Center for Environmental Health v. Wheeler
- Saundra Armstrong
- 4:18-cv-03197
- U.S. District Court · Northern District of California
- 14
In Center for Environmental Health v. Regan, Judge Armstrong approved a settlement requiring EPA to implement a malathion biological opinion and dismissed the remaining claims.
The plaintiffs, EPA, the Fish and Wildlife Service, CropLife America, and registrants of malathion products were affected by the settlement; EPA received implementation and reporting obligations, while the plaintiffs’ remaining claims were dismissed with prejudice.
What happened
In Center for Environmental Health v. Regan, environmental groups challenged federal agencies’ handling of consultation required under the Endangered Species Act for malathion’s effects on threatened and endangered species and their critical habitats.
The parties agreed that EPA would implement the final biological opinion, including any reasonable and prudent alternatives, within 18 months after it was issued, subject to specified extensions. EPA also had to notify malathion-product registrants within 60 days and provide regular status reports to the court.
Judge Armstrong approved and incorporated the settlement into the court’s order, dismissed the remaining claims in Counts 1, 2, and 3 with prejudice, and retained jurisdiction to oversee compliance, consider modifications, and address possible litigation-cost requests.
The detailed version
- Center for Environmental Health v. Wheeler · No. 4:18-cv-03197
- Saundra Armstrong
- Apr. 13, 2022
Background
The plaintiffs—Center for Environmental Health, Center for Biological Diversity, and Californians for Pesticide Reform—challenged federal agency actions and alleged delays concerning consultation under Section 7 of the Endangered Species Act. The consultation concerned malathion and its effects on species listed as threatened or endangered and their designated critical habitats.
The plaintiffs’ Second Amended Complaint asserted three counts. Count 1 alleged that the Fish and Wildlife Service had failed to perform procedural duties and that the Environmental Protection Agency had failed to perform substantive and procedural duties under the Endangered Species Act. Count 2 alleged that the agencies unlawfully withheld or unreasonably delayed required actions under Section 706(1) of the Administrative Procedure Act. Count 3 alleged that EPA violated Section 7(d) of the Endangered Species Act by making an irreversible and irretrievable commitment of resources.
The parties had previously reached a partial settlement concerning procedural duties. This second stipulated partial settlement addressed the remaining claims against the EPA defendants concerning EPA’s substantive duties, alleged delays, and alleged Section 7(d) violations. The agreement stated that no party admitted the allegations or claims.
Settlement Terms
The court-approved agreement required EPA to implement the final biological opinion, including any reasonable and prudent alternatives, no later than 18 months after the Fish and Wildlife Service issued the opinion. The agreement allowed extensions for specified circumstances, including a longer period identified by the Fish and Wildlife Service, a lapse in federal appropriations, unexpected reasonable and prudent alternatives, or an unforeseen and unavoidable event that significantly disrupted EPA’s work.
Within 60 days after the final biological opinion issued, EPA had to notify registrants of malathion products about the opinion and any actions they needed to take, including requests to amend product labels or registration terms. Registrants were given 60 days after receiving notice to submit amendment requests, and EPA was required to approve conforming amendments within the applicable implementation period.
EPA also had to provide the court with status reports beginning three months after issuance of the final biological opinion and every three months thereafter until the implementation period ended. The agreement preserved EPA’s discretion under the applicable regulations to determine how to proceed after the final biological opinion issued. It also stated that challenges to the adequacy of the final biological opinion or to EPA’s decision about relying on or implementing it would have to be brought in a new judicial action or applicable administrative proceeding, to the extent permitted by law and the agreement.
The agreement limited the plaintiffs from bringing, assisting with, or joining certain proceedings concerning a particular malathion product when the product’s registrant timely submitted and implemented EPA-requested label or registration changes and remained in compliance with them. That prohibition would end two years after the applicable implementation period and did not prevent the plaintiffs from challenging the adequacy of the final biological opinion.
Court’s Order and Disposition
Judge Saundra Armstrong found good cause and entered the second stipulated partial settlement agreement, incorporating its terms into the court’s order. The court ordered EPA to implement the final biological opinion and to provide the required notices and status reports.
The court dismissed with prejudice the remaining claims in Counts 1, 2, and 3 of the Second Amended Complaint. Although those claims were dismissed, the court retained jurisdiction to oversee compliance with the agreement, decide motions to modify its terms until EPA completed its obligations, and resolve any necessary motion for litigation costs, including reasonable attorney and expert-witness fees. The order did not decide the underlying allegations on their merits.
Read the full 14-page opinion on CourtListener, the free public archive maintained by the Free Law Project.