Ctr. for Envtl. Health v. Wheeler

• Decision Date: 30 September 2019
• Docket Number: Case No: C 18-03197 SBA
• Citation: 429 F.Supp.3d 702
• Parties: CENTER FOR ENVIRONMENTAL HEALTH, et al., Plaintiffs, v. Andrew WHEELER, in his official capacity as Acting Administrator of the U.S. Environmental Protection Agency, et al., Defendants.
• Court: U.S. District Court — Northern District of California

429 F.Supp.3d 702

CENTER FOR ENVIRONMENTAL HEALTH, et al., Plaintiffs,

v.Andrew WHEELER, in his official capacity as Acting Administrator of the U.S. Environmental Protection Agency, et al., Defendants.

Case No: C 18-03197 SBA

United States District Court, N.D. California, Oakland Division.

Signed September 30, 2019

Jonathan Carter Evans, Center for Biological Diversity, Oakland, CA, Stephanie M. Parent, Pro Hac Vice, Center for Biological Diversity, Portland, OR, for Plaintiffs.

Alison C. Finnegan, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER DENYING DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT

Dkt. 51

SAUNDRA BROWN ARMSTRONG, Senior United States District Judge

Plaintiffs Center for Environmental Health, Center for Biological Diversity, and Californians for Pesticide Reform (collectively, "Plaintiffs") bring the instant action against the United States Environmental Protection Agency ("EPA"); Andrew Wheeler, in his capacity as the Administrator of the EPA; the United States Fish & Wildlife Service ("FWS"); and Ryan Zinke, in his capacity as the Secretary of the Department of Interior (collectively, "Defendants"). Plaintiffs allege that, in violation of the Endangered Species Act and the Administrative Procedure Act, Defendants have failed to complete the requisite interagency consultation to ensure that certain pesticide products containing malathion do not jeopardize endangered or threatened species. CropLife America, a trade association that represents the common interests of pesticide manufacturers, has intervened as a defendant ("CropLife" or "Intervenor-Defendant").

The matter is presently before the Court on Defendants' Motion to Dismiss Second Amended Complaint, Dkt. 51, and Intervenor-Defendant's joinder therein, Dkt. 52. Having read and considered the papers filed in connection with this matter and being fully informed, the Court DENIES the motion to dismiss, for the reasons stated below. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b) ; N.D. Cal. Civ. L.R. 7-1(b).

I. BACKGROUND

A. STATUTORY AND REGULATORY FRAMEWORK

1. The Federal Insecticide, Fungicide, and Rodenticide Act

The Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") charges the EPA with the oversight of chemicals used as pesticides. 7 U.S.C. § 136 et seq. Pursuant to FIFRA, pesticides may not be distributed or sold in the United States unless registered with the EPA. Id. § 136a(a). This registration requirement applies to pesticide products and active ingredients used to manufacture pesticide products. Id.; 40 C.R.F. § 152.15.

As part of the registration process, "the EPA conducts an analysis that considers the ‘economic, social and environmental costs and benefits of the use of any pesticide.’ " Ctr. for Biological Diversity v. EPA, 847 F.3d 1075, 1085 (9th Cir. 2017) (citations omitted). In conducting that analysis, the EPA determines whether a pesticide satisfies certain requirements, including the requirement that its use will not cause "unreasonably adverse effects on the environment." 7 U.S.C. § 136a(c)(5). If section 136a(c)(5)'s requirements are not satisfied, the EPA may deny an application to register a pesticide. Id. § 136a(c)(6). Alternatively, the EPA may classify the pesticide for restricted use by imposing conditions related to its labeling and/or application. Id. § 136a(d).

The EPA is obligated to periodically review the registration of each pesticide. Id. § 136a(g). Additionally, as to "each registered pesticide containing any active ingredient contained in any pesticide first registered before November 1, 1984," FIFRA imposes upon the EPA a duty to reregister those pesticides to determine whether they meet the requirements of section 136a(c)(5). Id. § 136a-1. Upon review or reregistration, the EPA has the authority to cancel or change the classification of a registration. Id. §§ 136d, 136a-1(g)(2)(D). In certain circumstances, the EPA may also immediately suspend a registered pesticide pending cancellation or change in classification proceedings. Id.

