Hollow Victory for Anti-Pesticide Groups

In a 2-1 decision issued on June 30, the D.C. Circuit court of appeals has allowed the continued use of cyantraniliprole (“CTP”)—which is classified by EPA as a reduced-risk agricultural insecticide—despite EPA’s undisputed failure to comply with Endangered Species Act (“ESA”) requirements to make an endangered/threatened species “effects” determination and consult with federal wildlife agencies.  The declaratory judgment litigation was brought by the Center for Biological Diversity and other litigious environmental advocacy groups to challenge EPA’s decision to grant registration to CTP under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), the federal pesticide statute, without first making an effects determination and consulting with the Commerce Department’s National Marine Fisheries Service and the Interior Department’s Fish and Wildlife Service.

EPA is not oblivious to its obligations under the ESA.  See EPA website, “Assessing Pesticides Under the Endangered Species Act.”  For more than a decade, however, anti-pesticide activists, with mixed success, have sought to use the ESA to enjoin and/or compel EPA to reassess a large number of FIFRA pesticide registration actions.  See EPA website, “Endangered Species Litigation and Associated Pesticide Limitations.”   Some of this so-called citizen-suit litigation has resulted in settlements requiring EPA to conduct pesticide-specific “effects” assessments and consultations according to agreed-upon schedules.

As to EPA’s alleged failure to comply with ESA consultation requirements concerning CTP, which is used to control pests that attack citrus and blueberry crops, the court of appeals found that the “conservation group” plaintiffs had standing to sue on behalf of their members.  One member alleged, for example, that he has “recreational, scientific, aesthetic, educational, moral, spiritual and conservation interests . . . in observing the Valley Elderberry Longhorn Beetle in its natural California habit.”  Op. at 15.

On the merits of the plaintiffs’ litigation, the court of appeals indicated that “an agency may not duck its consultation requirement, whether based on limited resources, agency priorities, or otherwise.”  Id. at 24 n.10.  The most notable aspect of the decision, however, was the panel majority’s remand to EPA for further consideration without vacating the CTP registration approval.  The panel majority relied on EPA’s administrative findings that CTP provides “growers with an effective tool” that is “generally less toxic towards mammals, birds and fish . . . compared to currently registered alternatives.”  Id. at 26.  The court also denied the plaintiffs’ “request to establish a deadline for the EPA to conduct its ESA consultation and to require the EPA to report its progress to this Court every six months until consultation is complete.”  Id. at 26 n.12.

Although the dissenting judge, who would have dismissed the litigation for lack of standing, referred to “the majority’s flawed remedy of remanding without vacating,”  Dissenting Op. at 6, allowing the continued use of CTP not only was warranted, but also represents an enlightened, balanced approach on the part of the court.  So does the court’s refusal to allow the plaintiffs to dictate a schedule for EPA’s regulatory activities.

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