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Suit Aims to Link Distant Pesticide Use with Polar Bears – Potentially Setting Precedent for Additional Climate Change Lawsuits


12/08/09

On Thursday, December 3, 2009, the Center for Biological Diversity ("CBD") sued the Environmental Protection Agency ("EPA") to force consideration of the impacts of pesticide use on polar bears, a species listed as threatened under the Endangered Species Act ("ESA"). CBD asserts pesticides entering the environment are contaminating the Arctic via long distance atmospheric transport and ocean currents and are harming ESA protected polar bears. If CBD prevails, the decision will have significant implications not only for persons that manufacture, distribute, and use pesticides but it may also set a precedent for new litigation contending that air emissions occurring in distant places can affect climate change and the polar bear (or other ESA listed species) and, therefore, such emissions are subject to the ESA. Under the ESA, habitat modification can violate the prohibition on "take" of listed species requiring an incidental take permit and a habitat conservation plan. The suit, Center for Biological Diversity v. Michelle Pirzadeh (09-cv-1719), was filed in U.S. District Court for the Western District of Washington.

The ESA also requires federal agencies to ensure that activities they authorize or undertake are not likely to jeopardize the continued existence of ESA listed species. CBD wants EPA, which authorizes the use of pesticides, to consult with the Fish and Wildlife Service ("FWS") – charged with protecting polar bears – about how pesticide use affects polar bears. If the consultation results in a finding that pesticide use is likely to harm the polar bear, restrictions, including a prohibition on the use of the pesticide can be imposed.

In years past, CBD has successfully filed similar suits that have required EPA to evaluate the effects of pesticides on ESA listed species. However, those initiatives have focused on the local impacts of pesticides where appropriate mitigation measures, such as buffer zones could keep the pesticides from entering the water. CBD's latest initiative is different. It is the first case aimed at controlling the long distance impacts of pesticides. If CBD wins, an ESA consultation will be required to evaluate the effect of using 14 named pesticides on polar bears. Some of these pesticides are commonly used by farmers in the U.S. The 14 pesticides challenged by CBD are atrazine, alachlor, chlorothalonil, chlorpyrifos, dachtal, diazinon, dicofol, disolfoton, endosulfan, fenitrothion, metolachlor, methyl-parathion, terbufos, and trifluralin.

If the ESA consultation process results in a finding that the use of these pesticides adversely affects polar bears, regulatory controls on pesticide use could be imposed. Furthermore, the decision will set a far reaching precedent forcing federal agencies to consider the impacts of pollutants entering the environment (including air emissions) on species living thousands of miles away. Although no action has been scheduled in this just-filed case, it will be closely watched by industry and the environmental community.


A partner with Nossaman, George Mannina has more than three decades of experience with environmental litigation and government relations.  He can be reached at 202.887.1491 or gmannina@nossaman.com.

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