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

Decision Date22 April 2013
Docket NumberCase No. 11-cv-00293-JCS
CourtU.S. District Court — Northern District of California






Dkt. Nos. 135, 137, 139.


Plaintiffs Center for Biological Diversity and Pesticide Acton Network North America (hereafter "Plaintiffs") filed this action against the Environmental Protection Agency (hereafter "EPA"), alleging the EPA violated the Endangered Species Act by failing to undertake required consultations regarding the effects of 382 registered pesticides on endangered and threatened species. Representatives of the producers of the pesticides-CropLife America, Responsible Industry for a Sound Environment, Southern Crop Production Association, Western Plant Health Association, Mid America CropLife Association, American Chemistry Council, and Reckitt Benckiser LLC-filed a Motion to Intervene as defendants under Rule 24 of the Federal Rules of Civil Procedure. The Court previously granted intervention in the remedial phase of the case, and now GRANTS the Motion to Intervene in the liability phase.

On November 16, 2012, both the EPA and Intervenor-Defendants filed a Motion to Dismiss, contending the Complaint should be dismissed under Rule 12(b)(6) for failure to state a claim under the Endangered Species Act upon which relief may be granted. Defendants also argue that Plaintiffs' Endangered Species Act claim is, in substance, an attack on the EPA's pesticide registrations which are governed by the Federal Insecticide, Fungicide and Rodenticide Act, andtherefore, the case should be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction. The EPA additionally contends that Plaintiffs have not adequately pled a factual basis to support standing. For the reasons explained below, the Motions to Dismiss are GRANTED and the Complaint is DISMISSED WITH LEAVE TO AMEND.1

A. Statutory Background
1. The Endangered Species Act ("ESA")

The ESA requires federal agencies such as the EPA to "insure that any action authorized, funded, or carried out by such agency (hereinafter ... 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 ... to be critical." 16 U.S.C. § 1536(a)(2). Section 7(a)(2) of ESA requires agencies to consult with either the United States Fish and Wildlife Service or the National Marine Fisheries Service (hereafter "Services" or "Service") whenever an agency takes action that "may affect" listed species or their habitats. 16 U.S.C. § 1536(a)(2); see also 50 C.F.R. § 402.14(a).

The regulations promulgated under the ESA define "agency action" as:

Action means all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to: (a) actions intended to conserve listed species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air.

50 C.F.R. § 402.02 (emphasis added). The Ninth Circuit has also clarified that determining whether there has been an "agency action" requires a two-part test:

First, we ask whether a federal agency affirmatively authorized, funded, or carried out the underlying activity. Second, we determine whether the agency had some discretion to influence or change the activity for the benefit of a protected species.

Karuk Tribe, 681 F.3d 1006, 1021 (9th Cir. 2012) (en banc) ("Karuk Tribe"). The second prongof this test-determining whether the agency had discretion-derives from ESA's implementing regulations which limit the application of ESA § 7 to "all actions in which there is discretionary Federal involvement or control." 50 C.F.R. § 402.03.

If the agency determines that its action "may affect" endangered or threatened species or critical habitat, the agency must pursue either informal or formal consultation with one of the Services. See 50 C.F.R. §§ 402.13-402.14. Formal consultation is required unless the agency determines, as a result of informal consultation with the Service, "that the proposed action is not likely to adversely affect any listed species or critical habitat." Id. § 402.13(a). If the agency action "may affect listed species or critical habitat," formal consultation is required. Id. § 402.14(a). If formal consultation is required, the Service prepares 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). Thereafter, the agency must determine how to proceed with its action in light of the Service's Biological Opinion. Id. § 402.15.

An agency is required to reinitiate formal consultation if the agency retains discretionary involvement or control over the action and one of the following four 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's citizen suit provision 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 suitprovision also provides that "district courts shall have jurisdiction ... to enforce any such provision or regulation." Id. § 1540(g) (emphasis added).

2. 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. 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). The EPA registers a pesticide upon determining, inter alia, that "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). FIFRA defines "unreasonable adverse effects on the environment" as "(1) any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide, or (2) a human dietary risk from residues that result from a use of a pesticide." Id. § 136(z)(bb).

The EPA undertakes a variety of registration actions under FIFRA. For instance, the EPA may approve an application for a new chemical or active ingredient which is not contained in any other registered pesticide product, or approve a new use application for a previously registered pesticide. See 7 U.S.C. § 136a(c)(5), (7). The EPA is also required to review each pesticide registration every fifteen years "to ensure that each pesticide registration continues to satisfy the FIFRA standard for registration." 40 C.F.R. § 155.40(a). In 1988, Congress amended FIFRA to require the EPA to reregister pesticides containing any active ingredients in a pesticide registered before November 1, 1984. See 7 U.S.C. § 136a-1(a). The five-phase reregistration process culminates in the issuance of a Reregistration Eligibility Determination ("RED") after the agency determines whether the pesticide meets the registration standard. Id. § 135a-1(g)(2)(C).

The regulations issued under FIFRA provide that the EPA "may evaluate a pesticide use" at its "own initiative, or at the suggestion of any interested person." 40 C.F.R. § 154.10. The EPA "may conduct a Special Review of a pesticide use if he determines, based on a validated test or other significant evidence, that the use of the pesticide ... [m]ay pose a risk to the continued existence of any endangered or threatened species, ... [m]ay result in the destruction or other adverse modification of any [critical] habitat," or "[m]ay otherwise pose a risk to humans or to theenvironment which is of sufficient magnitude to merit a determination whether the use of the pesticide product offers offsetting social, economic, and environmental benefits that justify initial or continued registration." 40 C.F.R. § 154.7

Judicial review over the EPA's registration actions are governed by FIFRA § 16. See 7 U.S.C. § 136n (a)-(b). Section 16 divides jurisdiction over the appeals of the EPA's registration actions among district courts and the court of appeals. Id. To determine which court has jurisdiction over the appeal, one must determine whether the agency took action following a public hearing. Id. Under FIFRA § 16(a), the district court has jurisdiction to review certain agency actions not following a hearing:

Except as otherwise provided in this subchapter, the refusal of the Administrator to cancel or suspend a registration or to change a classification not following a hearing and other final actions of the Administrator not committed to the discretion of the Administrator by law are judicially reviewable by the district courts of the United States.

7 U.S.C. § 136n (a) (emphasis added). Under FIFRA § 16(b)...

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