On May 8, 2017, the U.S. District Court for the Northern District of California granted, in part, a motion for summary judgment brought by plaintiffs in a suit challenging the U.S. Environmental Protection Agency’s (“EPA”) approval of the registration and use of 73 pesticides containing the active ingredients clothianidin and thiamethoxam.  See Ellis v. Housenger, Case No. 13-cv-01266-MMC, 2017 U.S. Dist. LEXIS 70107 (N.D. Cal. May 8, 2017).  Plaintiffs, a collection of individuals and a number of environmental and advocacy groups, alleged that EPA’s decision to allow continued use of the pesticides violated by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and the Endangered Species Act (“ESA”) because the chemical compounds are known to cause harm to both pollinators and other animals, including threatened and endangered species.

Under FIFRA, the EPA has the authority to immediately suspend the use of a pesticide that poses an “imminent hazard,” which may include a threat posed to the survival of a species that has been declared threatened or endangered under the ESA.  Plaintiffs argued that EPA acted arbitrarily and unreasonably when it failed to address the threat posed to threatened and endangered species by pesticides containing clothianidin.  Because plaintiffs failed to provide any studies or data to back up the assertion that pesticides would have an adverse effect on threatened or endangered species, the court found that EPA was entitled to summary judgment on the FIFRA claim in this regard.

Plaintiffs also alleged that EPA violated the ESA when it failed to consult with the U.S. Fish and Wildlife Service (the “Service”) about the pesticides’ potential impact on threatened or endangered species or their critical habitat before approving the pesticides’ registration and use.  In response, EPA alleged that plaintiffs lacked standing to pursue their ESA claims, and the intervenors in the case alleged that the court lacked jurisdiction to hear the ESA claims at least as to five of the pesticide approvals at issue.  Because EPA held a public hearing and comment period before approving five of the pesticides, the court found that the jurisdictional limitations of FIFRA barred consideration of challenges to EPA’s approvals of those five pesticides, but that the court properly had jurisdiction to consider the challenges to the remaining 68 EPA pesticide approvals.  The court, however, rejected EPA’s argument that plaintiffs lacked standing to pursue their ESA claims, in light of the multiple declarations submitted by plaintiffs in support of standing.

EPA additionally argued that eleven of the approvals were not “agency actions” that would trigger the ESA’s consultation requirements because they were conversions from conditional to unconditional registrations – not new registrations or approvals.  However, because EPA retained discretion to change or influence the pesticide’s use when converting a registration from conditional to unconditional, the court found that those eleven approvals were agency actions subject to the ESA’s consultation requirements.  The court further found that nine of the “approvals” were not, in fact, agency actions, but were notices of pending applications that are not subject to ESA consultation requirements.  In total, the court found that EPA failed to consult on the approvals or registrations of 59 pesticides as required by the ESA, but that EPA had not violated the ESA when it approved 14 other pesticides because those approvals were not agency actions or because FIFRA barred the challenges.  The court otherwise denied plaintiffs’ motion for summary judgment, and ordered the parties to submit a briefing schedule regarding the appropriate remedies for EPA’s failure to consult with the Service.