ALEXANDER WILLIAMS, JR., District Judge.
Plaintiffs Dow AgroSciences, LLC, Makhteshim Agan of North America, Inc., and Cheminova, Inc. USA bring this action against Defendants National Marine Fisheries Service ("NMFS") and James W. Balsiger ("Balsiger")
I. FACTUAL & PROCEDURAL BACKGROUND
The following facts are based on the nearly 20,000 pages of material compiled by the NMFS in the administrative record. Plaintiffs hold registrations issued by the Environmental Protection Agency ("EPA") that authorize them to sell products containing three insecticides: chlorpyrifos, diazinon and malathion. Plaintiffs challenge a biological opinion ("BiOp") issued by the National Marine Fisheries Service ("NMFS") which found that registration of the three products without restrictions not previously imposed by the EPA would jeopardize the continued existence of 27 protected species of Pacific salmonids (salmon and steelhead fish) and their habitat. Plaintiffs allege that the BiOp is not based on the best scientific and commercial data available as required by the ESA. Intervenor Defendants are conservation and fishing organizations. Federal Defendants and Intervenor Defendants contend that the three pesticides at issue jeopardize the continued existence of Pacific coast salmonids and that the the agency actions taken were necessary to mitigate the harm and were not arbitrary and capricious.
A. Requirements of the Endangered Species Act
Section 7 of the Endangered Species Act ("ESA") imposes affirmative duties on the EPA and other federal regulatory agencies to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification" of the species' critical habitat. 16 U.S.C. § 1536(a)(2). When an agency determines that a proposed action is likely to "affect listed species or critical habitat," that agency must consult with the NMFS or the Fish and Wildlife Service.
Once the consultation is initiated, the NMFS must analyze all relevant information and provide the EPA with a BiOp addressing the potential impact of the EPA's action. The ESA requires the NMFS to "use the best scientific and commercial data available" in determining whether the EPA's action (here, its authorization of the use of the pesticides at issue) is likely to result in jeopardy to the salmonids. Id. § 1536(a)(2). If the NMFS determines that the action will jeopardize the continued existence of a species or adversely modify critical habitat, the NMFS must suggest reasonable and prudent alternatives to the proposed action that will avoid such impacts. Id. § 1536(b)(3). The NMFS must also provide the EPA with an Incidental Take Statement ("ITS"). Id. § 1536(b)(4). To "take" under the ESA means to "harass,
B. Requirements of the Federal Insecticide, Fungicide and Rodenticide Act
Pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), pesticides must be registered by the EPA prior to their distribution and sale. 7 U.S.C. § 136, et seq. Two of the pesticides at issue, malathion and diazinon, were first registered in 1956. Chlorpyrifos was registered in 1965.
Under FIFRA, the EPA has implemented a reregistration process for older chemicals, including chlorpyrifos, malathion, and diazinon. The purpose of the reregistration process is to ensure that all existing registrations are consistent with contemporary science and that the products are imposing no unreasonable adverse effects on the environment. See id. § 136a(c)(5), 136a-1. During reregistration, companies holding prior registrations for these chemicals submit scientific data supporting reregistration and inform the EPA of the future intended uses for these chemicals.
C. Factual Background
In early 2001, the EPA was sued for failing to consult with the NMFS regarding the potential impact of the reregistration of 54 pesticides (including chlorpyrifos, malathion, and diazinon) on 28 protected species of Pacific salmonids and their critical habitat. As discussed above, such a consultation is required by Section 7 of the ESA. Accordingly, on July 2, 2002, the United States District Court for the Western District of Washington ordered the EPA to determine which of the 54 pesticides impacted protected salmonids and to initiate consultations with the NMFS for each of those chemicals. The EPA determined that several dozen of these pesticides (including chlorpyrifos, malathion, and diazinon) could affect protected species of Pacific salmonids, and made formal consultations to the NMFS relating to their registration. The EPA formally requested NMFS' opinion as to diazinon use in November 2002, chlorpyrifos use in April 2003, and malathion use in December 2004. The NMFS initially did not respond to the EPA's consultation requests.
