toxics Coalition case. However, in June 2007 the Supreme Court decided another pivotal ESA case, which has potential implications for FIFRA. In National Ass’n of Home Builders et al. v. Defenders of Wildlife,96 the issue presented to the Court was whether EPA must undergo consultation with the Services under section 7 of the ESA when determining whether to approve transfer of permitting-authority to a state under section 402(b) of the Clean Water Act. In Defenders of Wildlife, the state of Arizona applied for a transfer of CWA permitting-authority to it under section 402(b). EPA argued that CWA section 402(b)’s mandatory nature precluded EPA from denying Arizona’s application based on ESA considerations. It was not disputed that Arizona had met the nine specified criteria in section 402(b). The issue was whether EPA was required to determine whether under ESA section 7, its transfer decision would jeopardize listed species, thereby in essence adding a tenth required criterion to the list of nine in CWA section 402(b). In a 5–4 decision, the Supreme Court held that EPA was not required to undergo section 7 consultation or otherwise comply with the provisions of section 7 in granting a permit transfer under CWA section 402(b), because the decision to grant such a transfer is not a discretionary one. Of significant importance to the majority was the fact that CWA section 402(b) states that EPA “shall approve” a transfer if each of the nine specified criteria are met.

Because FIFRA section 3(c)(5) provides that EPA “shall register” a pesticide if EPA determines that the specified standards are met, it may appear at first glance that under Defenders of Wildlife, compliance with section 7 is not required when EPA makes a registration decision. However, there are significant differences in the requirements of CWA section 402(b) and those of FIFRA section 3(c)(5). CWA section 402(b) specifies an exclusive list of criteria that must be met for EPA to approve a transfer. Each of these criteria relates solely to the issue of whether the state applying for the transfer has the legal authority and other ability to carry out the permitting program. For example, the state must demonstrate that it has the ability to issue fixed-time permits and to ensure compliance with the CWA’s substantive criteria, and that it has the ability to provide for public notice and public hearings. These criteria do not in themselves relate to whether a transfer (or permits issued under such a transfer) will jeopardize listed species. Thus, the Court concluded that although EPA could exercise some discretion in applying the criteria, it could impose a completely new criterion addressing listed species impact to the exclusive list of criteria related to legal, administrative, and procedural abilities.

The criteria in FIFRA section 3(c)(5) on the other hand are not limited to determining whether a state has certain legal, administrative and procedural abilities. Instead, this section authorizes EPA to make a determination regarding whether a pesticide will cause “unreasonable adverse effects on the environment,” a term which is defined to include “all plants and man and other animals … and the interrelationships which exist among these.” Thus, by its very terms, FIFRA section 3(c)(5) authorizes EPA to evaluate risks to “plants and animals,” which inherently include threatened and endangered plants and animals. Although FIFRA uses the term “shall,” the term is used to mandate that EPA consider, among other things, the impacts on listed species. As the Ninth Circuit stated in Washington Toxics Coalition, the mandates of the ESA are complimentary to the mandates of FIFRA. Thus, unlike in Defenders of Wildlife, where compliance with the ESA would require that a completely new criterion be added to the statutory list, ESA compliance is complementary to the mandate of FIFRA. Although the ESA is complementary to FIFRA, a FIFRA unreasonable adverse effects determination is not the same as the jeopardy determination that results from the section 7 process. Thus, although EPA is required to consider adverse effects to listed species, its analysis under FIFRA is not a substitute for the analysis under the ESA.

