Washington Toxics Coalition v. Environmental Protection Agency , 413 F.3d 1024 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WASHINGTON TOXICS COALITION; 
NORTHWEST COALITION FOR
ALTERNATIVES TO PESTICIDES;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
INSTITUTE FOR FISHERIES RESOURCES,
Plaintiffs-Appellees,
v.
ENVIRONMENTAL PROTECTION
AGENCY; CHRISTINE TODD
WHITMAN,
Defendants,
No. 04-35138
and
CALIFORNIA PLANT HEALTH  D.C. No.
CV-01-00132-JCC
ASSOCIATION; OREGON
AGRICULTURAL CHEMICALS &
FERTILIZERS ASSOCIATION; FAR
WEST AGRIBUSINESS ASSOCIATION;
AGRICULTURAL COOPERATIVE
COUNCIL OF OREGON; FRUIT
GROWERS LEAGUE OF SOUTHERN
OREGON; HOOD RIVER GROWER-
SHIPPER ASSOCIATION; HOP
GROWERS OF WASHINGTON; IDAHO
MINT GROWERS ASSOCIATION;
MALHEUR COUNTY ONION GROWERS
ASSOCIATION; NATIONAL POTATO
COUNCIL, ORCHARD VIEW FARMS;

7721
7722 WASHINGTON TOXICS COALITION v. EPA
OREGON ALFALFA SEED GROWERS 
ASSOCIATION; OREGON CRANBERRY
FARMERS’ ALLIANCE; OREGON HOP
GROWERS ASSOCIATION; OREGON
HORTICULTURAL SOCIETY; OREGON
SEED COUNCIL; USA DRY PEA &
LENTIL COUNCIL; WASCO COUNTY
FRUIT & PRODUCE LEAGUE;
WASHINGTON ASSOCIATION OF
WHEAT GROWERS; WASHINGTON
MINT GROWERS ASSOCIATION;
WASHINGTON STATE HORTICULTURAL
ASSOCIATION; WESTERN
WASHINGTON AGRICULTURAL
ASSOCIATION; OREGON DAIRY 
FARMERS; AMERICAN FOREST
RESOURCE COUNCIL; OREGON
FOREST INDUSTRIES COUNCIL;
WASHINGTON FRIENDS OF
FARMS AND FORESTS;
OREGONIANS FOR FOOD AND
SHELTER; WESTERN WASHINGTON
GOLF COURSE SUPERINTENDENTS
ASSOCIATION; NATIONAL
AGRICULTURAL AVIATION
ASSOCIATION; CALIFORNIA
AGRICULTURAL AIRCRAFT
ASSOCIATION; CROPLIFE AMERICA,
Defendant-Intervenors-Appellants.

WASHINGTON TOXICS COALITION v. EPA 7723
WASHINGTON TOXICS COALITION; 
NORTHWEST COALITION FOR
ALTERNATIVES TO PESTICIDES;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
INSTITUTE FOR FISHERIES RESOURCES,
Plaintiffs-Appellees,
v.
No. 04-35212
ENVIRONMENTAL PROTECTION
AGENCY; CHRISTINE TODD
WHITMAN,
 D.C. No.
CV-01-00132-JCC
Defendants,
CALIFORNIA PLANT HEALTH
ASSOCIATION; CROPLIFE AMERICA,
Defendant-Intervenors,
and
WASHINGTON STATE POTATO
COMMISSION,
Defendant-Intervenor-Appellant.

7724 WASHINGTON TOXICS COALITION v. EPA
WASHINGTON TOXICS COALITION; 
NORTHWEST COALITION FOR
ALTERNATIVES TO PESTICIDES;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
INSTITUTE FOR FISHERIES RESOURCES,
Plaintiffs-Appellees,
v. No. 04-35237
ENVIRONMENTAL PROTECTION
AGENCY; CHRISTINE TODD
 D.C. No.
CV-01-00132-JCC
WHITMAN,
Defendants,
CROPLIFE AMERICA, et al,
Defendant-Intervenor,
and
WASHINGTON STATE FARM BUREAU,
Defendant-Intervenor-Appellant.