1. The Draft Biological Opinion
On July 31, 2008, the NMFS released a draft BiOp regarding the EPA's consultation requests for chlorpyrifos, malathion, and diazinon. The draft BiOp found that the EPA's registration decisions for these chemicals were likely to jeopardize the continued existence of 28 protected species of Pacific salmonids and to destroy or adversely modify the critical habitat of 26 of those species. Release of the draft BiOp met with criticism from the EPA, California's Department of Pesticide Regulation, the Washington State and Idaho Departments of Agriculture, and Plaintiffs. Specifically, these groups complained that the draft did not address the reregistration actions the EPA had taken since requesting consultation in 2002-2004; actions which had already reduced the use of the three chemicals and had placed additional restrictions to limit the pesticides from reaching waterways. These groups provided the NMFS with input on its draft in the form of written comments, copies of and citations to scientific studies and data, and in-person explanations by experts on the significance of those studies and data. Through these meetings and studies, Plaintiffs sought to convince the NMFS that the proposed uses of chlorpyrifos, malathion, and diazinon did not jeopardize the protected Pacific salmonids or their habitat.
2. The Final Biological Opinion
On November 18, 2008, the NMFS released the final BiOp. The final BiOp found that the EPA's registration decisions were likely to jeopardize the continued existence of 27 protected species of salmonids (rather than 28, as listed in the draft BiOp), and would destroy or adversely modify critical habitats for 25 (as opposed to 26) of those species. As part of the BiOp, the NMFS offered six reasonable and prudent alternatives ("RPAs"), to be implemented by the EPA within a year. Plaintiffs especially contest the first element of the RPA, which requires the EPA to prohibit use of the chemicals by ground application within 500 feet, and aerial application within 1,000 feet, of any salmonid habitat. As part of the BiOp, the NMFS also issued an ITS, non-discretionary RPMs, and non-discretionary terms and conditions to implement the RPMs. The EPA must comply with the RPMs terms and conditions in order to be exempt from liability under Section 9 of the ESA. If the EPA does not respond to the BiOp and the RPAs, it will face civil and criminal penalties. 16 U.S.C. § 1540.
D. Procedural History
In April 2009, Plaintiffs filed suit in this Court. In their complaint, Plaintiffs argue that the NMFS violated the APA and ESA by developing and issuing the BiOp and associated RPA, ITS, and RPMs. See Doc. No. 1. Specifically, Plaintiffs contend that the NMFS failed to: (1) base the BiOp on the "best scientific and commercial data available" as required by the ESA; (2) explain the connection between the conclusions expressed in the BiOp and the facts the NMFS found; and (3) respond to the substantive comments the NMFS received from the EPA, the State agencies and Plaintiffs which criticized the BiOp's analysis, findings and conclusions. On March 2, 2011, the Fourth Circuit held that review of the BiOp in this Court was appropriate. Dow AgroSciences LLC v. Nat'l Marine Fisheries Serv., 637 F.3d 259 (4th Cir.2011). On July 18, 2011, Plaintiffs filed a motion for summary judgment on these claims. See Doc. No. 58. On August 22, 2011, Intervenor Defendants filed
II. STANDARD OF REVIEW
A. Plaintiffs' Motion to Strike Declarations Providing Additional Explanations for the NMFS' Decision
In a record review case under the APA, the scope of judicial review is limited to the administrative record. 5 U.S.C. § 706. The reviewing court must apply the "appropriate APA standard of review ... to the agency decision based on the record the agency presents to the reviewing court." Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). Because the Court's review is confined to the administrative record, "no do novo proceeding may be held." United States v. Carlo Bianchi & Co., 373 U.S. 709, 715, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963). Rather, "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973).
However, if an agency has not provided an explanation for its action sufficient to allow effective judicial review, the Court may "obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary." Id. at 142-43, 93 S.Ct. 1241. This does not mean that courts will accept "post-hoc rationalizations" for agency actions, however.
Courts of Appeals have interpreted Camp to allow agencies to submit declarations that "illuminate" or "explain" the original record, as opposed to declarations that "advance new rationalizations for the agency's action." Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71, 82 (2d Cir.2006). See Envtl. Def. Fund v. Costle, 657 F.2d 275, 285 (D.C.Cir.1981) ("The new material should be merely explanatory of the original record and should contain no new rationalizations."); see also Sierra Club v. Marsh, 976 F.2d 763, 772-72 (1st Cir.1992) (same); Sierra Club v. United States Army Corps of Eng'rs, 771 F.2d 409, 413 (8th Cir.1985) ("Any new materials submitted should ... be merely explanatory of the original record and should contain no new rationalizations for the agency's decision."); Bunker Hill Co. v. EPA, 572 F.2d 1286, 1292 (9th Cir.1977) (finding that the "augmenting materials were merely explanatory of the original record" and "[n]o new rationalization ... was offered.").
