Insecticide Makers Can Challenge Agency Opinion

(CN) - Three pesticide manufacturers can challenge a biological opinion issued by the National Marine Fisheries Service finding that their products will destroy or harm Pacific salmon and their habitats, the 4th Circuit has ruled.

The biological opinion, which was provided to the Environmental Protection Agency by the fisheries service, is part of an ongoing registration process for chlorpyrifos, diazinon and malathion.

Dow Agrosciences, Makhteshim Agan of North America and Cheminova, which manufacture those insecticides, asked the courts to intervene, but a federal judge in Greenbelt, Md., dismissed the case for lack of jurisdiction. The lower court had ruled that it could not interfere because the biological opinion was a just a step in the EPA's process, but not "final agency action" since the EPA had not yet acted on it.

Judge Paul Niemeyer, writing for the Richmond, Va.-based appeals court, disagreed and quoted the Supreme Court decision in Bennet v. Spear that a biological opinion "mark[s] the 'consummation' of the agency's decision making process."

The consultation provisions of the Endangered Species Act require the agency to seek out biological opinions from appropriate bodies when registering toxic chemicals under the Federal Insecticide, Fungicide, and Pesticide Act (FIFRA), Niemeyer found. The release of that opinion, in this case by the fisheries service, marks the end of the consultation process and constitutes "final agency action," according to the decision released Wednesday by the three-judge panel.

Because the Endangered Species Act grants safe harbor from civil and criminal liability for entities acting in compliance with a biological opinion, the manufacturers must be able to challenge it even before EPA issues a ruling, the court found.

Otherwise, Niemeyer concluded, the manufacturers could face liability under the Endangered Species Act while trying to comply with an order under FIFRA.

"If the EPA were to choose not to rely on the Fisheries Service's [biological opinion], then the [opinion] would not be subject to any review in a judicial proceeding challenging the FIFRA reregistration order," Neimeyer wrote.

"Yet, the [biological opinion] would still exist, having significant legal consequences. ... Thus, after the EPA's reregistration decision, the Pesticide Manufacturers would still be governed in part by the [opinion]. If the Pesticide Manufacturers took an action that complied with the EPA's reregistration decision, but did not comply with all of the terms of the [opinion], they would not be protected by the biological opinion's safe harbor," he continued.

The judges remanded the case back to District Court for further action.

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