February 28, 2013

Pesticide manufacturers win big against Fisheries Service

By Damien M. Schiff Senior Attorney
“Who needs buffer zones anyway?

Last week, the Fourth Circuit Court of Appeals overturned a biological opinion of the National Marine Fisheries Service that would have significantly limited the use of various pesticides in the Pacific Northwest.  In Dow AgroSciences LLC v. National Marine Fisheries Service, the plaintiff manufacturers challenged the Service’s biological opinion prepared in response to EPA’s proposal to “reregister” three pesticides—chlorpyrifos, diazinon, and malathion—under the Federal Insecticide, Fungicide, and Rodenticide Act.  The biological opinion required as a condition for the pesticides’ use that 500ft-1000ft buffer zones be established for all waters that may serve as habitat for over two dozen salmonid populations protected under the Endangered Species Act.  The Fourth Circuit, in an opinion by Judge Niemeyer, ruled that the agency’s evidence did not adequately support these buffer zones.

The Service supported these buffer zones principally on two grounds.  First, the Service relied on a laboratory model for the proposition that salmonids die when exposed to certain amounts of these pesticides for a continuous 96-hour period.  Second, the Service used water quality data collected by the United States Geological Service from 1992-2006 to establish a salmonid habitat water quality baseline.

The Fourth Circuit found both grounds to be wanting.  The court rejected the Service’s model because the record contained no evidence relating the model to the real world.  In other words, the record did not support the biological opinion’s unstated assumption that salmon are actually being exposed to these pesticides for 96-hour periods.  Without evidence to substantiate that assumption, the Service’s model is irrelevant.  Moreover, the Service can’t defend its actions simply by having admitted the model’s inadequacies.

[A]cknowleding a model’s limitations does not go to explaining why it was chosen and the rationality of its relationship to real-world conditions.  If anything, an acknowledgement that the assumption is flawed would seem to necessitate more explanation of why the assumption was used.

The court also found the Service’s reliance on the USGS stream data to be unjustified.  The principal problem was not so much with the data themselves but with the Service’s failure to explain why it did not use more recent data that, presumably, would portray a more accurate picture of stream status.

[W]hen an agency acknowledges that its data are either outdated or inaccurate, it should, at the very least, analyze the new data or explain why it nevertheless chose to rely on the older data.

Given this rejection of the evidentiary support for the Service’s analysis, it’s not surprising that the court also rejected the agency’s “one size fits all” buffer zone mitigation.  The court also declined to accept the Service’s position that its mitigation proposals need not be economically feasible, a position contrary to the agency’s own regulations.  The court underscored that a determination of economic feasibility is especially important where the contemplated mitigation is so extravagant (as, for example, with the buffer zones).

It will be interesting to see how things develop on remand.  One would think that EPA cannot reregister the pesticides until it obtains a valid biological opinion from the Service.  But the rewriting of that opinion will take time.  What will the pesticide companies and their customers do in their interim?

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