Judge Vacates Bush Pesticide Rules, Requires Consultation

SEATTLE, Washington, August 29, 2006 (ENS) - A federal judge has overturned new Bush administration rules that would have allowed use of pesticides on endangered species and their habitats without consultation with federal wildlife agencies. Plaintiff conservation groups successfully argued that the rules made it easier for pesticide makers to ignore the effects of their products on endangered plants and animals.

For the second time in the past five years, U.S. District Judge John Coughenour ruled against federal agencies for failing to follow the Endangered Species Act in licensing pesticides for sale.

In a ruling August 24, the judge set aside the administration's rules, and restored prior standards that provided greater protection to protected wildlife and plants. Judge Coughenour found that the rules would "actually result in harm to listed species."

The decision came in response to a lawsuit brought by a coalition of national and regional wildlife conservation and pesticide reform organizations.

"Pesticides are driving America's wildlife toward extinction, and this administration wants to remove the checks and balances that hold them accountable," said Patti Goldman, an attorney with Earthjustice, who is representing the coalition. "It's time for them to stop trying to sidestep the law, and start addressing this problem in a serious and systematic way."

A U.S. Forest Service plane sprays fungus to control gypsy moths. (Photo courtesy USFS)

The law requires the EPA to consult with wildlife specialists in the U.S. Fish and Wildlife Service and National Marine Fisheries Service to apply the best available science to meeting this obligation to protect endangered species.

The environmental groups say the rules they challenged are "the product of fierce closed-door lobbying by pesticide companies."

The rules would have cut wildlife scientists out of the decisionmaking, allowing pesticide managers at EPA, not wildlife experts, to make key decisions about the impact these chemicals have on protected species.

Judge Coughenour determined that the rules were "arbitrary and capricious" because they ignored the risks to species and because political appointees at the U.S. Fish and Wildlife Service ignored the concerns of its own scientists.

In 2001, environmental groups sued over the EPA's failure to consult with NOAA Fisheries or the U.S. Fish and Wildlife Service before allowing certain pesticides to be sold. Coughenour ordered the EPA to conduct such consultations in determining whether 55 of the pesticides were likely to harm salmon.

But instead, in 2004, the Bush administration created a new rule allowing officials to side-step the consultation requirement of the Endangered Species Act.

The judge noted the "total absence of any technical and scientific evidence to support or justify" the agencies' rule.

Pesticide is applied to kill unwanted organisms, but it may also kill or harm endangered species. (Photo courtesy MSU)

Jamie Rappaport Clark, director of the U.S. Fish and Wildlife Service in the Clinton administration, and now executive vice president of Defenders of Wildlife, one of the plaintiffs in this case, said that faulty science and unsound analysis has been the result of the longstanding reluctance of the EPA to conform to its obligation to consult with federal wildlife experts.

"Up to now, EPA's track record in addressing the effects of pesticides on endangered species has been abysmal. Instead of solving the problem, they simply weakened the rules - allowing more potentially dangerous chemicals to be pumped into the environment without proper review," said Clark. "The court has put a stop to that."

By eliminating the checks and balances built into the Endangered Species Act through inter-agency consultation, the new rule would have made it easier for agribusiness and other industries to use highly toxic pesticides despite the risks to the environment.

Scientists, conservationists, and members of Congress had opposed the rule change because pesticides have been a factor in the decline of species as diverse as bald eagles, salmon, frogs, and sea turtles.

Despite the ruling, pesticide makers could get a five year respite before they must comply with the Endangered Species Act if a House bill sponsored by California Republican Congressman Richard Pombo, who chairs the House Resources Committee. The Senate has not approved this measure.