WASHINGTON, Feb. 22, 2013 – Key U.S. lawmakers hailed a circuit court ruling in the case Dow AgroSciences LLC v. National Marine Fisheries Service as a victory for sound science versus what they described as the “misguided agenda of activist groups.”

In a statement, House Natural Resources Chairman Doc Hastings, House Agriculture Chairman Frank Lucas, and House Agriculture Ranking Member Collin Peterson praised the Feb. 21 ruling, which focuses on a National Oceanic and Atmospheric Administration’s (NOAA) National Marine Fisheries Service Biological Opinion (BiOp) relating to the Endangered Species Act (ESA)-listed salmon and the use of agricultural crop protection products.

The restrictions, recommended by NMFS’s Biological Opinion in 2008, ban the ground spraying of the three commonly used organophosphate agricultural insecticides within 500 feet of any salmon-bearing waterway, and aerial spraying within 1,000 feet.

The appellate court found “arbitrary and capricious data and conclusions in NOAA’s 482-page BiOp, the lawmakers noted.

“In sum, the Fisheries Service’s November 2008 BiOp relied on a selection of data, tests, and standards that did not always appear to be logical, obvious, or even rational.” the court’s 23-page opinion concluded.

The fisheries office also failed to supply an economic reason to ban pesticides from buffer strips of land abutting salmon habitats, according to the ruling by Judge Paul Niemeyer, writing for a three-judge panel.He was joined by Circuit Judges Dennis Shedd and G. Steven Agee.

“By not addressing the economic feasibility of its proposed ‘reasonable and prudent’ alternative providing for one- size-fits all buffers, the Fisheries Service has made it impossible for us to review whether the recommendation satisfied the regulation and therefore was the product of reasoned decision-making,” Judge Paul Niemeyer wrote on behalf of a three-judge panel.

Dow was joined in the case involving the pesticides chlorpyrifos, diazinon and malathion by Makhteshim Agan of North America Inc. and Cheminova Inc. U.S.A.

The Court also noted that NOAA’s BiOp lacked analyses of economic or technological feasibility of its proposed mitigation measures, as is required by ESA regulations.

“Whether we are talking about NOAA's evaluation of pesticides in the Pacific Northwest, the Fish and Wildlife Service evaluation of the lesser prairie chicken in the southern Great Plains or countless other decisions, it amazes me how little regard there is within the Services for science and the economic consequences of their actions," said House Agriculture Chairman Frank Lucas. 

"It is my hope that the order of the Fourth Circuit will finally encourage the Services to balance the goals of species protection with the requirement that their decisions be technically and economically feasible."

The decision reverses a lower court ruling and sends the proposals back to the Marine Fisheries Service, where lawmakers hope there will be additional scrutiny. A NOAA spokesperson said the agency is still reviewing the decision.

“This Court ruling re-affirms what states, other federal agencies, and multiple House Committees have already found:  that NOAA’s salmon BiOps for crop protection products are based on flawed science, outdated data and fail to consider the economic impact of buffers on as much as 60 percent of agriculture in Washington alone,” said House Natural Resources Chairman Doc Hastings. 

I am hopeful that this ruling, together with pending National Academy of Sciences’ peer review of these flawed BiOps, will force NOAA back to the drawing board to use sound science, current data and economic analyses it has ignored for too long.”

House Agriculture Ranking Member Collin Peterson described the court’s action as “a long-needed step in the right direction.”



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