Environmental Defense Fund, Inc. v. Costle, s. 79-1971
| Citation | 631 F.2d 922,203 U.S.App.D.C. 340 |
| Decision Date | 15 March 1979 |
| Docket Number | 79-2133,No. 79-1971,Nos. 79-1971,Nos. 79-1971 and 79-2133,No. 79-2133,Nos. 19-1971 and 79-2133,s. 79-1971,79-1971,s. 79-1971 and 79-2133,s. 19-1971 and 79-2133 |
| Parties | , 15 ERC 1611, 203 U.S.App.D.C. 340, 10 Envtl. L. Rep. 20,585 ENVIRONMENTAL DEFENSE FUND, INC., Petitioner, v. Douglas M. COSTLE, Administrator, Environmental Protection Agency, Respondent, Ciba-Geigy Corporation, Intervenor. FLORIDA CITRUS MUTUAL, Petitioner, v. Douglas M. COSTLE, Administrator, Environmental Protection Agency, Respondent. . Argued 15 April 1980. Decided 17 July 1980. Rehearing Denied 18 Aug. 1980. Petitions for Review of Orders of the Environmental Protection agency. Douglas V. Rigler, Washington, D. C., with whom Michael Fischer, William A. Butler and Jacqueline M. Warren, Washington, D. C., were on the brief for petitioner in J. Hardin Peterson, Jr., Lake Wales, Fla., with whom William Amory Underhill, Washington, D. C., was on the brief for petitioner inMonterey Campbell, II, Bartow, Fla., also entered an appearance for petitioner in David E. Menotti, Associate Gen. Counsel, Environmental Protection Agency, Washington, D. C., of the Bar of the Court of Appeals of New York, Pro hac vice by Special Leave of Court, with whom Michael S. Winer, Deputy Associate Gen. Counsel, Mitchell H. Bernstein, Gen. Atty., Environmental Protection Agency, Washington, D. C., were on the brief for respondent. Lawrence S. Ebner, Washington, D. C., with whom Charles A. O'Connor, III and Robert A. Anthony, Washington, D. C., were on the brief for intervenor Ciba-Geigy Corp. inand amicus curiae National Agri Chemicals Ass'n urging reversal in Thomas O. McGarity, Washington, D. C., was on the brief for amicus curiae, American Public Health Ass'n, et al. urging reversal and remand in Before McGOWAN and WILKEY, Circuit Judges and RONALD N. DAVIES, * Senior United States District Judge for the District of North Dakota. Opinion for the Court filed by Circuit Judge WILKEY. WILKEY, Circuit Judge: Petitioners Environmental Defense Fund, Inc. (EDF) and Florida Citrus Mutual (Florida Citrus) challenge the Environmental Protection Agency's (EPA) refusal to hold an administrative |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Rehearing Denied 18 Aug. 1980.
Petitions for Review of Orders of the Environmental Protection agency.
Douglas V. Rigler, Washington, D. C., with whom Michael Fischer, William A. Butler and Jacqueline M. Warren, Washington, D. C., were on the brief for petitioner in No. 79-1971.
J. Hardin Peterson, Jr., Lake Wales, Fla., with whom William Amory Underhill, Washington, D. C., was on the brief for petitioner in No. 79-2133. Monterey Campbell, II, Bartow, Fla., also entered an appearance for petitioner in No. 79-2133.
David E. Menotti, Associate Gen. Counsel, Environmental Protection Agency, Washington, D. C., of the Bar of the Court of Appeals of New York, Pro hac vice by Special Leave of Court, with whom Michael S. Winer, Deputy Associate Gen. Counsel, Mitchell H. Bernstein, Gen. Atty., Environmental Protection Agency, Washington, D. C., were on the brief for respondent.
Lawrence S. Ebner, Washington, D. C., with whom Charles A. O'Connor, III and Robert A. Anthony, Washington, D. C., were on the brief for intervenor Ciba-Geigy Corp. in No. 79-1971 and amicus curiae National Agri Chemicals Ass'n urging reversal in Nos. 79-1971 and 79-2133.
Thomas O. McGarity, Washington, D. C., was on the brief for amicus curiae, American Public Health Ass'n, et al. urging reversal and remand in Nos. 19-1971 and 79-2133.
Before McGOWAN and WILKEY, Circuit Judges and RONALD N. DAVIES, * Senior United States District Judge for the District of North Dakota.
Opinion for the Court filed by Circuit Judge WILKEY.
Petitioners Environmental Defense Fund, Inc. (EDF) and Florida Citrus Mutual (Florida Citrus) challenge the Environmental Protection Agency's (EPA) refusal to hold an administrative hearing regarding an order restricting the use of chlorobenzilate in four citrus growing states and banning its use elsewhere. The EPA concluded that EDF was not a party "adversely affected" by the order, and that Florida Citrus's request for a hearing was untimely. While we do not adopt entirely the reasoning of the EPA, we affirm its decision denying the requests for an administrative hearing.
On 26 May 1976 the Administrator of the EPA initiated a Rebuttable Presumption Against Registration (RPAR) proceeding to determine whether unrestricted use of chlorobenzilate, a carcinogenic miticide, should continue. 1 The RPAR process is an administrative proceeding designed by the EPA to gather and evaluate information about the risks and benefits of certain pesticides. Written public participation in the preliminary notice and comment stage of RPAR process was invited. 2 The Administrator published his preliminary determinations respecting the risks and benefits of chlorobenzilate uses on 11 July 1978. 3 Pursuant to statute the Administrator referred his preliminary determination to the Secretary of Agriculture 4 and a scientific advisory panel 5 before initiating final action. An opportunity to the interested public was extended for comment on the Administrator's preliminary determinations. Both EDF and Florida Citrus, among others, submitted written comments and attended a public meeting 6 held by the scientific advisory panel.
