Lawsuit Targets Malathion Restrictions

LINCOLN, Neb. (DTN) -- A final biological opinion that led to national restrictions on the pesticide malathion is the target of a new lawsuit filed this week that alleges the decision by the U.S. Fish and Wildlife Service violated the Endangered Species Act.

In February 2022, the USFWS issued a biological opinion that concluded malathion would not jeopardize listed endangered species or their habitats.

In the new lawsuit filed in the U.S. District Court for the District of Northern California, the environmental groups, led by the Center for Biological Diversity, said USFWS' biological opinion "contains numerous analytical shortcuts and arbitrary policy choices."

The final biological opinion was based on "agreed-upon measures including no-spray zones, reductions in application rates and number of applications," as well as other label changes that taken together "avoid jeopardy and adverse modification of critical habitat," according to the U.S. Environmental Protection Agency.

The groups said in the new lawsuit that the label restrictions may reduce harm to some listed species, but the most threatened and endangered species would not benefit.

They allege USFWS policy choices conflict with USFWS' regulations and policies, as well as with the Endangered Species Act itself and that it was arbitrary and capricious.

"FWS's errors include its decisions not to implement species-specific conservation measures to protect against malathion for many species and its failure to consider the consequences to each individual species' conservation or recovery," the lawsuit said.

The groups asked the court to vacate an incidental take statement and parts of the malathion biological opinion that fails to "protect the 1,534 species that do not have any species-specific minimization measures to protect them."

When contacted by DTN, a USFWS spokesperson said the agency does not comment on pending litigation.

Malathion is used largely to control mosquitoes as well as aphids and other crop pests.

In August 2023, the EPA announced national restrictions on the use of malathion.

"While these minimal restrictions to malathion pesticide product labels might reduce some harm to some listed species at the margins, most threatened and endangered species will not benefit from them," the groups said in the lawsuit.

"The malathion (biological opinion) contains numerous analytical shortcuts and arbitrary policy choices, which conflict with FWS's regulations and policies and the requirements of the ESA itself."

The groups said that malathion's "widespread use and mobility" in the environment was "compounded by its high toxicity to every animal taxonomic group."

The EPA initiated an ESA consultation with the USFWS on the effects of malathion, chlorpyrifos and diazinon in January 2017.

At that time, the EPA determined malathion was "likely to adversely affect" 1,778 threatened and endangered species.

In October 2017, the USFWS concluded in a draft biological opinion that registered uses of malathion products were likely to jeopardize 1,284 threatened and endangered species.

Read more on DTN:

"EPA Enacts ESA Limits on Malathion," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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