Endangered Species Law & Policy

In Center for Biological Diversity v. Environmental Protection Agency, the United States District Court for the Northern District of California dismissed with leave to amend (pdf) a suit alleging that the Environmental Protection Agency (EPA) violated section 7 of the Endangered Species Act (ESA) by failing to consult with the United States Fish and Wildlife Service or the National Marine Fisheries Service on the effects of 382 registered pesticides on endangered and threatened species.

The court dismissed the case, holding that plaintiffs failed to allege specific facts constituting agency action for purposes of triggering section 7 consultation for each of the 382 pesticides. The court rejected plaintiff’s argument that the EPA’s ongoing discretionary control and authority over the pesticides constituted agency action. To establish that there was a duty to consult, plaintiffs would need to allege specific facts identifying affirmative actions taken by the EPA with regard to each of the challenged pesticides.

The court also held that plaintiffs failed to allege sufficient facts to establish that they had standing to bring the case. As plaintiffs were required to allege specific facts with regard to each individual pesticide in order to invoke the section 7 consultation requirement, the court held that plaintiffs were likewise required to allege facts to establish standing for each individual pesticide. The court reasoned that standing to challenge one pesticide did not establish standing with regard to another pesticide.

In addition, the court held that plaintiffs did not plead sufficient facts to establish that the district court had subject matter jurisdiction over the claims. To the extent that plaintiffs’ core objections were to EPA’s pesticide registrations, the suit was governed by the administrative framework of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), not the citizen suit provision of the ESA. The court opined that whether it had subject matter jurisdiction under FIFRA, or whether the claims fell outside the ambit of FIFRA, must be established by plaintiffs with respect to each particular pesticide challenged.