Dow Agrosciences LLC v. Nat'l Marine Fisheries Serv.

• Decision Date: 31 October 2011
• Docket Number: Civil Action No. 09–cv–00824–AW.
• Citation: 821 F.Supp.2d 792
• Parties: DOW AGROSCIENCES LLC, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., DefendantsandNorthwest Center for Alternatives to Pesticides, P.O. Box 1393, Eugene, OR 97440, Pacific Coast Federation of Fishermen's Associations, P.O. Box 11170, Eugene, OR 97440–3370, Institute for Fisheries Resources, Eugene, OR 97440–3370, Defenders of Wildlife, 1130—17th Street, N.W., Washington, D.C. 20036, Defendant–Intervenors.
• Court: U.S. District Court — District of Massachusetts

821 F.Supp.2d 792

DOW AGROSCIENCES LLC, et al., Plaintiffs,

v.NATIONAL MARINE FISHERIES SERVICE, et al., DefendantsandNorthwest Center for Alternatives to Pesticides, P.O. Box 1393, Eugene, OR 97440, Pacific Coast Federation of Fishermen's Associations, P.O. Box 11170, Eugene, OR 97440–3370, Institute for Fisheries Resources, Eugene, OR 97440–3370, Defenders of Wildlife, 1130—17th Street, N.W., Washington, D.C. 20036, Defendant–Intervenors.

Civil Action No. 09–cv–00824–AW.

United States District Court, D. Maryland, Southern Division.

Oct. 31, 2011.

David Eric Markert, David B. Weinberg, Eric Andreas, P. Nicholas Peterson, Wiley Rein LLP, Washington, DC, for Plaintiffs.

James Anthony Maysonett, Meredith Lisa Flax, United States Department of Justice, Washington, DC, Amanda Wilcox Goodin, Stephen Daniel Mashuda, Khushi K. Desai, Earthjustice, Seattle, WA, for Defendant–Intervenors.

Memorandum Opinion

ALEXANDER WILLIAMS, JR., District Judge.

Plaintiffs Dow AgroSciences, LLC, Makhteshim Agan of North America, Inc., and Cheminova, Inc. USA bring this action against Defendants National Marine Fisheries Service (“NMFS”) and James W. Balsiger (“Balsiger”) ¹ (collectively “Federal Defendants”) asserting violations of the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (“APA”) and the Endangered Species Act, 16 U.S.C. § 1531, et seq. (“ESA”). On August 23, 2011, the Court granted a motion to intervene by Northwest Center for Alternatives to Pesticides, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, and Defenders of Wildlife (collectively “Intervenor Defendants”). See Doc. No. 70. Currently pending before the Court are the Parties' cross-motions for summary judgment, see Doc. Nos. 58, 64, 66, and Plaintiffs' motion to strike declarations, see Doc. No. 72. The Court has reviewed the entire record, as well as the pleadings and exhibits, with respect to the instant motion. The issues have been fully briefed, and no hearing is deemed necessary. See Local Rule 105.6 (D. Md. 2010). For the reasons stated more fully below, the Court will deny Plaintiffs' motion for summary judgment, grant Federal Defendants and Intervenor Defendants' cross-motions for summary judgment, and grant-in-part and deny-in-part Plaintiffs' motion to strike declarations.

I. FACTUAL & PROCEDURAL BACKGROUND

The following facts are based on the nearly 20,000 pages of material compiled by the NMFS in the administrative record. Plaintiffs hold registrations issued by the Environmental Protection Agency (“EPA”) that authorize them to sell products containing three insecticides: chlorpyrifos, diazinon and malathion. Plaintiffs challenge a biological opinion (“BiOp”) issued by the National Marine Fisheries Service (“NMFS”) which found that registration of the three products without restrictions not previously imposed by the EPA would jeopardize the continued existence of 27 protected species of Pacific salmonids (salmon and steelhead fish) and their habitat. Plaintiffs allege that the BiOp is not based on the best scientific and commercial data available as required by the ESA. Intervenor Defendants are conservation and fishing organizations. Federal Defendants and Intervenor Defendants contend that the three pesticides at issue jeopardize the continued existence of Pacific coast salmonids and that the agency actions taken were necessary to mitigate the harm and were not arbitrary and capricious.

A. Requirements of the Endangered Species Act

Section 7 of the Endangered Species Act (“ESA”) imposes affirmative duties on the EPA and other federal regulatory agencies to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification” of the species' critical habitat. 16 U.S.C. § 1536(a)(2). When an agency determines that a proposed action is likely to “affect listed species or critical habitat,” that agency must consult with the NMFS or the Fish and Wildlife Service.² Id. § 1536(c).