Thus, agencies are limited to the submission of declarations that explain "the decisionmakers' action at the time it occurred," Sierra Club v. Marsh, 976 F.2d at 772-73 or that "clarify[y]" the administrative record, Bunker Hill, 572 F.2d at 1292. To the extent the augmenting materials offer new rationalizations for the agency's action not supported by the administrative record, at least one circuit court has found that the solution "is not to
B. Summary Judgment
BiOps prepared pursuant to Section 7 of the ESA are final agency actions reviewable pursuant to the APA. Dow AgroSciences, 637 F.3d at 268. The APA requires that the agency action not be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or taken "without observance of procedure required by law." 5 U.S.C. § 706(2)(A), (D); Pac. Coast Fed'n of Fishermen's Ass'ns v. NMFS, 265 F.3d 1028, 1034 (9th Cir.2001).
This is a narrow standard of review in which the Court may not substitute its own judgment for that of the agency. See Darden v. Peters, 488 F.3d 277, 284-85 (4th Cir.2007). The Court's task under this standard is to determine whether the agency considered the relevant factors or whether it "entirely failed to consider an important aspect of the problem [or] offered an explanation for its decision that runs counter to the evidence before the agency ..." Sierra Club v. EPA, 162 F.Supp.2d 406, 411 (D.Md.2001) (internal quotation marks and citations omitted). While courts must defer to an agency's reasonable interpretation of ambiguous scientific evidence, the "presumption of agency expertise may be rebutted if its decisions, even though based on scientific expertise, are not reasoned." Greenpeace v. Nat'l Marine Fisheries Serv., 80 F.Supp.2d 1137, 1147 (W.D.Wash.2000).
A. Plaintiff's Motion to Strike Declarations
In support of their cross-motions for summary judgment, Federal Defendants attached the June 21, 2010 declaration of Anthony W. Hawkes and Intervenor Defendants attached the April 13, 2004 declaration of Ed Whitelaw. See Doc. No. 64 Ex. 2; Doc. No. 67 Ex. 1. These declarations provide further explanation of the NMFS' analysis and decision-making process. See id. Plaintiffs have filed a motion to strike these declarations, see Doc. No. 72, arguing that they are inadmissible post-hoc rationalizations of the NMFS' decision.
A post-hoc rationalization is a new rationale for an agency action that is put forth for the first time after the action is final. Nat'l Oilseed Processors, 924 F.Supp. at 1204. Although the Fourth Circuit has not addressed this issue, six lower appellate courts have held that agencies may submit declarations that "illuminate" or "explain" the original record, but not declarations that "advance new rationalizations for the agency's action." Yale-New Haven Hosp., 470 F.3d at 82 (2d Cir.2006). See also Envtl. Def. Fund, 657 F.2d at 285 (D.C.Cir.1981) ("The new material should be merely explanatory of the original record and should contain no new rationalizations."); see also Sierra Club v. Marsh, 976 F.2d at 772-72 (1st Cir.1992) (same); Sierra Club v. United States Army Corps of Engr's, 771 F.2d at 413 (8th Cir.1985) (same); Bunker Hill, 572 F.2d at 1292 (9th Cir.1977) (same).
1. The Hawkes' Declaration
Plaintiffs contend that the Hawkes Declaration contains post hoc rationalizations because it provides new explanations for the NMFS' actions that are not based on the original record. The vast majority of the Declaration consists of Hawkes explaining why the NMFS disregarded certain studies or data submitted by Plaintiffs and continued to rely on others. See Doc. No. 67 Ex. 1 ¶¶ 12-14, 20-21, 23, 25. In each instance, Hawkes provides an explanation not already given in the administrative
For example, the record reveals an ongoing review of the data and studies submitted by Plaintiffs, the EPA and others. See AR at 763 ("reviewing studies and comments provided by EPA and applicants"); see also AR at 818 (same); AR at 761 ("[o]ur priority will be reviewing comments from the three EPA-designated applicants, EPA, and the plaintiffs."). The record also documents generally the NMFS' decision to revise the final BiOp to include some of the studies and data submitted by Plaintiffs and others. See AR at 834-35 ("The applicant-submitted studies were useful in revising [the Response Analysis] section. Some of the mesocosm studies were incorporated.")
