U.S. District Judge Jon S. Tigar granted summary judgment in part for plaintiffs Pesticide Action Network of North America, the Center for Biological Diversity, and the Center for Food Safety, finding the Service’s 2022 opinion failed to meet the requirements of the Endangered Species Act and the Administrative Procedure Act.
The opinion, which concluded that the Environmental Protection Agency’s re-registration of malathion for nationwide use was “not likely to jeopardize” listed species or destroy their critical habitats, was challenged by three advocacy groups.
Judge Tigar found the Service’s “usage” analysis — a critical component of its jeopardy determinations — was arbitrary because it relied on species’ range estimates and pesticide usage data that were not supported scientific and commercial data available.
The court specifically targeted the Service’s method for estimating where malathion would actually be applied on the landscape. The Service had used data from a proprietary source, Kynetec, and nine state departments of agriculture, but the Service’s own analysis found only California’s data, known as CalPUR, to be “robust.”
The remaining usage data, covering the years 2011 to 2015, was described in the opinion as lacking a “statistical foundation to understand the robustness at the state level of any geographic specificity at the sub-state level.”
Despite these limitations, the Service made conclusions about pesticide usage based on the data, taking any reported usage as positive evidence that malathion had been applied.
The court also found the Service’s categorization scheme for critical habitat arbitrary. All Category 2 critical habitat determinations and a subset of Category 1 determinations, where the Service stated there were “no relevant” physical and biological features, were vacated because the Service’s path in making category determinations could not reasonably be discerned.
The court granted summary judgment for Defendants and Intervenor-Defendant Croplife America on the plaintiffs’ claim that the opinion failed to consider recovery of critical habitats.
The court did not reach the parties’ remaining arguments, including claims regarding incidental take, because an Incidental Take Statement is required only when an opinion makes “no jeopardy” or “no adverse modification” findings, which the court found to be arbitrary.
The court ordered the parties to meet and confer to propose a remedy consistent with the order.
The case, Pesticide Action Network North America, et al v. Williams et al, is pending in the Northern District of California.