Endangered Species Law & Policy

Last week, environmental advocacy groups celebrated a victory in a decade-long fight over the proper balance between agricultural and environmental interests in the Pacific Northwest. On October 1, in Northwest Coalition for Alternatives to Pesticides v. EPA, the federal district court for the Western District of Washington denied the defendant’s effort to dismiss the lawsuit thereby permitting plaintiffs' citizen suit against the Environmental Protection Agency (EPA) under the Endangered Species Act (ESA) to move forward. (A .pdf copy of the court's decision is available here.)

Section 7 of the ESA requires that, prior to authorizing, funding, or carrying out any action, EPA must consult with the National Marine Fishery Service (NMFS) to ensure that the action is not likely to jeopardize the continued existence of any listed species, or result in the destruction or adverse modification of the critical habitat of such species. 16 U.S.C. § 1536(a)(2). In addition, section 9 of the ESA prohibits take – broadly defined – of listed wildlife. 16 U.S.C. § 1538(a)(1)(B).

In 2002, environmental advocacy groups prevailed in litigation claiming that EPA had failed to consult with NMFS before permitting the use of certain pesticides that allegedly harmed a number of salmonid species. A federal district court agreed and issued an injunction limiting the use of certain pesticides until EPA and NMFS completed consultation regarding such pesticides.  By 2007, the required consultations had not yet been completed.  Following further litigation, NMFS agreed to complete biological opinions (BiOps) assessing the impact of certain pesticides on the listed salmonids. NMFS thereafter issued two BiOps, both concluding that a number of the pesticides that EPA had authorized were in fact jeopardizing the continued existence of a number of listed salmonids, and were likely to destroy or adversely modify the critical habitat of the species.

In the BiOps, NMFS identified reasonable and prudent alternatives (RPAs) and reasonable and prudent measures (RPMs) that EPA must implement to avoid jeopardizing the continued existence the listed species and resulting in the destruction of adverse modification of their critical habitats.  But, by 2010 EPA had not implemented these RPAs or RPMs, or taken any other alternative measures to prevent the use of pesticides from harming the listed salmonids. So environmental groups again sued, alleging violations of sections 7 and 9 of the ESA. In response, pesticide manufacturers asked the court to dismiss the action on the grounds that (i) contrary to plaintiffs’ position, EPA need not comply with the RPAs and RPMs prescribed by NMFS and (ii) that plaintiffs failed to allege actual, physical injury to listed species to support their section 9 claim.

In coming to its decision, the court affirmed that EPA is not bound to follow the RPAs or RPMs articulated by NMFS but held that defendants misconstrued plaintiffs’ section 7 claim.  The court held that while EPA retains discretion to articulate and implement its own protective measures, EPA must do so consistent with requirements of the ESA. Here, the court found that EPA failed to implement any protective measures whatsoever. Therefore, the court determined plaintiffs may proceed with their section 7 claim.

The court also rejected the defendant’s contention that EPA could only be held liable for a section 9 violation if listed species were actually harmed by EPA’s actions.  Defendants argued that because plaintiffs failed to identify any fish that were actually, physically injured by EPA’s action, the court should dismiss the section 9 claim.  But the court noted that a reasonably certain threat of imminent harm to listed species is sufficient grounds for a successful section 9 claim.  Here, plaintiffs alleged that EPA’s authorization of the pesticide use presented such a reasonably certain threat of imminent harm.  As a result, the court permitted the plaintiff’s section 9 claim to go forward.