Nw. Coal. for Alternatives to Pesticides v. U.S. Envtl. Prot. Agency
| Citation | 920 F.Supp.2d 1168 |
| Decision Date | 28 January 2013 |
| Docket Number | No. C10–1919 TSZ.,C10–1919 TSZ. |
| Parties | NORTHWEST COALITION FOR ALTERNATIVES TO PESTICIDES, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
OPINION TEXT STARTS HERE
Amanda Goodin, Stephen D. Mashuda, Earthjustice Legal Defense Fund, Seattle, WA, for Plaintiffs.
J. Brett Grosko, Meredith L. Flax, U.S. Department of Justice, Washington, DC, for Defendants.
THIS MATTER comes before the Court on Federal Defendant's Motion to Limit Review to the Administrative Record, docket no. 101. Intervenor Defendants join in the motion in part, docket no. 105. Having reviewed all papers filed in support of, and in opposition to, the pending motion, the Court enters the following Order.
This case arises from litigation that occurred between 2001 and 2006 in Washington Toxics Coalition v. EPA, No. 01–cv–132JCC. On July 2, 2002, the Court found the Environmental Protection Agency (“EPA”) in violation of Section 7(a)(2) of the Endangered Species Act (“ESA”) for failure to consult with the National Marine Fisheries Service (“NMFS”) to ensure that 54 registered pesticides would not jeopardize ESA listed salmon and steelhead species (collectively “salmonid”). Washington Toxics Coalition v. EPA, No. 01–cv132JCC, Order at 20, 2002 WL 34213031 (W.D.Wash. July 2, 2002), aff'd,413 F.3d 1024 (9th Cir.2005) (hereinafter “ Washington Toxics I ”). In a separate Order, the Court granted injunctive relief prohibiting certain uses of those 54 pesticides to protect salmonids while the consultation process with NMFS proceeded. Washington Toxics Coalition v. EPA, No. 01–cv–132JCC, Order at 4–10 (W.D.Wash. Jan. 22, 2004), aff'd413 F.3d 1024 (9th Cir.2005) (hereinafter “ Washington Toxics II ”). One of the interim protective measures ordered by the Court was the implementation of buffer zones of 20 yards for ground application and 100 yards for aerial application of the listed pesticides, with certain exceptions. Id. at 4–5. The Order provided that the injunction would terminate automatically upon the occurrence of one of several events, including “[t]he issuance by NMFS of a biological opinion.” Id. at 12.
In 2007, after being sued by the Northwest Coalition for Alternatives to Pesticides (“NCAP”) and others for failure to complete the required consultations, NMFS entered into a consent decree agreeing to issue biological opinions (“BiOps”) on 37 of the pesticides that EPA determined “may affect” listed salmonids by a date certain. NCAP v. NMFS, No. 07–cv–1791RSL, Stipulated Settlement Agreement and Order of Dismissal (August 1, 2008). On November 18, 2008, NMFS issued the first BiOp, concluding that the continued use of the organophosphate pesticides diazinon, malathion, and chlorpyrifos jeopardize the existence of 27 species of salmon and steel head and will likely destroy or adversely modify the critical habitat for 25 of those species (hereinafter the “OP BiOp”). OP BiOp at 391. On April 20, 2009, NMFS issued the second BiOp concluding that EPA's registration of pesticide products containing carbaryl and carbofuran jeopardize 22 listed Pacific salmonids and will likely destroy or adversely modify the habitat of at least 20 listed Pacific salmonids (hereinafter the “Carbamate BiOp”). Carbamate BiOp at 481–82. NMFS also found that pesticide products containing methomyl jeopardize 18 listed Pacific salmonids and likely destroy or adversely modify the habitat of at least 16 Pacific salmonids. Id. at 482–84. The interim protective measures ordered in 2004, including the buffer restrictions, terminated with respect to the six pesticides at issue here when NMFS issued the OP and Carbamate BiOps. Washington Toxics II, No. 01–cv–132JCC, Order at 12 ().
