Endangered Species & Wetlands Report

U.S. District Court Judge Joseph C. Spero dismissed an ESA citizen suit seeking to force consultation under the ESA “regarding the effects of 382 registered pesticides on endangered and threatened species” (Center for Biological Diversity v. EPA, 11-293-JCS, N.D. Cal.).

“Plaintiffs have not pled sufficient facts to show that the EPA was required to reinitiate consultation,” the judge ruled, finding that “FIFRA § 16″ — not the citizen suit provision of the ESA — “appears to confer jurisdiction in this case.” He gave the plaintiffs 30 days from the date of his April 22 decision to file an amended complaint.

They will have some work to do. In their amended complaint, they will have to “plead facts showing the specific affirmative acts or orders of the EPA that they allege with respect to each pesticide. They must also plead facts showing standing with respect to each pesticide. And finally, they must plead facts showing how this Court has jurisdiction under FIFRA § 16(a) for the affirmative actions alleged–or that the specific affirmative acts fall outside the ambit of FIFRA § 16.”

“This is a disappointing ruling for endangered species on Earth Day,” CBD’s Jeff Miller said in a press release. “But the court’s decision does not change the fact that the EPA’s pesticide registration program is completely broken and that the agency is not keeping toxic chemicals out of sensitive wildlife habitats.”

“For decades the EPA has registered pesticides without input from expert federal agencies to evaluate harmful impacts to wildlife,” CBD said. “Hundreds of scientific studies document harm to endangered wildlife from pesticides, and there is evidence of widespread contamination of groundwater, drinking water and wildlife habitats throughout the country.”

Excerpts:

Here, Plaintiffs seek a broad remedy–an injunction mandating the EPA to consult with the Services regarding the registration and oversight of 382 pesticides. However, if properly pleaded, each pesticide corresponds to an individual agency affirmative act which triggers the EPA’s duty to consult with the Services. If the EPA failed to consult with the Services regarding the effects of Pesticide X on the environment, and that failure-to-consult confers standing on a plaintiff to bring an ESA claim arising under Section 7, the plaintiff’s standing in connection with Pesticide X does not confer standing on the plaintiff to also bring a separate claim regarding Pesticide Y. (page 19)

The most relevant Ninth Circuit decision to the jurisdictional question at issue in this case is American Bird [Conservancy v. Federal Communications Commission, 545 F.3d 1190 (9th Cir. 2008)], a case decided after Washington Toxics [Coalition v. Environmental Protection Agency, 413 F.3d 1024, 1033 (9th Cir. 2005)]. In American Bird, environmental organizations challenged the decision by the Federal Communications Commission to issue licenses for seven communications towers before consulting with the Services as required under ESA § 7. American Bird, 545 F.3d at 1192. Although the complaint only contained an ESA claim against the FCC for its failure to consult, the FCC argued that the plaintiff’s “core objections” were to the FCC’s order issuing the tower licenses, and therefore, the district court lacked jurisdiction because the Communications Act limits jurisdiction over appeals of FCC orders exclusively to the court of appeals.7 Id. at 1193. Although the plaintiffs “disclaimed any intent to challenge the tower registrations themselves,” the court looked beyond the allegations of the complaint and considered the nature of the lawsuit and the relief sought. Id. The Ninth Circuit agreed with the FCC that the district court lacked jurisdiction: American Bird does not object to the agency’s failure to consult in the abstract; rather, it identifies seven discrete tower registrations that it alleges were not supported by adequate environmental investigation. The tower registrations are therefore inextricably intertwined with the FCC’s obligation to consult with the Secretary. (page 23)

The Court finds that American Bird controls the jurisdictional question in this case. Although Plaintiffs only challenge the EPA’s failure to consult under ESA § 7, Plaintiffs’ “core objections” are to the pesticide registrations themselves, which are governed under FIFRA’s administrative framework. American Bird, 545 F.3d at 1193. Like in American Bird, this Court is
presented with two conflicting jurisdictional statutes–FIFRA § 16 and the ESA’s citizen suit provision. While ESA’s citizen suit provision provides for jurisdiction in district court, FIFRA § 16 establishes a comprehensive framework for all appeals over the EPA’s actions with regard to pesticide registrations. (page 26)

In sum, the provision of FIFRA § 16 appears to confer jurisdiction in this case. As described above, in their amended complaint, Plaintiffs must plead facts showing the specific affirmative acts or orders of the EPA that they allege with respect to each pesticide. They must also plead facts showing standing with respect to each pesticide. And finally, they must plead
facts showing how this Court has jurisdiction under FIFRA § 16(a) for the affirmative actions alleged–or that the specific affirmative acts fall outside the ambit of FIFRA § 16.