On 13 February 1979 pursuant to section 6(b) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) 7 the EPA published a Notice of Intent to Cancel Registrations and Deny Applications for Registration of Pesticide Products Containing Chlorobenzilate. 8 The notice communicated the EPA's intention to restrict the use of chlorobenzilate in four citrus-growing states and to ban its use elsewhere. Both EDF and Florida Citrus requested section 6(d) administrative hearings and filed objections to the intended cancellation, the former because its provisions were too lenient, the latter because its provisions were too stringent. Florida Citrus's request, however, was not received by the EPA until 20 March 1979, more than 30 days after publication of the notice in the Federal Register.
On 11 April 1979 the ALJ assigned to the case issued a show cause order why an accelerated decision should not be issued against EDF and Florida Citrus. 9 On 22 May 1979 the ALJ issued an accelerated decision, in which he dismissed Florida Citrus's objections as not timely. 10 He also ruled against EDF, based on the recent administrative decision, In re Shell Oil, which held that no party has a right to seek more stringent relief than that proposed in a section 6(b)(1) notice. The parties appealed administratively; the Administrator issued a Final Decision on 20 August 1979, affirming the ALJ's decision on all grounds. The Administrator agreed that Florida Citrus had not filed within the time limits set out by FIFRA. He also concluded that EDF was not a party "adversely affected" by the cancellation notice, and therefore was not entitled to request an administrative hearing. 11
On 18 December 1979 intervenor Ciba-Geigy Corp. filed a motion to dismiss on the basis that jurisdiction to review the challenged order lay in the district court and not in the court of appeals. 12 This court denied the motion on 19 February 1980. 13
Intervenor Ciba-Geigy argues that the petitions for review should be dismissed on the ground that this court lacks jurisdiction to review the action of the Administrator under the judicial review provisions of section 16 of FIFRA. That section provides:
(a) District court review Except as is otherwise provided in this subchapter, Agency refusals to cancel or suspend registrations or change classifications not following a hearing and other final Agency actions not committed to Agency discretion by law are judicially reviewable in the district courts.
(b) Review by court of appeals In the case of actual controversy as to the validity of any order issued by the Administrator following a public hearing, any person who will be adversely affected by such order and who had been a party to the proceedings may obtain judicial review by filing in the United States court of appeals for the circuit wherein such person resides or has a place of business, within 60 days after the entry of such order, a petition praying that the order be set aside in whole or in part. 14
Because an "actual controversy" surrounds the Administrator's action and both petitioners claim to be "adversely affected" by the action, this court has jurisdiction if the EPA action is an "order issued by the Administrator following a public hearing."
In asserting that this court lacks jurisdiction, Ciba-Geigy argues that the proceedings before the Chief Administrative Law Judge and before the Administrator did not constitute a "public hearing" within the meaning of section 16(b) of FIFRA. Instead, those proceedings denied the parties the right to a formal section 6(d) hearing later. In other words, it is asserted that what we have had is not a "hearing" or "public hearing," but a "proceeding" to determine if there will be a "public hearing." In addition, Ciba-Geigy asserts that the Administrator's action was not an "order" within the meaning of section 16(b). Because EDF and Florida Citrus are not challenging an "order . . . following a public hearing," Ciba-Geigy argues, the court of appeals lacks jurisdiction. The final decision should therefore be reviewed in the district court under the section 16(a) prescription for district court review of "other final Agency actions not committed to Agency discretion by law ...."
In response, EDF, Florida Citrus, and the EPA argue that review in this Court is proper. They assert that the final decision is an "order," and that the record compiled through the proceedings before both the ALJ and the Administrator is sufficient to fit within the requirements of a "public hearing." In sum, while Ciba-Geigy argues that the only agency action was summary denial of the public hearing prescribed by section 6(d) of FIFRA, the other parties insist that the decision to deny the 6(d) hearing was itself based on a "public hearing" before the agency.
Thus, the jurisdiction of this Court to review the agency action at issue here turns both on whether the final decision was an "order" and on whether that action followed a "public hearing" within the meaning of section 16 of FIFRA. The meaning of those terms within the context of the judicial review provisions of FIFRA is a question of first impression for this Court.
Ciba-Geigy asserts that EPA's decision is not an "order" within the meaning of section 16(b). While it concedes the decision is an order within the meaning of the Administrative Procedure Act, 15 it argues that FIFRA contemplates "that a reviewable order is to be matured, fully deliberated agency action, taken after ample opportunity for development of the factual record upon which it must be supported." Here, Ciba-Geigy maintains that no such mature, deliberated action took place; rather, the EPA's decision was "very much by way of preliminary and summary action." 16
No authority other than the structure of section 16(b) is cited by Ciba-Geigy to show that "order" in FIFRA means anything more than an order within the meaning of the APA. Ciba-Geigy's argument seems to boil down to this: The EPA decision is not an "order" within the meaning of section 16(b) because it is not the kind of order Congress wanted appellate courts to review.
We think that, if the order followed a "public hearing," it is the type of order Congress intended appellate...
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Case summaries.
...of business, within 60 days after the entry of such order, a petition praying that the order be set aside in whole or in part."). (612) 631 F.2d 922 (D.C. Cir. (613) Id. at 931. (614) 886 F.2d 1075 (9th Cir. 1989). (615) Id. at 1077. (616) 470 U.S. 729 (1985). (617) Id. at 745. (618) 7 U.S.......