Ctr. for Biological Diversity v. Envtl. Prot. Agency

• Decision Date: 13 August 2014
• Docket Number: Case No. 11–cv–00293–JCS
• Citation: 65 F.Supp.3d 742
• Court: U.S. District Court — Northern District of California
• Parties: Center for Biological Diversity, et al., Plaintiffs, v. Environmental Protection Agency, et al., Defendants.

65 F.Supp.3d 742

Center for Biological Diversity, et al., Plaintiffs

v.Environmental Protection Agency, et al., Defendants.

Case No. 11–cv–00293–JCS

United States District Court, N.D. California.

Signed August 13, 2014

Justin Augustine, Jaclyn M. Lopez, San Francisco, CA, Collette Lucille Adkins Giese, Minneapolis, MN, Michael W. Graf, Law Offices of Michael Graf, El Cerrito, CA, for Plaintiffs.

James Anthony Maysonett, Kevin William McArdle, Erik Edward Petersen, United States Department of Justice, Washington, DC, Bridget Kennedy McNeil, United States Department of Justice, Denver, CO, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS

Dkt. Nos. 203, 204

JOSEPH C. SPERO, United States Magistrate Judge

I. INTRODUCTION

In this action, Plaintiffs Center for Biological Diversity and Pesticide Action Network North America (“Plaintiffs”) allege the Environmental Protection Agency and Gina McCarthy, Administrator of the Environmental Protection Agency (collectively, “EPA”) violated the section 7(a)(2) of the Endangered Species Act (“ESA”) by failing to initiate and reinitiate consultations regarding the effect of pesticides on endangered species and critical habitats. The Court previously granted motions to dismiss filed by the EPA and Intervenors (collectively, “Defendants”), and allowed Plaintiffs to amend their allegations. See Center for Biological Diversity v. E.P.A., No. 11–0293 JCS, 2013 WL 1729573 (N.D.Cal. April 22, 2013).

Presently before the Court are Defendants' Motions to Dismiss Plaintiffs' Second Amended Complaint (hereafter, “Motions”). For the reasons explained below, the Motions to Dismiss are GRANTED in part and DENIED in part.¹

II. BACKGROUND

A. The Endangered Species Act (“ESA”)

The ESA provides for the listing of species as threatened or endangered. See 16 U.S.C. § 1533. The Secretary of Commerce and the Secretary of the Interior (collectively, the “Secretary”) share responsibility for implementing the ESA. The Secretary of Commerce is responsible for listed marine species and administers the ESA through the National Marine Fisheries Service (“NMFS”). The Secretary of the Interior is responsible for listed terrestrial and inland fish species and administers the ESA through the U.S. Fish & Wildlife Service (“FWS”). See id. § 1532(15); 50 C.F.R. §§ 17.11, 402.01(b). The NMFS and FWS are hereinafter collectively referred to as the “Service.”

Section 7(a)(2) of the ESA 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 (hereinafter in this section referred to as an “agency action”) 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 which is determined by the Secretary, after consultation as appropriate with affected States, to be critical....

16 U.S.C. § 1536(a)(2). The “agency action” that triggers a federal agency's duty to consult under section 7(a)(2) is the focus of this ESA litigation.

When Congress enacted the ESA, it authorized the Secretary “to promulgate such regulations as may be appropriate to enforce” the ESA. 16 U.S.C. § 1540(f). The Secretary has promulgated regulations that, inter alia, define “agency action” to include “all activities or programs of any kind authorized, funded or carried out ... by Federal agencies.”

50 C.F.R. § 402.02. Further, “[s]ection 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control.” 50 C.F.R. § 402.03.

The ESA's implementing regulations describe the consultation process required by section 7 of the ESA. Under 50 C.F.R. § 402.14(a), “[e]ach Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat.” See id. If the agency determines that an action “may affect listed species or critical habitat,” then “formal consultation [with the Service] is required.” Id. If formal consultation is required, the Service must prepare a biological opinion stating whether the proposed action is likely to “jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” Id. § 402.14(g). If the biological opinion finds that jeopardy is likely, it must include, if possible, “reasonable and prudent alternatives” to the proposed action. Id. § 402.14(h)(3). Thereafter, the agency determines how to proceed with its action in light of the Service's biological opinion. Id. § 402.15.

