The 4th Circuit U.S. Court of Appeals found for the plaintiffs in Dow, Makhteshim and Cheminova v. National Marine Fisheries Service (NMFS). The first biological opinion (BiOp) issued by NMFS following the Washington Toxics Coalition lawsuit over the potential effects of pesticides on salmon is arbitrary and capricious.
The BiOp covered three insecticides, chlorpyrifos, diazinon, and malathion. The appeals court reversed a lower court decision by concluding that the BiOp was not the product of reasoned decision making. According to the court, “NMFS failed to explain or support critical assumptions in its opinion.” The court vacated the BiOp and remanded the case to the district court with instructions to remand it to NMFS for further proceedings consistent with this opinion.
A key factor in today’s decision was the NMFS’s failure to consider the economic feasibility of its proposed one-size-fits-all buffer zones. According to the court, “NMFS relied on a selection of data, tests, and standards that did not always appear to be logical, obvious, or even rational.”
“This decision is a huge step for sound science and reasoned decision-making,” said Heather Hansen, executive director of Washington Friends of Farms & Forests. “We are thankful that the court recognized the poor process NMFS used in compiling this BiOp. We are hopeful that future actions will be guided by this decision.”