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

• Decision Date: 14 May 2015
• Docket Number: Civil Action No. 14–942(GK)
• Citation: 106 F.Supp.3d 95
• Parties: Center for Biological Diversity, Center for Food Safety, and Defenders of Wildlife, Plaintiffs, v. United States Environmental Protection Agency, Defendant, and E.I. du Pont de Nemours and Company, Syngenta Crop Protection LLC, and CropLife America, Intervenor–Defendants
• Court: U.S. District Court — District of Columbia

106 F.Supp.3d 95

Center for Biological Diversity, Center for Food Safety, and Defenders of Wildlife, Plaintiffs,

v. United States Environmental Protection Agency, Defendant,andE.I. du Pont de Nemours and Company, Syngenta Crop Protection LLC, and CropLife America, Intervenor–Defendants

Civil Action No. 14–942(GK)

United States District Court, District of Columbia.

Signed May 14, 2015

Amanda W. Goodin, Stephen D. Mashuda, Patti A. Goldman, EarthJustice Legal Defense Fund, Seattle, WA, Justin Augustine, Sylvia Shih–Yau Wu, San Francisco, CA, Peter T. Jenkins, Washington, DC, George A. Kimbrell, Portland, OR, for Plaintiffs.

Ethan Carson Eddy, Lesley Karen Lawrence–Hammer, U.S. Department of Justice, Washington, DC, for Defendant.

Kirsten L. Nathanson, Crowell & Moring LLP, Claudia M. O'Brien, Devin M. O'Connor, Stacey Lynn Vanbelleghem, Latham & Watkins LLP, Washington, DC, for Intervenor–Defendants.

MEMORANDUM OPINION

Gladys Kessler, United States District Judge

Plaintiffs Center for Biological Diversity, Center for Food Safety, and Defenders of Wildlife ("Plaintiffs") bring this action against Defendant United States Environmental Protection Agency ("Defendant," "the Government," "the Agency," or "EPA"). Intervenor–Defendants E.I. du Pont de Nemours and Company, Syngenta Crop Protection LLC, and CropLife America ("Intervenor–Defendants") joined this action with the Court's permission.

This matter is presently before the Court on the Government's Motion to Dismiss for Lack of Jurisdiction [Dkt. No. 31] and Intervenor–Defendants' Motion for Judgment on the Pleadings [Dkt. No. 41], which requests dismissal on similar grounds.

On September 19, 2014, the Government filed its Motion [Dkt. No. 31], and on October 15, 2014, Intervenor–Defendants filed their Motion [Dkt. No. 41]. On November 17, 2014, Plaintiffs filed their combined Opposition to both Motions [Dkt. No. 43]. On December 10, 2014, the Government and Intervenor–Defendants both filed their Replies [Dkt. Nos. 44 & 45]. Upon consideration of the Motions, Opposition, Replies, and the entire record herein, and for the reasons stated below, Defendant's Motion to Dismiss shall be granted, Intervenor–Defendants' Motion for Judgment on the Pleadings shall be denied as moot, and Plaintiffs' Complaint shall be dismissed.

I. BACKGROUND

A. Statutory Framework

1. Federal Insecticide, Fungicide, and Rodenticide Act

The Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136 –136y, protects the environment from "unreasonable adverse effects" arising from the use of pesticides, Id. § 136a(a). Under FIFRA, "no person ... may distribute or sell ... any pesticide that is not registered [with EPA]." Id. EPA will "register" a pesticide if

(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. Id. § 136a(c)(5).

Before registering a pesticide containing "any new active ingredient [,]" EPA must provide the public with notice and the opportunity to comment on "each application for registration[.]" Id. § 136a(c)(4). EPA's registration of a pesticide constitutes an Order within the meaning of the Administrative Procedure Act ("APA") and FIFRA. See Env't Def. Fund, Inc. v. Costle, 631 F.2d 922, 926 (D.C.Cir.1980) ; United Farm Workers of Am., AFL–CIO v. Adm'r, E.P.A., 592 F.3d 1080, 1082–83 (9th Cir.2010). Manufacturers may only distribute registered pesticides in a manner consistent with the registration order's packaging, labeling, and composition requirements. 7 U.S.C. § 136j ; 69 Fed. Reg. 47732, 47733 (Aug. 5, 2004).

FIFRA divides judicial review between the District Courts and the Courts of Appeals. The appropriate forum depends, in part, upon whether EPA conducted a "public hearing" before issuing the relevant order. 7 U.S.C. § 136n(a) & (b). Generally, "the refusal of [EPA] to cancel or suspend a registration or to change a classification not following a hearing and other final actions ... not committed to the discretion of [EPA] by law are judicially reviewable by the [D]istrict [C]ourts of the United States." 7 U.S.C. § 136n(a) (emphasis added).

