The 4th U.S. Circuit Court of Appeals vacated the first BiOp (biological opinion) that would have led to far-reaching restrictions on the use of three crucial crop protection products. The ruling in the case (Dow AgroSciences et al. v. National Marine Fisheries Service) vacates the BiOp that National Marine Fisheries Service (NMFS) submitted to the U.S. Environmental Protection Agency (EPA), following consultations required by the Endangered Species Act (ESA). The court found NMFS’ BiOp “arbitrary and capricious,” concluded that it was not the product of reasoned decision making and thoroughly admonished NMFS for its inadequate scientific review.
The court also remanded the case back to NMFS for further proceedings consistent with its opinion, and noted that NMFS had “failed to explain or support several assumptions critical to its opinion.” The ruling inherently calls into question the use restrictions included in subsequent BiOps issued by NMFS.
CLA filed an amicus brief with the court on behalf of the plaintiffs on Feb. 28, 2012, arguing that NMFS used outdated toxicity data and studies; made faulty assumptions in calculating the potential for endangered species to come into contact with the products at issue in the case; and violated the ESA and the Administrative Procedure Act (APA). The BiOp’s inadequacies, recognized by the court, are indicative of the scientific disagreements between the Services and EPA, and demonstrate the lack of a sound and workable process for consultation under ESA.
“This important ruling is critical to the success of future ESA consultations,” said Rachel G. Lattimore, senior vice president and general counsel for CLA. “CLA is pleased that the court made a reasonable judgment that will hopefully set a standard for future BiOp decisions that affect the crop protection industry.”
The original suit challenged NMFS’ BiOp for chlorpyrifos, diazinon and malathion, three valuable crop protection products used in U.S. agriculture.
“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. The court’s ruling helps all stakeholders ensure the protection of endangered species and their habitats. This moment creates a further opportunity to remind the public that comprehensive modern agriculture technologies in fact assist with the preservation of endangered species and all wildlife,” added Jay Vroom, president and CEO of CLA.
For more information about the Endangered Species Act consultation process, visit www.croplifeamerica.org/pesticide-issues/endangered-species.