Specifically, under FIFRA, EPA is required to consider a large number of factors, including public health considerations, economics, and social impacts in determining whether a pesticide should be registered. Under section 7 of the ESA, the sole consideration is whether the action will jeopardize the continued existence of the species. In Washington Toxics Coalition, the court found that requiring EPA to undergo the section 7 consultation process prior to making an unreasonable adverse effects determination under FIFRA would provide the type of information and Services’ expertise that would inform EPA’s FIFRA decision making. The court acknowledged that informed decision making is one of the primary purposes of the consultation process. Accordingly, the court’s rationale in Defenders of Wildlife would not extend to EPA’s decisions under FIFRA section 3(c)(5), because unlike EPA’s decision making under CWA section 402(b), under FIFRA, EPA is not only authorized to consider effects on plants and animals, it is required to do so. The mere fact that FIFRA uses the term “shall” is arguably irrelevant given the dramatically different mandates of CWA section 402(b) and those of FIFRA section 3(c)(5). Thus, it does not appear that Defenders of Wildlife in any way obviates or alters EPA’s requirement to comply with section 7 of the ESA when making FIFRA registration decisions. Thus, the Ninth Circuit’s holding in Washington Toxics Coalition, that EPA is required to comply with ESA section 7, is still good law. Further, under the 1989 Defenders of Wildlife case,97 EPA continues to have potential section 9 liability for registering pesticides that actually take listed species.

Despite the overwhelming loss in Washington Toxics Coalition, initially the only risk-reduction action that EPA took in response to the court order was to require that a “Point of Sale Notification” be distributed in retail stores that sell the pesticides subject to the Order. This notice is merely a one page flyer with a photograph of salmon, which states: “Salmon Hazard: This product contains pesticides that may harm salmon or steelhead. Use of this product in urban areas can pollute salmon streams. This point of sale notification was produced in compliance with a January 22, 2004 court order, to notify urban users about the potential for some pesticides to harm fish” (see Figure 12.1).

After its dramatic loss in Washington Toxics Coalition, EPA stopped litigating suits brought to force the agency to comply with section 7 of the ESA in the FIFRA registration process and pursued a policy of settling these cases.98 Some settlements actually occurred prior to the court decision in Washington Toxics Coalition. In Californians for Alternatives to Toxics v. EPA,99 EPA agreed, as part of the settlement, to make “effects determinations” for approximately 20 pesticides harmful to dozens of plant and salmon species by specified deadlines. One post-Washington Toxics settlement occurred in 2005, when EPA agreed to make “effects determinations” for six pesticides harmful to Barton Springs Salamander within specified time frames in response to a January 26, 2004 lawsuit against the agency brought by the Center for Biological Diversity and the Save Our Springs Alliance (SOSA). The suit, brought in the D.C. Circuit, alleged that EPA violated the anti-take provisions of the ESA when it registered six pesticides without reviewing the potential negative effects on the Barton Springs Salamander.100 The pesticides in question were atrazine, diazinon, carabaryl, prometon, metolachlor and simazine.101 In the lawsuit, the plaintiffs specifically charged that EPA had failed to comply with sections 7(a)(1) and 7(a)(2) of the Endangered Species Act,102 which require federal agencies to consult with the Services to guarantee that agency action will not jeopardize the continued existence of any listed endangered or threatened species.103


Figure 12.1 EPA’s point of sale notification

Under the terms of the Settlement Agreement, EPA would make effects determinations relating to the Barton Springs Salamander for the six pesticides according to the following schedule: (1) for atrazine, 12 months from the Settlement Agreement’s effective date; (2) for either carbaryl or diazinon, plus one additional pesticide listed in the complaint, 21 months (or 630 days) from the Settlement Agreement’s effective date; (3) and for the remaining three pesticides, 25 months (or 760 days) from the Settlement Agreement’s effective date.104 The effects determination could have three potential outcomes for the individual pesticide’s effect on the listed species: “no effect,” “may affect but is not likely to adversely affect,” or “may affect and is likely to adversely affect.”105 If EPA in its effects determination analysis makes a “may affect” or “likely to adversely affect” determination, then it will provide the relevant information to the FWS for formal consultation on that pesticide within 14 days of making that determination.106 As a result of the settlement, the plaintiffs released all claims pursued in the original lawsuit and agreed to not provide other plaintiffs with information that could lead to similar lawsuits on these same pesticides.107 Other recent settlements include EPA’s 2006 agreement with the Natural Resources Defense Council in which the agency agreed to make “effects determinations” for atrazine’s effect on 21 threatened and endangered species within specified time frames,108 and EPA’s 2006 agreement with the Center for Biological Diversity in which the agency agreed to make “effects determinations” for 66 pesticides harmful to the California red-legged frog within specified time frames.109 More recently, EPA agreed to a stipulated injunction to resolve a lawsuit brought by the Center for Biological Diversity, which establishes a schedule for EPA to review the effects of 75 pesticide active ingredients on 11 federally listed threatened or endangered species.110 The most recent litigation over EPA’s failure to comply with the ESA’s section 7 consultation requirements when making regulatory decisions on pesticides under FIFRA is a lawsuit filed on January 20, 2011 by the Center for Biological Diversity and the Pesticide Action Network North America.111 In this lawsuit, the plaintiffs assert that EPA has illegally failed to consult under section 7 of the ESA “regarding the impacts of hundreds of pesticides known to be harmful to more than 200 endangered and threatened species.” This lawsuit, known as the “Mega lawsuit,” because it involves hundreds of pesticides, could have significant impacts on farmers and the agricultural industry. Accordingly, the lawsuit has caught the attention of many industry groups who, arguing it could have devastating effect, have brought it to the attention of Congress. Congress has since held hearings on the topic and a National Academies, National Research Council committee is being established to look into the risk-assessment process used by EPA in making its “effects determinations.” On June 6, 2011, the court denied motions filed by numerous chemical industry and farming stakeholder groups to intervene in the lawsuit, thereby barring them from becoming parties to the suit.