"In the case of actual controversy as to the validity of any order issued by [EPA] 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 ... in the United States [C]ourt of [A]ppeals." Id. at § 136n(b) (emphasis added). A petition for review before the Court of Appeals must be filed "within 60 days after the entry of such order[.]" Id. "Upon the filing of such petition the [C]ourt [of Appeals] shall have exclusive jurisdiction to set aside the order complained of in whole or in part." Id.

2. Endangered Species Act

The Supreme Court has called the Endangered Species Act ("ESA") "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Babbit t v. Sweet Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687, 698, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (quoting Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) ). The Act aims to conserve endangered and threatened species and the ecosystems on which they depend. 16 U.S.C. § 1531(b). Section 7(a)(1) of the ESA obligates federal agencies to "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 result in the destruction or adverse modification" of designated critical habitats. 16 U.S.C. § 1536(a)(2).

In order to carry out this substantive obligation, when an agency determines that an action "may affect" any species listed as endangered or threatened ("listed species"), or its habitat, the agency must consult with experts in the United States Fish and Wildlife Service ("FWS") or the National Marine Fisheries Service ("NMFS").¹ 16 U.S.C. § 1536(a)(2) ; 50 C.F.R. § 402.14(a). "Consultation is ‘designed as an integral check on federal agency action, ensuring that such action does not go forward without full consideration of its effects on listed species.’ " Defenders of Wildlife v. Jackson, 791 F.Supp.2d 96, 100 (D.D.C.2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 603, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (Blackmun, J., dissenting).

Agencies may forgo formal consultation, however, if they determine—with FWS or NMFS's written concurrence—that the proposed action is "not likely to adversely affect" any listed species or critical habitat. 50 C.F.R. §§ 402.13(a), 402.14(b)(1). When the formal consultation requirement is triggered, FWS or NMFS 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." 50 C.F.R. § 402.14 ; see also 16 U.S.C. § 1536(a)(2).

ESA's broad citizen-suit provision empowers "any person" to "commence a civil suit on his [or her] own behalf" to enjoin violations of the Act's provisions, including an agency's failure to consult. 16 U.S.C. §§ 1540(g)(1)(A), 1536(a)(2). The United States District Courts have subject matter jurisdiction to hear challenges brought under § 1540(g). However, would-be citizen-plaintiffs must provide an agency with written notice of any alleged ESA violation 60 days before filing suit. Id. § 1540(g)(2)(A).

B. Factual Background²

1. Cyantraniliprole Registration

The present controversy follows EPA's decision to permit the use of the chemical compound cyantraniliprole ("CTP") as an active ingredient in pesticides. On February 29, 2012, EPA announced in the Federal Register that it had received applications to register pesticide products containing CTP pursuant to FIFRA. 77 Fed.Reg. 12295–97. Since no previously registered pesticides had included CTP as an active ingredient, EPA invited public comment on the applications until March 30, 2012. Id. To facilitate public comment, EPA created a public online docket for CTP. See EPA, Cyantraniliprole—Initial Registration, proposed uses on crops, turf, ornamentals, buildings, Docket EPA–HQ–OPP–2011–0668 (last visited on March 25, 2015), http://www.regulations.gov/!docketDetail;D=EPA–HQ–OPP–2011–0668.

On May 23, 2012, EPA published a Notice of Filing of pesticide petitions to establish tolerances for CTP in the Federal Register with another opportunity to comment on or before June 22, 2012. 77 Fed.Reg. 30481–85 ; "Notice of Filing: Cyantraniliprole, Many Crops, from DuPont," AR at 13–16.

On June 6, 2013, EPA placed on the public docket its proposal to register CTP as a new active ingredient and again invited public comment. See "Public Participation for Cyantraniliprole as a New Active Ingredient, Insecticide Formulated as a Technical Product and Fourteen End Use Products," AR at 17–19; "Proposed Registration of the New Active Ingredient Cyantraniliprole," AR at 888–901. Following a one-week deadline extension, EPA accepted comments until July 14, 2013. See "Extension of Public Comment Period to July 14, 2013," AR at 906.

In total, EPA received twenty-three comments before the July 14, 2013 deadline. See Compl. ¶ 38; "Cyantraniliprole —Response to Public Comments on EPA's ‘Proposed Registration of the New Active Ingredient Cyantraniliprole ...,’ " AR at 1996–2041; "Registration of the New Active Ingredient Cyantraniliprole," AR at 1978–95, 1990.

EPA responded to each of the comments it received before the deadline, and on January 24, 2014, the agency approved the registration of CTP and fourteen end-use products containing the compound. AR at 1978–1995. EPA subsequently issued...