ELR Citation: ELR 20175
No(s). 03-00621 (D. Haw. Aug 10, 2006)

A district court holds that the Animal and Plant Health Inspection Service (APHIS) violates the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA) in permitting four companies to plant genetically modified crops in Hawaii to produce experimental drugs. APHIS argues that it complied with the ESA because it determined that its proposed actions would not affect listed species or critical habitat, thereby negating any need for formal consultation. But regardless of whether formal consultation was required, APHIS skipped the initial, mandatory step of obtaining information about listed species and critical habitats from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. Similarly, APHIS violates NEPA because it fails to articulate its reasons for declining to prepare an environmental assessment or environmental impact statement. There is nothing in the administrative record to indicate that APHIS considered the applicability of NEPA, categorical exclusions, or the exceptions to those exclusions. Consequently, APHIS acts arbitrarily and capriciously in issuing the permits.