Oversight of Pesticide Ingredients May Trigger a Duty to Consult under the Endangered Species Act

In Center for Biological Diversity v. Environmental Protection Agency, No. 11-cv-00293 (pdf), plaintiffs sued the Environmental Protection Agency (EPA), alleging that EPA’s oversight of pesticide ingredients, including trifluralin, triggered a duty to consult with the National Marine Fisheries Service about trifluralin’s possible effects on species listed under the Endangered Species Act (ESA). EPA and defendant intervenors representing the farming industry filed Rule 12(e) motions, requesting more definite statements, and alleging the complaint was so vague and ambiguous that the parties were unable to prepare responses. The United States District Court for the Northern District of California agreed, and held that the amended complaint was too ambiguous as to which affirmative agency actions required EPA to consult about trifluralin before registering it. The court ordered plaintiffs to provide a comprehensive list of every affirmative act that allegedly triggered the duty to consult and the date of each act in an amended complaint.

 

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