Defenders of Wildlife v. Jackson, Civil Action No. 09–1814 (ESH).

• Decision Date: 14 June 2011
• Docket Number: Civil Action No. 09–1814 (ESH).
• Parties: DEFENDERS OF WILDLIFE, et al., Plaintiffsv.Lisa P. JACKSON, et al., Defendants,andLiphaTech, Inc., Defendant–Intervenor.
• Court: U.S. District Court — District of Columbia

791 F.Supp.2d 96

DEFENDERS OF WILDLIFE, et al., Plaintiffs

v.Lisa P. JACKSON, et al., Defendants,andLiphaTech, Inc., Defendant–Intervenor.

Civil Action No. 09–1814 (ESH).

United States District Court, District of Columbia.

June 14, 2011.

Jason C. Rylander, Defenders of Wildlife, Sharon Buccino, Natural Resources Defense Council, Washington, DC, Nathaniel S.W. Lawrence, Natural Resources Defense Council, Olympia, WA, for Plaintiffs.Jon M. Lipshultz, Kristen Byrnes Floom, U.S. Department of Justice, Washington, DC, for Defendants.Lynn L. Bergeson, Timothy D. Backstrom, Bergeson & Campbell, P.C., Washington, DC, for Defendant–Intervenor.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

The Defenders of Wildlife and Audubon of Kansas (collectively, “Defenders”) and the Natural Resources Defense Council (“NRDC”) have sued Lisa Jackson in her official capacity as the Administrator of the Environmental Protection Agency (“Agency”), alleging that the Agency violated the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), the Administrative Procedure Act (“APA”), and the Endangered Species Act (“ESA”) by registering the rodenticide Rozol. (Defenders Compl. ¶¶ 50–57, 61–62.) The Defenders also allege that the Agency violated the Bald and Golden Eagle Protection Act (“Eagle Act”), the Migratory Bird Treaty Act (“Migratory Bird Act”), and Executive Order No. 13186.¹ ( Id. ¶¶ 63–64.) LiphaTech, Inc., the manufacturer of Rozol, has intervened as a defendant. (Dkt. No. 7.) Plaintiffs filed a joint motion for summary judgment, while the Agency and LiphaTech filed separate cross-motions for dismissal or, in the alternative, for summary judgment. (Dkt.Nos.29, 33, 35.) For the reasons stated herein, the motions of all parties will be granted in part and denied in part.

STATUTORY FRAMEWORK

A. Endangered Species Act

The ESA, 16 U.S.C. § 1531 et seq., has been called the “most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Babbitt v. Sweet Home Chapter of Cmties. for a Great Or., 515 U.S. 687, 698, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (internal quotation marks omitted). Section 7(a)(2) of the ESA requires agencies to consult with the Fish and Wildlife Service (“FWS”) to “insure that any action authorized, funded, or carried out” is “not likely to jeopardize the continued existence of an endangered species or threatened species or result in the destruction or adverse modification” of a listed species' critical habitat. 16 U.S.C. § 1536(a)(2). Agency regulations define “action” as “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States.” 50 C.F.R. § 402.02. “[J]eopardize the continued existence” means to “reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” Id. The Agency must review actions “at the earliest possible time.” Id. § 402.14(a). If it determines that action will affect a listed species or critical habitat, it must engage in formal consultation with the FWS, unless one of several exceptions applies. Id. The FWS is required to produce a “biological opinion” that states whether the action will “jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat” and “[f]ormulate discretionary conservation recommendations” and a “statement concerning incidental take.” 50 C.F.R. § 402.14(g).

Agency regulations also provide for an alternative “optional formal consultation procedure.” Id. § 402.46. This provides an “additional” way for the Agency to “satisfy the requirements of section 7(a)(2) ... for certain regulatory actions under FIFRA.” Id. § 402.41. The Agency begins the consulting process by providing the FWS with a “written request,” accompanied by an “effects determination,” that lists information required under 50 C.F.R. § 402.14(c) and details the impact of the proposed action on the listed species or critical habitat. Id. §§ 402.40(b), 402.46. The Agency may include its own conclusions and “incidental take statement,” which the FWS can adopt or reject. Id. § 402.46; see also Wash. Toxics Coal. v. Dep't of Interior, Fish & Wildlife Serv., 457 F.Supp.2d 1158, 1180 (W.D.Wash.2006). If the FWS accepts these conclusions, the Agency's proposal is converted into the required “biological opinion and incidental take statement.” Wash. Toxics Coal., 457 F.Supp.2d at 1180.

