EPA Can’t Dodge Suit Over Toxic Pesticide Ingredients

SAN FRANCISCO (CN) – A trimmed down lawsuit challenging the Environmental Protection Agency’s approval of 35 pesticide ingredients that allegedly harm endangered species will move forward, a federal judge ruled from the bench Friday.

U.S. Magistrate Judge Joseph Spero said he found allegations laid out in a hefty, 271-page amended complaint “sufficient” to survive a motion to dismiss, but he warned the plaintiffs they will need to get more specific to survive a summary judgment motion down the road.

“I think it’s totally appropriate that we have to up our game as we move into the summary judgment phase,” plaintiffs’ attorney Stephanie Parent said in court Friday.

Parent represents the Center for Biological Diversity and Pesticide Action Network, which challenged 382 EPA-registered pesticides in a 2011 lawsuit. The plaintiffs claim the EPA failed to consult with other federal agencies on potential harm to threatened animals as required under the Endangered Species Act.

After multiple rounds of litigation and a Ninth Circuit ruling last year, the plaintiffs narrowed their lawsuit to challenge 35 allegedly harmful chemicals approved for use by the EPA.

U.S. Department of Justice lawyer Bridget Kennedy McNeil asked Spero to dismiss the suit, arguing the plaintiffs failed to show a clear link between each chemical and specific harm to an endangered animal.

To make her case, McNeil pointed out that one challenged chemical, acephate, suspected to pose a threat to the endangered Mississippi gopher frog, is found in a pesticide only authorized for use on tobacco farms.

“Tobacco farms are certainly not in the habitat where the gopher frog is,” McNeil told the judge.

Another chemical known as 2,4-D, salt and esters has been found to potentially pose a threat to the Puerto Rican crested toad, but McNeil said the plaintiffs failed to allege whether that chemical is applied in Puerto Rico or the U.S. Virgin Islands, where the endangered toads lives.

“Our bottom line is plaintiffs can’t assume these are applicable,” McNeil argued. “They must show standing for each claim.”

Spero disagreed, saying at this still-early stage of litigation, the plaintiffs need only allege a concrete and remediable injury related to the EPA’s alleged violation of the Endangered Species Act.

But the judge did voice concern about the broad scope of the lawsuit, which challenges more than 2,000 EPA actions related to the approval of pesticide products containing the 35 chemicals at issue.

To survive a challenge to standing at a later stage of litigation, the two non-profit plaintiffs must provide declarations describing how the products and ingredients harm endangered species in parts of the country where their members live or frequently visit for purposes of education or recreation.

That could require filing hundreds of declarations that would significantly delay the litigation, undercutting one of the plaintiffs’ main gripes about the EPA: its consistent delay in reviewing the chemicals and rendering decisions.

“The main reason you’re in this case is because of timing as much as anything else,” Spero said. “If it’s going to take you 10 years to go through the litigation, I’m not sure it’s going to help you.”

 Representing the plaintiffs, Parent said she is working to identify “priority pesticides” and considering a proposal to move forward with only two or three ingredients at first.

Spero gave the plaintiffs 30 days to amend their complaint to add details about a required pre-filing notice to the EPA and claims for mitigation relief related to certain challenged pesticide products.

The judge also rejected intervening defendant and industry group CropLife America’s argument that claims related to six pesticide ingredients are moot because the EPA already started consultation with the National Marine Fisheries Service or U.S. Fish and Wildlife Service for those chemicals.

“I think there are still remedies on those six ingredients,” Spero said.

The judge scheduled a case management conference for Aug. 17.

 

 

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