Environmental Protection Agency (EPA) and various intervenors including CropLife America, Washington State Farm Bureau, and thirty-five other groups involved in the pesticide industry appealed the district court's order to suspend authorization of fifty-four pesticides, until EPA complied with the Endangered Species Act (ESA) by consulting with the National Marine Fisheries Service (NMFS). The action was originally brought by Washington Toxics Coalition (WTC), Northwest Coalition for Alternatives to Pesticides, Pacific Coast Federation of Fishermen's Associations, Inc., and Institute for Fisheries Resources. The Ninth Circuit held that EPA must comply with the consultation requirements of the ESA and affirmed the district court's order to enjoin EPA's authorization of pesticides within specified distances of salmon-supporting water in California, Oregon and Washington until consultation requirements are fulfilled.
The action was brought under an ESA citizen suit provision to force compliance with the consulting requirements of the statute in regard to pesticides that the NMFS determined may harmfully affect endangered and threatened classes of fish. The district court held that it must comply with both. The district court also rejected the argument made by the intervenors that the case was governed by the judicial review and injunctive standards of the Administrative Procedure Act (APA). The district court ordered EPA to initiate and complete consultation with ESA about the effects of pesticide registrations on salmon and steelhead. Furthermore the district court, because it viewed the procedural violation of not consulting with the ESA to be a substantial violation, enjoined EPA from authorizing any use of the pesticides within specific distances of bodies of water that support salmon in California, Oregon and Washington until the consultation requirement is fulfilled.
EPA admitted that it did not comply with the ESA and that the Act requires consultation with NMFS. However, EPA asserted that it was not bound to comply with ESA requirements because it complied with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) when it registered the pesticides.
Upon review, the Ninth Circuit held that 1) EPA must comply with ESA consultation requirements, 2) the regulatory discretion of EPA is not limited by FIFRA in such a way that would bar an injunction to enforce the ESA, 3) the plaintiffs were not required to exhaust remedies under FIFRA before seeking an injunction, 4) the APA did not govern the claims, 5) the required remedy was a preliminary injunction, 6) EPA had the burden of proving that registering the pesticides would not jeopardize endangered or threatened species, 7) the district court did not need to balance the protection of endangered species against the costs of preliminary injunction, and 8) the district court stayed within its discretion.
The Ninth Circuit first held that compliance with FIFRA did not exempt EPA from also complying with the ESA. FIFRA allows EPA to suspend a registration when there is an immediate hazard to an endangered or threatened species. The ESA provides that "each federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species . . . ." While the Ninth Circuit had not previously ruled on whether regulation under FIFRA bars a suit under the ESA, the Eighth Circuit ruled that there was no bar in Defenders of Wildlife v. Administrator, U.S. Environmental Protection Agency. The Ninth Circuit found the Eighth Circuit's reasoning persuasive in the situation as both courts agreed that FIFRA compliance did not exempt EPA from also complying with ESA requirements.
The Ninth Circuit held that compliance with FIFRA does not exempt an agency from compliance with environmental statutes with different purposes. Furthermore, in Headwaters, Inc. v. Talent Irrigation District, FIFRA's objective was to use a cost-benefit approach to protect public health and prevent environmental harm while the Clean Water Act, the other statute at issue, was meant to protect water quality by limiting pollutants. The court noted in the case at hand, FIFRA and the ESA also had different but complementary purposes. While FIFRA balances the risk a pesticide poses to people or the environment with the economic, social and environmental costs and benefits of its use the ESA gives endangered species the "highest of priorities" in weighing risks and benefits. Therefore, the Ninth Circuit held that the EPA is not exempt from its obligation to comply with the ESA simply because it is also bound to comply with another statute that has consistent and complementary purposes.
Second, the Ninth Circuit held that because EPA has discretion to alter the registration of pesticides when there are environmental concerns, EPA's regulatory discretion is not limited by FIFRA in such a way that would bar an injunction to enforce the ESA. EPA had argued that it lacked discretion to cancel a pesticide's use except through FIFRA and that the district court erred in granting injunctive relief under the ESA. However, the Ninth Circuit differentiated the cases EPA relied upon because agency activity was not ongoing and did not have a long-lasting effect after adoption. In the current case, pesticide registrations constitute an ongoing activity and have a long-lasting effect. Thus, the court held that EPA retained discretion to alter the registration of pesticides for reasons that include environmental concerns.
Third, the court held WTC was not required to exhaust the remedies available under FIFRA before bringing suit under the ESA. The court reasoned that just because FIFRA recognizes that EPA may suspend registered pesticides to protect endangered species, does not mean that FIFRA remedies trump ESA remedies or that FIFRA has an exclusive or primary remedy.
Fourth, the argument by intervenor CropLife America that the APA governed the case was rejected. The court pointed out that the APA provides judicial review when there is no other adequate remedy in a court. However, in the present case WTC relied upon the ESA citizen suit provision to provide an express remedy. Therefore, APA does not govern the claim.
Fifth, the court upheld the preliminary injunction issued by the district court. The intervenors asserted that although the district court could order EPA to comply with the ESA, it had to allow the use of pesticides during the consultation. However, the purpose of the consultation was to prevent later ESA violations and the Ninth Circuit indicated that it is widely held that a court can enjoin agency action until consultation requirements of the ESA are completed. Furthermore, section (7)(d) compliance requirements of the ESA were meant to prevent agencies from spending resources on a project to ensure its completion regardless of the impact on endangered species. The court reasoned that the EPA's approval of pesticides was currently harming endangered species and therefore held that the injunction presented no issue of irreversible or irretrievable harm.
Sixth, the Ninth Circuit decided that EPA and not the plaintiffs had the burden of proving that registering the pesticides presented imminent irreparable harm as to require an injunction. The Ninth Circuit viewed this holding as consistent with the purpose of the ESA. Therefore, the district court correctly concluded that EPA should carry the burden that the pesticides had a non-jeopardizing effect on the endangered species.
Seventh, the Ninth Circuit held that the district court did not need to balance the protection of endangered species against the costs of preliminary injunction when determining its scope. The court commented that Congress intended for the ESA to strongly favor the protection of endangered species when balancing hardships in determining injunctive relief.
Finally, the Ninth Circuit held that the district court acted within its discretion when it concluded in its injunction that buffers against certain pesticides in urban areas were insufficient to protect salmon. As an alternative to banning those pesticides in urban areas, the injunction required EPA to develop and distribute point-of-sale notifications that describe pesticide harm to salmon. This injunctive relief was within the district court's discretion.
In summary, the Ninth Circuit upheld the district court's injunction banning the use of fifty-four pesticides within a proscribed distance of salmon supporting waters in California, Oregon and Washington. The Ninth Circuit also upheld the injunctive relief issued by the district court ordering EPA to adhere to the consultation requirements of EPA.
After initiation of consultation required under subsection (a)(2), the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section.