by Todd Neeley, DTN Staff Reporter
OMAHA (DTN) — EPA has asked a California court to dismiss a lawsuit that could ultimately affect the usage of hundreds of pesticides and other agriculture chemicals as they relate to endangered species, nearly two years after a number of environmental groups challenged EPA.
EPA said the suit did not identify specific agency actions in the course of registering ag chemicals that adversely affected endangered species, according to the motion filed Nov. 16 in the U.S. District Court for the Northern District of California in San Francisco. The court has scheduled a hearing for Feb. 15, 2013.
The court's previous stay on the case essentially froze legal action while the environmental groups and agriculture groups were in settlement negotiations. That stay expired Nov. 1.
The Center for Biological Diversity and other environmental groups filed suit Jan. 20, 2011, alleging EPA violated the Endangered Species Act by not consulting federal wildlife officials about the potential effects that pesticides and other ag chemicals would have on hundreds of species.
The lawsuit lists more than 300 registered pesticides and other ag chemicals and their potential effects on about 200 species. The outcome of the lawsuit could affect some 30,000 ag chemical/endangered species combinations in all 50 states — potentially making it more difficult for farmers across the country to use the chemicals they need.
EPA argues in its motion that Endangered Species Act requirements are triggered only by “affirmative agency actions” that may affect listed species or “designated critical habitat.”
One of the criticisms of the CBD lawsuit has been the complaint cites no specific evidence that pesticides and other chemicals are hurting threatened or endangered species.
“Nor do plaintiffs allege facts that, if true, would establish a causal link between any specific EPA action and adverse effects to specific listed species or critical habitat in any particular area,” EPA said in its motion.
In addition, the motion claims the plaintiffs are running up against the statute of limitations on many of the chemicals listed in the lawsuit.
“To the extent plaintiffs are attempting to challenge unidentified FIFRA actions taken more than six years before the complaint was filed, those claims would be barred by the statute of limitations,” the EPA motion said. FIFRA is the Federal Insecticide, Fungicide and Rodenticide Act.
In addition, CropLife America filed a motion Nov. 16, renewing its request to intervene in the case.
CropLife America said the federal government “has failed to defend the legality” of FIFRA licenses, “creating a cloud over Intervenor-Defendants' registrations and impairing their interests in those licenses,” according to the motion.
The company said it should be granted intervenor status because another court granted similar status to the company in a case involving a challenge to 64 pesticide registrations.
“Intervenor-defendants here have invested significant time, money, and effort in the process of registering pesticides through FIFRA, and this case threatens to reopen that process and puts intervenor-defendants' investment of billions of dollars in the FIFRA regulatory approval process at risk,” CropLife America said in the motion.
SETTLEMENT NEGOTIATIONS
Settlement talks have been ongoing for nearly two years. The court had granted a stay in the case to allow those talks to continue. Although the stay was lifted Nov. 1, CBD attorney Justin Augustine told DTN Tuesday settlement talks are continuing.
The Center for Biological Diversity has asked for interim restrictions on how all pesticides named in the lawsuit could be used until EPA makes individual determinations about permanent restrictions.
A Sept. 12 status report filed with the court by CropLife America, the American Farm Bureau Federation and other plaintiffs, said negotiations include deciding what if any interim, non-label restrictions would be made to various chemicals, or which areas of the country would be covered by such restrictions.
“The latter two points are the most difficult on which to reach agreement, because they involve detailed review of maps, pesticide-use areas and species habitat,” the status report said.
“Individual determinations must be made for each species and, defendant-intervenors believe, in some cases for various species-habitat combinations.”
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