Court Allows ESA Claims Involving Oversight of Pesticides to Move Forward

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In Center for Biological Diversity v. Environmental Protection Agency, No. 11-cv-00293-JCS (pdf), plaintiffs alleged that the Environmental Protection Agency (EPA) violated section 7 of the Endangered Species Act by failing to initiate and reinitiate consultation with the National Marine Fisheries and U.S. Fish and Wildlife Service with respect to its ongoing oversight of 382 active pesticide ingredients.

As previously reported, the United States District Court for the Northern District of California granted EPA’s motions to dismiss for failure to state an affirmative “agency action” that would trigger section 7. The court allowed plaintiffs to amend their complaint to provide a comprehensive list of every affirmative act that allegedly required the duty to consult.

In their amended complaint, plaintiffs asserted among other things that EPA’s reregistration of pesticides constitutes an agency action. EPA moved to dismiss, and the court granted in part and denied in the part the motion. The court dismissed certain claims for lack of subject matter jurisdiction due to statute of limitation issues, and denied the motion to dismiss with respect to other claims, holding reregistration and ongoing discretionary control over certain pesticides was sufficient to constitute agency action under section 7.

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