Dow AgroSciences v. National Marine Fisheries, No. 11-2337

Decided on: February 21, 2013

The Fourth Circuit addressed whether a “biological opinion” (“BiOp”) issued by the National Marine Fisheries Service (“the Service”) to the Environmental Protection Agency (“EPA”) is arbitrary and capricious under the Administrative Procedure Act. The BiOp concluded that pesticides in question would jeopardize several endangered species and their habitats and therefore could not be reregistered without substantial restriction. The Fourth Circuit held that the BiOp was in fact arbitrary and capricious.

Dow AgroSciences and other manufacturers (“Manufacturers”) hold EPA registrations for various pesticides. The Manufacturers’ pesticides had to be reregistered. If the proposed action is likely to affect an endangered species, the agency must consult with the Secretary of the Interior to obtain an opinion evaluating the agency’s action under the Endangered Species Act. The Service agency issued a BiOp that explains whether the proposed action will jeopardize the continued existence of endangered species or their habitats. In reregistering, the Manufacturers agreed to voluntarily take measures to reduce the impact of their products on the environment, but the EPA did not consult with the Secretary of the Interior to obtain a BiOp, prompting several environmental groups to file suit. After several years, the Service issued a draft BiOp, which the EPA, the Manufacturers, several states, and others criticized. After the Service revised the BiOp, the Manufacturers commenced an action under the Administrative Procedure Act, alleging that the BiOp was arbitrary and capricious. The district court dismissed the complaint on the ground that the BiOp was judicially reviewable only after the EPA issued a final reregistration order. On appeal, the Fourth Circuit reversed and remanded. On remand, the district court granted summary judgment to the Service.

On appeal, the Manufacturers argued that the district court erred in permitting the Service to supplement the record and the BiOp with post hoc justifications. In reviewing the Service’s decision, a court can only consider the record before the agency at the time it acted and contemporaneous justifications. The district court concluded that the record before the service was inadequate on certain points and inappropriately admitted new evidence and permitted post hoc justifications. The Manufacturers also argued that the BiOp was arbitrary and capricious, namely in: (1) failing to provide support for its use of a 96-hour modeling assumption; (2) relying on a U.S. Geological Survey’s water monitoring study; and (3) failing to justify uniform buffers. The Fourth Circuit agreed with the Manufacturers as to all of these arguments, stating that the Service may have had satisfactory explanations for the choices it made, but failed to adequately reflect those explanations in the BiOp. Accordingly, the Fourth Circuit reversed.

Full Opinion

-Michelle Theret

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