Environmental NGOs are suing EPA, basically asking a California federal district court to take over EPA’s pesticide program because EPA allegedly failed to meet all its ESA consultation obligations under the Endangered Species Act. EPA has filed a motion to dismiss the Plaintiffs’ complaint in the case. The Plaintiffs have filed their opposition to EPA’s motion to dismiss.  The Plaintiffs’ opposition makes the following arguments:


I.  Defendants’ Motions Improperly Elevate FIFRA above the ESA


II. EPA’s Continuing Authority over Pesticide Registrations is Ongoing Agency Action Subject to the ESA’s Consultation Requirement


III. The Court has Subject Matter Jurisdiction Because FIFRA’s Judicial Review Provisions are Inapplicable to Plaintiffs’ ESA Claims

A. The Ninth Circuit In Washington Toxics Holds That ESA Challenges To EPA’s Oversight Of Pesticides Can Be Brought Under The ESA’s Citizen Suit Provision

B. Applying FIFRA’s Judicial Review Provision To Plaintiffs’ ESA Claims Would Be Inconsistent With FIFRA’s Plain Language

C. None Of The Cases Relied Upon By Defendants Alter Washington Toxics’ Holding On The Relationship Between FIFRA And The ESA


IV. The Statute of Limitations Has Not Run


V. The Complaint Pleads Facts Establishing EPA’s Duty to Reinitiate Consultation on the 1989 and 1993 Biological Opinions


VI. The Complaint Pleads facts Demonstrating Standing

A. The Complaint Alleges Facts Establishing Each Element Of Standing

B. No Case Requires That Plaintiffs Plead At The Level Of Specificity Demanded By EPA

Click here to read the Plaintiffs’ opposition to EPA’s motion to dismiss.