Pesticide Oversight Suit Deemed Too Ambiguous

     SAN FRANCISCO (CN) – Environmentalists must clarify their claims about pesticide oversight for regulators that found the amended complaint too ambiguous, a federal judge ruled.
     The Center for Biological Diversity previously sued the Environmental Protection Agency under the Endangered Species Act for allegedly failing to “consult with respect to its oversight of 382 pesticide ingredients,” as well as pesticides discussed in biological opinions from 1989 and 1993, according to the ruling.
     The court dismissed this first complaint on the grounds that the center failed to show that the EPA had a duty to consult about the matter. It also found that the center’s claims were too vague and ordered the group to plead “for a specific pesticide, that the agency had prior consultation, and facts showing that one [or] more of the triggering events occurred.”
     In a 437-page amended complaint, the center advanced 74 claims alleging that the EPA either failed to consult or failed to reinitiate consultation with regard to 50 specific pesticide ingredients.
     Claims about trifluralin, a synthetic chemical used as an herbicide on grass and to control broadleaf weeds in crops like cotton and soybeans, accounted for the bulk of the amended complaint.
     Animal studies performed on rats and dogs have indicated that prolonged exposure to trifluralin can cause weight loss, skeletal abnormalities and tumor growth. Little information is available on the chemical’s effects on humans, but the EPA has determined that it may cause cancer and set the safety threshold at 0.0075 milligrams per kilogram a day over a lifetime.
     The EPA authorized the use of trifluralin in pesticides in a 2004 reregistration eligibility decision, and began another reregistration review for the chemical in 2012. The center argued that, given the EPA’s long-term discretionary control over trifluralin regulation and the potential for the chemical to harm protected species, the agency’s registration of the chemical is an ongoing, affirmative agency action that is “subject to consultation under section 7(a)(2)” of the Endangered Species Act.
     According to the EPA’s notes in its decision to register trifluralin, the chemical is a known endocrine disrupter, is toxic to several species of protected fish and other aquatic life, and is found in waterways throughout the nation in which these species live.
     The center claims that the EPA violated the Endangered Species Act by failing to consult with the National Marine Fisheries Service about trifluralin’s possible effects on endangered species and their critical habitat before it reregistered the chemical.
     Regulators nevertheless moved for a more definitive statement, arguing that the center failed to specify which of its actions regarding trifluralin triggers its duty to consult or reinitiate consultation on the chemical. It also argued that several of the group’s allegations are time-barred, that the group lacks standing, and that the proper jurisdiction for its claims lies with the Courts of Appeal.
     U.S. District Judge Joseph Spero declined Monday to address arguments pertaining to the sufficiency and merits of the center’s claims – including questions of timeliness and standing – because such arguments are improper for a Rule 12(e) pleading.
     He agreed with the EPA, however, that the center did not specifically identify which affirmative agency actions require it to consult about trifluralin before reregistering it.
     In this respect, the group’s amended complaint is “vague and ambiguous,” Spero wrote.
     “As the court held in the dismissal order, the duty to consult is only triggered when the EPA undertakes an affirmative agency act with respect to a pesticide ingredient,” he added. “Indeed, ‘[w]here private activity is proceeding pursuant to a vested right or to a previously issued license, an agency has no duty to consult under section 7 if it takes no further affirmative action regarding the activity.’ … Accordingly, clear identification of specific affirmative act or acts that trigger the duty to consult is of the utmost importance.”
     Here, the center listed many affirmative acts, including product registrations, without specifying which act triggers the consultation requirement. The group also “fails to specify any particular product registration that contains trifluralin, and instead, merely reference[s] a website that shows ‘[a]ctive product registrations for this pesticide,” the ruling states (brackets in original).
     Spero took issue with the group’s claim that it was more practical to refer to the EPA’s website than to list all product registrations in its amended complaint.
     “This is insufficient,” the judge wrote. “If it is too difficult even for plaintiffs to identify the particular product reregistrations with allegedly trigger the duty to consult – much less assert the facts giving rise to standing, jurisdiction and timeliness, then it is unreasonable for the federal defendants and intervenors to prepare a response with respect to such product reregistrations.”
     He ordered the center to “provide an exhaustive list of every affirmative act that triggered the duty to consult,” and the date of each act, for each failure-to-consult claim in another amended complaint.
     The group does not have to amend its claims for failure to reinitiate consultation because they are not triggered by an affirmative agency action but by other triggers, which are listed in the group’s amended complaint.

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