2. The Endangered Species Act

Registration or reregistration of a pesticide under FIFRA constitutes federal agency action subject to the interagency consultation requirements of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536. Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1032 (9th Cir. 2005). The ESA was enacted for the conservation of endangered and threatened species. Id. § 1531(b). 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 FWS (together with NMFS, the "Service"). Id. § 1532(15); 50 C.F.R. §§ 17.11, 402.01(b).

Section 7(a)(2) of the ESA provides that "[e]ach 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 ... 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 ... to be critical[.]" 16 U.S.C. § 1536(a)(2). After initiating consultation, "the Federal agency ... shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate [Section 7(a)(2) ]." Id. § 1536(d).

The ESA's implementing regulations lay out the consultation process. Subject to exceptions not relevant here, an agency must initiate formal consultation with the Service if it determines that a proposed action "may affect listed species or critical habitat." 50 C.F.R. § 402.14(a). The Service must then prepare a biological opinion, determining whether the 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 concludes that jeopardy is likely, it must also include "reasonable and prudent alternatives, if any" to the proposed action. Id. § 402.14(h). "Formal consultation is terminated with the issuance of the biological opinion." Id. § 402.14(m).¹

Consultation "shall be concluded within the 90-day period beginning on the date on which initiated or, subject to subparagraph (B), within such other period of time as is mutually agreeable to the Secretary and the Federal agency." 16 U.S.C. § 1536(b)(1)(A). Subparagraph (B) limits the discretion of the Secretary and the Federal agency to extend the consultation period for actions involving a permit or license applicant. Id. § 1536(b)(1)(B). If consultation will extend beyond 90 days, the applicant must be provided a written statement setting forth the reasons for the extension, the information required to complete the consultation, and the estimated date of completion. Id. If consultation will extend 150 days or more, the applicant's consent is also required. Id. The Service and the Federal agency may agree to further extensions, with the applicant's consent. Id.

B. FACTUAL BACKGROUND

According to Plaintiffs, the EPA and the Service have long failed to comply with the ESA's consultation requirement when registering pesticides under FIFRA. Second Am. & Suppl. Compl. ("SAC") ¶ 48, Dkt. 43. In 2011, to address this deficiency, the EPA and the Service requested that the National Academy of Sciences convene a committee of independent experts to identify best practices for assessing the effects of pesticides on listed species. Id. The National Academy of Sciences issued a report in 2013, and the EPA and the Service held five interagency workshops between August 2013 and September 2016 to further refine their approach. Id. ¶¶ 49-50. During the workshops, the EPA and the Service discussed the types of information that would be needed to complete consultations, including the available pesticide usage data. Id. The EPA and the Service also gave technical presentations to and held workshops with outside stakeholders. Id. ¶¶ 51-52.

Ultimately, the EPA and the Service opted to address their ESA obligations for pesticide registrations "by conducting nationwide scale effects determinations," rather than focus on subsets of species in smaller geographic areas. Id. ¶ 53. They agreed to complete the first nationwide consultations on pesticide products that contain malathion, chlorpyrifos, and diazinon. Id.

In 2014, the EPA began preparing a biological evaluation to assess the effects of 96 actively-registered pesticide products containing malathion. Id. ¶ 54. In April 2016, it provided a draft biological evaluation for public comment. Id. ¶ 55 (citing 81 Fed. Reg. 21341 (Apr. 11, 2016) ). On January 18, 2017, the EPA transmitted its final biological evaluation to the Service to initiate formal consultation. Id. ¶ 61. The EPA determined that authorized uses of malathion are likely to adversely affect 1,778 listed species and 784 critical habitats. Id. Although its effects analysis was based on authorized uses of pesticide products, estimated actual uses were also included. Id. ¶¶ 56, 61.

Initially, the EPA and the Service had agreed to provide a draft biological opinion for public comment in May 2017 and to issue a final biological opinion on pesticide products containing malathion by December 2017. Id. ¶ 62. In April 2017, however, CropLife and other industry stakeholders requested that the EPA withdraw its biological evaluation and that the Service stop work on its biological opinion. Id. ¶ 63. Thereafter, the Service did not provide a draft...