Section 7

Feb 102015

Environmental groups file motion in 9th Cir. seeking stay of EPA approval

EPA should have consulted with the Fish and Wildlife Service before approving a new herbicide for use in the Midwest, environmental groups and a food safety group argue in a motion filed in the Ninth Circuit Court of Appeals (NRDC v. EPA, 14-73353).

News release (Earthjustice, Feb. 9)

The request for stay pending review was filed by the Center for Food Safety, National Family Farm Coalition, Pesticide Action Network North America, Beyond Pesticides, Environmental Working Group, and Center for Biological Diversity, and is supported by the Natural Resources Defense Council, which filed its own petition for review.

The herbicide, called Enlist Duo,"is specifically designed and registered to be used on 'Enlist' crops, which are new varieties of corn and soy that have been genetically engineered by Dow [AgroSciences] to withstand both 2,4-D and glyphosate," the petition says. "The technology is marketed as a chemical means to rid fields planted with Enlist corn and soy of unwanted weeds, without damaging the crop itself."

The groups argue that they are likely to win their case because EPA did not consult under the Endangered Species Act's Section 7 about the effects of Enlist Duo on the whooping crane and Indiana bat.

“EPA admits that its approval of a toxic pesticide cocktail including 2,4-D for widespread use may affect endangered species, including the whooping crane, one of the most endangered animals on earth,” said Earthjustice Managing Attorney Paul Achitoff. “We ask only that the court decide whether EPA has violated the law, as we believe it has before putting these imperiled birds at further risk.”

The challenge was filed in the Ninth Circuit in October.


Dow opposition to original motion for stay (1/23/15)

Dow AgroSciences news release (pre-motion) Company "announced quality standards for glyphosate trait stacking with Enlist. The company said it will allow Enlist to be stacked with advanced glyphosate traits only. It will not allow stacking with the first generation of the Roundup Ready® trait."

Feb 062015

The Interior Department has "encouraged the State Department to give appropriate consideration to comments previously submitted during the Keystone XL permit review process as well as concerns expressed by some tribes in Indian Country about the project," spokesperson Jessica Kershaw said in response to an inquiry.

EPA has released its comments, but Interior declined to do so. A State Department official, who asked not to be identified by name, said he would not comment on the "internal interagency process," but said State had received comments from all the agencies identified in Executive Order 13337.

The State Department asked for comments from eight federal departments to determine whether the proposed Canada-U.S. pipeline "serves the national interest, which involves consideration of many factors including: energy security; environmental, cultural, and economic impacts; foreign policy; and compliance with relevant federal regulations and issues."

"So, whatcha gonna do if they approve Keystone?" "Probably head to the in-laws." "Oh.... Can I come?"

The eight agencies are the departments of Defense, Justice, Interior, Commerce, Transportation, Energy, Homeland Security, and EPA.

"The department continues to review the Presidential Permit application for the proposed Keystone XL pipeline in a rigorous, transparent, and objective manner," State says on its Keystone web page.

In a Biological Opinion completed in May 2013, the Fish and Wildlife Service said the project would not affect, or was not likely to adversely affect, the endangered black-footed ferret, interior least tern, whooping crane, and pallid sturgeon, or the threatened piping plover and western prairie fringed orchid. FWS concluded that either the species' habitat would be unaffected, or that conservation measures were adequate to avoid impacts to the species' habitat.

In the case of the American burying beetle, however, FWS specified a number of reasonable and prudent measures (RPM's) necessary to avoid adverse effects to the insect, which is listed as endangered.

Final Supplemental EIS (includes comments from federal agencies)

FSEIS Cultural Resources chapter (includes section on tribal consultation)

Coverage of EPA comments


Jan 302015
ESA challenge to Zeb Mtn. mining's effects can proceed

Opinion A federal judge in Tennessee ruled Jan. 28 that the Zeb Mountain mining lawsuit against the Fish and Wildlife Service and Office of Surface Mining, Reclamation and Enforcement can move forward, even though mining at the site has ceased and the permit has expired (Defenders of Wildlife v. Jewell, 13-698-PLR-CCS, E.D. Tenn.). U.S. District […]