The Agencies’ Regulatory Action and Inaction

EPA’s 35-year history with the ESA as applied to pesticide regulation has not been a good one. The Center for Biological Diversity (CBD) has criticized EPA as “display[ing] a stunning lack of initiative in complying with the Endangered Species Act,” and having demonstrated a “reckless disregard for the impact of its Pesticide Registration Program on wildlife, most importantly, on endangered species.”112 The primary concern expressed by CBD is EPA’s failure to carry out its obligation to conserve endangered species with a program to address pesticide impacts to such species.113 The affirmative obligation for federal agencies to conserve threatened and endangered species derives from section 7(a)(1) of the ESA, which provides that all federal agencies shall use their authorities in furtherance of the purposes of the Act by carrying out programs for the conservation of listed species. Prior to 1989, EPA had yet to formulate an effective method for consultation and review for potential pesticide threats to endangered species.114 The agency’s early attempts at meeting its section 7 responsibility consisted of case-by-case pesticide registration reviews for individual species.115 This process was cumbersome, however, and in 1982 EPA instead initiated the “cluster approach,” where all pesticides with similar use patterns—that is all pesticides that were used in a particular agricultural or ecological setting (such as corn farms, forests, rangeland, or areas suited to mosquito larval growth)—would be considered together, and the FWS would prepare one BiOp for all listed species potentially impacted by the pesticides.116 EPA began implementing this approach, and in the early 1980s consulted with the Services on clusters including the corn cluster, the small grain cluster, the forest cluster, the mosquito larvicide cluster and the rangeland/pastureland cluster. In 1983, the Services issued BiOps for each cluster, making jeopardy determinations for 21 listed species for the corn cluster from 1 or more of 39 pesticides; 21 listed species for the small grain cluster from 1 or more of 58 pesticides; 58 listed species for the forest cluster from 1 or more of 23 pesticides; 77 listed species for the mosquito larvicide cluster from 1 or more of 11 pesticides; and 159 listed species for the rangeland/pastureland cluster from 1 or more of 32 pesticides. This process, while quicker than the case-by-case method, suffered from problems of its own—namely minor uses for pesticides were not reviewed and a final cluster package review would take upwards of two to three years to complete.117 More importantly, EPA failed to take action to implement any Services recommendations in the 1983 cluster BiOps.

A 1986 independent review of EPA’s pesticide program found that the agency did not comply with section 7 of the ESA in one-third of all pesticide cases. Among the problems were registration of pesticides before receiving BiOps from the FWS and a failure to restrict harmful pesticides.118 In response to the review, in 1987 EPA announced it would seek full compliance with the ESA, by issuing restrictions for pesticides where a determination had been made that usage had been harmful to listed species, and by issuing further restrictions on labeling in conjunction with information bulletins providing use instructions.119 The proposal faced considerable opposition, and Congress itself intervened, delaying the EPA program until 1988.120

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