WASHINGTON TOXICS COALITION v. EPA 7725
WASHINGTON TOXICS COALITION; 
NORTHWEST COALITION FOR
ALTERNATIVES TO PESTICIDES;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, INC.;
INSTITUTE FOR FISHERIES RESOURCES,
Plaintiffs-Appellees,
v.
ENVIRONMENTAL PROTECTION
AGENCY; CHRISTINE TODD
WHITMAN,
Defendants-Appellants,
and
CALIFORNIA PLANT HEALTH No. 04-35244
ASSOCIATION; OREGON
AGRICULTURAL CHEMICALS &
FERTILIZERS ASSOCIATION; FAR
 D.C. No.
CV-01-00132-JCC
WEST AGRIBUSINESS ASSOCIATION; OPINION
AGRICULTURAL COOPERATIVE
COUNCIL OF OREGON; FRUIT
GROWERS LEAGUE OF SOUTHERN
OREGON; HOOD RIVER GROWER-
SHIPPER ASSOCIATION; HOP
GROWERS OF WASHINGTON; IDAHO
MINT GROWERS ASSOCIATION;
MALHEUR COUNTY ONION GROWERS
ASSOCIATION; NATIONAL POTATO
COUNCIL; ORCHARD VIEW FARMS;
OREGON ALFALFA SEED GROWERS
ASSOCIATION; OREGON CRANBERRY
FARMERS’ ALLIANCE; OREGON FARM
BUREAU FEDERATION; OREGON HOP
GROWERS ASSOCIATION;

7726 WASHINGTON TOXICS COALITION v. EPA
OREGON HORTICULTURAL SOCIETY; 
OREGON SEED COUNCIL; USA DRY
PEA & LENTIL COUNCIL; WASCO
COUNTY FRUIT & PRODUCE LEAGUE;
WASHINGTON ASSOCIATION OF
WHEAT GROWERS; WASHINGTON
MINT GROWERS ASSOCIATION;
WASHINGTON STATE HORTICULTURAL
ASSOCIATION; WESTERN
WASHINGTON AGRICULTURAL
ASSOCIATION; OREGON CATTLEMEN’S
ASSOCIATION; OREGON DAIRY
FARMERS; AMERICAN FOREST
RESOURCE COUNCIL; OREGON
FOREST INDUSTRIES COUNCIL;
WASHINGTON FRIENDS OF 
FARMS AND FORESTS;
OREGONIANS FOR FOOD AND
SHELTER; WESTERN WASHINGTON
GOLF COURSE SUPERINTENDENTS
ASSOCIATION; NATIONAL
AGRICULTURAL AVIATION
ASSOCIATION; CALIFORNIA
AGRICULTURAL AIRCRAFT
ASSOCIATION; WASHINGTON STATE
POTATO COMMISSION; WASHINGTON
STATE FARM BUREAU; SYNGENTA
CORP PROTECTION; CROPLIFE
AMERICA,
Defendant-Intervenors.

WASHINGTON TOXICS COALITION v. EPA 7727
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, Chief Judge, Presiding
Argued and Submitted
September 14, 2004—Seattle, Washington
Filed June 29, 2005
Before: Mary M. Schroeder, Chief Judge,
James R. Browning, and A. Wallace Tashima,
Circuit Judges.
Opinion by Chief Judge Schroeder
WASHINGTON TOXICS COALITION v. EPA 7729
COUNSEL
Todd S. Kim, Department of Justice, Washington, DC, for the
defendants-appellants.
7730 WASHINGTON TOXICS COALITION v. EPA
Karen Budd-Falen, Budd-Falen law Offices, Cheyenne, Wyo-
ming, for the defendants-appellants.
J. Michael Klise & Stephen P. Quarles, Crowell & Moring,
Washington, DC, for the defendants-appellants.
Patti A. Goldman, Earthjustice, Seattle, Washington, for the
plaintiffs-appellees.
OPINION
SCHROEDER, Chief Judge:
This litigation is about the Environmental Protection Agen-
cy’s registration of 54 pesticide active ingredients that the
plaintiff environmental coalitions fear may harm endangered
or threatened salmon and steelhead in the waters of the Pacific
Northwest. The plaintiffs, Washington Toxics Coalition et al.,
(“WTC”), contend that EPA violated the Endangered Species
Act, 16 U.S.C. § 1536(a)(2), by failing to consult with the
National Marine Fisheries Service before approving the pesti-
cides.
