The United States District Court for the District of Maryland recently decided (pdf) cross motions for summary judgment in a challenge to a biological opinion (BiOp) and reasonable and prudent alternative (RPA) in favor of the National Marine Fisheries Service (NMFS). In the BiOp and RPA, which NMFS developed at the request of the Environmental Protection Agency (EPA) and after consultation with that agency, NMFS evaluated the effects of chlorpyrifos, diazinon, and malathion on 27 species of Pacific salmonids. Plaintiffs argued that the BiOp and RPA were unlawful – in violation of the Administrative Procedure Act (APA) and Endangered Species Act (ESA) – in a number of respects. But the court rejected each claim and consistently deferred to NMFS as the expert agency charged with implementation of the ESA.
Plaintiffs claimed that NMFS improperly employed and relied on two models. NMFS utilized results from application of the models to predict pesticide levels in streams that support the listed salmonids. With respect to the use of one of the models by NMFS, the court opined that there seems to be a reasonable difference of opinion regarding whether the model accurately predicts pesticide concentrations. But the court stated that it is not within the purview of this Court to weigh the evidence supporting [ ] extremely divergent scientific opinions and decide which of them is correct. It appears though that, when the court held for NMFS on this issue, it may have been influenced by its view that the ultimate outcome would not differ across a range of predicted pesticide levels.
NMFS used a quantitative population model to simulate how the pesticides at issue would affect the listed species, and the agency assumed for the purpose of developing and running the model that juvenile salmonids would be exposed to high levels of the pesticides for four straight days. Plaintiffs argued that NMFS failed to explain the basis for this assumption. The Court characterized NMFS’ explanation for the assumption as post hoc, but nonetheless took note of the fact that the assumption is standard for acute toxicity testing in the field. The court then held that [w]hile four days may seem arbitrary to a layperson, it is not the duty of the Court to sit in judgment of scientific standards.
Plaintiffs also challenged the RPA, particularly buffers around streams that support the listed species that preclude application of the apposite pesticides. Plaintiffs claim that NMFS failed to assess whether the buffers are economically and technologically feasible from the plaintiffs’ perspective. In support of this position, plaintiffs cited to the definition of an RPA in the NMFS and U.S. Fish and Wildlife Service regulations, which states that an RPA is composed of actions that are, among other things, economically and technologically feasible. The court noted a split of authority among the few district courts that interpreted this provision of the regulation, and it sided with those courts that held that the economic and technological feasibility requirement applies to the ability of EPA as the action agency to implement the RPA rather than the ability of those directly affected to successfully carry out the proposed action with the RPA in place.
The court repeatedly deferred to NMFS both with respect to contested legal and scientific issues. To a point, this is consistent with prevailing jurisprudence and applicable law, including the APA. At the same time, this decision reaffirms the general though not universal tendency of the courts to simply punt on difficult scientific issues and arguably represents a departure from the hard look doctrine.
Paul Weiland is chair of Nossaman’s Environment & Land Use Group. He focuses his practice on litigation, permitting, and compliance counseling. Paul’s clients include public agencies, publicly regulated utilities, private ...
Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.
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