Media Mention

Environment & Safety Practice Chair David Weinberg Discusses Fourth Circuit Win in Pesticides Case with BNA

BNA's Daily Environmental Reporter
March 4, 2011

Environment & Safety Practice chair David Weinberg discussed the ruling by a federal appeals court that pesticide manufacturers can challenge a biological opinion to protect salmon from three kinds of pesticides. Mr. Weinberg, counsel for two of the plaintiffs, said that the decision would "put the 'quality of the science' of the biological opinion at issue in the district court."  The U.S. Court of Appeals for the Fourth Circuit decided that the U.S. District Court of Maryland had wrongly dismissed a challenge to the biological opinion brought by the makers of three pesticides. The biological opinion was issued by the National Oceanic and Atmospheric Administration's National Marine Fisheries Service. Mr. Weinberg said "that if the government does not attempt to take the opinion to the U.S. Supreme Court, the remanded lawsuit could go to a factual hearing in the district court on the merits of the biological opinion before the end of the year." He added that "the question of actual harm to Northwest salmon listed under the Endangered Species Act has not yet come up in the litigation. To date, the litigation has been over procedural matters." Mr. Weinberg explained that the pesticides at issue "are widely used in agriculture in California and the Pacific Northwest, especially on apple trees and other fruit trees," and that "the government argued in the district court that the proper time for review was after EPA decided what action to take on the biological opinion, but the Fourth Circuit found a flaw in the government's argument." That flaw, Mr. Weinberg said, "was that the biological opinion 'has a separate legal impact independent of what the Environmental Protection Agency does.' For this reason, the biological opinion is final and subject to judicial review in the district court under the Endangered Species Act, as applied through the Administrative Procedure Act."  Although the pesticides are registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Mr. Weinberg explained that "the review in the district court of the biological opinion will not be a registration review under FIFRA, but a review for consistency with the Endangered Species Act." "The Fourth Circuit recognized that the biological opinion had a legal impact regardless of whether EPA elected to follow it, because it could affect other pending litigation," he concluded.

Read Time: 2 min

Related Professionals

Contact

Sarah Richmond
Director of Communications
202.719.4423
srichmond@wiley.law 

Jump to top of page

Wiley Rein LLP Cookie Preference Center

Your Privacy

When you visit our website, we use cookies on your browser to collect information. The information collected might relate to you, your preferences, or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. For more information about how we use Cookies, please see our Privacy Policy.

Strictly Necessary Cookies

Always Active

Necessary cookies enable core functionality such as security, network management, and accessibility. These cookies may only be disabled by changing your browser settings, but this may affect how the website functions.

Functional Cookies

Always Active

Some functions of the site require remembering user choices, for example your cookie preference, or keyword search highlighting. These do not store any personal information.

Form Submissions

Always Active

When submitting your data, for example on a contact form or event registration, a cookie might be used to monitor the state of your submission across pages.

Performance Cookies

Performance cookies help us improve our website by collecting and reporting information on its usage. We access and process information from these cookies at an aggregate level.

Powered by Firmseek