Washington Toxics Coal. v. Environ. Protect. Agen.
| Decision Date | 29 June 2005 |
| Docket Number | No. 04-35138.,No. 04-35212.,No. 04-35244.,No. 04-35237.,04-35138.,04-35212.,04-35237.,04-35244. |
| Citation | 413 F.3d 1024 |
| Court | U.S. Court of Appeals — Ninth Circuit |
| Parties | WASHINGTON TOXICS COALITION; Northwest Coalition for Alternatives to Pesticides; Pacific Coast Federation of Fishermen's Associations, Inc.; Institute for Fisheries Resources, Plaintiffs-Appellees, v. ENVIRONMENTAL PROTECTION AGENCY; Christine Todd Whitman, Defendants, and California Plant Health Association; Oregon Agricultural Chemicals & Fertilizers Association; Far West Agribusiness Association; Agricultural Cooperative Council of Oregon; Fruit Growers League of Southern Oregon; Hood River Grower-Shipper Association; Hop Growers of Washington; Idaho Mint Growers Association; Malheur County Onion Growers Association; National Potato Council, Orchard View Farms; Oregon Alfalfa Seed Growers Association; Oregon Cranberry Farmers' Alliance; Oregon Hop Growers Association; Oregon Horticultural Society; Oregon Seed Council; USA Dry Pea & Lentil Council; Wasco County Fruit & Produce League; Washington Association of Wheat Growers; Washington Mint Growers Association; Washington State Horticultural Association; Western Washington Agricultural Association; Oregon Dairy Farmers; American Forest Resource Council; Oregon Forest Industries Council; Washington Friends of Farms and Forests; Oregonians for Food and Shelter; Western Washington Golf Course Superintendents Association; National Agricultural Aviation Association; California Agricultural Aircraft Association; Croplife America, Defendant-Intervenors-Appellants. Washington Toxics Coalition; Northwest Coalition for Alternatives to Pesticides; Pacific Coast Federation of Fishermen's Associations, Inc.; Institute For Fisheries Resources, Plaintiffs-Appellees, v. Environmental Protection Agency; Christine Todd Whitman, Defendants, California Plant Health Association; Croplife America, Defendant-Intervenors, and Washington State Potato Commission, Defendant-Intervenor-Appellant. Washington Toxics Coalition; Northwest Coalition for Alternatives to Pesticides; Pacific Coast Federation of Fishermen's Associations, Inc.; Institute for Fisheries Resources, Plaintiffs-Appellees, v. Environmental Protection Agency; Christine Todd Whitman, Defendants, Croplife America, et al, Defendant-Intervenor, and Washington State Farm Bureau, Defendant-Intervenor-Appellant. Washington Toxics Coalition; Northwest Coalition for Alternatives to Pesticides; Pacific Coast Federation of Fishermen's Associations, Inc.; Institute for Fisheries Resources, Plaintiffs-Appellees, v. Environmental Protection Agency; Christine Todd Whitman, Defendants-Appellants, and California Plant Health Association; Oregon Agricultural Chemicals & Fertilizers Association; Far West Agribusiness Association; Agricultural Cooperative Council of Oregon; Fruit Growers League of Southern Oregon; Hood River Grower-Shipper Association; Hop Growers of Washington; Idaho Mint Growers Association; Malheur County Onion Growers Association; National Potato Council; Orchard View Farms; Oregon Alfalfa Seed Growers Association; Oregon Cranberry Farmers' Alliance; Oregon Farm Bureau Federation; Oregon Hop Growers Association; Oregon Horticultural Society; Oregon Seed Council; Usa Dry Pea & Lentil Council; Wasco County Fruit & Produce League; Washington Association of Wheat Growers; Washington Mint Growers Association; Washington State Horticultural Association; Western Washington Agricultural Association; Oregon Cattlemen's Association; Oregon Dairy Farmers; American Forest Resource Council; Oregon Forest Industries Council; Washington Friends of Farms and Forests; Oregonians for Food and Shelter; Western Washington Golf Course Superintendents Association; National Agricultural Aviation Association; California Agricultural Aircraft Association; Washington State Potato Commission; Washington State Farm Bureau; Syngenta Corp Protection; Croplife America, Defendant-Intervenors. |
Todd S. Kim, Department of Justice, Washington, DC, for the defendants-appellants.
Karen Budd-Falen, Budd-Falen law Offices, Cheyenne, Wyoming, for the defendants-appellants.
