In Brief: Since 1989, when the first of salmon were listed, the U.S. Environmental Protection Agency has never fulfilled its responsibility to protect them from the use of pesticides that EPA regulates, as Section 7 of the Endangered Species Act requires.

02/15/06

Earthjustice and its partners have been the driving force behind efforts to protect wild salmon. Thanks to more than a decade of effort, the Endangered Species Act now protects 26 populations of imperiled salmon and steelhead found in Washington, Oregon, and Northern California streams. It should come as no surprise that pesticides, which are designed to kill, can harm fish and their habitat when they are carried into waterways that support salmon. Since 1989, when the first of salmon were listed, the U.S. Environmental Protection Agency has never fulfilled its responsibility to protect them from the use of pesticides that EPA regulates, as Section 7 of the Endangered Species Act requires.

On behalf of fishermen and environmental groups, Earthjustice sued EPA for that failure in early 2001 and won. In July 2002, District Judge Coughenour in Seattle ruled that EPA had failed to assure that the authorized uses of more than 50 registered pesticides does not jeopardize the survival of listed salmon populations. The science involved is plain: EPA's own documents confirmed that potentially significant risks to salmon are posed by predicted levels of pesticide pollution. While the agency completes its consultation with fish experts in accordance with Section 7, the court ordered interim protections for salmon streams: buffers along salmon streams where 38 specific pesticides cannot be sprayed or applied to the ground and warnings provided to urban consumers where particularly dangerous lawn and garden pesticides are sold informing them that the products may harm salmon or steelhead. Exemptions provided in the court's 2004 injunction allow spraying to protect public health (such as mosquito abatement) and to control weeds.

Agribusiness and the pesticide industry, however, went ballistic. CropLife America, a pesticide trade group, appealed the ruling requiring buffer zones and consumer warnings all the way to the Supreme Court after a three-judge panel of the Ninth Circuit Court of Appeals unanimously affirmed the injunction last June. On January 9, 2006, the Supreme Court declined to hear that appeal, leaving the injunction in effect and salmon protected.

A Supreme Court victory should be the end of the story, but it isn't. Pressed by the chemical industry, the Bush administration issued new regulations in late 2004 that would allow EPA to decide for itself, without the involvement of outside wildlife experts, whether safeguards are needed to protect endangered species from pesticides. Industry hopes that allowing EPA to make the decision, without the input of fish and wildlife experts will head off restrictions on the use of pesticides that harm salmon or other wildlife. Earthjustice went back to court again in 2004 to preserve the scientific integrity of the ESA's consultation process and overturn this "self-consultation" regulation.

So the effort continues, and federal courts are still the critical bulwark against the industry-government alliance trying to make sure that wildlife protection doesn't interfere with the pesticide business.

We're in this for the long haul. Earthjustice has been in court protecting West Coast salmon since 1988. Just since the year 2000, we've filed 17 cases aimed at bringing salmon back, and stepped forward to meet industry's challenge in six more lawsuits designed to undermine salmon preservation. Our campaign is moving forward, as industry's reaction attests, though the victories capture the spotlight only now and then. These days it's important to remind ourselves that victories can still be had.

Vawter "Buck" Parker, Executive Director
buckparker@earthjustice.org