Feds Accused of Withholding Docs on Pesticide Use on Protected Lands

WASHINGTON (CN) - A nonprofit conservation organization claims in court that officials at the Environmental Protection Agency and Fish and Wildlife Service are stonewalling its efforts to obtain records related to an unreleased biological opinion on pesticide use on federally protected habitats.

In a federal complaint filed in Washington, D.C., on Tuesday, the Center for Biological Diversity claims it requested records in June 2017 related to the use of pesticides containing chlorpyrifos, diazinon, or malathion on species and their habitats protected under the Endangered Species Act.

To date, the Arizona-based nonprofit says, neither defendant agency has provided it with responsive records, a violation of the Freedom of Information Act.

“We’re trying to gather documents and inform the public as to what’s really going on here,” said Stephanie Parent, a staff attorney with the center. “They’re trying to conceal everything they can.”

Parent believes the agencies are refusing to release documents that underpinned their decision to okay the use of the pesticides at the request of manufacturers who reached out to the agencies after it became apparent federal regulators were prepared to issue an opinion that would curtail the use of their products.

According to the complaint, the EPA submitted its biological evaluations for the three pesticides to its regulating agencies in January 2017. The center claims the evaluations concluded with a warning that use of the pesticides would "likely adversely affect 1,778 endangered or threatened species and likely to adversely affect the designated critical habitat of 780 species."

The agencies committed to make draft biological opinions available to the public in May 2017, and to complete final opinions, incorporating input gathered during a 60-day public comment period -- in December 2017, the complaint says.

But the center claims that in April 2017, attorneys for pesticide producer Dow AgroSciences and others "insisted that EPA withdraw the Biological Evaluations for chlorpyrifos, diazinon, and malathion and that the Services stop work on their Biological Opinions for these pesticides."

As a result of those requests, the agencies dropped plans for releasing the draft biological opinions in May 2017 and have never made them publicly available.

In mid-November 2017, EPA and the Fish and Wildlife Service agreed to indefinitely extend the consultation on the registration of pesticide products containing chlorpyrifos, malathion, and diazinon, as a result, no regulatory opinion on their use has been released, the center says.

“[These chemicals] are designed to kill things which means they have a likelihood of harming unintended wildlife,” Parent said. “We don’t think it's a coincidence that the biological reviews were never released and haven’t been released to this day.”

Parent said she was told the denial was based on the deliberative process privilege, one of the exemptions that is used by federal agencies to withhold information usually accessible under FOIA.

Kel McClanahan, an FOIA lawyer with National Security Counselors, a public interest law firm, called the exemption the  "withhold whenever you feel like" exemption, explaining that it is often used when an agency doesn’t want to provide a detailed excuse.

“The agencies say ‘it would expose the deliberative process’... its generic language,” he said. “It’s not a frivolous thing to sue over, but it's probably one of the most contentious exemptions in modern FOIA because it is abused so much that it loses all meaning.”

The Center for Biological Diversity seeks a declaration that federal regulators have violated the Freedom of Information Act and an order directing them to release all documents relevant to the its request.

Representatives of the defendant agencies did not immediately respond to requests for comment.

Follow @@BradKutner

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit