Court Sets Aside BiOp, Finds Proposed Salmon-Related Restrictions “Arbitrary and Capricious”
In February 2013, the U.S. Fourth Circuit Court of Appeals vacated a federal agency’s call for new salmon-related restrictions on chlorpyrifos and two other pesticides under the Endangered Species Act (ESA), deeming the restrictions “arbitrary and capricious” and “not the product of reasoned decision-making.” In 2008, in an effort to fulfill some of its responsibilities under the ESA, the National Marine Fisheries Service (NMFS) published a “Biological Opinion” (BiOp) concluding that three insecticides (chlorpyrifos among them) posed a risk to the survival of certain species of salmonids (including salmon) in the western U.S. The BiOp called upon the U.S. Environmental Protection Agency (EPA) to impose extensive, unwarranted restrictions on these products, including spray buffer zones of up to 1,000 feet between application sites and water bodies. Despite misgivings on the part of EPA, state regulatory agencies, and the agricultural community, during 2010 EPA stated publicly that it intended to implement the NMFS recommendations. In response, registrants for the affected products filed suit, requesting that the flawed BiOp be set aside. That request has now been granted by the court. This decision strengthens public policy by reinforcing statutory requirements for use of the best available information in regulatory decision-making. In doing so, it also prepares the way for better and more defensible regulatory assessments and in time better protection for endangered species.
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