On February 21, 2013, the Fourth Circuit Court of Appeals issued a landmark decision in Dow Agrosciences v. National Marine Fisheries Service (NMFS). It set aside a Biological Opinion (BiOp) prepared by the NMFS that found use of pesticides chlorpyrifos, diazinon, and malathion could jeopardize certain species of salmon and their habitat. The decision will have significant implications for the government and pesticide registrants alike. Here’s why.
The decision is an outgrowth of litigation concerning the effect of pesticides on endangered or threatened species that stretches back to 2001. In Washington Toxics Coalition v. the U.S. Environmental Protection Agency (EPA), a District Court in Washington and the Ninth Circuit Court of Appeals ordered the EPA to determine whether it should have consulted with the NMFS concerning re-registration of 55 specific pesticides. EPA subsequently decided that 37 of these pesticides might affect the viability of specific salmon species and initiated a formal consultation for them with the NMFS.
NMFS didn’t act promptly and the delay resulted in another lawsuit, followed by a settlement requiring NMFS to issue the delayed BiOp in 2008. The manufacturers of the three affected pesticides then challenged the BiOp case in District Court in Maryland.
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The court originally agreed with NMFS that the BiOp would only be subject to judicial review in the context of subsequent re-registration actions by EPA, but the Fourth Circuit Court of Appeals reversed the District Court and held that the BiOp was “final action” subject to review under the Administrative Procedure Act. The District Court granted summary judgment to the NMFS and affirmed EPA’s obligation to review its re-registration decision for the three pesticides in light of the BiOp.
The new decision by the Court of Appeals reverses the District Court once again. A key part of the new decision discusses the principle that review of agency action must be based on an explanation that’s included in the court record and reflects decisions made on a real-time basis, and that “after the fact” rationalizations aren’t permitted. NMFS submitted a “supplementary affidavit” and provided additional explanation of the rationale for the BiOp in its brief, but the appeals court stated that it was an error for the District Court to consider this information.
The court determined that the BiOp was arbitrary and capricious because the NMFS failed to provide an adequate explanation concerning several critical choices. These include the use of a certain model, use of older monitoring data that don’t reflect actual enforceable mitigation measures, and recommendations for additional mitigation measures without regard to real-world conditions.
This decision will have far-reaching consequences because of the large number of pesticides that may be subject to referral to either the NMFS or the Fish and Wildlife Service (the Services) in connection with previous actions by the EPA during pesticide re-registration or future actions by EPA during registration review. When the EPA takes such a registration action, Endangered Species Act (ESA) Section 7(a)(2) requires the EPA to determine, in consultation with the Services, that the action isn’t likely to jeopardize the continued existence of any endangered or threatened species. Current procedures require EPA scientists to make an initial threshold determination whether continued registration “might” have such an effect, followed by referral to the Services for a formal consultation in instances where this threshold is met. The decision will likely cause the Services to re-evaluate the adequacy of scientific methodologies they use in preparing BiOps, and is apt to change the level of explanation for key analytical assumptions that’s considered sufficient. Such changes could exacerbate a queuing problem with the ESA consultations for pesticides that EPA has already initiated or is considering initiating.
This new decision will likely lead to further discussion of potential revisions to the existing process for commencing and completing consultation under the ESA, which many argue will become increasingly dysfunctional without some sort of legislative revision or reform.