The ESA regulations further provide that an agency must reinitiate consultation with the Service “where discretionary Federal involvement or control over the action has been retained or is authorized by law,” and when one of the following triggers occurs:

(a) If the amount or extent of taking specified in the incidental take statement is exceeded;

(b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered;

(c) If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or

(d) If a new species is listed or critical habitat designated that may be affected by the identified action.

50 C.F.R. § 402.16.

The ESA contains a citizen suit provision which authorizes any person to “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 chapter or regulation issued under the authority thereof.” 16 U.S.C. § 1540(g)(1)(A). The citizen suit provision also provides that “district courts shall have jurisdiction ... to enforce any such provision or regulation.” Id. § 1540(g).

B. The Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”)

FIFRA establishes a regulatory scheme for the distribution, sale and use of pesticides. 7 U.S.C. §§ 136 et seq. FIFRA defines a “pesticide” as “any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest ....” 7 U.S.C. § 136(u). An “active ingredient” is defined as “an ingredient which will prevent, destroy, repel, or mitigate any pest.” Id. § 136(a)(1). A pesticide may contain one or more active ingredients. See, e.g., 7 U.S.C. § 136a(c)(1)(F)(i) (referring to “pesticides containing active ingredients”); 7 U.S.C. § 136a(c)(8) (referring to the EPA's risk-benefit evaluation “of the ingredients of a pesticide or any of its uses”). Consistent with the language of FIFRA, the Court uses the terms “pesticide,” “product,” and “pesticide product” interchangeably in this order.

1. Registration of Pesticides

Under FIFRA, a pesticide may not be distributed or sold in the United States unless it has been registered by the EPA. 7 U.S.C. § 136a(a). FIFRA provides that the EPA “shall register a pesticide if” the EPA determines:

(A) its composition is such as to warrant the proposed claims for it;

(B) its labeling and other material required to be submitted comply with the requirements of this subchapter;

(C) it will perform its intended function without unreasonable adverse effects on the environment; and

(D) when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment.

7 U.S.C. § 136a(c)(5). These requirements will hereinafter be referred to as the “Paragraph 5 Requirements.”

Congress has constructed a detailed procedure for the registration of pesticides.See 7 U.S.C. § 136a(c). First, each applicant for the registration of a pesticide must file an application with the EPA with a statement which includes, inter alia, “the name of the pesticide,” “a complete copy of the labeling of the pesticide, a statement of all claims to be made for it, and any directions for its use,” and “the complete formula of the pesticide.” Id. § 136a(c)(1). The applicant must also submit data in support of registration. Id. § 136a(c)(2).

Promptly after receiving the applicant's statement and data, the EPA must publish in the Federal Register “a notice of each application for registration of any pesticide if it contains any new active ingredient or if it would entail a changed use pattern. The notice shall provide for a period of 30 days in which any Federal agency or any other interested person may comment.” Id. § 136a(c)(5).

Upon receiving the application for registration of a pesticide, the EPA must review the data and, “as expeditiously as possible,” either register a pesticide if the EPA determines that the pesticide complies with the Paragraph 5 Requirements, or, if the pesticide does not comply with the Paragraph 5 Requirements, notify the applicant of the EPA's determination and the basis for that decision. Id. §§ 136a(c)(3)(A), 136a(c)(5), 136a(c)(6).

The EPA is required to give expedited review to applications for registration of an “end-use pesticide that, if registered as proposed, would be identical or substantially similar in composition and labeling to a currently-registered pesticide identified in the application,” or that would only differ in ways “that would not significantly increase the risk of unreasonable adverse effects on the environment.” Id. § 136a(c)(3)(B). A pesticide may also be conditionally registered if the foregoing is met, and if “approving the registration or amendment in the manner proposed by the applicant would not significantly increase the risk of any unreasonable adverse effect on the environment.” Id. § 136a(c)(6).²

As part of the registration process for each pesticide, the EPA must classify the pesticide and the uses of the pesticide “as being for general use or for restricted use.” Id. § 136a(d)(1)(A). If the EPA...