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Nov
29

EPA and NGOs Ask for More Time in ESA Pesticide Litigation

On November 28, 2011, the NGO plaintiffs and defendant EPA jointly asked a federal court in Washington State for more time to file a court-ordered status report advising the court of the impact of litigation in another court.  The Washington court had previously ordered EPA and the NGOs to file a “status report by December 30, 2011 or within 30 days of a decision in Dow AgroSciences LLC v. Nat’l Marine Fisheries Serv., No. 09-cv-00824 (D. Md.), whichever comes first, advising the Court of the ongoing posture of that case.”

The referenced Maryland court issued a decision in the Dow case on October 31, 2011, making the joint status report due on November 30, 2011, under the Washington court’s current order. The NGOs and EPA in the Washington State litigation want an extension until December 5, 2011, to see if they can file a joint status report on the impact of the Maryland Dow decision.

The Maryland district court decision affirms a NMFS biological for three organophosphate pesticides against a challenge on various grounds by industry registrants for those pesticides.

The Washington State litigation involves the NGOs’ challenge to EPA for alleged violations of the Endangered Species Act  in failing to implement restrictions on the use of six pesticides — diazinon, malathion, chlorpyrifos, carbaryl, carbofuran and methomyl — that are called for in two NMFS Biological Opinions for salmon.  According to the NGOs’ complaint, “To date, EPA has not implemented a single one of the requirements of NMFS’s [BiOps] for these six pesticides, nor has EPA taken steps to implement any alternative protective measures that would avoid jeopardy and adverse modification in response to the BiOps.”

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