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Dow AgroSciences LLC v. National Marine Fisheries Service

Citation: 43 ELR 20043
No. 11-2337, (4th Cir., 02/21/2013)

The Fourth Circuit vacated a biological opinion the National Marine Fisheries Service (NMFS) prepared as part of EPA's reregistration process for three pesticides—chlorpyrifos, diazinon, and malathion. The biological opinion concluded that the pesticides would jeopardize the viability of certain Pacific salmonids and their habitat and that the pesticides could not be reregistered and, therefore, used without substantial restriction. But the biological opinion relied on a selection of data, tests, and standards that did not always appear to be logical, obvious, or even rational. While the NMFS may have had good and satisfactory explanations for its choices, the biological opinion did not explain them with sufficient clarity to enable the court to review their reasonableness. The biological opinion, therefore, is arbitrary and capricious.