Judge Coughenour issued a strongly worded opinion today denying the industry request for a stay and underlining the need for the injunction's protections for threatened and endangered salmon.
His order states, "in enacting the ESA [Endangered Species Act], Congress expressly preferred the preservation of endangered species, deprived of the ability to protect themselves against the perpetual technological crusade of ever-expanding humankind, over the preservation of chemicals that have the potential to make extinction of these species imminent." [p. 7]
Judge Coughenour also faults the Environmental Protection Agency for its lack of compliance with the law that made the injunction necessary, and for its poor communication to pesticide users about the injunction's requirements.
Today's ruling states,
"if EPA had expended as much effort in compliance with the ESA as it has expended in resisting this action, the lawsuit might have been unnecessary." [p. 6]
"the Court again emphasizes that because the January 22, 2004 Order enjoined EPA from authorizing the unrestricted application of certain pesticide active ingredients, it is EPA's duty to provide individual pesticide users with comprehensive instructions as to the Order's scope." [p.9]
The fishing and environmental groups that won the injunction applauded today's ruling.
"Judge Coughenour made a very common sense decision to deny the stay. These are not 'harmless' compounds' as the chemical industry claimed, but highly toxic poisons that have no business in our waterways and salmon spawning beds," said Glen Spain of Pacific Coast Federation of Fishermen's Associations (PCFFA), one of the plaintiff groups, representing the commercial fishing industry. "All the judge's original order ever did was to help keep these chemicals out of waterways and where they belong. Farmer's have plenty of alternatives to dumping toxic chemicals into rivers and killing fish."
Patti Goldman of Earthjustice represented the groups. "Big chemical companies said the sky was falling back in the days when DDT was banned to save bald eagles. Everyone knows they were wrong then and they're wrong now when they say the sky is falling because their chemicals need to be applied more carefully to avoid killing salmon."
The January 2004 injunction put in place no-spray zones of 100 yards for aerial applications and 20 yards for ground applications of more than 30 pesticides. The district court's injunction also required in-store warnings to inform consumers that seven urban-use pesticides may harm salmon.
"EPA can no longer dodge its obligation to regulate pesticides. This ruling makes it clear that the way EPA currently authorizes pesticide use can harm salmon, and buffers are a smart remedy" said Aimee Code, water quality coordinator with the Northwest Coalition for Alternatives to Pesticides. "We'll be monitoring EPA closely to see that the agency assists growers and others in compliance with the no-spray buffers."
"The pesticide industry brought all its resources to bear to convince the courts to stop salmon protections, but clean water and salmon won," said Erika Schreder, staff scientist with the Washington Toxics Coalition. "The court has laid the blame for failure to prevent pesticide harm to salmon at the feet of EPA, where it clearly belongs."
U.S. District Court Judge John Coughenour issued the injunction on January 22, 2004, as a result of a lawsuit filed by the Washington Toxics Coalition, Northwest Coalition for Alternatives to Pesticides, and Pacific Coast Federation of Fishermen's Associations, with representation by Earthjustice. The EPA and pesticide companies appealed the ruling to the Ninth Circuit, but the injunction will now stay in place throughout the appeals process.
The injunction followed Judge Coughenour's 2002 decision that found EPA out of compliance with the Endangered Species Act for failing to protect salmon from harmful pesticides. The judge ordered EPA to consult with NOAA Fisheries to establish permanent restrictions needed to protect salmon from 54 pesticides, over a two-and-a-half year timeline.