With the increasing number of lawsuits affecting the use of pest
control products, Washington Friends of Farms & Forests has
become more active in legal issues.
Response to Judge Coughenour's August 24, 2006 decision in
Washington Toxics Coalition v
US Department of the Interior regarding counterpart rules for
ESA consultation
First and foremost, this case was not about harm to salmon, it
was about how federal agencies communicate with each other.
 Contrary to what the headlines read, the counterpart rules did
not weaken rules governing pesticide use, they simply clarified
which agency had the authority to make which decisions.
Judge Coughenour’s most recent decision voided some parts of the
counterpart rules developed in response to Coughenour’s July
2002 ruling in Washington Toxics Coalition (WTC) v EPA to
provide a streamlined mechanism for EPA and the Services (NOAA
Fisheries and US fish and Wildlife Service) to consult with each
other.
We look forward to working with the Services to appeal thi s
decision and vindicate the counterpart rules.Background
In WTC v EPA, Coughenour ordered EPA to get into compliance with
the Endangered Species Act (ESA) with respect to consultation
requirements. When a government agency takes an action that is
likely to adversely affect an endangered species, it must
consult with the agency in change of recovering the species.
When EPA registers a pesticide that is likely to adversely
affect salmon, it must consult with NOAA Fisheries.
The consultation requirements are so convoluted that neither EPA
nor NOAA Fisheries could complete them. After Coughenour’s order
in the original WTC v EPA case in July 2002, EPA, along with the
Departments of Interior and Commerce (parent agencies to USFWS
and NOAA Fisheries,) developed and adopted the counterpart rules
to clarify consultation requirements. As Judge Coughenou r stated
in last weeks decision, “EPA is faced with a task of gargantuan
proportions” and the “counterpart regulations challenged by
Plaintiffs are an attempt to streamline and accelerate the
process of registration and re-registration” of pesticides by
EPA in compliance with the ESA. When it comes to pesticide
registrations, the majority of experts and science resides with
EPA and not the Services.
Effects
The decision will have no effect on pesticide
determinations already made. The counterpart rules had not yet
been used. All decisions about pesticides in the northwest had
been made under the old rules.
Coughenour approved the section of the counterpart rules that
allows EPA to write its own biological opinions. EPA is the only
federal agency now allowed to write its own biological opinions.
This is a significant change in the implementation of the
Endangered Species Act.
Coughenour’s decision will make it more difficult to get new
pesticides through the consultation process and approved for
registration. |
