Integrating FIFRA, ESA and Other Legal Requirements. David B. Weinberg Wiley Rein LLP

Transcription

1 Integrating FIFRA, ESA and Other Legal Requirements David B. Weinberg Wiley Rein LLP

2 What I am Going to Cover The statutory and practical setting for considering the impacts of pesticides on endangered and threatened species and their habitat. The current litigation context. The central legal questions that remain unresolved. Possible solutions.

3 Key ESA Statutory Provision: 7(a)(2) Each Federal Agency shall, in consultation with assistance of the Secretary, insure that any action authorized, funded or carried out by such agency... is not likely to jeopardize the continued existence or any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary... to be critical.

4 EPA s FIFRA Registration Mandate Four criteria Composition of product warrants claims. Labeling complies with FIFRA. Will perform its intended function without unreasonable adverse effects on the environment. When used in accordance with widespread and commonly recognized practice will not generally cause unreasonable adverse effects on the environment. Unreasonable adverse effects on the environment means any unreasonable risk to man or the environment, taking into account the economic, social and environmental costs and benefits of the use of any pesticide. Although FQPA added to this definition human dietary risk, with modifications regarding economic and social costs, no similar amendment was made to reflect ESA.

5 Only Two Statutory Provisions Directly Address the Relationship Between FIFRA and ESA FIFRA was amended after ESA was enacted, and added to the definition of imminent hazard a situation which will involve unreasonable hazard to the survival of a species declared endangered by the Secretary. Congress did not say anything about how ESA should otherwise be integrated with FIFRA decisions. Public Law , Section 1010 (1988), directed cooperation between EPA and Secretaries to perform study and file report analyzing means of implementing the endangered species pesticides labeling program or alternatives to such program, if any, to promote the conservation of endangered or threatened species and to minimize the impacts to persons engaged in agricultural food and fiber commodity production and other affected pesticide users and applicators. All other EPA obligations arise from: Judicial interpretations of ESA as having having broad, cross-program impacts; Interpretations embodied in the Services regulations, Consultation Handbook, and related documents; and EPA s voluntary activities to supplement FIFRA analyses; The Washington Toxics decisions. U.S. Supreme Court has never ruled on how these statutes relate.

6 The EPA/Services Relationship Has Long Been Contentious, but Counterpart Regulations Were Supposed to Overcome This Services adopted general regulations governing consultations in Counterpart Regulations promulgated by Bush Administration in 2004 to expedite ESA reviews: give EPA more authority while retaining Services supervision Portions of rules ruled unlawful in August, 2006, on basis of Services staff memos not in the official record. Section survived. This section allows EPA to: Make an effects determination. Make jeopardy, ITS, RPA and RPM judgments. But all subject to Service review. Regulation unclear about what happens if Service doesn t respond within time deadlines. But EPA has been reluctant to exercise its authority and go beyond may affect decisions. EPA hides behind lack of information. But statute requires decisions based on best scientific and commercial data available.

7 EPA and the Services Approach Their Obligations Differently EPA respects studies that have been done by registration EPA focuses on active ingredients EPA recognizes real-world practices EPA will only rely on models that have been rigorously reviewed EPA explains its decisionmaking EPA has not adopted procedural regulations for implementation Services distrust registrant work, prefer peer reviewed, even gray literature Services believe they must study constituents of every formulation Services think they should analyze any use not forbidden Services models extraordinarily conservative and suspect BiOps do not say much about comments received. Services have adopted procedural regulations for implementation

8 The Last Decade s FIFRA-ESA Cases Have Provided an Imperfect Vehicle for Sorting out Agency Responsibilities Began with Washington Toxics case, filed in 2001, involving salmonids in CA/Pac NW. This is the only case that has been litigated. Followed by other suits by NGOs, all of which settled. Only one resulting biop has been challenged in court, and that case has been delayed 2+ years. One pending case the megasuit, CBD v. EPA may provide a vehicle for resolving some issues.

9 Washington Toxics and its Progeny: Salmonids in CA/Pac NW July, 2002: Seattle District Court rules against EPA : EPA sends consultation requests to NMFS January, 2004: Buffer zones ordered by Seattle District Court November, 2004: NCAP sues NMFS to respond to EPA July, 2005: EPA enters into schedule to complete BiOps August, 2008: First (OP) BiOp draft (OPs) released November, 2008: Final OP BiOp released with RPAs and RPMs April, 2009: Registrants sue NMFS in Maryland; after suit dismissed, appeal to 4 th Circuit Court of Appeals (Richmond) October, 2010: Argument before 4 th Circuit in Richmond, Virginia November, 2010: NCAP sues EPA in Seattle to act on first and second (carbamate) BiOps March, 2011: 4th Circuit rules in registrants favor, returns case to Maryland District Court July, 2011: NCAP Seattle suit stayed until year end November, 2011: Argument expected in registrants Maryland suit against NMFS

10 Megasuit: Hundreds of products, 300+ Species, all Over the Country January 19, 2011: CBD and PANNA file suit in San Francisco, challenging EPA failure to consult with regard to impacts of registrations containing about 330 pesticide active ingredients on 214 species across the USA. Suit currently stayed until mid-october to allow settlement discussions. Do not forget: In April, 2010, CLA and registrants filed notice letter that would allow industry suit against EPA for not properly fulfilling its ESA and FIFRA obligations.

