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Opinion (Dow AgroSciences v. NMFS, 11-2337)
The Fourth Circuit has vacated a Biological Opinion analyzing the effects of certain pesticides on Pacific salmonids, saying the science used by the National Marine Fisheries Service did not justify the conclusions reached in the BiOp (Dow AgroSciences v. NMFS, 11-2337).
The 23-page opinion, issued today (Feb. 21), was authored by Appeals Court Judge Paul V. Niemeyer. He was joined by Circuit Judges Dennis W. Shedd and G. Steven Agee.
In the process of finding for the three pesticide manufacturers, the court declined to consider an affidavit submitted at the summary judgment stage before U.S. District Judge Alexander Williams in Maryland. Williams had allowed the affidavit, in which a NMFS toxicologist “discussed the sources of data and information that the Service considered and rebutted a number of arguments that the Pesticide Manufacturers had made in their motion for summary judgment.” (quote from Fourth Cir. opinion)
The manufacturers contended that it “contained improper post-hoc rationalizations for the Fisheries Service’s BiOp,” the appeals court noted.
“Here, where [NMFS] provided a 482-page BiOp, it can hardly be argued that the administrative record was so lacking in explanations as to necessitate reliance on a litigation affidavit in conducting judicial review. See Camp, 411 U.S. at 142-43. We therefore conclude that the district court erred in receiving and considering the Hawkes affidavit.”
The court took issue with NMFS’ use of a 96-hour exposure standard. “At bottom, we conclude that the Fisheries Service’s failure
to explain why it used the 96-hour exposure assumption renders the BiOp arbitrary and capricious,” the court said.
Here are the first three paragraphs of the opinion:
NIEMEYER, Circuit Judge:
In this appeal, we decide whether a “biological opinion” (“BiOp”) issued by the National Marine Fisheries Service (“Fisheries Service” or “the Service”) to the Environmental Protection Agency (“EPA”) is arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706. The BiOp, which the Fisheries Service provided as part of the EPA’s process of reregistering the pesticides chlorpyrifos, diazinon, and malathion, concluded that these pesticides would jeopardize the viability of certain Pacific salmonids and their habitat and that the pesticides could not be reregistered and therefore used without substantial restriction.
Three manufacturers of these pesticides commenced this action, challenging the BiOp by contending that it rested on numerous unsupported assumptions and conclusions and faulty analyses and that therefore it was arbitrary and capricious.
The district court, unpersuaded, granted the Fisheries Service’s motion for summary judgment, finding that the BiOp was rationally supported by the “voluminous facts and studies considered by the [Fisheries Service].” On appeal, we reverse, concluding that the BiOp was not the product of reasoned decisionmaking in that the Fisheries Service failed to explain or support several assumptions critical to its opinion. To enable a renewed agency process, we vacate the BiOp and remand this case to the district court with instructions to remand it to the Fisheries Service for further proceedings consistent with this opinion.