Should NMFS have to rewrite a Biological Opinion that prescribed measures to protect endangered salmonids and steelhead from diazinon, chlorpyrifos, and malathion?
That’s the question a panel of Fourth Circuit judges will consider in the weeks ahead, following arguments held this morning in Richmond, Va.
Attorneys for pesticide manufacturers Dow AgroSciences, Makhteshim Agan North America and Cheminova faced off against lawyers for the National Marine Fisheries Service and environmental groups, who were defending the BiOp as a rational result of the agency’s decisionmaking process.
The BiOp was released in November 2008.
Christopher Landau of Kirkland & Ellis in Washington, D.C., urged the judges to vacate the BiOp and direct NMFS to explain its reasoning, in particular how agricultural pesticides could persist for 96 hours “in the mighty Columbia River.”
“It’s not easy to understand how that would be,” he said, telling the judges that NMFS “[has] to provide reasoned decisionmaking.”
Landau also argued that an affidavit explaining the BiOp’s conclusions, which was written by an agency staffer and submitted to the lower court, was a post hoc rationalization.
The judges seemed receptive to that argument, with Circuit Judge Dennis Shedd asking, “How is he authorized to speak for the agency?”
In the lower court, U.S. District Judge Alexander Williams found that the declaration “merely supplements and illuminates the record rather than serving as a post-hoc rationalization.”
The judges also seemed sympathetic to Landau and fellow attorney David Weinberg of Wiley Rein that NMFS should have taken into account the economic impact that imposition of Reasonable and Prudent Alternatives — including a buffer zone — would have on farmers and manufacturers.
NMFS essentially said, “Economics, shmeconomics,” Landau said. Circuit Judge Paul V. Niemeyer said he “assumed” that U.S. policy is both to protect species and to allow agriculture to continue to operate.
“This accommodation has to take place,” he said. (The other judge on the panel was G. Steven Agee.)
Williams, in the lower court, found that the ESA “does not require the NMFS to consider financial impacts on third parties such as [Dow, et al.] in determining whether the buffers are economically feasible.”
Mark Haag of the Justice Department’s appellate division and Stephen Mashuda of Earthjustice defended the BiOp before the panel. Look for more reporting on the arguments later today in this space; unfortunately, at this time (about 12:30 pm ET), this reporter has to get back on 95 and head back to Washington, D.C.
- Dow, et al. opening brief and response
- Government’s brief
- Environmental groups’ brief
- Amicus brief (CropLife America)
More pesticide links
- NMFS pesticide consultation page
- Nossaman article on district court decision in Washington state
- EPA letter to NMFS (May 14, 2010) on how EPA will comply with 4/20/2009 BiOp, on effects on salmonids of carbaryl, carbofuran and methomyl
- Aug. 19, 2010 letter from EPA to NMFS re: draft BiOp on 12 organophosphate pesticides