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.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 603, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (Blackmun, J., dissenting). Moreover, once consultation has begun under § 7(d), the “[f]ederal agency and the permit or license applicant 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” jeopardize an endangered or threatened species or destroy its habitat. 16 U.S.C. § 1536(d). This “prohibition is in force” until the “requirements of section 7(a)(2) are satisfied.” 50 C.F.R. § 402.09.

Private parties may enforce the ESA via a “citizen suit” provision that allows for “any person” to bring a civil suit to “enjoin any person, including ... any other governmental instrumentality or agency ... alleged to be in violation of any provision of this chapter....” 16 U.S.C. § 1540(g)(1)(A). The Court has jurisdiction “to enforce any such provision or regulation.” Id. § 1540(g)(1). However, no action “may be commenced” under § (g)(1)(A) “prior to sixty days after written notice of the violation has been given....” Id. § 1540(g)(2)(A).

B. FIFRA

FIFRA, 7 U.S.C. §§ 136–136y, requires pesticide manufacturers to register their products with the Agency before selling or distributing them. Registration under FIFRA is “product-specific” and defines the “terms and conditions under which the product can be legally distributed, sold, and used.” Reckitt Benckiser, Inc. v. EPA, 613 F.3d 1131, 1133 (D.C.Cir.2010). The Agency “shall register” a pesticide if it 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). The Agency must publish notice of applications for registration “promptly” if the pesticide “contains any new active ingredient or if it would entail a changed use pattern.” 7 U.S.C. § 136a(c)(4). The Agency must also publish “notice of receipt” in the Federal Register and must publish notice and respond to public comments when an application proposes a “new use.” 40 C.F.R. § 152.102. A new use is one that would “result in a significant increase in the level of exposure, or a change in the route of exposure, to the active ingredient of man or other organisms.” 40 C.F.R. § 152.3.

FIFRA also has a “conditional registration provision,” which allows the Agency to “conditionally register or amend the registration of a pesticide if” it determines that the pesticide and proposed use are

(i) ... substantially similar to any currently registered pesticide ... or differ only in ways that would not significantly increase the risk of unreasonable adverse effects on the environment, and (ii) approving the registration ... would not significantly increase the risk of any unreasonable adverse effect on the environment.

7 U.S.C. § 136a(c)(7)(A).² Thus, the Agency may register a product even if the applicant is missing data that would otherwise be “required to obtain registration of a similar pesticide,” so long as the applicants submit the data “not later than the time such data are required to be submitted with respect to similar pesticides already registered under this subchapter.” Id.

FIFRA also allows states to register “additional uses” of “federally registered pesticides” to meet “special local needs,” so long as registration for that use has “not previously been denied, disapproved, or canceled” by the Agency. 7 U.S.C. § 136v(c)(1). Though registration under this provision is “deemed registration under 136a,” it only applies within the state issuing the registration. Id. The Agency may disapprove of a “local registration,” and thereby render it ineffective, but must give the state advance warning and provide an opportunity to respond, unless it determines that the pesticide poses an “imminent hazard.” Id. §§ 136v(c)(2)-(3).

A pesticide's registration must be “periodically reviewed,” id. § 136a(g), and may be cancelled at any time by the Agency under § 136d(b) or by the registrant under § 136d(f)(1). Reckitt Benckiser Inc., 613 F.3d at 1134. The Agency “may” issue a notice of intent to cancel a product's registration or to hold a hearing on cancellation when it “appears” that the pesticide or its labeling does not comply with FIFRA or “generally causes unreasonable adverse effects on the environment.” See id. (citing 7 U.S.C. § 136d(b)). If the Agency refuses to cancel a registration, a party may obtain review of the decision in a district court. Id. (quoting 7 U.S.C. § 136n(a)). If the Agency simply issues notice of an intent to cancel and does not issue a notice of a hearing, the registrant may “demand” a hearing before an Administrative Law Judge, at which it may present testimonial and documentary evidence. 7 U.S.C. §§ 136d(b)(1), (d). Agency regulations also allow ...