McAfee & Taft RegLINC - September 2011: Endangered species litigation — Potential impact on pesticide use in production agriculture By Chris Paul


On May 30, 2007, the Center for Biological Diversity filed a lawsuit alleging that the U.S. Environmental Protection Agency (EPA) was failing to comply with Section 7(a)(2) of the Endangered Species Act (ESA) in regard to 47 pesticides and 11 species that are listed as endangered or threatened under the ESA (Center for Biological Diversity v. EPA, Case No. 07-2794-JCS, N.D. Cal.).

The species identified in the lawsuit are all reportedly found in the greater San Francisco Bay area: Alameda whipsnake, bay checkerspot butterfly, California clapper rail, California freshwater shrimp, California tiger salamander, delta smelt, salt marsh harvest mouse, San Francisco garter snake, San Joaquin kit fox, tidewater goby and the valley elderberry longhorn beetle.

Various allegations of impacts on the environment and the specific species harmed were claimed by the plaintiffs. These included a broad claim that the pesticides contaminated waters throughout the San Francisco Bay area, claims that Bay area sediments were impacted,and claims that pesticides could harm aquatic life and the identified species by causing acute toxicity and stress, reproductive and immunity disorders, endocrine disruption, cancer, birth defects, neurological impacts, skeletal malformations, weight loss and decreased resistance to disease. In short, the pesticides were blamed for about every possible problem, even where no evidence of actual causation was presented. This is not said to diminish concerns that pesticides can, in certain doses, present serious problems, but the claims in this case were much more of the “could cause” rather than a “did cause” nature.

Ultimately, 75 pesticide ingredients fell under scrutiny in this case (see link). The EPA agreed to a stipulated injunction to resolve the lawsuit. The stipulated injunction commits EPA to...

Article Authored By McAfee & Taft Attorney: Chris Paul.

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