CBD et al v. EPA et al

January 19, 2011
Final judgment
United States, San Francisco

Environmental NGOs
Center for Biological Diversity (CBD), Pesticide Action Network North America (PANNA)
EPA, Andrew Wheeler
Stephanie Parent, Collette L. Adkins, Justin Augustine, Jennifer Loda

Civil court
Civil action for injunctive and declaratory relief, Stipulated Settlement Agreement
Herbicide, , Rodenticide, Fungicide, Carbaryl, Methomyl, Atrazine, Simazine, Bromadiolone, Brodifacoum, Warfarin, Zinc phosphide, Organophosphate
Declare that EPA is violating Section 7(a)(2) of the ESA by failing to consult with the Service concerning effects of pesticides on the endangered and threatened species and critical habitats; Order EPA to begin or reinitiate consultation pursuant to Section 7(a)(2) of the ESA on the effects of pesticides identified herein in an expeditious fashion; Order appropriate restrictions on the use of the identified pesticides where they may affect endangered and threatened species and critical habitats
United States District Court for the Northern District of California of San Francisco, United States

September 13, 2023
Partially Positive
No description

On September 13, 2023, the U.S. District Court for the Northern District of San Francisco approved an agreement between the NGOs Center for Biological Diversity (CBD) and the North American branch of Pesticide Action Network (PANNA), and the U.S. Environmental Protection Agency (EPA), to implement a series of reforms intended to protect endangered species from pesticides, in conformity with the agency's legal obligations.

The complaint, filed on January 19, 2011 under the Endangered Species Act (ESA), challenged the EPA's failure to consult with federal biodiversity agencies on the impact of hundreds of registered pesticides known to be harmful to hundreds of endangered species.

Indeed, the ESA requires that interagency consultation take place when a federal agency's actions may affect species listed by the act, or if they may destroy or adversely modify the designated critical habitat of such species. The EPA conducts a biological assessment to determine these effects. If the agency determines that its action may affect species or their habitat, it must consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. Following consultation, it may be decided that the action is not likely to have an adverse effect. If not, a biological opinion assessing the effects of the action is issued to the EPA, which must then implement a series of measures and alternatives set out in the opinion.

On June 21, 2018, the Court denied EPA's motion to dismiss the complaint.

On October 22, 2019, the Court approved a first partial settlement agreement reached between the parties, requiring the EPA, in accordance with its obligations under the ESA, to evaluate the risks posed to ESA-listed species and habitats by eight of the most harmful active substances authorized in the United States: atrazine, carbaryl, methomyl, simazine, brodifacoum, bromadiolone, warfarin and zinc phosphide. Evaluations of the first four pesticides were completed in 2021, resulting in a series of registrations that were the subject of a complaint by a coalition of NGOs (see case n°20-73220). Evaluations of four rodenticides are due to be finalized in 2024.

In 2022, following constant pressure and a series of court rulings, the EPA published its first-ever comprehensive work plan on how to meet the challenge of protecting endangered species from pesticides.

According to the final agreement of September 12, 2023, the EPA must:
I. Conduct additional biological assessments of the effects of several active substances (notably organophosphates and rodenticides) on species and habitats listed in the ESA, respecting, if necessary, the obligation to consult federal agencies.
II. Develop strategies to reduce the damage caused to particularly endangered species by certain groups of pesticides: herbicides (draft recently submitted for public comment, publication planned by 2023), rodenticides, insecticides and fungicides (all three still under development) and study the possibility of extending the pilot program for other species.
III. Develop compensatory mitigation measures to address the effects of pesticide registrations on ESA-listed species, and organize a stakeholder workshop on this topic to consider them. Compensation could include restoring wetland habitats or funding breeding programs for affected species.

This "historic" agreement, in the words of the NGO CBD, includes parts of the 2022 work plan as well as outstanding obligations from the previous agreement. Thanks to the NGO complaint, the EPA is slowly moving towards greater compliance with its main mission, to protect health and the environment.