Legal News

News Item 1: Judge Rejects Bush Administration Pesticide Rules For Endangered Species

On Aug. 24, a judge with the U.S. District Court Western District of Washington overturned regulations under which EPA could determine whether the use of any new pesticide product is likely to harm endangered species, without first consulting with the U.S. Fish and Wildlife Service and National Oceanic & Atmospheric Administration's National Marine Fisheries Service.

Under the Endangered Species Act (ESA), EPA is required to consult with the Services to ensure that registration of products under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) is not likely to jeopardize the continued existence of federally listed threatened or endangered species or result in the destruction or adverse modification of critical habitat. In 2004, both services issued regulations they said offered "a more efficient approach to ensure protection of threatened and endangered species as part of EPA's approval process for pest control products." In issuing the regulations, the services said that because of the complexity of consultations to examine the effects of pest-control products, there have been almost no consultations completed in the past decade.

Under the 2004 regulations, EPA could determine that the use of a pest-control product is not likely to adversely affect a listed species or its critical habitat without either concurrence of the services or informal consultation. The wildlife agencies said they would perform periodic reviews of the methods that EPA employs to arrive at these conclusions to ensure EPA is making determinations that are consistent with the requirements of the ESA.

Environmental groups that filed the suit argued that the challenged rules effectively allows pesticide managers at EPA, not wildlife experts, to make key decisions about the impact these chemicals have on protected species. By eliminating the checks and balances built into the ESA through inter-agency consultation, the new rule makes it easier for agribusiness and other industries to use highly toxic pesticides despite the risks to the environment, the groups said. Scientists, conservationists, and certain members of Congress had strongly opposed the rule change.

The judge determined that the regulations were "arbitrary and capricious" because they ignored the risks to species and because EPA political appointees ignored the unanimous concerns of its own scientists. The ruling found that the rule would "actually result in harm to listed species" and noted the "total absence of any technical and scientific evidence to support or justify" the agencies' rule. He also found that the agency had violated the law by failing to prepare an environmental impact statement assessing the impacts of, and alternatives to, the proposal.

Jamie Rappaport Clark, formerly the director of the U.S. Fish and Wildlife Service, and now executive vice president of Defenders of Wildlife, one of the plaintiffs in this case, said that faulty science and unsound analysis has been the result. "Up to now, EPA's track record in addressing the effects of pesticides on endangered species has been abysmal. Instead of solving the problem, they simply weakened the rules -- allowing more potentially dangerous chemicals to be pumped into the environment without proper review. The court has put a stop to that."

The decision can be accessed at Earthjustice's Web Site at http://www.earthjustice.org/library/legal_docs/pesticide-self-consultation-decision.pdf.

News Item 2: Appeals Court Rules In Favor Of EPA In New Source Review Case

A federal appeals court ruled that a U.S. utility must install costly pollution-reduction equipment at its aging coal-powered electric plants if it expands them -- a decision that could influence a U.S. Supreme Court ruling in a similar case this fall.

EPA sued Cinergy, which was bought by Duke Energy Corp., claiming that the utility had violated New Source Review (NSR) rules by physically modifying its coal-fired electric power plants without first obtaining from an EPA permit.

Cinergy argued that the regulation does not require modifications that do not increase the hourly rate at which a plant emits pollutants, even if the modifications increase the annual rate. In USA vs. Cinergy Corp. (No. 06-1224, August 17, 2006), the U.S. Court of Appeals for the Seventh Circuit said Cinergy's interpretation could "open a loophole that would allow pollution to soar unregulated" because annual emissions could rise even as hourly rates stayed level.

In 2005, Duke Energy prevailed in a similar lawsuit filed by EPA. That case, now pending appeal in the U.S. Supreme Court, is Environmental Defense, et al. vs. Duke Energy Corp. (No. 05-848). The case is being briefed this summer, and the nation's high court established Nov. 1 as the oral argument date.

The Seventh Circuit's opinion can be accessed at http://www.ca7.uscourts.gov.

This article originally appeared in the 08/01/2006 issue of Environmental Protection.

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