Endangered Species Law & Policy

On May 17, 2010, the United States District Court for the Northern District of California approved a stipulated injunction and order submitted by the Center for Biological Diversity ("CBD") and the U.S. Environmental Protection Agency ("EPA") establishing, among other things, an immediate prohibition on the use of certain pesticides in and around the greater San Francisco Bay area, and a series of deadlines for the EPA to make "effects determinations" and, as necessary, initiate consultations under the Endangered Species Act. 

EPA is responsible for registering pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act, and ensuring that the pesticides uses it authorizes will not have unreasonable adverse effects on the environment, including on threatened and endangered species.  With respect to the 75 pesticides at issue in the CBD litigation, CBD alleged that the EPA failed to comply with section 7(a)(2) of the Endangered Species Act when it registered the pesticides for use in the United States without consulting with the the U.S. Fish and Wildlife Service regarding potential impacts on tidewater goby, delta smelt, California clapper rail, salt marsh harvest mouse, California tiger salamander, San Francisco garter snake, California freshwater shrimp, San Joaquin kit fox, Alameda whipsnake, valley elderberry longhorn beetle, and Bay checkerspot butterfly and their habitats.  All of these species are listed as either threatened or endangered under the Endangered Species Act.

Although CBD and EPA filed a joint motion for entry of stipulated injunction in January 2010, because defendant-intervenors had opposed the stipulation, final approval of the stipulated injunction was delayed until this past week.  As finally adopted, the stipulated injunction is comprised of four basic elements:  (1) a schedule for EPA to complete its "effects determination" for certain identified pesticides; (2) a general prohibition on the use of certain pesticides within and around the habitat of the 11 listed species; (3) the distribution of a bilingual notification brochure warning that certain pesticides may harm wildlife or their habitat; and (4) a similarly worded shelf-tag for certain pesticide containing products.  With respect to the prohibition on use, the stipulated injunction provides a list of exemptions for common household uses, such as spraying potted plants or controlling subterranean termites.         

CBD had obtained a similar stipulated injunction from the EPA in 2005 as a result of litigation concerning the California Red-legged frog and EPA's previous registration of 66 pesticides.