Following dismissal of the Endangered Species Act (ESA) Megasuit by the Northern California District Court, plaintiffs have filed an amended complaint in hopes of curing the defects identified by the court in its April order.

The complaint still alleges that EPA failed to consult with the Fish and Wildlife Service and the National Marine Fisheries Service (the “Services”) when registering pesticides, as required under the ESA. However, plaintiffs have filed a 437-page amended complaint detailing specific registration actions on 50 pesticide groups and encompassing 78 chemicals which have allegedly harmed endangered species. The number of species at issue remains the same.

In Jan. 2011, the Center for Biological Diversity and the Pesticide Action Network (Plaintiffs) filed suit against EPA for failing to consult with the Services regarding the effects of 306 registered pesticides on 216 endangered species throughout the United States. Of the listed pesticides, 17 are the most commonly used agricultural pesticides, such as 2-4D, aldicarb, atrazine, methyl bromide and its alternatives.

Plaintiffs asked the court to 1) require EPA to initiate and complete the consultation process and 2) compel EPA to restrict pesticide uses that may result in their entering endangered species’ occupied or critical habitat until the consultation process is complete. This action would have disrupted every type of agriculture – from row crops to specialty crops – nationwide.

 

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Because of this potential impact on agriculture, the NCC, American Farm Bureau Federation, the National Alliance of Forest Owners, the National Corn Growers Assoc., the National Agricultural Aviators Assoc., the Washington Farm Forestry Assoc., USA Rice, the National Council of Farmer Cooperatives and CropLife America were granted status as interveners in order to participate in settlement discussions.

The order granting the motion to dismiss was important for several reasons. The court found that plaintiffs must show a specific agency action – not just the ongoing agency discretion underlying pesticide registration – for each of the 382 pesticides.

The court rejected the plaintiff’s assertion that the statute of limitations does not apply, finding that the six-year statute does apply to each affirmative act alleged to each pesticide. Perhaps most importantly, the court held that where pesticide registrations are at issue, the Federal Insecticide, Fungicide & Rodenticide Act applies regarding subject matter jurisdiction and that plaintiffs need to make specific pleadings supporting district court versus federal court as the proper venue.

Defendant-Intervenors have 14 days to respond to the amended complaint.

 

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