Ctr. for Biological Diversity v. Envtl. Prot. Agency
| Decision Date | 23 December 2022 |
| Docket Number | 15-1054,C/w 15-1176, 15-1389, 15-1462, 16-1351 |
| Parties | CENTER FOR BIOLOGICAL DIVERSITY, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Bayer CropScience LP, Intervenor |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Jonathan Evans argued the cause for petitioners. With him on the briefs were Stephanie M. Parent, George Kimbrell, and Jason Rylander.
Patrick R. Jacobi, Trial Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Todd Kim, Assistant Attorney General, and Lesley Lawrence-Hammer, Trial Attorney. Paul Cirino, Trial Attorney, entered an appearance.
Amanda Shafer Berman argued the cause for intervenor-respondents. With her on the brief were Kirsten L. Nathanson, David Y. Chung, and Elizabeth B. Dawson. Stanley H. Abramson, Christopher Landau, and Donald C. McLean entered appearances.
Before: Srinivasan, Chief Judge, Pillard and Rao, Circuit Judges.
Beginning in 2015, the U.S. Environmental Protection Agency (EPA) registered five pesticides, thereby clearing them under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) for distribution and sale in the United States. Pesticides are meant to kill living things considered to be pests. But they can also be fatal to flora and fauna that are not their intended targets. The Endangered Species Act (ESA) applies to any pesticide that may harm endangered or threatened species or their habitats: Before registering a pesticide, EPA must consult with the statutorily specified agencies that have expertise on risks to species’ survival. But for decades EPA routinely skipped that step when it registered pesticides, including those at issue here. Even as the agency bypassed its ESA obligations, its backlog of FIFRA registration requests mounted. The inadequacies of the registration system have drawn attention across government, but noncompliance persists. See EPA Br. at 6.
Three nonprofit conservation organizations—the Center for Biological Diversity, the Center for Food Safety, and Defenders of Wildlife (collectively, Petitioners or the Conservation Groups)—submitted comments objecting to the proposed registrations on that ground. After EPA went ahead and okayed the five registrations, the Conservation Groups petitioned this court to invalidate them. The parties then jointly requested that we hold the petitions in abeyance to allow for settlement negotiations. The parties worked for almost two years to arrive at the terms of a settlement allowing the registrations to stand if EPA fulfills core ESA obligations by agreed deadlines. As a condition of their settlement agreement's binding effect, the parties now jointly move for an Order returning the cases to abeyance until the specified deadlines to afford EPA time to comply with the parties’ settlement terms.
As it awaited our action on the joint motion, EPA made progress by meeting its deadline under the settlement to review the first of the five licensed pesticide ingredients, cuprous iodide. EPA's consultation regarding species effects of that substance led it to add new label specifications limiting its use. The deadlines for the other four pesticide ingredients remain pending. Given EPA's acknowledged failure to comply with the Endangered Species Act in registering the pesticides at issue, together with the parties’ settlement agreement and joint motion, the only issue now before us is whether to enter the requested Order.
Under the proposed Order, we would hold these cases in abeyance for the periods the parties have specified to allow EPA to prepare biological evaluations on each of the disputed pesticides. If EPA fulfills its obligations under the settlement (completing two of the biological evaluations by September 30, 2025, and two by September 30, 2027), petitioners will seek voluntary dismissals. The Order says how and when minor timing adjustments might be made and anticipates that petitioners may move for attorneys’ fees and costs. That is the sum of it.
Before deciding whether to enter the requested Order, we dismiss as moot the challenge to the registration of cuprous iodide based on the parties’ report that EPA has complied to their satisfaction with the proposed settlement regarding that pesticide ingredient. We also hold that Petitioners have standing to challenge the four remaining registration orders. We then confirm our authority to afford the type of relief requested and approve the Order on Consent as voluntary, fair, adequate, reasonable, and in the public interest.
