ELR Citation: 41 ELR 20103
No(s). 09-1968 (4th Cir. Mar 2, 2011)

The Fourth Circuit held that a biological opinion issued by the National Marine Fisheries Service as part of EPA's process of reregistering the insecticides chlorpyrifos, diazinon, and malathion is subject to judicial review under the APA. The Service's biological opinion concluded that the insecticides will destroy or harm Pacific salmonids and their habitat. Pesticide manufacturers who hold the registrations for those insecticides therefore filed suit to challenge the biological opinion. The lower court dismissed the action, ruling that the biological opinion is not reviewable under the APA because EPA has not yet acted on the biological opinion. It concluded that the biological opinion will be subject to judicial review only after EPA issues a final order on whether to reregister the insecticides. But the biological opinion is a final agency action, and deferring judicial review of the biological opinion until EPA acts on reregistration of the insecticides would not provide the manufacturers adequate review of the biological opinion. Accordingly, the case was reversed and remanded.