Judge says feds used faulty data to support pesticide findings

(CN) — For more than a decade, federal scientists worked to answer a simple question: does malathion, one of the most widely used pesticides in the United States, pose a threat to the roughly 1,800 plants and animals on the nation’s endangered species list?

Their 2022 answer — no, not a single one — has now been declared unlawful by a federal judge who found the data was too flawed to support that conclusion.

U.S. District Judge Jacqueline Scott Corley of the Northern District of California on Wednesday granted partial summary judgment to three environmental advocacy groups challenging the Fish and Wildlife Service’s final biological opinion on malathion.

Siding with Pesticide Action Network North America, Center for Biological Diversity and Center for Food Safety, the Joe Biden appointee found the agency’s jeopardy determinations were arbitrary and capricious.

The defendants are the Fish and Wildlife Service and its director, Martha Williams. Croplife America, a national trade association representing the pesticide industry, intervened as a defendant.

The determination is the first nationwide biological opinion the Fish and Wildlife Service had ever completed for any pesticide. Its scope is vast: the agency evaluated malathion’s effects across more than 100 registered uses throughout the country, assessing potential jeopardy for more than 1,500 listed species and roughly 600 designated critical habitats. The process took roughly 12 years.

The final analysis was issued in February 2022 and concluded malathion’s registration “is not likely to jeopardize listed species or destroy or modify their critical habitats.”

That finding starkly contrasts a 2017 draft that found the pesticide would jeopardize more than 1,200 species, Corley noted. The reversal came after the EPA modified malathion’s label to incorporate conservation measures, which the agency said justified the revised findings.

The jeopardy analysis relied heavily on a factor the agency called “usage”: an estimate of the percentage of each species’ range where malathion was anticipated to actually be applied.

On the species range estimates, Corley found the findings gave no meaningful explanation for how those figures were derived. The biological opinion acknowledged the range data was one of the analysis’ main uncertainties and conceded ranges were often defined at the county level or smaller but provided no example of a species range map or description of how maps were converted into acreage estimates.

That omission proved fatal.

“The biological opinion’s species’ range estimates are arbitrary because the agency’s path in calculating those estimates cannot reasonably be discerned,” Corley wrote.

The pesticide usage data fared no better. The service drew heavily on commercial survey data from a company called Kynetec and nine state agriculture departments — data the agency acknowledged was designed for market research purposes, lacked statistical reliability even at the state level and was nearly a decade old. Corley said only California’s reporting data was considered robust.

Despite those acknowledged limitations, the service used the data to predict where malathion would be applied across 15 years and throughout the continental United States at the county and sub-county level, the very level of specificity for which the agency said the data was not reliable.

“The service’s conclusions about where usage overlap will occur are merely speculation sprinkled with dabs of evidence,” Corley said.

She also found parts of the critical habitat analysis deficient, saying the service gave little explanation for why some protected habitats were deemed unaffected by malathion.

“The agency essentially asks that we take its word as to whether the designation has anything relevant,” Corley said.

The government did prevail on one issue. Corley found federal rules did not require the agency to separately analyze whether malathion could hinder a species’ long-term recovery.

Because the jeopardy findings were thrown out across the board, Corley did not address the plaintiffs’ remaining claims, including challenges to the opinion’s incidental take statement.

Both sides were ordered to submit a joint proposal by June 5 explaining how they believe the agency should correct the opinion. The plaintiffs have asked for a new biological opinion within nine months and interim protections while the process moves forward.

Representatives for Pesticide Action Network North America and the Fish and Wildlife Service did not immediately respond to requests for comment.

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