Moreover, although the general references on the record are a far cry from the specific explanations contained in the Hawkes Declaration, the record contains a general discussion of the NMFS' reasons for discounting certain categories of studies or data submitted by Plaintiffs, or at least proves that such a discussion occurred. See AR at 753 (noting that "substantial revision to the analysis" of the draft BiOp will not be necessary "as most of the objections [cited by Plaintiffs] relate to non-ag uses of the products"); see also AR at 756 ("The majority of the pushback... NMFS is encountering is focused on the use of particular studies rather than the scientific procedures for analysis ... responding to the majority of comments will consist of justifying the use of some studies and explaining the rationale for not considering others, rather than repeating analyses."). The Court finds that the foundation laid on the record concerning the review of these data and studies by the NMFS renders the Hawkes Declaration an explanation or illumination rather than a post hoc rationalization of the NMFS' actions. See Motor Vehicle, 463 U.S. at 43, 103 S.Ct. 2856. Accordingly the Court declines to strike the Hawkes Declaration.
2. The Whitelaw Declaration
Plaintiffs contend that the Whitelaw Declaration is irrelevant to the issues at hand and should be struck on that basis. Intervenor Defendants submitted the Whitelaw Declaration to counter evidence presented by Plaintiffs that the buffers required by the NMFS will result in great financial impacts to Plaintiffs. Intervenor Defendants contend that the Whitelaw Declaration "details the flawed assumptions and analytical errors underlying the types of broad estimates" presented by Plaintiffs. Doc. No. 76 at 1. Intervenor Defendants acknowledge that this evidence is relevant only to the extent that the Court considers Plaintiffs' allegations of financial impacts. As discussed below, the Court finds that the ESA does not require the NMFS to consider financial impacts on third parties such as Plaintiffs in determining whether the buffers are economically feasible. Accordingly, the Court grants Plaintiffs' motion to strike the Whitelaw Declaration as irrelevant.
B. Summary Judgment
Plaintiffs contend that the NMFS failed to base the BiOp on the best scientific and commercial data available, to explain the connection between the conclusions expressed
In response, Federal Defendants and Intervenor Defendants contend that the NMFS' analysis is exhaustive and thoroughly documented in the BiOp, that its "jeopardy" conclusion is rational and fully supported by the "best scientific and commercial data available," and that Plaintiffs have ignored the effects of these pesticides, especially on the vulnerable shallow water habitat and the sensitive juvenile salmonids that use it. Defendants argue that they relied on a multitude of studies, including studies submitted by Plaintiffs, in determining that the pesticides are toxic to salmonids at very low concentrations. Defendants contend that the NMFS rationally relied on mathematical models to develop a realistic range of exposures, and that these models together with the monitoring data, used correctly by the NMFS, are the best data available. Additionally, Defendants contend that even though the registrations for these pesticides have changed, salmonids may continue to be exposed to the concentrations of pesticides identified by the NMFS because customers still possess stocks of pesticides with the older labels and continue to use them.
Upon reviewing the extensive administrative record and briefings by the parties, the Court discerns a rational connection between the voluminous facts and studies considered by the NMFS and the decisions reached in the NMFS' final BiOp. Although Plaintiffs disagree with many of the NMFS' findings and conclusions and have presented persuasive arguments as to why the NMFS should have used different numbers and reached different conclusions, Plaintiffs have not shown that the NMFS ignored the best scientific and commercial data available or that the NMFS' conclusions are irrational. Although Plaintiffs have demonstrated that the BiOp is of "less than ideal clarity" at points and that the NMFS could have reasonably reached a conclusion more favorable to Plaintiffs, the Court finds that the BiOp is not arbitrary and capricious. In the paragraphs that follow, the Court will address and dispose of Plaintiffs' principal contentions relating to the BiOp.
