Pesticides and Pacific Salmon: The Long and Winding Litigation Road Gets Longer as the Fourth Circuit Strikes Down NMFS's Biological Opinion

February 25, 2013

Last week, the U.S. Court of Appeals for the Fourth Circuit struck down the National Marine Fisheries Service's Biological Opinion ("BiOP") concluding that certain pesticides jeopardize endangered Pacific salmonid species. The Fourth Circuit's ruling is the latest volley in litigation dating back more than a decade concerning the impacts of pesticide exposure on endangered salmon and steelhead. Because the Fourth Circuit remanded the BiOp for further action, the Court's opinion will not be the last word.

The litigation has its roots in the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), which requires the Environmental Protection Agency ("EPA") to register pesticides before they can be sold. Under 1988 amendments to FIFRA, EPA is required to re-register any pesticide that was originally registered prior to 1984 and, in doing so, to examine data concerning, among other things, whether the pesticide has "unreasonable adverse effects" on the environment. The first shot in the litigation war was fired in 2001, when a coalition of environmental groups filed suit in the U.S. District Court here in Seattle, successfully arguing that EPA's registration of pesticides is a "federal action." Because registration is a "federal action," EPA is required to consult under the Endangered Species Act ("ESA") with the relevant federal agencies to ensure that registration does not jeopardize the survival of listed species. The District Court's opinion requiring consultation was affirmed by the U.S. Court of Appeals for the Ninth Circuit in 2005.

EPA, in consultation with the Fisheries Service, then evaluated 37 active pesticides, including malathion, diazinon, and chlorpyrifos, for their effects on listed salmonid species. After a long delay with no final action, however, environmentalists filed a second suit seeking to force the Fisheries Service to issue the BiOp. The lawsuit was settled in 2008 and the Fisheries Service issued a draft BiOp shortly thereafter.

The EPA, several states, and a group of pesticide manufacturers all challenged the draft BiOp on a number of grounds. The Fisheries Service then issued a final BiOp in late 2008 finding that malathion, diazinon, and chlorpyrifos would jeopardize 27 of 28 listed salmonid species and adversely affect the critical habitat of 25 out of 26 listed species. The Fisheries Service therefore recommended that the pesticides be reregistered only under a number of specific conditions, including a uniform buffers from water bodies. The core question in the Fourth Circuit opinion is whether the Fisheries Service adequately addressed criticisms of its methods and conclusions in the final BiOp.

The manufacturers of the three pesticides challenged the Fisheries Service's BiOp findings in the U.S. District Court in Maryland. After an initial ruling and appeals on procedural issues, the challenge was rejected in the District Court. But, in last week's opinion, the Fourth Circuit reversed, concluding that the Fisheries Service had not adequately explained its conclusions with respect to several technical issues. In particular, the Fourth Circuit concluded that the Fisheries Service did not adequately explain its assumption that fish would be exposed to lethal levels of pesticides for 96 hours, finding that, while the 96-hour assumption is generally used in laboratory tests, the Fisheries Service failed to explain how the assumption bears out in the real world. The Court also faulted the Fisheries Service for failing to explain why it relied on older water sample data from the U.S. Geological Survey when newer data, reflecting revised practices for application of the pesticides, was available. Finally, the Fourth Circuit faulted the Fisheries Service for recommending uniform buffers of 500 feet for ground applications of the pesticides, and 1, 000 feet for air applications. In the Court's view, the Service failed to adequately explain how its recommendation for uniform buffers can be squared with evidence indicating that the effects of pesticides can vary widely with stream size, depth, and channel morphology.

While the Fourth Circuit found the Fisheries Service's record evidence and explanations lacking in many respects, the Court did not dictate any particular result on remand. It is therefore possible that the Fisheries Service will issue a similar BiOp and that the BiOp could withstand judicial review if supported by adequate evidence and explanation. In any event, it seems likely this long and winding litigation road will have yet more twists and turns in the future.

If you have any questions about the Fourth Circuit opinion discussed in this post, the EPA, NMFS, FIFRA, or the ESA, please contact a member of GTH's Environment & Natural Resources practice group.