A federal court in Maryland has permitted groups representing environmental and fishing interests to intervene in litigation filed by Dow AgroSciences LLC and two other pesticide manufacturers against the U.S. National Marine Fisheries Service (NMFS), seeking to overturn the agency’s opinion that three insecticides threaten the Pacific salmon. Dow AgroSciences LLC v. Nat’l Marine Fisheries Serv., No. 09-00824 (U.S. Dist. Ct., D. Md., S. Div., order entered August 23, 2011).
In March 2011, the Fourth Circuit Court of Appeals determined that NMFS’s biological opinion on the effects of chlorpyrifos, diazinon and malathion was judicially reviewable action under the Administrative Procedure Act, thus allowing the companies, which hold registrations for the insecticides from the Environmental Protection Agency (EPA), to challenge the action before the district court. NMFS apparently provided the biological opinion to EPA in 2008 as part of EPA’s process of reregistering the insecticides for sale and use; they were first registered in the 1950s and 1960s.
In response to a lawsuit filed by environmental groups in 2001, a federal court ordered EPA to consult with NMFS in connection with the pesticide ingredients. According to the Fourth Circuit, EPA initiated formal consultation with NMFS on 37 active pesticide ingredients, including those at issue in this litigation, “having concluded that they ‘may affect’ listed Pacific salmonid species and their habitats.” NMFS apparently failed to issue the biological opinion for several years, prompting additional litigation that resulted in its 2008 agreement to issue the opinion within 90 days. NMFS then concluded that “these insecticides would jeopardize critical habitat and prey for ‘evolutionary significant units’ of 28 Pacific salmonid species that are listed as endangered or threatened.”
According to a news source, the intervenors have filed a motion to dismiss the companies’ suit on the ground that the NMFS opinion is scientifically sound. They reportedly state, “At the end of the day, the [plaintiffs’] arguments amount to little more than a thinly veiled disagreement with NMFS’ ultimate conclusion that their products are severely harming threatened and endangered salmon and steelhead. Mere disagreement with the agency’s conclusions does not suffice to demonstrate that NMFS’ [biological opinion] is arbitrary, capricious or otherwise not in accordance with the Endangered Species Act.” See Law360, August 23, 2011.