1. The NMFS ignored Changes to Pesticide Registrations and Relied Instead on Old, Non-representative Water Monitoring Data
Plaintiffs contend that the NMFS' conclusions about the amount of the pesticides reaching salmon-bearing waters rely on old water monitoring data that fail to account for the extensive use cancellations and mitigation measures imposed by the EPA in reregistration. Plaintiffs argue that the use restrictions imposed have already substantially and significantly reduced the use and environmental impacts of all three pesticides at issue,
However, the NMFS addressed these concerns in its final BiOp, where it notes that "[c]ommon aspects that limit the utility of the available monitoring data as accurate depictions of exposure within listed salmonids habitats include: ... lack of representativeness of current and future pesticide uses and conditions." AR at 1109. The Court can reasonably discern that it was because of this perceived limitation in the water monitoring data that the NMFS supplemented that data with detailed modeling that accounts for the current available labels for these pesticides.
Moreover, the NMFS provides an explanation for its continued reliance on the older data in the BiOp. The BiOp notes that although "[r]ecent data show a decrease in use of chlorpyrifos and diazinon in California that may be associated with restrictions on residential uses ... pesticide use patterns change and may result in either increases or decreases in use of pesticide products." AR at 1109-10. In other words, actual pesticide use does not necessarily correlate with the maximum allowances listed on the labels, and thus use restrictions that decrease those maximum allowances will not necessarily result in a corresponding decrease in pesticide use.
Defendants' briefings and the Hawkes' Declaration provide additional explanations for the NMFS' use of the water monitoring data.
2. The NMFS Improperly Employed the PRZM-EXAMS and AgDrift Models
Plaintiffs contend that the NMFS improperly employed and relied on two models, the PRZM-EXAMS model and the AgDrift Model, to predict the levels of pesticide that would reach salmonid-bearing waters. Particularly, Plaintiffs contend that the BiOp improperly relied on the PRZM-EXAMS model given the EPA's comments to the NMFS that these modeled scenarios "are quite unrealistic for use with Pacific salmon and steelhead." AR at 4914.
However, the NMFS includes a satisfactory explanation for its reliance on the PRZMEXAMS model within the BiOp, where it pointedly addresses the EPA's concerns with the PRZM-EXAMS estimates. AR at 1088. The BiOp puts the EPA's statements in context.
Plaintiffs argue more convincingly that the AgDrift model does not accurately predict exposure estimates for shallow off-channel habitats where the model unrealistically assumes a flat field with wind blowing directly toward salmon habitats. In employing the model this way, the NMFS reached an extremely high exposure estimate of 1,000 ug/L for all three compounds. AR at 1117-18. Plaintiffs contend that an exposure of 1,000 ug/L cannot legally be reached for diazinon, that such an exposure can be reached for chlorpyrifos only if no buffer is used for airblast spray, and for malathion only in California and only adjacent to citrus. Federal Defendants now concede that, at least in regard to diazinon, "NMFS was being somewhat overbroad when it stated that it `predicted concentrations exceed 1,000 ug/L for all three compounds."
Thus, the Court must determine how much weight the NMFS put on the overbroad 1,000 ug/L estimate in reaching its
However, the values used by the NMFS in its subsequent population model analysis do not reflect the overbroad 1,000 ug/L number cited in its preliminary analysis. Rather, the NMFS modeled population-level exposures based on a range of exposure data from multiple sources. AR at 1179-82. Accordingly, the population model considers the effects of concentrations as high as 100 ug/L for chlorpyrifos and malathion and 400 ug/L for diazinon. This model focuses on the threshold concentrations of the pesticides at which the salmonids experience adverse effects. AR at 1157-65. For example, the NMFS cites the adverse effects threshold of diazinon at a mere 90 ug/L because studies suggest that diazinon will kill half of the salmonids exposed to it at that concentration. Plaintiffs argue that employing the AgDrift model correctly would have revealed a maximum concentration of 304 ug/L rather than the 1,000 ug/L cited in the BiOp. However, even if the lower 304 ug/L concentration had been utilized in the BiOp, such a concentration is still much higher than the adverse effects threshold of diazinon. Thus, the NMFS would have reached the same conclusion in the first stage of its analysis — that application of diazinon results in individual-level effects — which would have led it to perform the same population-level analysis. Although Plaintiffs have demonstrated that the NMFS' initial analysis was an "essential" and "necessary" part of its ultimate conclusions, Plaintiffs has not shown that inclusion of a lower concentration of diazinon at this initial stage of the analysis would have changed those conclusions.
