Thursday, March 3, 2011

Dow Agrosciences L.L.C. v. National Marine Fisheries Service

Mar 2: In the U.S. Court of Appeals, Fourth Circuit, Case No. 09-1968. Appealed from the United States District Court for the District of Maryland. As explained by the Appeals Court the question presented is whether a "biological opinion" issued by the National Marine Fisheries Service (NMFS) to the Environmental Protection Agency (EPA) pursuant to the Fisheries Service's consulting role under the Endangered Species Act is subject to judicial review in the district court under the Administrative Procedure Act (APA).
    The Fisheries Service, which provided the biological opinion to the EPA as part of the EPA's process of re-registering for sale and use the insecticides chlorpyrifos, diazinon, and malathion, concluded that the insecticides will destroy or harm Pacific salmonids and their habitat. Pesticide manufacturers who hold the registrations for those insecticides commenced the action to challenge the biological opinion. The district court dismissed the action, concluding that the biological opinion is not reviewable under the APA because the EPA has not yet acted on the biological opinion and when it does issue a final order on whether to reregister the insecticides, the order, including the biological opinion, will be subject to judicial review in a court of appeals, as authorized in the Federal Insecticide, Fungicide, and Pesticide Act (FIFRA).
    In the appeal from the district court's dismissal order, the Appeals Court said, "we conclude that, under Bennett v. Spear, 520 U.S. 154 (1997), the Fisheries Service's biological opinion is a final agency action and that deferring judicial review of the biological opinion until the EPA acts on re-registration of the insecticides would not provide the manufacturers adequate review of the biological opinion. Accordingly, we conclude that the Fisheries Service's biological opinion is judicially reviewable under § 704 of the APA. We reverse and remand for further proceedings in the district court."
    Access the complete opinion (click here). Access a related unpublished opinion denying a Petition for Writ of Mandamus (click here).