Fourth Circuit Rules that Delaying Judicial Review of Controversial Biological Opinion for Pacific Salmonids Is Improper
Posted in Court Decisions

On March 2, 2011, the United States Court of Appeals for the Fourth Circuit held that a biological opinion issued by the National Marine Fisheries Service ("Service") regarding the Environmental Protection Agency's ("EPA") reregistration of pesticides is immediately reviewable under the Administrative Procedure Act, reversing a lower court decision.  Dow Agrosciences LLC v. National Marine Fisheries Service, Case No. 09-1968 (pdf). 

The Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") establishes specific requirements prior to EPA's registration or reregistration of a pesticide.  Among the requirements, EPA must find that the pesticide will perform without "unreasonable adverse effects" on the environment.  FIFRA further provides that all EPA registration determinations are subject to judicial review in the Court of Appeals in the first instance, rather than in district court.

In 2004, as a result of a previous action filed by several environmental groups, EPA initiated formal consultation with the Service on 37 active pesticide ingredients.  In 2008, the Service issued a biological opinion (pdf) concluding that 3 of the pesticide ingredients would jeopardize numerous salmonid species and adversely affect their critical habitat.  The biological opinion was accompanied by a reasonable and prudent alternative and an incidental take statement.

Shortly after the Service issued the biological opinion, but before EPA issued a registration determination, a group of pesticide registrants and manufacturers filed suit under the federal Administrative Procedure Act, alleging that the biological opinion was not based on the "best scientific data available," a requirement of the federal Endangered Species Act.  The Service moved to dismiss the litigation on the ground that FIFRA provided the sole means of challenging the biological opinion, and an action under FIFRA could not be initiated until EPA made a registration determination.  The district court found the Service's argument persuasive, and dismissed the action, concluding that because FIFRA provided a means for reviewing the biological opinion, and because the APA is only implicated if there is a "final agency action for which there is no other adequate remedy in a court" of competent jurisdiction, the litigation had to wait until EPA made a registration determination, after which the biological opinion and registration determination could be concurrently challenged via an action brought before the Court of Appeals. 

The Fourth Circuit reversed, interpreting FIFRA's judicial review provision as applying only to agency actions either by EPA or inherent in EPA's eventual registration determination, and finding that the biological opinion was a separate agency action by the Service with its own independent and ongoing legal consequences.  Therefore, the Court held that the biological opinion was immediately reviewable under the APA.

  • Benjamin Z. Rubin

    Ben Rubin assists developers, public agencies, landowners and corporate clients on a variety of complex land use and environmental matters. He counsels clients on matters dealing with the Federal and State Endangered Species Act ...

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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