Moreover, Defendants have acknowledged that the AgDrift model used legal rates in reaching the 1,000 ug/L predictions for malathion and chlorpyrifos. While there seems to be a reasonable difference of opinion regarding whether the model accurately predicted concentrations of diazinon,
Given the difference of opinion regarding the correct concentration of diazinon in
3. The NMFS Used Incorrect Toxicity Data or Endpoints in Determining Exposure Risks and Accordingly Set Concentration Levels that are Much Too Low
Plaintiffs next contend that the NMFS relied on improper toxicity levels in determining what concentrations would have adverse effects on individual fish. Plaintiffs take issue with the BiOp's use of an LC
However, Defendants have convincingly demonstrated that the BiOp discloses the lowest LC
Admittedly, the NMFS' general statement that it selected the "lowest reported LC
4. The NMFS Has Not Justified its Predictions of Population Level Effects
As discussed above, the NMFS used a quantitative population model to simulate how the pesticides at issue would affect the salmonid species. As part of that model, the NMFS made the simplifying assumption that each juvenile salmon and steelhead would be exposed to high levels of these pesticides for four straight days. Plaintiffs take issue with this four-day assumption, contending that it is arbitrary and that the NMFS entirely failed to explain the basis of its four-day assumption in the BiOp.
Plaintiffs are correct that the NMFS provides scant explanation for this assumption in the BiOp. While the BiOp suggests that a four-day period is one of the standard periods for acute toxicity testing, it also states that this test normally occurs in laboratories under controlled conditions. See AR at 1125. If the NMFS were to rely solely on this four-day test in drawing conclusions about the degree to which actual populations of salmonids are affected, it would have an obligation to explain why such a test, which relies on laboratory-based assumptions of consistent exposure, serves as a basis for predicting population exposure or survival in the field.
However, the NMFS notes in the BiOp that "[t]he degree to which an actual threatened or endangered population is affected will depend on a host of factors" not included in this test, such as "the number of individuals exposed, the duration of exposure, when they are exposed, and if individuals are exposed more than once." This supports Federal Defendants' explanation (albeit post-hoc, and viewed critically by the Court,) that the four-day assumption was not the final step in the NMFS' analysis but rather provided NMFS with a "yardstick" to measure population-level effects. See Doc. No. 79 at 20. Moreover, it makes sense that the NMFS would utilize such an assumption as part of its analysis where this assumption is standard for acute toxicity testing in this field.
5. The NMFS' "Buffer" Recommendations are Unsupported and Unlawful
Plaintiffs take issue with the NMFS' choice of reasonable and prudent alternatives ("RPAs"), particularly the NMFS' requirement of no-use buffers. These buffers would require the EPA to prohibit use of the three pesticides by ground application within 500 feet, and aerial application within 1,000 feet, of any salmonid habitat. Plaintiffs argue that the buffers are vastly larger than would be appropriate, and far too inflexible. Plaintiffs contend that the buffers should vary according to channel depth and width and the potential presence of salmonids.
First, the BiOp itself explains the choice of the buffers. See AR 1251 ("Pesticide buffers are recognized tools to reduce pesticide loading into aquatic habitats from draft. EPA, USFWS, NMFS, courts, and state agencies routinely enlist buffers as pesticide load reduction measures."). However, the BiOp does not explain why the buffers it requires do not vary according to channel depth and width, and Plaintiffs' suggestion appeals to common sense. Apparently, uniform buffers are the industry standard.
Plaintiffs also take issue with the fact that the NMFS never explained why the buffers should be applied to drainage ditches. However, an explanation can be deduced from the fact that the buffers are to apply to all salmonid habitats, and the BiOp notes that these habitats "also include all known types of off-channel habitats as well as drainages, ditches, and other manmade conveyances to salmonid habitats that lack salmonid exclusion devices." AR at 1251 n. 14. While it is not obvious that drainage ditches would serve as a home or temporary respite for salmonids, the Court defers to the conclusions of the NMFS in the area of salmonid habitats, an area clearly within its expertise. Moreover, Plaintiffs have not introduced evidence undermining its conclusions on this issue.
