Pesticide Challenge Gets Boot Over Venue Issue

     WASHINGTON (CN) – A federal judge dismissed a challenge of a new pesticide that could affect as many as 1,377 federally protected species, citing a lack of jurisdiction.
     The Center for Biological Diversity, the Center for Food Safety and Defenders of Wildlife had brought the lawsuit last year against the U.S. Environmental Protection Agency.
     They complained that the EPA failed to do its diligence before authorizing a new pesticide cyantraniliprole (CTP) for use on a wide variety of agricultural crops, as well as golf courses, lawns, ornamental plants, fly bait and public health pests.
     U.S. District Judge Gladys Kessler tossed the case Thursday based on her finding that exclusive jurisdiction to review such matters falls to a U.S. Court of Appeals under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
     Because the groups challenged the federal agency’s registration of CTP under FIFRA, the statute’s review process should be followed, the court found.
     “Specifically with respect to FIFRA registration, the D.C. Circuit has held that plaintiffs must bring all challenges to an Order’s validity before the Courts of Appeals, even when a separate statutory scheme grants jurisdiction to the District Courts,” Kessler wrote.
     The groups describe CTP as a broad-spectrum systemic insecticide absorbed throughout plants.
     “It kills by causing unregulated activation of ryanodine receptors, which results in unregulated muscle contraction, paralysis, and death,” their complaint alleged.
     The complaint also noted that the EPA has “classified the chemical as ‘slightly to moderately toxic to freshwater fish; slightly toxic to estuarine/marine fish; slightly to very highly toxic to freshwater invertebrates; moderately to highly toxic to estuarine/marine invertebrates, highly toxic to benthic invertebrates; highly to very highly toxic to terrestrial insects’ from acute exposures.”
     Though the agency found that CTP was not acutely toxic to birds and mammals, their offspring showed “some impacts to weight and effects to thyroid and liver from chronic exposures,” the environmentalists claimed.
     The EPA identified a total 1,388 listed species that overlap at the county-level with areas where cyantraniliprole is proposed to be used, according to the complaint.
     Since “there is a potential for cyantraniliprole use to overlap with listed species,” the environmentalists said a more refined assessment is warranted.
     “Based on these risks, several entities, including some of the plaintiffs here, urged EPA to consult with the Services before authorizing uses of cyantraniliprole,” their complaint said, referring to the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service.
     The EPA registered the pesticide last January, including product mixtures containing other pesticides such as thiamethoxam.
     E.I. du Pont de Nemours and Company, Syngenta Crop Protection and CropLife America had intervened alongside the government’s motion to dismiss.
     Rejecting claims that the EPA failed to hold a public hearing, Kessler noted the EPA opened its website up to public comment on the CTP, garnering 23 comments before the deadline.
     “EPA responded to each of the comments it received before the deadline, and on Jan. 24, 2014, the agency approved the registration of CTP and fourteen end-use products containing the compound,” her ruling states.
     The judge ruled that “the adequacy of the record – not the formality of the proceedings – governs the question of whether there has been a ‘public hearing.'”
     Defenders of Wildlife emphasized that the ruling does not mean that the EPA’s designation was just.
     “What Judge Kessler is saying is that there is a court to hear this case, it’s just not District Court,” Defenders of Wildlife Senior Attorney Jason Rylander told CNS. “She’s saying the case belongs to the Court of Appeals, so it’s their potato now.”

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