EPA admittedly did not do any such consultation, and it
agrees that the Endangered Species Act requires consultation
with the National Marine Fisheries Service for action affect-
ing these endangered or threatened fish. EPA contends, how-
ever, that because in registering the pesticides, it complied
with the requirements of the Federal Insecticide, Fungicide,
and Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136, et seq., it
was not bound by the consultation requirements of the Endan-
gered Species Act (“ESA”). EPA therefore appeals the district
court’s orders requiring EPA to engage in consultation and
suspending EPA’s authorization of the pesticides pending the
consultation.
WASHINGTON TOXICS COALITION v. EPA 7731
Plaintiffs Washington Toxics Coalition and Northwest
Coalition for Alternatives to Pesticides are non-profit organi-
zations that promote alternatives to toxic pesticides and seek
to protect the environment from the harmful effects of pesti-
cides. Plaintiff Pacific Coast Federation of Fishermen’s Asso-
ciations, Inc., is an organization of commercial fishermen that
works to ensure the long-term survival of commercial fishing
as a way of life. Plaintiff Institute for Fisheries Resources is
a non-profit public interest marine resources protection and
conservation organization.
A number of parties intervened in the action on the side of
defendant EPA. The defendant-intervenors are CropLife
America (“CLA”), Washington State Farm Bureau, and 35
other groups representing pesticide manufacturers, formula-
tors, distributors, sellers, and applicators. The intervenors
contend that the case is governed by the principles of judicial
review and injunctive standards of the Administrative Proce-
dure Act (“APA”), 5 U.S.C. §§ 700, et seq., rather than by the
ESA. According to the intervenors, the district court lacked
jurisdiction to examine the effect of pesticides apart from
reviewing the administrative record pursuant to a cause of
action established by the APA. Intervenors so contend despite
the provision of the ESA creating individual causes of action
to challenge its violations. See 16 U.S.C. § 1540(g)(1). The
intervenors also contend that the injunctive relief granted by
the district court was excessive. They challenge various
aspects of the district court’s injunctive orders requiring
pesticide-free buffer zones around endangered salmon and
steelhead habitat.
The district court granted the plaintiffs’ requests for injunc-
tive relief in a series of well-crafted orders, after allowing all
parties, including the intervenors, to introduce evidence on the
effects of the use of the challenged pesticides. Although the
complaint originally disputed registration of hundreds of pes-
ticides, the district court held EPA violated the ESA consulta-
tion requirement with respect to only 54 pesticide active
7732 WASHINGTON TOXICS COALITION v. EPA
ingredients. The district court ordered EPA to initiate and
complete consultation regarding the effects of those pesticide
registrations on threatened and endangered salmon and steel-
head according to a schedule set out in the opinion. Because
it viewed the procedural violation of the ESA to have been a
substantial violation authorizing extraordinary relief, the dis-
trict court also enjoined EPA’s authorization of any use of the
pesticides within proscribed distances of salmon-supporting
waters in California, Oregon, and Washington, pending
EPA’s fulfillment of its consultation obligations.
We affirm the district court’s orders in their entirety.
FACTUAL AND PROCEDURAL BACKGROUND
The National Marine Fisheries Service (“NMFS”) since
1989 has classified approximately 25 species of salmon and
steelheads, collectively known as salmonids, as “endangered”
or “threatened” throughout the Pacific Northwest. The NMFS
has determined that pesticides may kill or injure salmonids,
and may affect future salmonid behavior and reproductive
success. See, e.g., 65 Fed. Reg. 42,422, 42,473 (2000). The
district court found that scientific or competent declaratory
evidence in the record demonstrated a causal link between the
54 pesticide active ingredients at issue in this case and direct
or indirect adverse effects on salmonid populations. This is
not disputed on appeal.
What is disputed is the applicability of ESA section 7(a)(2):
Each agency shall, in consultation with and with
the assistance of the Secretary, insure that any action
authorized, funded, or carried out by such agency . . .
is not likely to jeopardize the continued existence of
any endangered species or threatened species or
result in the destruction or adverse modification of
habitat of such species. . . .
