ELR Citation: ELR 20190
No(s). C04-1998C (W.D. Wash. Aug 24, 2006)

A district court partially overturns U.S. Fish and Wildlife Service (FWS) and National Oceanic and Atmospheric Administration (NOAA) Fisheries (the Services) "counterpart regulations" concerning consultation between the U.S. Environmental Protection Agency (EPA) and the Services on the effects of pesticides on endangered species. The regulations, which were intended to streamline EPA's and the Services' respective duties under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA), allow EPA to make "no likely adverse affect" (NLAA) determinations under FIFRA without informal consultation with the FWS or NOAA Fisheries. In addition, the regulations expand the "emergency" consultation procedures to cover all FIFRA §18 actions, effectively equating FIFRA emergencies with ESA emergencies. They also streamline the process for FIFRA actions that require formal consultation. The court upholds the formal consultation provisions because they are optional. But the NLAA and emergency consultation provisions are arbitrary and capricious and must be set aside. The provisions are inconsistent with the ESA, and the Services failed to prepare an environmental impact statement properly considering all of the impacts of, and alternatives to, adoption of the provisions under the National Environmental Policy Act.