Additionally, Plaintiffs assert that the ESA requires the NMFS to consider and to articulate on the record whether the buffers are economically and technologically feasible for Plaintiffs. Plaintiffs contend that the buffers required by the NMFS substantially threaten the value of their products to growers and thus threaten Plaintiffs' sales, and that the NMFS unlawfully never considered this fact. The ESA's implementing regulations define RPAs as alternative actions that (1) "can be implemented in a manner consistent with the intended purpose of the action:"; (2) "can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction"; (3) are "economically and technologically feasible"; and (4) "that the Director [of the NMFS] believes would avoid the likelihood of jeopardizing the continued existence of listed species ..." 50 C.F.R. § 402.02 (emphasis added). See also Bennett v. Spear, 520 U.S. 154, 177, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) ("economic consequences are an explicit concern of the ESA ..."). Plaintiffs find support in an Eastern District of California case finding that "the public is
While the NMFS arguably discussed the technological feasibility of the buffers in discussing their recognized use as a tool used to reduce pesticide loading into aquatic habitats, see AR at 1251, the NMFS does not discuss the economic feasibility of the buffers in the BiOp or elsewhere in the administrative record. However, the ESA and its regulations do not state that the NMFS must undertake an economic analysis regarding its alternative action. The regulations do specificity other requirements, such as that the BiOp include a "detailed discussion of the effects of the action on listed species or critical habitat." 50 C.F.R. § 402.14(h)(2). The fact that the regulations state only that the BiOp "shall include reasonable and prudent alternatives, if any", Id. at § 402.14(h)(3), in light of its specification in other areas, weighs against a finding that such an analysis is required.
As Plaintiffs suggest, the district court in San Luis did require such an explanation where the agency had "articulated absolutely no connection between the facts in the record and the required conclusion that the RPA is (1) consistent with the purpose of the underlying action; (2) consistent with the action agency's authority; and (3) economically and technologically feasible." However, this case is distinguishable; the NMFS cannot be said to have "articulated absolutely no connection" here where the BiOp includes a section entitled "Rationale" that explains the use of buffers generally and the NMFS' rationale for requiring them in this case. See AR at 1251-54.
Moreover, the district court's holding in San Luis is not binding here and is in tension with other courts that have addressed the matter. See Greenpeace v. NMFS, 55 F.Supp.2d 1248, 1268 (W.D.Wash.1999) ("The guiding standard for determination of RPAs is jeopardy, not economic impact on third parties such as the fishing industry.") (citations omitted); see also Kandra v. United States, 145 F.Supp.2d 1192, 1207 (D.Or.2001) ("True, an RPA is defined as an alternative action which is ... economically and technically feasible. Read in context, however, the RPAs must be economically and technically feasible for the government to implement.") (citations and quotation marks omitted); In re: Operation of the Missouri River Sys. Litig., 363 F.Supp.2d 1145, 1161 (D.Minn.2004), aff'd in part, vacated in part on grounds of mootness, 421 F.3d 618 (8th Cir.2005) ("the requirement that the RPA be economically and technologically feasible only requires that the [government agency] have the resources and technology necessary to implement the RPA.") (citations and quotation marks omitted).
The Court agrees with the rationale of the courts above that, read in context and with an eye toward the purpose of the ESA, the economic and technological feasibility requirement can more reasonably be interpreted to apply to the abilities of the EPA to implement the buffers than the ability of pesticide manufacturers to absorb the costs. This also makes sense in light of the fact that "[t]he plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost." TVA v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (emphasis added). Although the BiOp does not explicitly state that the buffers it requires are economically feasible to implement, it conveys as much when it introduces the buffers as
6. The NMFS Failed to Respond to Many Substantive Comments on the Draft BiOp
Finally, Plaintiffs argue that the APA requires the NMFS to explain its conclusions and respond to comments, and the NMFS did not do this for the BiOp. Plaintiffs contend that they and others provided the NMFS with numerous comments, studies, and data that raised significant criticisms of the draft BiOp, and the NMFS failed to respond to many of these comments or even address the criticisms raised. Although Federal Defendants contend that the APA's public notice and comment requirements, 5 U.S.C. § 553, do not apply to consultations like the one at issue undertaken pursuant to ESA § 7(a)(2), we need not decide that question. Assuming that the APA's notice and comment provision applies, the Court finds that the NMFS adequately considered and, where appropriate, responded to comments.
To satisfy the APA's notice and comment requirement, an agency must "demonstrate the rationality of its decision-making process [and] respond to those comments that are relevant and significant." Grand Canyon Air Tour Coal. v. FAA, 154 F.3d 455, 468 (D.C.Cir.1998); see also Reytblatt v. U.S. Nuclear Regulatory Comm'n, 105 F.3d 715, 722 (D.C.Cir. 1997) ("An agency need not address every comment, but it must respond in a reasoned manner to those that raise significant problems.").