WASHINGTON TOXICS COALITION v. EPA 7733
16 U.S.C. § 1536(a)(2). Plaintiff WTC claims that EPA vio-
lated this section when EPA failed to consult with the applica-
ble agency, the NMFS, about the registration of pesticide
active ingredients potentially harmful to endangered or threat-
ened salmonids. EPA maintains that it is not bound by the
provision.
WTC filed this suit in 2001 under an ESA provision known
as the ESA citizen suit provision and frequently used to com-
pel agency action. It allows individuals to bring suit “to enjoin
any person, including the United States and any other govern-
mental instrumentality or agency . . . who is alleged to be in
violation of any provision of this chapter or regulation issued
under authority thereof.” 16 U.S.C. § 1540(g)(1). See Bennett
v. Spear, 520 U.S. 154, 173 (1997); Envtl. Prot. Info. Ctr. v.
Simpson Timber Co., 255 F.3d 1073, 1079 (9th Cir. 2001).
WTC’s complaint alleges that “EPA is violating § 7(a)(2) of
the ESA, 16 U.S.C. § 1536(a)(2), and its implementing regu-
lations, 50 C.F.R. Part 402, by failing to consult with NMFS
regarding the effects of pesticide use under EPA pesticide
registrations that ‘may affect’ endangered and threatened
salmon and steelhead and/or their critical habitat.”
EPA regulates pesticides under FIFRA, 7 U.S.C. §§ 136, et
seq. We have observed that FIFRA sets forth a comprehensive
regulatory scheme for controlling the use, sale, and labeling
of pesticides. Nathan Kimmel, Inc. v. DowElanco, 275 F.3d
1199, 1204 (9th Cir. 2002). It bars any person in any state
from distributing a pesticide EPA has not registered or
exempted pursuant to FIFRA. 7 U.S.C. § 136a(a). FIFRA
establishes the procedures through which EPA registers pesti-
cides, labels pesticides, and cancels the registration of pesti-
cides. See 7 U.S.C. § 136a-d. EPA took the position that only
FIFRA, and not the ESA, governs the rescission of pesticide
registrations.
Both sides moved for summary judgment. The parties sub-
mitted voluminous filings on the effect of the various pesti-
7734 WASHINGTON TOXICS COALITION v. EPA
cides on endangered or threatened salmonids. The district
court ruled that WTC had standing only to challenge the 54
pesticides for which it offered competent declaratory evidence
demonstrating a causal link between EPA registration and
harm to salmonid. That ruling is not at issue before us.
The district court also ruled that EPA was required to com-
ply with the ESA, as well as with FIFRA. The district court
rejected EPA’s contention that WTC could challenge only
EPA compliance with the pesticide registration provisions of
FIFRA. The district court thus concluded that the ESA applies
to agency actions taken pursuant to FIFRA, and that where
endangered species may be affected, WTC could maintain a
challenge to EPA’s failure to consult under the ESA.
The district court held that as a matter of law, EPA violated
section 7(a)(2) with respect to the disputed 54 pesticide active
ingredients. Section 7(a)(2) consultation requirements apply
to “each federal agency” and to “any action authorized,
funded, or carried out by that agency.” 16 U.S.C.
§ 1536(a)(2). The district court held that this comprehensive
language includes EPA, and that EPA, having provided no
evidence of formal or informal consultation as required by
section 7(a)(2), violated the ESA. The district court ordered
EPA to initiate and complete section 7(a)(2) consultation
according to a prescribed schedule.
The district court also rejected the intervenors’ arguments
that the case could arise only under the APA. The intervenors
argued that the proceeding contravened APA standards
because the district court conducted its review outside an
administrative record, without identifying any final agency
actions or inactions under review, and without applying the
APA’s deferential standard of judicial review. The district
court held that because the ESA independently authorized a
right of action, the APA was inapplicable. See 16 U.S.C.
§ 1540(g)(1).
WASHINGTON TOXICS COALITION v. EPA 7735
In subsequent orders, the district court granted WTC’s
motion for further, interim relief, holding such injunctive
relief necessary to fulfill what we have termed the “institu-
tionalized caution mandate[ ]” of the ESA. See Sierra Club v.
Marsh, 816 F.2d 1376, 1389 (9th Cir. 1987). The district
court relied on established law authorizing agency actions to
continue during the section 7(a)(2) consultation process only
if the actions are non-jeopardizing to the protected species
and will not result in a substantive violation of the ESA. See
id.; Thomas v. Peterson, 753 F.2d 754, 764-65 (9th Cir.