Plaintiffs filed this suit on November 29, 2010, under an ESA provision known as the ESA citizen suit provision alleging that EPA's failure to implement the recommendations in the OP and Carbamate BiOps in a timely manner is resulting in violations of Sections 7 and 9 of the ESA. The ESA citizen suit provision is frequently used to compel agency action. “It allows individuals to bring suit ‘to enjoin any person, including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision of this chapter or regulation issued under authority thereof.’ ” Washington Toxics v. EPA, 413 F.3d 1024, 1030 (9th Cir.2005). Plaintiffs allege that EPA is in violation of Section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), and Section 9 of the ESA, 16 U.S.C. § 1538, because it has not taken any steps to implement the Reasonable and Prudent Alternatives (“RPAs”) and the Reasonable and Prudent Measures (“RPMs”) articulated in the BiOps, or implemented any alternative protective measures. Amended Complaint at ¶¶ 11, 17, 18, 20. Plaintiffs seek to enjoin EPA's authorization of the use of diazinon, malathion, chlorpyrifos, carbaryl, carbofuran, and methomyl to the extent that it is inconsistent with the recommendations in the BiOps. Amended Complaint at ¶ 11. Dow AgroSciences LLC, CropLife America, and other groups representing pesticide manufacturers intervened on behalf of EPA (collectively “Intervenors”).1
On October 10, 2012, Plaintiffs filed a motion for summary judgment and injunctiverelief. Docket no. 90. In support of their motion, Plaintiffs submitted the Declaration of John D. Stark, docket no. 92, an exotoxicologist who specializes in the ecological assessment of pesticides and threatened and endangered species. Declaration of John D. Stark, docket no. 92, at ¶ 1. Plaintiffs also submitted the declaration of Joel Kawahara to support standing. Declaration of Joel Kawahara, docket no. 95. The parties then stipulated to allow Plaintiffs to withdraw their summary judgment motion without prejudice to refile in order for the Court to address the issue of whether extra-record evidence should be permitted in this action. Id.; docket no. 97.
The EPA has now filed a motion to limit judicial review to the administrative record. Docket no. 101. The EPA argues that “[c]ontrolling Ninth Circuit precedent makes clear that both [the Section 7 and the Section 9] claims for relief against EPA are to be reviewed in accordance with APA record review principles.” 2Id. at 3. Intervenors filed a response agreeing that the Section 7 claims should be limited to review of the administrative record, but arguing that the Section 9 claim should not be so limited and that “the Court should permit extra-record materials and corresponding discovery” with respect to the Section 9 claims only. Intervenors' Memorandum in Response to Federal Defendants' Motion to Limit Review, docket no. 105, at 2.
Plaintiffs oppose the motion to limit review to the administrative record. Docket no. 106. Plaintiffs argue that their claims arise under the ESA's citizen suit provision, not under the APA, and therefore the APA's provisions on the scope of review do not apply. Id. at 2. They argue further that their complaint alleges a failure to act, and as such there is no final agency action for the Court to review and no corresponding record of the agency's action. Id.
“The ESA reflects a conscious decision by Congress to give endangered species priority over the primary mission of federal agencies.” W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 495 (9th Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 366, 181 L.Ed.2d 232 (2011). Under the Endangered Species Act (“ESA”) Section 7(a)(2),
Each Federal agency shall, in consultation with and with the assistance of the Secretary,3 insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species ... us[ing] the best scientific and commercial data available.
16 U.S.C. § 1536(a)(2); see also Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008, 1012 (9th Cir.2012); Kraayenbrink, 632 F.3d at 495. This includes both procedural and substantive duties. Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 667, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). If the agency action “may affect” any listed species, the acting agency must formally consult with the federal agency responsible for protection of the species in question. 16 U.S.C. § 1536(a), (b); 50 C.F.R. § 402.14(a). The “consulting agency” here is the NMFS. See supra n. 3; 50 C.F.R. § 402.02.
During consultation, the consulting agency “evaluates the effects of the proposed action on the survival of [the] species and any potential destruction or adverse modification of critical habitat” and, “based on ‘the best scientific and commercial data available,’ ” formulates a BiOp. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 924 (9th Cir.2008) (quoting 16 U.S.C. § 1536(a)(2)). In the BiOp, the consulting agency states its position on whether the agency action will jeopardize or adversely modify or destroy the critical habitat of a listed species. 16 U.S.C. § 1536(b)(3)(A). If the consulting agency concludes that the agency action jeopardizes a listed species, the BiOp must include reasonable and prudent alternatives (“RPAs”) to the acting agency that mitigate the negative environmental effects of the agency action. Id.
Section 9 of the ESA, 16 U.S.C. § 1538, also prohibits the “taking” 4 of any threatened or endangered species in the course of agency action. If the consulting agency determines that the agency action may incidentally “take” a threatened or endangered species, the consulting agency must issue an incidental take statement (“ITS”) specifying the impact of the incidental taking and reasonable and prudent measures ...
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