States challenging regulation say use
of methyl bromide violated law

By MATEUSZ PERKOWSKI

Capital Press

The USDA did not violate environmental law by requiring imported wood packing material to be fumigated or heated to ward off exotic insect pests, according to a federal appeals court.

Raw wood used to package foreign cargo has been linked to the introduction of invasive species, such as the emerald ash borer and the Asian longhorned beetle, which pose a threat to U.S. forests and nurseries.

In 2004, the USDA's Animal and Plant Health Inspection Service issued a new rule that required incoming wood packing materials to be fumigated with methyl bromide or heated to about 133 degrees Fahrenheit.

The states of New York, California, Connecticut and Illinois, as well as the Natural Resources Defense Council, challenged the regulation in federal court.

The plaintiffs claimed USDA should have more carefully considered phasing out raw wood packaging and requiring it to be replaced with processed wood or plastic material that is resistant to insects.

That option would most effectively prevent insect introductions without increasing usage of methyl bromide, which is known to deplete the earth's ozone layer, according to plaintiffs.

USDA said its decision was based on international plant protection standards and would be less disruptive to international trade.

A federal judge in New York accepted the core of the agency's argument in 2007, ruling that it generally hadn't violated environmental law.

However, USDA was ordered to conduct a more detailed study of how much additional methyl bromide will be used.

The plaintiffs appealed that decision to the 2nd U.S. Circuit Court of Appeals, claiming USDA should have examined the economic effects of phasing out raw wood packing material -- like the cost of alternative materials dropping as their market share increased, thereby reducing trade disruption.

A three-judge federal appellate panel has rejected their arguments, ruling that USDA's analysis of the rule was sufficiently thorough.

"Under the facts of this case, APHIS reasonably concluded that while a phased-in substitute-materials-only requirement would provide maximum plant protection with minimal adverse environmental consequences, it is not currently a workable alternative to an urgent problem in need of an immediate response," the court ruled.