CLA moves to dismiss ESA “mega” lawsuit

CropLife America (CLA), joined by additional intervenors, moved to dismiss the Center for Biological Diversity and Pesticide Action Network North America v. Environmental Protection Agency (EPA) lawsuit ("Mega" lawsuit), which seeks to restrict valuable crop protection and public health products from American farmers and consumers.

If a court were to agree to the demands of the plaintiffs, agriculture and public health protection in the United States would be drastically and negatively altered due to the direct attack on pesticide registrations, established under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), that the suit represents.

Accordingly, CLA and its co-intervenors, Responsible Industry for a Sound Environment (RISE), Mid America CropLife Association (MACA), Southern Crop Production Association (SCPA) and the Western Plant Health Association (WPHA), together with intervenors American Chemistry Council (ACC) and Reckitt Benckiser, seek to have the case dismissed.

On January 19, 2011, two citizen action groups filed a lawsuit against EPA in the U.S. District Court for the Northern District of California for alleged failure to follow proper Endangered Species Act (ESA) procedure in registering certain crop protection chemicals for agriculture and public health purposes.

The ESA requires all federal government agencies to consult with the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) whenever such agency takes a final action.

In the pesticide registration and re-registration process, EPA already considers the potential effects of products on human health and the environment.

This extremist lawsuit preemptively alleges that the existing and long-standing registration of more than 380 chemicals may negatively impact 214 species in 49 states. This "Mega" lawsuit attacks the FIFRA registration process by asking the court to restrict the use of these named chemicals with some form of injunctive, interim, and precautionary measures while consultations occur.

In its motion to dismiss, CLA argues that the complaint is fundamentally flawed by not alleging with enough specificity in regards to which actions EPA did, or did not, take that should have resulted in required consultations under the ESA. Additionally, plaintiffs did not file their complaint in the correct jurisdiction or within the statutory deadline for challenging a registration decision under FIFRA.

"CLA supports efforts to protect vulnerable species and their habitats, and we will continue to work with regulators to repair the ESA in order to protect and conserve the country's endangered species," said Jay Vroom, president and CEO of CLA.

"But while the ESA consultation process needs improvement, we believe the solution lies in stakeholder collaboration to develop a workable approach to pesticide ESA assessments rather than addressing such issues via costly and unnecessary litigation that needlessly keeps vital crop protection and pest control products from agricultural use."

"As recent decisions by the Ninth Circuit and district courts have made clear, and as mandated by FIFRA, any claims directly challenging EPA's registration decisions should be brought in a federal court of appeals," added Doug Nelson, executive vice president and general counsel of CLA.

"It is imperative that plaintiffs are not permitted to evade the protections and procedures enshrined in FIFRA and court precedent, otherwise no registrant can be confident of a product's registered status."

Intervenors have requested for the court to consider the motion to dismiss during the first week of April 2012.