SAN FRANCISCO – A judge has denied the U.S. Environmental Protection Agency's motion to dismiss a complaint over allegations it violated duties regarding the registration of pesticides under a federal act.
On June 21, Judge Joseph C. Spero of the U.S. District Court of the Northern District of California issued an order denying defendants’ motion to dismiss the complaint. The case has been pending for seven years.
“Plaintiffs have substantially complied with relevant court orders in their third amended complaint,” Spero said. “Therefore, intervenors’ motion to dismiss this action with prejudice is denied.”
Plaintiffs the Center for Biological Diversity and Pesticide Action Network North America allege that the Environmental Protection Agency and its administrator Scott Pruitt violated duties under the Endangered Species Act. They allege the defendants failed to consult with the Fish and Wildlife Service and National Marine Fisheries Service in the course of registering pesticides under the Federal Insecticide, Fungicide and Rodenticide Act. Chemical and agricultural business organizations have also intervened as additional defendants, the order stated.
In addition to a request for injunctive relief requiring the EPA to engage in consultation regarding the pesticides at issue, plaintiffs also asked the court to vacate, set aside, and enjoin EPA’s authorization of pesticide uses that may result in pesticides entering occupied habitat or designated critical habitat of endangered and threatened species until the consultation process has been completed and EPA is in compliance.
The court allowed reinitiation claims based on 11 active ingredients to proceed. In contrast, where re-registration had been completed for products containing a particular active ingredient, the court determined that “It makes no sense to require a consultation by the EPA with the Service on the question of whether the old registrations, which no longer govern anything, have any effect on endangered species or their habitat."
The 9th Circuit did not address that holding on appeal. After remand, plaintiffs reduced the scope of their reinitiation claims to three active ingredients—dazomet, malathion, and permethrin—because the EPA completed reregistration of products containing the other active ingredients at issue in the intervening period.
Spero said, “For the reasons discussed, defendants’ motions to dismiss are denied in large part, but intervenors’ motion is granted with respect to plaintiffs’ failure-to-reinitiate-consultation claims, which are dismissed with leave to amend.”
According to the judge, plaintiffs may file a fourth amended complaint no later than July 20.
“Any such complaint must be either narrower than or identical to the present complaint, except for changes addressing the issues identified herein,” he said. “Further challenges to plaintiffs’ pleadings will only be considered to the extent that they address changes in response to this order or failure to comply with this order.”