Following the dismissal of the Endangered Species Act (ESA) Megasuit by the Northern California District Court in April, the plaintiffs filed an amended complaint in hopes of satisfying the court’s requirement that they be more specific in their allegations.

On Aug. 15, EPA filed a motion for a more definite statement, arguing that the amended complaint fails to identify which specific agency actions the plaintiffs contend trigger the consultation obligation under the ESA. EPA explains that, consistent with Judge Spero’s dismissal order, the plaintiffs must plead with greater specificity and with sufficient specificity to enable the parties and the court to discern whether the claims are in the proper court, are timely, and are the cause of harm to plaintiffs to provide a basis for standing. NCC and its partner intervenors now have filed a motion in support of EPA.

In Jan. ’11, the Center for Biological Diversity and the Pesticide Action Network (Plaintiffs) filed suit against EPA for failing to consult with the Fish and Wildlife and National Marine Fisheries Service (Services) regarding the effects of 306 registered pesticides on 216 endangered species throughout the United States (hence the name “Megasuit”).

Of the listed pesticides, 17 are the most commonly used agricultural pesticides, such as 2-4D, aldicarb, atrazine, methyl bromide and its alternatives. The amended complaint still alleges that EPA failed to consult with the Services when registering pesticides, as required under the ESA. However, the amended complaint details specific registration actions on 50 pesticide groups and encompassing 78 chemicals that allegedly have harmed endangered species. The number of species at issue remains the same.

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.

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 all granted status as intervenors in order to participate in settlement discussions.

 

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