The Great Salmon Debate: Setting Legal and Regulatory Precedents
As registrants work with EPA in an attempt to reach a balanced, well-informed approach to ESA requirements and the protection of salmon, the timing of converging lawsuits holds the potential either to improve or derail the regulatory process, not only for chlorpyrifos, but for many other pest control products.
“With ever decreasing detection levels, there must be some level below which the impact to salmonids would be negligible, but none are provided [in the BiOp].” – California Department of Pesticide Regulation
[Underlining in the original.]
Pesticide Opponents and EPA
Since 2000, activist groups have filed a number of lawsuits against the EPA based on a common template, alleging its failure to put in place an Endangered Species Act-compliant process for registering and reregistering pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). These lawsuits concern the absence of a formal administrative process for EPA consultation with NMFS and FWS, the two agencies charged with implementing the ESA. Opponents have sought and obtained court-ordered injunctions that severely restrict agricultural, professional applicator, and consumer access to vital pest control products. Such injunctions have included arbitrary buffer zones and use restrictions.
Chlorpyrifos is one of the pesticides affected by these injunctions, and recent actions taken by EPA are now threatening grower access to chlorpyrifos (and two other pest control products) in large areas of the Pacific Northwest.
Chlorpyrifos Registrants Sue NMFS
In April 2009, Dow AgroSciences LLC; Cheminova, Inc.; and Makhteshim-Agan of North America filed suit against the U.S. National Marine Fisheries Service (NMFS), calling for ill-considered restrictions advocated by NMFS for the protection of endangered salmon to be set aside as arbitrary and capricious, lacking either legal or scientific foundation and offering no actual benefit to the environment. Meanwhile, however, EPA is actively moving forward with implementing the recommendations of the NMFS assessment it had previously so strongly criticized.