11 Key Open Issues in EPA Failure to Consult Cases Implications of FIFRA judicial review jurisdiction provision. Implications of FIFRA s emphasis on timeliness, both in PRIA and elsewhere. Implication that Section 7(a)(2) obligation to insure species protection may be independent of obligation to consult.

12 What is the Agency Action as to Which Consultation is Required? 9 th Circuit held in Washington Toxics (2005) that ESA applied to registrations because EPA retain[ed] ongoing discretion to register pesticides, alter pesticide registrations and cancel pesticide registrations. This was context of keeping the pressure on EPA i.e., explaining that EPA had continued discretionary authority, even after a registration had been granted, thus distinguishing cases that had held where there was no discretion, there is no agency discretion, there is no ESA obligation. C of A did not address the implications of FIFRA s registration scheme or judicial review provisions. D Ct had rejected the assertion that what plaintiffs really were doing was challenging registrations, finding instead that plaintiffs challenge EPA s alleged failure to consult with NMFS regarding the effects of such registrations on T&E species. This begs the question of what agency action triggered the consultation requirement.

13 But Then Came Two Other 9 th Circuit Decisions American Bird Conservancy v. FCC (2008): review of ESA claim regarding a licensing decision governed by action agency s statute. Held that the underlying licensing statute s jurisdictional provision regarding review applied to ESA issue. United Farm Workers v. EPA (2010): challenge to reregistration decision governed by FIFRA 16(b). Therefore must be brought in Court of Appeals under within 60 days of EPA decision. Did not involve ESA claim.

14 Implications of these Decisions Explained in PANNA in 2008 Pesticide Action Network North America v. EPA was one of several cases that had been brought challenging reregistration decisions under both FIFRA and ESA and procedurally consolidated. After the lower court decision in UFW (2008), but before appellate affirmed (2010), the Judge hearing PANNA stayed those cases because it found UFW likely would require their dismissal for lack of jurisdiction.

15 Judge Patel s Analysis in Staying PANNA American Bird held that tower registrations are inextricably intertwined with the FCC s obligation to consult under ESA. FIFRA consultation claims similarly intertwined with reregistration. UFW (District Court) held that challenges to a registration/reregistration decision had to be brought in Court of Appeals within 60 days. Washington Toxics did not address jurisdictional issue, only that EPA had both FIFRA and ESA obligations.

16 Might This Issue Be Revisited in the Megacase? Intervention papers in CBD v.epa (2011) signaled intention to do so. Court granted some interventions, but is awaiting settlement negotiations before addressing any substantive issues. Next status conference in October; even if settlement efforts abandoned, no decision likely before year-end.

17 What are the Implications of FIFRA s Timeliness References? PRIA sets deadlines for some FIFRA actions. Legislative history makes it clear Congress expected reevaluations (not just new registrations) to be handled in a timely manner. PRIA aside, FIFRA 3(g) registration review mandate says 15 years is a goal. Legislative history says the general requirement in 3(c)(3) is for registration as expeditiously as possible; this should not normally exceed three months or, in unusual mitigating circumstances be slightly longer.

18 But Precise Deadlines May Not Matter, Since the Services Cannot Keep Up With Just About Anything Nelson (FWS) letter to Williams (EPA), January 2009: [T]he volume and complexity of EPA s section 7 consultation requests on pesticide reregistrations exceed our capability to complete consultations within normal statutory timelines.

19 And this is Why It is Important to Recognize that ESA 7(a)(2) May Have Two Elements Each Federal Agency shall, in consultation with assistance of the Secretary, insure that any action authorized, funded or carried out by such agency... is not likely to jeopardize the continued existence or any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary... to be critical.

20 How do these Two Elements Relate? The duty to ensure no jeopardy to the species is independent of the agency s duty to consult with NMFS. NEA v. EPA (D. Ore. 2003). The Washington Toxics District Court counterpart rule decision (2006) endorsed the view that: Section 7(a)(2) makes no legal distinction between the trigger for its requirement that agencies consult with FWS and the trigger for its requirement that agencies shape their actions so as not to jeopardize endangered species. An agency s obligation to consult is thus in aid of its obligation to shape its own actions so as not to jeopardize listed species, not independent of it.

21 All this Needs to be Evaluated in the Context of Section 1010 Part of 1988 ESA appropriations authorization. Directed EPA to study means of implementing the endangered species pesticides labeling program or alternatives to such a program, if any, to promote the conservation of endangered or threatened species and to minimize the impacts to persons engaged in agricultural food and fiber commodity production and other affected pesticide users and applicators.

22 What Happens When Two EPA Obligations Conflict? EPA must act per FIFRA (and its emphasis on timely decisions) to insure species protection. The Services are incapable of consulting, even under the Counterpart Regs, on a timely basis.

23 One Possible Solution ESA does not define consultation. In normal usage, it means seek the advice of. Services have developed comprehensive regulations that define how consultation occurs, and courts generally have accepted them as binding, but: In Lujan, four Supreme Court Justices found those regulations didn t control other agencies. Services do not comply with them. Just how much discretion are the Services due here? National Ass n of Homebuilders Supreme Court decision (2007) supports argument that FIFRA limits on EPA discretion (i.e., EPA cannot delay decisions indefinitely) argue for adopting the narrow interpretation of consultation.

24 How Could This Mess Be Resolved? By Congress granting near infinite funds to the Services unlikely given current deficit context. By Congress, by amending ESA but in an election year? By Courts if megacase is litigated, or another case is filed. By an Administration probably only after NAS process plays out, perhaps with revised counterpart regulations.