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Endangered Species ‘Mega-Suit’ Dismissed

National News

The court’s decision has significant implications for the pest control industry, as this litigation involves more than 380 registered pesticides in the United States — including almost all rodenticides and termiticides.

Brad Harbison | April 30, 2013

Brief History of the Mega-Suit

The Mega Suit” (Center for Biological Diversity and Pesticide Action Network North America v. Environmental Protection Agency) has been drawn out for a number of years, and has its roots in EPA’s Endangered Species Act, which requires EPA to consult with the U.S. Fish and Wildlife Services when deciding whether to register or re-register a pesticide product.

2007: The Center for Biological Diversity files suit against the Environmental Protection Agency, claiming EPA violated the Endanger Species Act (ESA) by “registering and allowing the use of toxic pesticides in (San Francisco) Bay Area endangered species habitat without determining whether the chemicals jeopardize those species’ existence.”

2009: EPA announces a proposed settlement of the lawsuit to formally evaluate the effects of 75 pesticides on 11 endangered and threatened species in the Bay Area over the next five years, and to impose interim restrictions on the use of these pesticides in and adjacent to endangered species critical habitats. The pesticides subject to the injunction include all rodenticides and soil-applied liquid termiticides used in Northern California.

2010: EPA adopted pesticide use patterns recommended by NPMA and PCOC in a revised Endangered Species Act-related legal agreement the agency recently filed with a federal district court in Northern California.

2011: The “megasuit” is filed; the Center for Biological Diversity and Pesticide Action Network file suit against EPA, alleging that the agency failed to take steps required by the Endangered Species Act to protect more than 200 endangered species located in every state and territory in the United States, excepting Alaska, American Samoa, Guam and the Northern Marianas Islands.

2013: Judge Joseph C. Spero granted EPA’s motions to dismiss the “Mega-Suit” in the U.S. District Court of Northern California. Judge Spero dismissed the case on several grounds, including the plaintiff’s lack of standing.

WASHINGTON — On April 22, Magistrate Judge Joseph Spero of the U.S. District Court Northern District of California dismissed the Center for Biological Diversity and Pesticide Action Network North America v. Environmental Protection Agency (EPA), Endangered Species Act "Mega-Suit." [Click here to read the court document.]

The court’s decision has significant implications for the pest control industry, as this litigation involves more than 380 registered pesticides in the United States — including almost all rodenticides and termiticides.

“You would be hard-pressed to think of anything that could have happened to this industry that would have been more disruptive than if they had prevailed in that lawsuit,” said NPMA Executive Vice President Bob Rosenberg.

The “Mega-Suit” was filed in 2011 by the Center for Biological Diversity and Pesticide Action Network, which alleged that EPA had failed to take steps required by the Endangered Species Act (ESA) to protect more than 200 endangered species located in every state and territory in the United States, excepting Alaska, American Samoa, Guam and the Northern Marianas Islands.

In dismissing the suit, Judge Spero noted that the plaintiff failed to provide the minimum required information to support its claim that EPA did not meet its statutory obligations to consult with the U.S. Fish and Wildlife Service on certain pesticide decisions. The court stated, “Plaintiffs have not even pled the ‘general factual allegations’ giving rise to each individual ESA claim, nor have they asserted individual ESA claims.”

Rosenberg said the judge’s ruling affirms NPMA’s belief that, “EPA has for a very long time done a good job conducting ecological risk assessment and determining whether the products and their use have the potential to impact even non-target species that aren’t endangered — and certainly endangered species. At worse, what was happening was EPA maybe wasn’t talking as much as they ought to with the U.S. Fish and Wildlife Services and National Marine Fisheries. But that’s not to say they weren’t taking into account their impact on endangered species.”

Additional grounds for Spero’s dismissal of the lawsuit included that the plaintiffs lacked standing; were too vague; and that appellate courts are the appropriate venue for many of the counts.

Judge Spero has allowed 30 day for the plaintiffs to file an amended lawsuit. Center for Biological Diversity and Pesticide Action Network North America also have 60 days to appeal the decision.
 

 

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