Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law
The Center for Biological Diversity filed suit against the U.S. Fish and Wildlife Service and the U.S. Environmental Protection Agency (EPA) on February 13, 2018 in the United States District Court for the District of Columbia. Plaintiffs allege that defendants failed to make records available in response to requests made under the Freedom of Information Act (FOIA). You can read the complaint in its entirety here.
The records at issue are related to the EPA’s authorization of the use of pesticides containing chlorpyrifos, diazinon, or malathion and the resulting effects on species protected under the Endangered Species Act. The Center for Biological Diversity asked the court for declaratory relief that both federal agencies have violated FOIA by refusing to release the information requested on July 27, 2017. The Center also seeks injunctive relief ordering the agencies to provide the records without further delay.
Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), a pesticide product may not be sold or used in the United States until EPA registers the product and specifies permissible uses (See 7 U.S.C. § 136a(a)). The EPA must also comply with the Endangered Species Act (ESA), which requires the EPA to consult with either the U.S. Fish and Wildlife Service or the National Marine Fisheries Service (Services) to determine if the action may affect any listed species or their habitat. If so, the agencies must conduct an effects determination by conducting a Biological Evaluation of the proposed action (See 16 U.S.C. § 1537(a)(2)).
The agency’s determination whether to undertake an effects determination in approvals is a highly-litigated issue. In 2014, EPA and the Services determined they would fulfill these statutory obligations by focusing on the national level of scale effects, working with litigants to do so. The Center for Biological Diversity agreed to a request to allow the agencies to satisfy their statutory obligations by completing consultation on the effects of the use of chlorpyrifos, diazinon, and malathion on species nationwide, rather than a regional or species-by-species basis.
In January 2017, the EPA submitted Biological Evaluations for the three pesticides at issue in this case to the Services. These evaluations determined “the use of these three pesticides is likely to adversely affect 1,778 endangered or threatened species and likely to adversely affect the designated critical habitat of 780 species.” Although the Services had committed to publishing the draft Biological Opinions in May 2017, and to making them available for public comment for the following 60 days, no action was taken. Final Biological Opinions were initially to be completed on December 31, 2017. According to the plaintiffs, attorneys for the producers of the pesticides requested in April 2017 for the agencies to stop working on the Biological Opinions. In November of 2017, the agencies agreed to indefinitely extend the consultation on the registration of the pesticides at issue. The draft Biological Opinions have not been made available for public comment to date, nor have the final drafts been released.
Plaintiffs submitted FOIA requests for all records from April 1, 2017, to June 27, 2017, mentioning or including the Biological Evaluations or Opinions concerning chlorpyrifos, diazinon, and malathion. No records have yet been provided. The Center for Biological Diversity asks the court for declaratory relief that both federal agencies have violated FOIA by refusing to release the information requested on July 27, 2017. The Center also seeks injunctive relief ordering the agencies to provide the records without further delay.