Once the consultation is initiated, the NMFS must analyze all relevant information and provide the EPA with a BiOp addressing the potential impact of the EPA's action. The ESA requires the NMFS to “use the best scientific and commercial data available” in determining whether the EPA's action (here, its authorization of the use of the pesticides at issue) is likely to result in jeopardy to the salmonids. Id. § 1536(a)(2). If the NMFS determines that the action will jeopardize the continued existence of a species or adversely modify critical habitat, the NMFS must suggest reasonable and prudent alternatives to the proposed action that will avoid such impacts. Id. § 1536(b)(3). The NMFS must also provide the EPA with an Incidental Take Statement (“ITS”). Id. § 1536(b)(4). To “take” under the ESA means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19). Taking is generally prohibited by the ESA. Id. An ITS authorizes a limited take of a protected species, establishes the limit of the taking, and describes “reasonable and prudent measures” (“RPMs”) to “minimize” the impact of the take. 16 U.S.C. § 1536(b)(4)(C).

B. Requirements of the Federal Insecticide, Fungicide and Rodenticide Act

Pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), pesticides must be registered by the EPA prior to their distribution and sale. 7 U.S.C. § 136, et seq. Two of the pesticides at issue, malathion and diazinon, were first registered in 1956. Chlorpyrifos was registered in 1965.

Under FIFRA, the EPA has implemented a reregistration process for older chemicals, including chlorpyrifos, malathion, and diazinon. The purpose of the reregistration process is to ensure that all existing registrations are consistent with contemporary science and that the products are imposing no unreasonable adverse effects on the environment. See id. § 136a(c)(5), 136a–1. During reregistration, companies holding prior registrations for these chemicals submit scientific data supporting reregistration and inform the EPA of the future intended uses for these chemicals.³ Upon completion of the reregistration process for chlorpyrifos, malathion and diazinon, the EPA issued Registration Eligibility Decisions in July 2006 that imposed new restrictions on future product uses of the chemicals.⁴ These decisions represented the EPA's human health and ecological risk assessments and conclusions regarding reregistration eligibility of the chemicals. The eligibility decisions listed the uses of the chemicals that would be lawful once the decisions were implemented. A party violates FIFRA and may face an enforcement action if it uses a pesticide containing a registered chemical in a manner inconsistent with the product's label. 16 U.S.C. § 1536(a)(2).

C. Factual Background

In early 2001, the EPA was sued for failing to consult with the NMFS regarding the potential impact of the reregistration of 54 pesticides (including chlorpyrifos, malathion, and diazinon) on 28 protected species of Pacific salmonids and their critical habitat. As discussed above, such a consultation is required by Section 7 of the ESA. Accordingly, on July 2, 2002, the United States District Court for the Western District of Washington ordered the EPA to determine which of the 54 pesticides impacted protected salmonids and to initiate consultations with the NMFS for each of those chemicals. The EPA determined that several dozen of these pesticides (including chlorpyrifos, malathion, and diazinon) could affect protected species of Pacific salmonids, and made formal consultations to the NMFS relating to their registration. The EPA formally requested NMFS' opinion as to diazinon use in November 2002, chlorpyrifos use in April 2003, and malathion use in December 2004. The NMFS initially did not respond to the EPA's consultation requests.

In 2007, the NMFS was sued for unreasonable delay in completing the EPA's consultation requests. On July 30, 2008, the NMFS entered into a stipulated settlement agreement with the plaintiffs in that case and agreed to a schedule for the outstanding consultation requests.

1. The Draft Biological Opinion

On July 31, 2008, the NMFS released a draft BiOp regarding the EPA's consultation requests for chlorpyrifos, malathion, and diazinon. The draft BiOp found that the EPA's registration decisions for these chemicals were likely to jeopardize the continued existence of 28 protected species of Pacific salmonids and to destroy or adversely modify the critical habitat of 26 of those species. Release of the draft BiOp met with criticism from the EPA, California's Department of Pesticide Regulation, the Washington State and Idaho Departments of Agriculture, and Plaintiffs. Specifically, these groups complained that the draft did not address the reregistration actions the EPA had taken since requesting consultation in 2002–2004; actions which had already reduced the use of the three chemicals and had placed additional restrictions to limit the pesticides from reaching waterways. These groups provided the NMFS with input on its draft in the form of written comments, copies of and citations to scientific studies and data, and in-person explanations by experts on the significance of those studies and data. Through these meetings and studies, Plaintiffs sought to convince the NMFS that the proposed uses of chlorpyrifos, malathion, and diazinon did not jeopardize the protected Pacific salmonids or their habitat.

2. The Final Biological Opinion

On November 18, 2008, the NMFS released the final BiOp. The final BiOp found that the EPA's registration decisions were likely to jeopardize the continued existence of 27 protected species of salmonids (rather than 28, as listed in the draft BiOp), and would destroy or adversely modify...