1985). The district court held that EPA did not meet its bur-
den of showing that the 54 registrations were non-
jeopardizing.
After a hearing and consideration of voluminous evidence
bearing on the appropriate scope of injunctive relief, the dis-
trict court entered an order that enjoined “EPA’s authorization
of any use of any pesticide identified in this order within 20
yards, or authorization of any aerial application within 100
yards, of any Salmon Supporting Waters in California, Ore-
gon, and Washington.” The order exempted pesticide uses
EPA has determined to have “no effect” on the endangered
species, and exempted particular uses “not likely to adversely
affect” the endangered species. The district court also granted
further injunctive relief for certain pesticides in urban areas,
and required EPA and the intervening defendants to provide
a specified point-of-sale notification to urban distributors of
those pesticides.
The injunction provided that it would terminate automati-
cally on (1) completion by EPA of its ESA section 7(a)(2)
consultation requirements, (2) issuance by NMFS of a biolog-
ical opinion, (3) a finding by EPA for ESA section 7(a)(2)
purposes that the pesticide is “not likely to adversely affect”
the endangered or threatened species, or (4) a finding by EPA
for ESA section 7(a)(2) purposes that the pesticide will have
“no effect” on the endangered or threatened species.
7736 WASHINGTON TOXICS COALITION v. EPA
EPA and the intervenors on appeal challenge the applicabil-
ity of the ESA requirements and the breadth of the injunctive
relief ordered by the district court.
DISCUSSION
I. Applicability of ESA Requirements
EPA argues on appeal, as it maintained in the district court,
that it is bound to follow only the provisions of FIFRA, which
include a limited provision dealing with endangered species.
Under FIFRA, any interested person can petition EPA to can-
cel a registered pesticide. See 40 C.F.R. § 154.10. FIFRA
allows EPA to suspend a registration immediately for an “im-
minent hazard,” including an “unreasonable hazard to the sur-
vival of a species declared endangered or threatened” under
the ESA. 7 U.S.C. § 136d(c)(1)-(2); § 136(l).
[1] EPA argues that ESA section 7(a)(2) does not confer
independent responsibilities on EPA to comply with ESA pro-
visions. That section provides:
Each federal agency shall, in consultation with and
with the assistance of the Secretary, insure that any
action authorized, funded, or carried out by such
agency . . . is not likely to jeopardize the continued
existence of any endangered species or threatened
species or result in the destruction or adverse modifi-
cation of habitat of such species . . . .
16 U.S.C. § 1536(a)(2).
[2] This circuit has not yet decided whether EPA’s regula-
tion of a pesticide under FIFRA bars a suit under the ESA
asserting that the continued use of the pesticide violates the
ESA. The Eighth Circuit has, however, and it has decided
there is no bar. In Defenders of Wildlife v. EPA, 882 F.2d
1294 (8th Cir. 1989), environmental organizations brought
WASHINGTON TOXICS COALITION v. EPA 7737
suit against EPA under the ESA, challenging the continued
registration of above-ground pesticides containing strychnine.
The EPA, as in this case, argued that the plaintiffs were lim-
ited to seeking a cancellation of strychnine registrations under
FIFRA. Id. at 1298. The Eighth Circuit rejected EPA’s posi-
tion, holding that FIFRA does not exempt EPA from compli-
ance with the ESA requirements when EPA registers
pesticides. Id. at 1299. Therefore, the Eighth Circuit con-
cluded that the ESA citizen suit provision permitted the plain-
tiffs to sue EPA to enjoin the alleged violation of the ESA. Id.
at 1300. We agree with the Eighth Circuit that even though
EPA registers pesticides under FIFRA, it must also comply
with the ESA when threatened or endangered species are
affected. See id. at 1299-1300.
