Additional Information About the Proposed Stipulated Settlement Agreement. On January 20, 2011, Plaintiffs (non-governmental environmental organizations) filed a complaint in the United States District Court in the Northern District of California asserting a single claim against EPA for allegedly violating section 7(a)(2) of the ESA by failing to initiate and reinitiate consultation with the U.S. Fish and Wildlife Service (“FWS”) and National Marine Fisheries Service (“NMFS”) with respect to 382 pesticide active ingredients. After motions practice and an appeal to the Ninth Circuit Court of Appeals, the plaintiffs filed their fourth amended complaint on June 29, 2018 for failure to initiate consultation under ESA section 7(a)(2) for certain pesticide products containing 35 pesticide active ingredients. In October 2019, the parties entered a partial settlement agreement, in which EPA committed to a schedule to complete effects determinations for eight active ingredients and request initiation of any necessary ESA Section 7(a)(2) consultations with NMFS and/or FWS. This proposed stipulated settlement agreement incorporates all still outstanding obligations from the prior partial settlement agreement and resolves the remaining claims. Among other provisions, the proposed agreement sets a deadline of no later than September 30, 2027 for EPA to complete final Biological Evaluations on the potential effects of the following eight active ingredients on ESA-listed species and designated critical habitat: acephate, bensulide, dimethoate, ethoprop, naled, phorate, phosmet, and s,s,s-tributyl phosphorotrithioate (tribufos); and to request initiation of any necessary ESA section 7(a)(2) consultations with NMFS and/or FWS. The proposed agreement also includes statements of EPA’s intent to take preceding actions, including: to complete draft biological evaluations no later than one year prior to the deadline for the final biological evaluations; to provide notice and a 60-day opportunity for public comment on any such draft; and, consistent with current practice, to conduct nationwide-scale effects determinations. Additionally, the proposed agreement sets deadlines for EPA to issue certain ESA “strategies” that were contemplated in its work plan issued on April 12, 2022, entitled Balancing Wildlife Protection and Responsible Pesticide Use: How EPA’s Pesticide Program Will Meet its Endangered Species Act Obligations. These strategies aim to identify mitigation measures to address the effects of pesticides to ESA-listed species based on certain ...
Additional Information About the Proposed Stipulated Settlement Agreement. On October 3, 2017, Plaintiff (a non-governmental environmental organization) filed a complaint in the United States District Court in the District of Columbia asserting three claims against EPA for allegedly violating section 7(a)(2) of the ESA by failing to initiate and reinitiate consultation with the Services. Specifically, Plaintiffs alleged that the EPA failed to consult on the effects to listed species of 95 pesticide product registrations containing one of three pesticide active ingredients—acetamiprid (Claim One), dinotefuran (Claim Two), and imidacloprid (Claim Three). On February 8, 2018, the parties in this case entered into a stipulation of partial dismissal of any and all claims related to 36 pesticide product registrations identified in the complaint. The Court approved this stipulation of partial dismissal, leaving 59 pesticide product registrations at issue. Of the 59 product registrations remaining, 46 of them contain the active ingredient imidacloprid. Following the stipulated dismissal, EPA filed a motion to dismiss the case based on standing. After an adverse decision on the motion to dismiss, the parties had several settlement discussions. At the end of these discussions the Plaintiff and EPA reached a partial agreement in this case. Specifically, Paragraph 1 of the proposed stipulated partial settlement provides that EPA would agree to complete ESA section 7(a)(2) effects determination, compiled into a biological evaluation, for imidacloprid by June 30, 2022, and, as appropriate, request initiation of any ESA section 7(a)(2) consultation with the Services. The date for the effects determination aligns with the same deadline for two other neonicotinoid chemicals - clothianidin and thiamethoxam - that were agreed upon in a settlement in Xxxxx x.
