In a heartening victory for people living in the Pacific Northwest, the Ninth Circuit Court of Appeals today upheld a lower court ruling restricting the use of 38 dangerous pesticides near northwest rivers and streams where salmon live. The appeals court also upheld the requirement that point-of-sale warnings be posted for products containing pesticides that may harm salmon. The appeals court rejected an attempt by corporate pesticide makers who sought to overturn the lower court ruling requiring the buffer zones and warnings. Earthjustice represented fishing and conservation groups in the case.
“These are clearly pesticides that pollute our streams and poison salmon,” said Amy Williams-Derry, an Earthjustice attorney who represented the groups. “Fortunately the courts have just said no to the pesticide makers and their friends in the federal government who think having pesticides in our waters is fine.”
The Ninth Circuit confirmed that “evidence in the record demonstrated a causal link between the 54 pesticide active ingredients . . .and adverse effects” on salmon. The appellate court noted that the district court issued “a series of well-crafted orders,” and allowed all parties, including corporate pesticide makers, to present evidence on the effects of pesticides on salmon.
In 2002, a federal district court ruled that the EPA was out of compliance with the Endangered Species Act because it failed to protect salmon from harmful pesticides. The judge ordered EPA to consult with the National Marines Fisheries Service, also known as NOAA Fisheries, to establish permanent restrictions on the use of the pesticides to protect salmon. After the 2002 ruling, environmental and fishing groups asked the judge to order the no-spray buffer zones while EPA and NMFS develop permanent restrictions. In January 2004 he granted the request and ordered no-spray buffer zones.
Today’s ruling keeps in place no-spray buffers of 100 yards for aerial applications and 20 yards for ground applications, with exceptions for certain uses that are unlikely to pollute water or to control mosquitoes.
The court order also upholds a requirement that urban home and garden store customers throughout Washington, Oregon, and California be warned about the danger of using seven common pesticides known to harm salmon near streams where they live. The warning reads:
This product contains pesticides that may harm salmon or steelhead. Use of this product in urban areas can pollute salmon streams.
“Hopefully now the public will get the word that pesticides used in home gardens can harm salmon, and that people who want to protect salmon need to use alternative methods,” said Aimee Code of the Northwest Coalition for Alternatives to Pesticides.
The appeals court agreed with the lower court judge who found “with reasonable scientific certainty, that the requested buffer zones – 20 yards for ground applications, 100 yards for aerial applications – will substantially contribute to the prevention of jeopardy” to salmon. He further found that the evidence “demonstrate[s] that pesticide-application buffer zones are a common, simple, and effective strategy to avoid jeopardy to threatened and endangered salmonids.”
“Salmon are a main economic pillar of the northwest economy providing billions of dollars between the sport and commercial fisheries,” said Glen Spain of Pacific Coast Federation of Fishermen’s Associations, a commercial fishing industry group and a co-plaintiff in the suit. “It’s incredible we’re still having to assert ourselves against companies that sell poisons in an effort to protect the salmon we rely on to pay our bills.”
The buffer zones apply to salmon streams that support threatened and endangered salmon throughout Washington, Oregon, and California.
“The administration should focus on developing methods that are safe for salmon and people, not protecting the interests of the poison industry,” said Erika Schreder of the Washington Toxics Coalition. “Now that the courts have spoken, we expect EPA to get serious about finalizing protections to keep pesticides from harming salmon.”