This conclusion is consistent with our own prior holdings
that compliance with FIFRA requirements does not overcome
an agency’s obligation to comply with environmental statutes
with different purposes. For example, we have held that the
registration and labeling of a substance under FIFRA does not
exempt a party from its obligations under the Clean Water Act
(“CWA”), 33 U.S.C. § 1342, to obtain a permit to discharge
that substance. Headwaters, Inc. v. Talent Irrigation Dist.,
243 F.3d 526, 532 (9th Cir. 2001). We reasoned that the stat-
utes have different and complementary purposes. Id. at 531-
32. FIFRA’s objective is to protect human health and prevent
environmental harm from pesticides through a cost-benefit
analysis of the pesticides. Id. The CWA’s objective is to
restore and maintain the integrity of the Nation’s waters based
on a determination that the discharge of the pollutant satisfies
the limitations that EPA has imposed to protect water quality.
Id.For the same reasons, we also have held that the registra-
tion and labeling of a substance under FIFRA does not
exempt an agency from its obligations under the National
Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332. Ore-
gon Envtl. Council v. Kunzman, 714 F.2d 901, 905 (9th Cir.
7738 WASHINGTON TOXICS COALITION v. EPA
1983); see also Save Our Ecosystems v. Clark, 747 F.2d 1240,
1248 (9th Cir. 1984). We concluded that a pesticide registra-
tion under FIFRA does not require the same examination of
environmental concerns that an agency is required to make
under NEPA. See id. at 1248.
[3] The statutes at issue in this case similarly have different
but complementary purposes. FIFRA utilizes a cost-benefit
analysis to ensure that there is no unreasonable risk created
for people or the environment from a pesticide, taking into
account the economic, social, and environmental costs and
benefits of a pesticide’s use. Headwaters, Inc., 243 F.3d at
532. In contrast, the ESA affords endangered species the
“highest of priorities” in assessing risks and benefits. Tennes-
see Valley Auth. v. Hill, 437 U.S. 153, 174 (1978). The rea-
soning of our case law therefore leads us to conclude that an
agency cannot escape its obligation to comply with the ESA
merely because it is bound to comply with another statute that
has consistent, complementary objectives.
EPA also makes a corollary argument with respect to the
remedy. It contends that it does not have any discretion to
cancel a pesticide’s use except through the regulatory frame-
work in FIFRA, and that the district court therefore erred by
granting injunctive relief under the ESA. EPA contends, in
effect, that once a pesticide has been approved for use under
FIFRA, EPA lacks discretion to meet any other legal obliga-
tions. For this remarkable conclusion EPA relies on cases in
which the agency action had been completed and there was no
ongoing regulatory authority. For example, in Environmental
Protection Information Center v. Simpson Timber Co., 255
F.3d 1073, 1083 (9th Cir. 2001), we held that the United
States Fish and Wildlife Service did not have discretion to
comply with the ESA regarding a permit that it had already
granted and did not retain discretionary control to alter. Simi-
larly, in Sierra Club v. Babbitt, 65 F.3d 1502, 1508-09 (9th
Cir. 1995), we held that the Bureau of Land Management did
not have discretion to comply with the ESA regarding a right-
WASHINGTON TOXICS COALITION v. EPA 7739
of-way it had already granted by contract to a private entity
before passage of the ESA. We have expressly observed that
in both of those cases, the agency activity had been completed
and was not ongoing. See, e.g., Turtle Island Restoration Net-
work v. Nat’l Marine Fisheries Serv., 340 F.3d 969, 977 (9th
Cir. 2003).
[4] The principle enunciated in those cases does not apply
here. This is because here EPA retains ongoing discretion to
register pesticides, alter pesticide registrations, and cancel
pesticide registrations. See 7 U.S.C. § 136a-d. Because EPA
has continuing authority over pesticide regulation, it has a
continuing obligation to follow the requirements of the ESA.
We have respected such continuing obligations in well-
reasoned authority that binds us here. In Turtle Island, supra,environmental organizations brought suit against the NMFS,
alleging that the issuance of fishing permits pursuant to the
High Seas Fishing Compliance Act, 16 U.S.C. §§ 5501-5509,
required consultation under the ESA. We recognized that the
ESA consultation requirement applies only if the agency has
the discretionary control “to inure to the benefit of a protected
species.” 340 F.3d at 974. We held that the Compliance Act
permit decisions were ongoing agency actions because they
entailed an “ongoing and lasting effect” and because the
NMFS could condition permits to benefit listed species. Id. at
977; see also Pac. Rivers Council v. Thomas, 30 F.3d 1050,
1053 (9th Cir. 1994).
