Endangered Species Law & Policy

In 2017, the Natural Resources Defense Council filed a lawsuit against the U.S. Environmental Protection Agency (EPA) over its approval of pesticides containing three active ingredients – acetamiprid, dinotefuran, and imidacloprid – due to their allegedly negative impacts on species listed as threatened or endangered under the Endangered Species Act (ESA).  On February 8, 2018, the parties agreed to dismiss claims related to 36 of the pesticides. 

On January 28, 2021, the Court approved a partial settlement pertaining to 46 of the remaining pesticides.  Specifically, for pesticides containing the active ingredient imidacloprid, the EPA has agreed to study the effects of imidacloprid on a nationwide basis, including all registered uses of the pesticide and its effects on ESA-listed species.  Under the partial settlement agreement, the EPA is required to complete an effects determination for imidacloprid-based pesticides, and to complete a final biological evaluation by no later than June 30, 2022.

The partial settlement does not resolve the claims regarding pesticides that contain the active ingredients acetamiprid or dinotefuran.  However, the parties have agreed to meet and confer to either resolve those claims or set a summary judgment briefing schedule. 

It’s also worth noting that this is not the only pesticide lawsuit that the EPA is facing.  On January 13, 2021, the U.S. Court of Appeals for the Ninth Circuit, in a different lawsuit over the pesticide sulfoxaflor, declined to send the pesticide registration back to the EPA even though the EPA requested that the sulfoxaflor registration determination be remanded so that it could consider the effects of the pesticide on ESA-listed species, which the EPA admitted in briefing it had not done.  Rather than accept the EPA’s mea culpa, the Ninth Circuit allowed the appeal to proceed and set a relatively short briefing schedule.  Collectively, these cases send the message that the EPA is required to consider the potential effects of a pesticide on ESA-protected species when determining whether or not to register it.