Pivotal Endangered Species Pesticide Case Moves in Appeals Court

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By Tiffany Stecker

A federal appeals court is moving forward on a potentially precedent-setting case on how agencies consult on pesticides that may endanger rare species.

The U.S. Court of Appeals for the District of Columbia Circuit will hold oral arguments March 6 on whether the Environmental Protection Agency violated the Endangered Species Act in approving cyantraniliprole, an insecticide registered for use in 2014 ( Center for Bio. Diversity v. EPA, D.C., No. 14-1036, 1/11/17 ). The insecticide is used in the citrus and blueberry industries, where farmers are battling insects that spread citrus greening disease and invasive fruit flies, respectively.

Environmental groups, represented by the nonprofit law firm Earthjustice, argue that the EPA did not consult with the National Marine Fisheries Service on whether the approval of cyantraniliprole would harm species listed under the Endangered Species Act. The EPA is currently developing a framework for such consultations.

‘The Clocks Don’t Align’

The upcoming argument will likely center on a jurisdictional question: what is the proper legal venue—district courts or appellate courts—for such pesticide challenges?

According to the Endangered Species Act, challenges from citizen groups must begin in federal district courts. Under the Federal Insecticide, Fungicide and Rodenticide Act, the law governing pesticide registrations, those cases must begin in federal appeals court. So Earthjustice filed nearly identical challenges in both the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the D.C. Circuit.

Both laws contradict themselves on timing, Jason Rylander, senior staff attorney for Defenders of Wildlife, told Bloomberg BNA. Under FIFRA, challengers must file in circuit court within 60 days of a pesticide registration decision. Under the Endangered Species Act, challengers must give notice of violation in district court and then wait 60 days.

“Obviously, the clocks don’t align,” Rylander said.

D.C. District Court Judge Gladys Kessler dismissed the environmentalists’ 2015 challenge on the grounds that cases under FIFRA should be filed in appeals court, not district court ( Ctr. for Biological Diversity v. EPA, D.D.C., No. 1:14-cv-00942, 6/11/15 ). Earthjustice appealed that decision, and the court has consolidated the two challenges on cyantraniliprole.

Once oral arguments are complete, the court of appeals will either send the case back to the district court to weigh on the merits, or decide that the appeals court is the proper venue. In the latter case, the circuit court may also decide whether the agency violated the Endangered Species Act.

The appeals court decision will have implications for the growing number of pesticide complaints under the Endangered Species Act. The EPA must consult with other agencies on pesticide decisions when rare species could be impacted.

At least four other cases are on hold pending the outcome of the cyantraniliprole challenge.

To contact the reporter on this story: Tiffany Stecker at tstecker@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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