[5] In this case, EPA has similar discretion “to inure to the
benefit” of listed species. Pesticide registrations under FIFRA
are ongoing and have a long-lasting effect even after adop-
tion. EPA retains discretion to alter the registration of pesti-
cides for reasons that include environmental concerns. See 7
U.S.C. §§ 136d(c)(1)-(2), 136(l). Therefore, EPA’s regulatory
discretion is not limited by FIFRA in any way that would bar
an injunction to enforce the ESA.
[6] Finally, EPA argues that administrative exhaustion or
primary jurisdiction under FIFRA applies in this case, and
7740 WASHINGTON TOXICS COALITION v. EPA
that the district court should first have required the plaintiffs
to exhaust FIFRA remedies before entering an injunction.
FIFRA, of course, contains a limited administrative remedy.
Section 136d(c) of FIFRA allows the Administrator to sus-
pend a pesticide creating an “unreasonable hazard to the sur-
vival of a species declared endangered or threatened by the
Secretary pursuant to the Endangered Species Act” without
following the normal procedural requirements of FIFRA. 7
U.S.C. §§ 136d(c)(1)-(3), 136(l). Under FIFRA any interested
person can petition EPA for cancellation of a pesticide. See 40
C.F.R. § 154.10. Neither FIFRA nor the ESA, however, sug-
gest any legislative intent to require exhaustion of the FIFRA
remedy before seeking relief under the ESA. See Thunder
Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994) (exhaus-
tion is required only where Congress’ intent to allocate review
to an administrative body is “fairly discernible in the statutory
scheme”).
[7] As the district court concluded, the mere fact that
FIFRA recognizes EPA authority to suspend registered pesti-
cides to protect listed species does not mean that FIFRA rem-
edies trump those Congress expressly made available under
ESA, or that FIFRA provides an exclusive or primary remedy.
The scheme of the two statutes suggests the exact opposite.
Indeed, this court has allowed plaintiffs to challenge whether
agency pesticide permit decisions comply with other environ-
mental statutes, even though the plaintiffs did not first pursue
administrative remedies under FIFRA. See Headwaters, 243
F.3d at 530-32 (challenging EPA compliance with Clean
Water Act); Merrell v. Thomas, 807 F.2d 776 (9th Cir. 1986)
(challenging EPA compliance with National Environmental
Policy Act). EPA and the intervening defendants cite no rele-
vant authority supporting their position. The doctrines of
exhaustion of remedies and primary jurisdiction are inapplica-
ble in this case.
II. Applicability of APA
[8] Intervenor CLA argues that the district court erred by
not applying the APA and its limited provision for judicial
WASHINGTON TOXICS COALITION v. EPA 7741
review of final agency action. The APA provides judicial
review for “final agency action for which there is no other
adequate remedy in a court.” 5 U.S.C. § 704. The district
court correctly held, however, that the ESA citizen suit provi-
sion creates an express, adequate remedy. That provision
states: “[A]ny person may commence a civil suit on his own
behalf . . . to enjoin any person, including the United States
and any other governmental instrumentality or agency . . .
who is alleged to be in violation of any provision of this chap-
ter or regulation issued under the authority thereof.” 16
U.S.C. § 1540(g)(1). Because this substantive statute indepen-
dently authorizes a private right of action, the APA does not
govern the plaintiffs’ claims. Plaintiffs’ suits to compel agen-
cies to comply with the substantive provisions of the ESA
arise under the ESA citizen suit provision, and not the APA.
See, e.g., Pac. Rivers Council, 30 F.3d at 1056; Peterson, 753
F.2d at 763-64.
III. Challenges to Scope of Injunctive Relief
[9] The intervenors scatter a number of challenges to the
scope of relief that amount to the contention that, although the
district court could order the agency to comply with the ESA,
it had to permit the continuing use of the pesticides during
consultation. The purpose of the consultation process, how-
ever, is to prevent later substantive violations of the ESA.
Sierra Club v. Marsh, 816 F.2d at 1389. The remedy for a
substantial procedural violation of the ESA — a violation that
is not technical or de minimis — must therefore be an injunc-
tion of the project pending compliance with the ESA. Id.;
Peterson, 753 F.2d at 764. It is well-settled that a court can
enjoin agency action pending completion of section 7(a)(2)
requirements. See Sierra Club v. Marsh, 816 F.2d at 1389;
Peterson, 753 F.2d at 765.
