The 4th US Circuit Court of Appeals vacated the first BiOp (biological opinion) that would have led to far-reaching restrictions on the use of three crucial crop protection products -- chlorpyrifos, diazinon and malathion. The ruling in the case, Dow AgroSciences et al. v. National Marine Fisheries Service (that also included plaintiffs Makhteshim and Cheminova), vacates the BiOp that National Marine Fisheries Service (NMFS) submitted to the EPA following consultations required by the Endangered Species Act (ESA). The plaintiffs had sued EPA over their BiOps for re-registering those three products, which had placed substantial use restrictions in order to protect salmonids.

In its news release, CropLife America (CLA) said it was pleased that the court found NMFS' BiOp “arbitrary and capricious,” concluded that it was not the product of reasoned decision making and thoroughly admonished NMFS for its inadequate scientific review. The court also remanded the case back to NMFS for further proceedings consistent with its opinion, and noted that NMFS had “failed to explain or support several assumptions critical to its opinion.” The ruling inherently calls into question the use restrictions included in subsequent BiOps issued by NMFS.

CLA filed an amicus brief with the court on behalf of the plaintiffs on Feb. 28, 2012, arguing that NMFS used outdated toxicity data and studies; made faulty assumptions in calculating the potential for endangered species to come into contact with the products at issue in the case; and violated the ESA and the Administrative Procedure Act. The BiOp’s inadequacies, recognized by the court, are indicative of the scientific disagreements between the Services (NMFS and the US Fish and Wildlife Service) and EPA, and demonstrate the lack of a sound and workable process for consultation under ESA.

More information about the ESA consultation process is at www.croplifeamerica.org/pesticide-issues/endangered-species.