FIFRA generally precludes the distribution or sale of pesticide active ingredients or pesticides that contain them unless EPA has first issued a registration—effectively a license to market the product as formulated and packaged, with labeling identifying and limiting how it may be used. 7 U.S.C. § 136a(a) ; see Ctr. for Biological Diversity v. EPA , 861 F.3d 174, 178-79 (D.C. Cir. 2017) ( CBD 2017 ). Applicants for pesticide registration must give EPA in-depth information about the product at issue, including its formula, the nature and results of tests administered on the pesticide, its labeling and uses, and other supporting data. 7 U.S.C § 136a(c)(1)-(2). FIFRA directs that EPA "shall register a pesticide" if the agency determines that:
7 U.S.C. § 136a(c)(5). It is unlawful to use a pesticide in a manner contrary to its approved labeling. Id . § 136j(a)(2)(G). EPA may revoke an approved registration or amend its terms, including by changing specified uses or labeling requirements, id. § 136d(b), but in the ordinary course EPA is not required to reconsider a pesticide registration until fifteen years after initial registration of its active ingredients, id. § 136a(g)(1)(A)(iv).
The Conservation Groups’ petitions sought invalidation of the disputed FIFRA pesticide registrations as noncompliant with the ESA. The ESA obligation to consult with designated federal agencies to determine whether a pesticide's intended uses might jeopardize any endangered or threatened species or habitat is distinct from EPA's duty under FIFRA itself to avoid "unreasonable adverse effects on the environment." 7 U.S.C. § 136a(c)(5)(C), (D) ; see Defs. of Wildlife v. EPA , 882 F.2d 1294, 1299 (8th Cir. 1989). Congress enacted the ESA to conserve species and their ecosystems, 16 U.S.C. § 1531(b), and to "halt and reverse the trend toward species extinction, whatever the cost," Tenn. Valley Auth. v. Hill , 437 U.S. 153, 184, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Section 7 of the ESA provides that, before any federal agency (the action agency) takes any action "authorized, funded, or carried out by such agency" that might affect species that are listed as endangered or threatened under the ESA or their critical habitat, the agency must consult with designated federal wildlife services (the listing agencies) to identify the risks. 16 U.S.C. § 1536(a)(2) ; see also id. § 1532(15); 50 C.F.R. § 402.01(b).
The action agency here is EPA because it is responsible for registering pesticides under FIFRA. The listing agencies are the National Marine Fisheries Service of the Department of Commerce and the United States Fish and Wildlife Service of the Department of the Interior (together, the Wildlife Services). The Wildlife Services, comprising scientists, policy analysts, resource managers, and enforcement officers with expertise on terrestrial and marine-based species and their habitats, "share[ ] responsibilities for protecting threatened or endangered species of fish, wildlife and plants." In re Am. Rivers & Idaho Rivers United , 372 F.3d 413, 415 (D.C. Cir. 2004) (footnotes omitted) (citing 16 U.S.C. § 1533(a) ). The parties agree that EPA's decision under FIFRA to register an active ingredient to be used as a pesticide is a federal action subject to the Endangered Species Act. EPA Br. at 7; Pet. Br. at 7; see 50 C.F.R. § 402.02 ().
The ESA requires every federal agency 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 threatened species or result in the destruction or adverse modification of habitat" that the Wildlife Services have determined to be critical to those species. 16 U.S.C. § 1536(a)(2) ; see 50 C.F.R. § 402.01. To that end, the Act requires a staged process of consultation between action agencies and the Wildlife Services. See 16 U.S.C. § 1536(a) - (d). First, before taking any covered action such as a pesticide registration, the action agency, with assistance from the Wildlife Services, must conduct a threshold biological assessment. That assessment yields an effects determination identifying the species, habitats, and geographic areas that may be present, and setting forth an empirically based judgment whether the proposed action may affect a listed species or critical habitat. See 16 U.S.C. § 1536(a)(2), (c)(1) ; 50 C.F.R. §§ 402.02 (defining biological assessment), 402.12 (describing the biological assessment requirement).
An agency whose planned action may have such effect has an opportunity for informal consultation with the Wildlife Services to help determine whether formal consultation is required. See 50 C.F.R. § 402.13 ; see also 16 U.S.C. § 1536(a)(2), (a...
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