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®: CRE Regulatory Action of the Week

EPA Extends Comment Period on Controversial Pesticides ESA Consent Decree and Injunction
On July 1, 2009, the U.S. Environmental Protection Agency sought public comment on a proposed consent decree and stipulated injunction in a case brought against EPA by the Center for Biological Diversity. This case regards pesticide use in the San Francisco Bay area and its alleged impact on endangered species there. The decree and injunction would establish a series of deadlines for EPA to make effects determinations and initiate consultations, as appropriate, with the U.S. Fish and Wildlife Service for certain pesticides in regard to one or more of 11 species found in the greater San Francisco Bay area. These 11 species are listed as endangered or threatened under the U.S. Endangered Species Act.

EPA has extended until August 17, 2009, the public comment period for this proposed consent decree and stipulated injunction. This extension had not been published in the Federal Register at the time this regweek was posted.

This proposed settlement is controversial for many reasons. One of the reasons is that the stipulated injunction would set aside EPA's authorization for use of certain pesticides before EPA determines whether the pesticides really do pose an unacceptable risk under the ESA. As EPA explains in its July 1st notice:
    "as already mentioned above, the Stipulated Injunction would (with some exceptions) enjoin, vacate and set aside EPA's authorization of use of the pesticides in and adjacent to certain habitat features associated with each of the 11 species in specific geographic areas within 8 California counties (Alameda, Contra Costa, Marin, Napa, San Mateo, Santa Clara, Solano, and Sonoma). This interim injunctive relief would terminate automatically for a pesticide upon the completion of EPA's consultation obligation under section 7(a)(2) of the ESA (including a ``no effect'' determination) for the particular pesticide. The Stipulated Injunction would also require EPA to develop and distribute a brochure regarding the Stipulated Injunction and the 11 species, provide certain information to certified pesticide applicators in California, and provide certain information to the public through the EPA web site."
  • Click here to read EPA's original July 1st notice of the proposed consent decree and stipulated injunction