Plaintiffs contend that nothing in the BiOp, or even the larger record, reveals that the NMFS responded to the nearly 130 studies and other information either identified by, or provided to, NMFS by the EPA, the States and Plaintiffs. Surely, however, the notice and comment requirement cannot be understood as an obligation that the agency cite to and discuss on the record each study provided by Plaintiffs and others. See Oregon Natural Desert Ass'n v. Tidwell, 716 F.Supp.2d 982, 997 (D.Or.2010) ("While the NMFS cannot ignore relevant biological information, it is another thing altogether to require that they cite every potentially relevant study, especially such studies that do not constitute the best available science in the estimation of the expert agency.").
Moreover, the record demonstrates that the NMFS met with Plaintiffs and the EPA to discuss the draft BiOp, see AR at 709-713, and that NMFS scientists requested copies of a number of the studies referenced by Plaintiffs during that meeting, see AR at 717, 725, 728, as well as raw data sets from some of those studies, see AR at 719, so that they could be reviewed more thoroughly. The NMFS developed questions in response to the materials submitted, see AR at 727, 739, 715, scheduled two additional meetings with Plaintiffs and the EPA to discuss their questions, see AR at 745-752, and then requested additional information from Plaintiffs in order to consider their comments, see AR at 802, 803. The record also demonstrates that the NMFS revised the parameters of the population model based on malathion comments, see AR at 769, 835, revised its exposure analysis to reflect current-registered uses, see AR at 834, revised its response analysis to include field study data information from Oregon and toxicity studies submitted by Plaintiffs, see AR at 834-35, and added 28 new summaries to its exposure analysis, see AR at 835.
Finally, the record demonstrates that the NMFS "reviewed materials sent by EPA and the three applicants" and that
Overall, the record reveals an ongoing review of the comments submitted by Plaintiffs and others. See AR at 763 ("reviewing studies and comments provided by EPA and applicants"); see also AR at 818 (same); AR at 761 ("[o]ur priority will be reviewing comments from the three EPA-designated applicants, EPA, and the plaintiffs."). In some instances, the record reveals that the NMFS engaged in discussions regarding whether or why it would discount certain studies or data submitted by Plaintiffs. See AR at 753 (noting that "substantial revision to the analysis" of the draft BiOp will not be necessary "as most of the objections [cited by Plaintiffs] relate to non-ag uses of the products"); see also AR at 756 ("The majority of the pushback... NMFS is encountering is focused on the use of particular studies rather than the scientific procedures for analysis ... responding to the majority of comments will consist of justifying the use of some studies and explaining the rationale for not considering others, rather than repeating analyses.").
Plaintiffs seem to suggest that the NMFS had a further duty to provide on the record an analysis of each document submitted by Plaintiffs and others, as well as the NMFS' decision about whether to include such document as part of the final BiOp and what weight to assign it, or if such document was not included, to explain why not. The law does not exact such a high standard. See Oregon Nat'l Desert, 716 F.Supp.2d at 997.
Plaintiffs contend that the Hawkes Declaration, submitted by Federal Defendants to more fully explain the NMFS' rejection of specific studies, constitutes an impermissible post hoc rationalization that cannot be credited. The Court would agree if the administrative record was devoid of evidence suggesting that the NMFS considered Plaintiffs' comments and engaged in discussions with Plaintiffs and others regarding those comments. However, given that the record in this case "articulate[s] a satisfactory explanation" of the NMFS' review of these comments, the Court finds that the Hawkes Declaration merely supplements and illuminates the record rather than serving as a post-hoc rationalization. See Motor Vehicle, 463 U.S. at 43, 103 S.Ct. 2856.
Plaintiffs simply have not made a sufficient case that, of the voluminous data provided to the NMFS, it failed to adequately consider and respond to significant and relevant comments and to incorporate them in the BiOp. Although Plaintiffs may disagree with the weight accorded different studies or the NMFS' conclusions that some studies were repetitive, this is not a basis for vacating the BiOp. Accordingly, the Court declines to vacate the BiOp on this basis.
For the foregoing reasons, Plaintiffs' motion for summary judgment is denied, Federal Defendants and Intervenor Defendants' cross-motions for summary judgment