Date: Jun 01, 2013
Magazine:
June 2013 -Annual Meeting Preview

In April, the U.S. District Court of Northern California granted motions brought by both CropLife America (CLA) and the U.S. Environmental Protection Agency (EPA) to dismiss a lawsuit filed by environmental activists a few years ago attempting to restrict the use of many different crop protection tools because of the Endangered Species Act.

“The dismissal of this frivolous litigation is a banner decision for growers throughout the west and in fact the rest of the country,” said Hank Giclas, Western Growers senior vice president of science, technology and strategic planning.

In 2011, the Center for Biological Diversity (CBD) and Pesticide Action Network (PANNA) North America filed a suit against the EPA that basically argued that the government agency had failed to follow an ESA mandate when it registered more than 380 chemicals.  The suit alleged that these chemicals may negatively impact 214 endangered species in 49 states.  CLA entered the case as an intervener in June of 2011.

U.S. District Judge Joseph C. Spero presided over the case and initially ordered the two sides to try to reach a settlement.  Since the lawsuit was filed on Jan. 20, 2011, the plaintiffs and defendants engaged in almost two years of settlement talks.  At about the year and a half mark, a similar motion to dismiss was denied by the judge as he ordered at least six more months of settlement talks.

In the successful motion to dismiss, CLA and EPA claimed that the plaintiffs‘ complaint did not provide enough specificity regarding what actions EPA did or did not take, triggering the need for ESA consultations.  The motion to dismiss also argued that the complaint was submitted in the wrong court and outside the statutory deadline established for challenging a pesticide registration decision under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

Joshua Saltzman, assistant general counsel for CLA, said, “For more than a decade, crop protection product registrations have been challenged based on alleged ESA violations.  Other similar lawsuits are still pending and threatening to limit U.S. agricultural competitiveness by taking away reliable tools that benefit farmers with no demonstrated, commensurate harm to endangered species.  We are hopeful that the dismissal of the ‘Mega’ suit (as it has been called) will begin to move these important discussions out of the courtroom and into a more collegial and collaborative venue.

Giclas, concurred.  “PANNA and the CBD use litigation to line their coffers while hamstringing American agriculture.  It is a broken system that costs government and American agriculture while doing little to protect endangered species,” he said.  “Hopefully this will break the cycle of continuous lawsuits and injunctions that don’t foster solutions to ensure the viability of agriculture and the protection of species.”

The decision was reached in late April and the plaintiffs have 30 days to file an amended complaint in accordance with the court‘s order, or 60 days to appeal to the 9th U.S. Circuit Court of Appeals.  Observers are expecting some continued action by the environmental groups as dismissal would preclude them from collecting any attorney fees.  It has been the contention of the crop protection industry that a large part of these frivolous lawsuits is the ability for the plaintiff lawyers to obtain attorney fees during the settlement talks with EPA.

In a CLA press release, Rachel Lattimore, senior vice president and general counsel for CLA, speculated that the dismissal may help improve the settlement process in future cases.  “This significant decision paves the way for improvements to the ESA consultation process that can serve the needs of both endangered species and agriculture.  This outcome re-affirms our government‘s pesticide registration process under FIFRA and also the work of EPA in protecting threatened and endangered species.”

Western Growers General Counsel Jason Resnick also weighed in on the issue.  “The ‘Mega’ suit threatened the competitiveness of the fresh produce industry in the United States by limiting important crop management tools that are crucial to farmers without demonstrating a commensurate harm to endangered species,” he said.  “Hopefully now we can get to a point of cooperation and collaboration that appropriately addresses the concerns of wildlife and crop protection.”

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