'Mega' pesticide suit dismissed

'Mega' pesticide suit dismissed

- Case could have required buffer zones. - Ruling paves way for improving ESA consultations. - Similar pending cases could be dismisse

A COURT decision challenging pesticide registrations because they could negatively affect endangered species was dismissed — a move welcomed by the crop protection industry and farmers who were faced with the possibility of major restrictions on previously approved crop protection products.

The U.S. District Court of Northern California granted motions brought by CropLife America (CLA) and the Environmental Protection Agency to dismiss a lawsuit filed by the Center for Biological Diversity and the Pesticide Action Network of North America claiming that EPA failed to undertake consultations with the Fish & Wildlife Service and National Marine Fisheries Service, as required by the Endangered Species Act (ESA).

Since the lawsuit was filed on Jan. 20, 2011, the plaintiffs and defendants have engaged in settlement talks for almost two years. CLA's motion to dismiss claimed that the plaintiffs did not provide enough specificity regarding which actions EPA did or did not take, triggering the need for ESA consultations. It also argued that the complaint was submitted in the wrong court and outside the statutory deadline established for challenging a pesticide registration decision under the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA).

U.S. district Judge Joseph C. Spero presided over the hearings in the ESA "mega" lawsuit and ruled that the plaintiffs had not alleged specific government actions sufficient for the lawsuit to proceed.

The case challenged the pesticide registrations of more than 380 chemicals established under FIFRA that the plaintiffs claimed could negatively affect 214 species in 49 states. Atrazine and a number of other agricultural chemicals were specifically named in the suit.

The lawsuit requested that the court apply "appropriate restrictions on the use of pesticides where they may affect endangered and threatened species and critical habitats" until consultations had been completed and the product registrations were in compliance with ESA.

If successful, these "appropriate restrictions" could have resulted in the imposition of buffer zones and other product use restrictions that have the potential to dramatically reduce the amount of land available to agriculture while doing little to protect threatened species and their habitat, the National Corn Growers Assn., which had joined the case as an intervener in 2011, said in a statement.

Jay Vroom, president and chief executive officer of CLA, welcomed the suit's dismissal, saying the complaint was too vague and missed the mark on a host of legal factors. Vroom noted that the industry remains committed to hearing legitimate concerns of wildlife experts and looking at ways to continue to develop solutions for the betterment of both wildlife and farming.

"Modern agriculture and wildlife can and do coexist," Vroom said.

Rachel Lattimore, senior vice president and general counsel for CLA, added, "This significant decision paves the way for improvements to the ESA consultation process that can serve the needs of both endangered species and agriculture."

Joshua Saltzman, assistant general counsel for CLA, noted, "For more than a decade, crop protection product registrations have been challenged based on alleged ESA violations. Other similar lawsuits are still pending and threatening to limit U.S. agricultural competitiveness by taking away reliable tools that benefit farmers with no demonstrated, commensurate harm to endangered species. We are hopeful that the dismissal of the 'mega' suit will begin to move these important discussions out of the courtroom and into a more collegial and collaborative venue."

Vroom added that the dismissal provides an opportunity to renew discussions on the role of modern farming technologies in endangered species protection.

"This next chapter should look holistically at the entirety of modern agriculture and examine how our nation's farming systems continue to evolve and improve to benefit all wildlife — including endangered species — and their habitats," Vroom said.

Plaintiffs have 30 days to file an amended complaint in accordance with the court's order or 60 days to appeal to the Ninth U.S. Circuit Court of Appeals.

Volume:85 Issue:18

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