Court Issues Stipulated Injunction Regarding Pesticides and the California Red-legged Frog

• Summary
• History
• Terms of stipulated injunction
• Pesticides named in lawsuit
• Schedule for effects determinations

Summary

The Court has issued a Stipulated Injunction regarding a lawsuit brought against EPA by the Center for Biological Diversity. As part of the Stipulated Injunction, EPA must determine the effects of 66 pesticides on the California red-legged frog within certain areas of California under a Court-ordered schedule of three years. EPA must also provide information regarding the provisions of this Stipulated Injunction to the public on its Web site. This page contains, among other things, information on the history of the litigation, the pesticides under assessment, and the affected areas within California, and assists pesticide users in determining how the Stipulated Injunction pertains to their pesticide application.

History

On April 2, 2002, the Center for Biological Diversity (CBD) filed a lawsuit in Federal District Court for the Northern District of California, alleging that EPA failed to comply with section 7(a)(2) of the Endangered Species Act by not ensuring that its registration of 66 named pesticide active ingredients will not affect the California red-legged frog, a federally-listed Threatened species. CBD, EPA, and defendant-intervenors CropLife America, American Forest Paper Association, Western Plant Health Association, Oregonians for Food and Shelter, and Syngenta Crop Protection, Inc. engaged in discussions to try to resolve the case.

On September 1, 2006, EPA issued a notice in the Federal Register announcing the availability of a proposed Stipulated Injunction and opening a 15-day public comment period on the draft. EPA received numerous comments from the public, California state agencies, and others, regarding certain aspects of the proposed Stipulated Injunction. These comments, as well as the proposed and final versions of the Stipulated Injunction, are available in the public docket, ID number EPA–HQ–OPP–2006–0702.

Based on public comments received and subsequent discussion with CBD and defendant-intervenors, the federal government agreed to the Stipulated Injunction with a modification to the definition of "upland habitat" in section 3(b) of the injunction to conform this definition, which applies outside designated critical habitat, with the definition of "upland habitat" used by the U.S. Fish and Wildlife Service in its designation of critical habitat for this species (71 FR 19244-19346, April 13, 2006).

On October 13, 2006, the federal government joined CBD and defendant-intervenors in asking the Court to issue a Stipulated Injunction resolving the lawsuit. The Court ordered the Stipulated Injunction on October 20, 2006. The key provisions of the Stipulated Injunction are listed below.

Terms of Stipulated Injunction

1. Schedule for effects determinations: The Stipulated Injunction establishes a series of deadlines for the Agency to make "effects determinations" for 66 named pesticides to determine their potential effect on the California red-legged frog (a threatened species native to California).
2. Interim injunctive relief: The Stipulated Injunction also (with some exceptions) enjoins, vacates and sets aside EPA's authorization of uses of the 66 pesticides in certain parts of 33 counties in California. The injunctive relief, vacatur, and setting aside of EPA's authorizations would terminate for a particular use of a pesticide when the Agency makes a determination that the pesticide's use has "no effect" on the California red-legged frog, or, where EPA determined the pesticide's use may affect the species, when EPA completes consultation with the U.S. Fish and Wildlife Service.
3. Development and distribution of a bilingual brochure: The injunction also requires EPA to develop and distribute a bilingual (English and Spanish) brochure regarding certain aspects of the injunction, the California red‑legged frog and frogs in general, and pesticides. EPA is required to distribute this brochure to all commercial certified applicators within California; to all private certified applicators residing in counties where use authorizations have been set aside; to registrants of the 66 pesticides; the California Departments of Pesticide Regulation, and Fish and Game; and the Pacific Region of U.S. Fish and Wildlife Service. In addition, EPA is to distribute 250 copies of the brochure to the County Agricultural Commissioner and Cooperative Extension Agent offices in the affected counties.

Pesticides Named in Lawsuit

The 66 pesticides named in the lawsuit brought by CBD against EPA are listed below:

Schedule for Effects Determinations

The Stipulated Injunction establishes time frames for EPA to make effects determinations for the 66 named pesticides. The time frames indicated below are from the date of the court order, October 20, 2006. From that date, EPA must make effects determinations and initiate consultation, as appropriate, for:

• 10 pesticides within 9 months;
• 10 additional pesticides within 12 months;
• 7 additional pesticides within 16 months;
• 7 additional pesticides within 20 months;
• 7 additional pesticides within 24 months;
• 8 additional pesticides within 28 months;
• 8 additional pesticides within 32 months;
• 9 additional pesticides within 36 months,

for a total of 66 pesticides.