Chemical Makers Ask Court to Toss Agency’s Pesticide Warning

GREENBELT, Md. (CN) – Chemical makers are claiming in federal court that the National Marine Fisheries Service relied on faulty science when it concluded their products “jeopardize the continued existence” of 38 marine species.

In a federal lawsuit filed in Greenbelt, Maryland, on Tuesday, plaintiffs Makhteshim-Agan of North America, FMC Corp. and Dow Agrosciences claim a biological opinion the agency issued in late 2017 repeats errors the regulators made in 2008 when the fisheries service issued a similar opinion.

That opinion was struck down by the Fourth Circuit in 2013.

The agency’s latest opinion was aimed at limiting the use of three pesticides that it said would possibly kill off 38 marine species and “result in the destruction or adverse modification of critical habitat” of 37 others species protected under the Endangered Species Act.

The chemical companies argue the research used in the 3,700-page document failed to comport with federal regulations or the previous order handed down by the Fourth Circuit.

According to David Weinberg, who is representing the companies: The agency “failed to clearly define the action it was evaluating, improperly relied heavily on information concerning abandoned or soon-to-be-abandoned historical uses, failed to use the best commercial and scientific information available [and] used newly developed and un-tested models without providing sufficient explanations or information regarding them.”

The complaint also points to a statement released with the 2017 opinion that says the agency failed to take into account some stakeholders’ concerns.

“Getting more time would have also allowed NMFS to engage with the public and stakeholders on a draft biological opinion prior to issuance of a final biological opinion, as originally planned and as recommended by the National Academies of Sciences,” the statement said. “Unfortunately, NMFS did not receive the requested extension and was required to transmit the biological opinion which, given the time, cannot fully account for the need to coordinate on a different process for developing such opinions or to fully engage the public.”

The Fourth Circuit struck down the agency’s 2008 opinion on the grounds that it was “arbitrary and capricious.”

The 2008 opinion “relied on a selection of data, tests, and standards that did not always appear to be logical, obvious, or even rational,” U.S. Circuit Judge Paul Neimeyer had said in 2013. “While the [agency] may have had good and satisfactory explanations for its choices, the [opinion] did not explain them with sufficient clarity to enable us to review their reasonableness.”

The 2013 order concluded by directing the agency to prepare the opinion that is at the subject of the current lawsuit.

NMFS spokeswoman Kate Brogan declined to comment, citing a policy on pending litigation.

The chemical companies are asking the court to toss the agency’s latest opinion and award them repayment of the costs of the litigation.

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