Farm Bureau asks to intervene in pesticide suit


Issue Date: April 6, 2011
By Kate Campbell

Farm Bureau has filed a motion in federal court to intervene in a lawsuit aimed at imposing what it calls "needless restrictions or bans on the use of nearly 400 crop protection products." The American Farm Bureau Federation, along with other agricultural groups, has asked the federal district court in San Francisco to allow it to participate in a suit filed by the Center for Biological Diversity against the U.S. Environmental Protection Agency.

The lawsuit alleges EPA violated the Endangered Species Act by allowing the use of nearly 400 approved pesticides without conducting separate and adequate consultations with the U.S. Fish & Wildlife Service and National Marine Fisheries Service regarding potential environmental impacts of the materials on 214 listed species.

"To protect the interests of growers nationwide who rely on the availability of safe, affordable and effective pesticides, we have sought to intervene to participate fully in how the case is resolved," said AFBF President Bob Stallman.

AFBF will be acting on behalf of California Farm Bureau Federation members, as well as Farm Bureau members throughout the nation because of the far-reaching implications of the lawsuit. The court is expected to consider Farm Bureau's motion to intervene as early as April 29.

The pesticides listed in the complaint have already been approved by EPA as safe for use under stringent federal pesticide laws, Stallman said, noting that "if consultation between EPA and the service agencies is required, then EPA should move forward with that process. But farmers should not be denied the use of important pest control products to protect their crops in the meantime."

Farm Bureau said the environmental group's massive lawsuit seeks to restrict or even ban the use of pesticides while EPA and the wildlife agencies engage in consultation, on the mere chance that a protected species might be affected.

"The sweeping scope of the lawsuit and the lack of regulatory framework to complete consultations efficiently threatens to impose additional and unnecessary pesticide use restrictions for years, if not decades," Stallman said.

At the end of March, EPA and the Center for Biological Diversity filed for a 90-day stay in court proceedings related to the suit, which was filed in January. The 90-day period, which may allow negotiation of a settlement, has also allowed agricultural and crop protection associations to file motions to intervene.

The Western Plant Health Association and CropLife America have also petitioned the court to participate in the suit.

Western Plant Health Association President Renee Pinel said she hoped "this mega-litigation would force EPA to finally challenge the lawsuits in court; however, the request for the stay is a strong indicator that EPA plans to once again negotiate a quick settlement with CBD at the expense of agriculture and crop protection manufacturers."

In recent weeks, U.S. House of Representatives committees have questioned EPA Administrator Lisa Jackson about the frequency of EPA settlements in cases filed by environmental groups. Members of the House Committee on Agriculture questioned why those lawsuits more often resulted in EPA handing down regulations that hurt agriculture. The committee asked for information regarding the frequency of EPA settlements and costs involved in the cases.

While litigation in the current suit is similar to prior litigation, Farm Bureau experts said the scope is much broader than the prior cases. Cases that have been settled that have an impact on California farmers and ranchers include "Washington Toxics," which requires large land buffers along waterways to protect salmon before pesticides can be applied; "Goby 11," which seeks to protect 11 species in eight San Francisco Bay Area counties from pesticide use; and the red-legged frog case, which designates 1.6 million California acres as critical habitat for the threatened species.

"These cases brought by CBD were targeted to specific areas and specific species but, here on the West Coast where these suits have been filed, we knew it was only a matter of time before a national lawsuit was filed," said Kari Fisher, CFBF associate counsel. "Because of our experience and involvement in other species litigation, CFBF will work closely with AFBF."

"At a minimum, plaintiffs in this case want to impose use restrictions on pesticides while the agency consultation process is under way," said Danielle Quist, AFBF senior counsel for public policy. "They want to ban the use of the pesticides, or make the use restrictions so onerous that farmers cannot effectively use them."

Quist said it's hard to predict how long the desired consultations would take, noting that "if the consultation in Washington Toxics is an example, it could take decades. We don't believe consultation is necessary precisely because protection of listed species is covered in the Federal Insecticide, Fungicide, and Rodenticide Act registration process. This case represents a push for double and triple work for government agencies."

Other groups that filed the motion to intervene with AFBF include the National Agricultural Aviation Association, National Alliance of Forest Owners, National Association of Corn Growers, National Cotton Council, National Council of Farmer Cooperatives, National Potato Council, Oregonians for Food and Shelter, USA Rice Federation and Washington Friends of Farms and Forests.

(Kate Campbell is an assistant editor of Ag Alert. She may be contacted at kcampbell@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.