Facts

The Center for Biological Diversity and Pesticide Action Network of North America filed an action against the Environmental Protection Agency and its administrator, Gina McCarthy, alleging violations of Endangered Species Act Section 7(a)(2) by failing to begin and then restart its consultations as to the impact of certain pesticides on endangered species and relevant habitats.

PLAINTIFF'S CONTENTIONS:
Plaintiffs alleged that defendants failed to consult as required with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service under the ESA as to EPA-registered pesticides. Plaintiffs claimed that consultation with these agencies was required to ensure that the EPA's approval of pesticides does not harm the existence of endangered species or destroy their habitats. In addition, they sought an order establishing that defendants failed to properly consult and to force the EPA to complete the consultation process.

DEFENDANT'S CONTENTIONS:
Defendants filed a motion to dismiss, arguing that plaintiffs failed to state a specific affirmative action taken by defendants in violation of a duty to consult under the ESA. In particular, defendants argued that the duty to reinitiate consultation only applied to agency action addressed in prior consultations, rather than to pesticides or active ingredients Any Registration Eligibility Detection challenges plaintiffs brought did not exist when the prior consultations occurred and were therefore, not agency actions.

Result

The court granted defendants' motion to dismiss in part and denied it in part. The court held that plaintiffs could not state a reinitiation claim based on pesticide reregistration actions that triggered the biological opinions at issue, given that reregistration was completed regarding active ingredients relevant to those opinions. Thus, those claims were dismissed. However, the court declined to dismiss claims related to brodifacoum, bromethalin, cypermethrin, dazomet, dimethoate, malathion, mancozeb, permethrin, simazine, warfarin, and zinc phosphide. The court found that there was no allegation of a superseding reregistration as to these ingredients or that reregistration was complete, and for that reason declined to dismiss them.