J. Michael Klise & Stephen P. Quarles, Crowell & Moring, Washington, DC, for the defendants-appellants.
Patti A. Goldman, Earthjustice, Seattle, Washington, for the plaintiffs-appellees.
Appeal from the United States District Court for the Western District of Washington; John C. Coughenour, Chief Judge, Presiding. D.C. No. CV-01-00132-JCC.
Before SCHROEDER, Chief Judge, BROWNING, and TASHIMA, Circuit Judges.
This litigation is about the Environmental Protection Agency's registration of 54 pesticide active ingredients that the plaintiff environmental coalitions fear may harm endangered or threatened salmon and steelhead in the waters of the Pacific Northwest. The plaintiffs, Washington Toxics Coalition et al., ("WTC"), contend that EPA violated the Endangered Species Act, 16 U.S.C. § 1536(a)(2), by failing to consult with the National Marine Fisheries Service before approving the pesticides.
EPA admittedly did not do any such consultation, and it agrees that the Endangered Species Act requires consultation with the National Marine Fisheries Service for action affecting these endangered or threatened fish. EPA contends, however, that because in registering the pesticides, it complied with the requirements of the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136, et seq., it was not bound by the consultation requirements of the Endangered Species Act ("ESA"). EPA therefore appeals the district court's orders requiring EPA to engage in consultation and suspending EPA's authorization of the pesticides pending the consultation.
Plaintiffs Washington Toxics Coalition and Northwest Coalition for Alternatives to Pesticides are non-profit organizations that promote alternatives to toxic pesticides and seek to protect the environment from the harmful effects of pesticides. Plaintiff Pacific Coast Federation of Fishermen's Associations, Inc., is an organization of commercial fishermen that works to ensure the long-term survival of commercial fishing as a way of life. Plaintiff Institute for Fisheries Resources is a non-profit public interest marine resources protection and conservation organization.
A number of parties intervened in the action on the side of defendant EPA. The defendant-intervenors are CropLife America ("CLA"), Washington State Farm Bureau, and 35 other groups representing pesticide manufacturers, formulators, distributors, sellers, and applicators. The intervenors contend that the case is governed by the principles of judicial review and injunctive standards of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 700, et seq., rather than by the ESA. According to the intervenors, the district court lacked jurisdiction to examine the effect of pesticides apart from reviewing the administrative record pursuant to a cause of action established by the APA. Intervenors so contend despite the provision of the ESA creating individual causes of action to challenge its violations. See 16 U.S.C. § 1540(g)(1). The intervenors also contend that the injunctive relief granted by the district court was excessive. They challenge various aspects of the district court's injunctive orders requiring pesticide-free buffer zones around endangered salmon and steelhead habitat.
The district court granted the plaintiffs' requests for injunctive relief in a series of well-crafted orders, after allowing all parties, including the intervenors, to introduce evidence on the effects of the use of the challenged pesticides. Although the complaint originally disputed registration of hundreds of pesticides, the district court held EPA violated the ESA consultation requirement with respect to only 54 pesticide active ingredients. The district court ordered EPA to initiate and complete consultation regarding the effects of those pesticide registrations on threatened and endangered salmon and steelhead according to a schedule set out in the opinion. Because it viewed the procedural violation of the ESA to have been a substantial violation authorizing extraordinary relief, the district court also enjoined EPA's authorization of any use of the pesticides within proscribed distances of salmon-supporting waters in California, Oregon, and Washington, pending EPA's fulfillment of its consultation obligations.
We affirm the district court's orders in their entirety.
The National Marine Fisheries Service ("NMFS") since 1989 has classified approximately 25 species of salmon and steelheads, collectively known as salmonids, as "endangered" or "threatened" throughout the Pacific Northwest. The NMFS has determined that pesticides may kill or injure salmonids, and may affect future salmonid behavior and reproductive success. See, e.g., 65 Fed.Reg. 42,422, 42,473 (2000). The district court found that scientific or competent declaratory evidence in the record demonstrated a causal link between the 54 pesticide active ingredients at issue in this case and direct or indirect adverse effects on salmonid populations. This is not disputed on appeal.
What is disputed is the applicability of ESA section 7(a)(2):
Each agency shall, in consultation with and with the assistance of the Secretary, 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. . . .
16 U.S.C. § 1536(a)(2). Plaintiff WTC claims that EPA violated this section when EPA failed to consult with the applicable agency, the NMFS, about the registration of pesticide active ingredients potentially harmful to endangered or threatened salmonids. EPA maintains that it is...
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Table of Cases
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