ESA section 7(d) also belies the intervenors’ contention
that further injunctive relief could not be granted during con-
sultation. Section (7)(d) states:
7742 WASHINGTON TOXICS COALITION v. EPA
After initiation of consultation required under sub-
section (a)(2), the Federal agency and the permit or
license applicant shall not make any irreversible or
irretrievable commitment of resources with respect
to the agency action which has the effect of foreclos-
ing the formulation or implementation of any reason-
able and prudent alternative measures which would
not violate subsection (a)(2) of this section.
16 U.S.C. § 1536(d). Section 7(d) was enacted to ensure that
the status quo would be maintained during the consultation
process, to prevent agencies from sinking resources into a
project in order to ensure its completion regardless of its
impacts on endangered species. See, e.g., Pac. Rivers Council
v. Thomas, 936 F. Supp. 738, 745 (N.D. Idaho 1996). There
is no irreversible or irretrievable commitment of resources at
issue in the present case. Rather, it is the very maintenance of
the “status quo” that is alleged to be harming the endangered
species.
The intervenors also argue that the district court erred by
assigning EPA the burden of showing that its actions were
non jeopardizing to endangered or threatened species, and
instead should have made the plaintiffs demonstrate “immi-
nent irreparable harm” or “substantial and immediate irrepara-
ble injury.” The intervenors alternatively argue that the
district court did not properly balance the interest in protect-
ing endangered species against the costs of the injunction
when crafting the scope of the injunction.
[10] We have held that the appropriate remedy for viola-
tions of the ESA consultation requirements is an injunction
pending compliance with the ESA. See Peterson, 753 F.2d at
764. We have also allowed non-jeopardizing agency actions
to continue during the consultation process. See, e.g., Sierra
Club v. Marsh, 816 F.2d at 1376. We have not expressly
stated who bears the burden of showing that the action is non-
WASHINGTON TOXICS COALITION v. EPA 7743
jeopardizing, but the burden should be on the agency, the
entity that has violated its statutory duty.
Placing the burden on the acting agency to prove the action
is non-jeopardizing is consistent with the purpose of the ESA
and what we have termed its “institutionalized caution man-
date[ ].” Sierra Club v. Marsh, 816 F.2d at 1389. We said as
much in Thomas v. Peterson, where the defendant, the U.S.
Forest Service, urged the district court to conclude that absent
proof by the plaintiffs to the contrary, a proposed project was
not likely to affect an endangered or threatened species. 753
F.2d at 765. We held that this was an inappropriate finding for
the district court to make. Id. “It is not the responsibility of
the plaintiffs to prove, nor the function of the courts to judge,
the effect of a proposed action on an endangered species when
proper procedures have not been followed.” Id. The district
court correctly assigned EPA the burden of proving that its
actions were non-jeopardizing.
The district court was not required to balance interests in
protecting endangered species against the costs of the injunc-
tion when crafting its scope. Congress has decided that under
the ESA, the balance of hardships always tips sharply in favor
of the endangered or threatened species. See Marbled Murre-
let v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996).
Finally, the EPA challenges protective measures for urban
pesticide sales. The district court concluded that for the use of
certain pesticides in urban areas, buffers alone are an insuffi-
cient remedy to ensure that jeopardy to endangered salmonids
will be avoided. Rather than completely banning those pesti-
cides in urban areas, the district court required EPA to
develop and distribute point-of-sale notifications detailing
pesticide harm to salmonids. EPA nevertheless argues this
portion of the injunction impermissibly impinges on its
authority.
[11] The injunctive relief granted was well within the dis-
trict court’s discretion to require compliance with the ESA
7744 WASHINGTON TOXICS COALITION v. EPA
and to tailor a remedy pursuant to Federal Rule of Civil Pro-
cedure 65. See United States v. Olander, 584 F.2d 876, 880-
81 (9th Cir. 1987), vacated on other grounds, 443 U.S. 914(1979).
CONCLUSION
[12] For the foregoing reasons, we affirm the district
court’s orders enjoining EPA pending its compliance with the
ESA section 7(a)(2) consultation requirements.
AFFIRMED.