ELR Citation: ELR 20332
No(s). 09-cv-00824-AW (D. Md. Oct 31, 2011) (Williams Jr., J.)

A district court upheld a NMFS biological opinion (BiOp) concluding that EPA's registration decisions under FIFRA for three insecticides—chlorpyrifos, diazinon and malathion—were likely to jeopardize the continued existence of 27 protected species of salmon and steelhead fish and would destroy or adversely modify critical habitats for 25 of those species. Pesticide companies filed suit challenging the BiOp under the APA and the ESA. But the administrative record and briefings by the parties demonstrate a rational connection between the voluminous facts and studies considered by the NMFS and the decisions reached in the final BiOp. Although the companies disagree with many of the NMFS' findings and conclusions and presented persuasive arguments as to why the NMFS should have used different numbers and reached different conclusions, they have not shown that the NMFS ignored the best scientific and commercial data available or that the NMFS' conclusions are irrational. Nor did the NMFS fail to adequately consider and respond to significant and relevant comments and to incorporate them in the BiOp. Although the companies may disagree with the weight accorded different studies or the NMFS' conclusions that some studies were repetitive, this is not a basis for vacating the BiOp. The court, therefore, granted summary judgment in favor of the government.