Ellis v. Housenger

• Decision Date: 08 May 2017
• Docket Number: Case No. 13-cv-01266-MMC.
• Citation: 252 F.Supp.3d 800
• Court: U.S. District Court — Northern District of California
• Parties: Steve ELLIS, et al., Plaintiffs, v. Jack HOUSENGER, et al., Defendants, and Bayer CropScience, LP, et al., Defendant–Intervenors.

252 F.Supp.3d 800

Steve ELLIS, et al., Plaintiffs,

v. Jack HOUSENGER, et al., Defendants,andBayer CropScience, LP, et al., Defendant–Intervenors.

Case No. 13-cv-01266-MMC.

United States District Court, N.D. California.

Signed May 8, 2017

George Andreas Kimbrell, Center for Food Safety, Portland, OR, Paige Michele Tomaselli, Peter T. Jenkins, Sylvia Shih–Yau Wu, Center for Food Safety, San Francisco, CA, for Plaintiffs.

Leslie M. Hill, Department of Justice, Washington, DC, John Howard Martin, III, U.S. Department of Justice, Denver, CO, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT; DIRECTIONS TO PARTIES

MAXINE M. CHESNEY, United States District Judge

Before the Court are three motions: (1) "Motion for Summary Judgment," filed April 14, 2016, by plaintiffs Steve Ellis, Tom Theobald, Jim Doan, Bill Rhodes, Center for Food Safety, Beyond Pesticides, Sierra Club and Center for Environmental Health; (2) "Cross–Motion for Summary Judgment," filed June 7, 2016, by defendants Gina McCarthy, Administrator of the United States Environmental Protection Agency, and Jack Housenger, Director of the Office of Pesticide Programs of EPA (collectively, "EPA"); and (3) "Cross–Motion for Summary Judgment," filed June 20, 2016, by defendant-intervenors Bayer CropScience LP, Syngenta Crop Protection, LLC, Valent U.S.A. Corporation, and CropLife America (collectively, "Intervenors"). The motions have been fully briefed. Having read and considered the papers filed in support of and in opposition to the motions, the Court hereby rules as follows.¹

BACKGROUND

By the instant action, plaintiffs, comprising four individuals and four public interest groups, "challenge the actions of [the EPA] to allow the ongoing use of pesticide products containing the active ingredients clothianidin and thiamethoxam." (See Second Amended Complaint ("SAC") ¶ 1.) Plaintiffs allege the subject pesticides "have been shown to adversely impact the survival, growth, and health of honey bees and other pollinators vital to U.S. agriculture" and have "harmful effects on other animals, including threatened and endangered species." (See SAC ¶ 2.)

More specifically, plaintiffs allege that the EPA failed to comply with the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") by denying plaintiffs' request, made in a petition submitted to the EPA, to suspend the registration of products containing clothianidin (see SAC ¶¶ 82, 104, 110), and by approving applications to register certain products containing clothianidin or thiamethoxam without first providing notice in the Federal Register (see SAC ¶¶ 37, 114, 121). Additionally, plaintiffs allege that the EPA violated the Endangered Species Act ("ESA") by failing to consult with the Fish and Wildlife Service ("FWS") prior to approving certain applications to register products containing clothianidin and thiamethoxam. (See SAC ¶¶ 49–50, 128, 132.)

LEGAL STANDARD

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a "court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Fed. R. Civ. P. 56(a).

The Supreme Court's 1986 "trilogy" of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), requires that a party seeking summary judgment show the absence of a genuine issue of material fact. Once the moving party has done so, the nonmoving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." See Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (internal quotation and citation omitted). "When the moving party has carried its burden under Rule 56 [ ], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. "If the [opposing party's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249–50, 106 S.Ct. 2505 (citations omitted). "[I]nferences to be drawn from the underlying facts," however, "must be viewed in the light most favorable to the party opposing the motion." See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (internal quotation and citation omitted).

DISCUSSION

All parties seek summary judgment on the issue of liability as to the six claims alleged in the SAC.²

A. First and Second Claims

The First and Second Claims challenge the EPA's denial of a request made in a petition that was submitted to the EPA by four of the plaintiffs, specifically, a request to immediately suspend the registration of products containing clothianidin.

1. Applicable Statutory and Regulatory Framework

Under FIFRA, no pesticide may be distributed or sold unless it has been registered by the EPA. See 7 U.S.C. § 136a(a). If, after the EPA registers a pesticide, it "appears to the [EPA] that a pesticide ... generally causes unreasonable adverse effects on the environment," the EPA may issue a notice of intention "to cancel its registration or to change its classification." See 7 U.S.C. § 136d(b). If the EPA issues a notice of intention to cancel or change the classification of a registration, "a person adversely affected by the notice" may request a hearing, see 7 U.S.C. § 136d(b)(2), which hearing is conducted by an administrative law judge, see 40 C.F.R. § 164.20(c). "[C]ancellation or reclassification proceedings may take one or two years to complete." Love v. Thomas, 858 F.2d 1347, 1350 (9th Cir. 1988), cert. denied, 490 U.S. 1035, 109 S.Ct. 1932, 104 L.Ed.2d 403 (1989)

"If the [EPA] determines that action is necessary to prevent an imminent hazard during the time required for cancellation or change in classification proceedings, the [EPA] may, by order, suspend the registration of the pesticide immediately." 7 U.S.C. § 136d(c)(1). The term "imminent hazard" is defined as "a situation which exists when the continued use of a pesticide during the time required for [a] cancellation proceeding would be likely to result in unreasonable adverse effects on the environment or will involve unreasonable hazard to the survival of a species declared endangered or threatened." See 7 U.S.C. § 136(l). The term "unreasonable adverse effects on the environment" is defined as "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." See 7 U.S.C. § 136(bb).

Subject to one exception, discussed below, the EPA may not issue an order of suspension unless it has "issued, or at the same time issues, a notice of intention to cancel the registration or change the classification of the pesticide" and "notif[ies] the registrant prior to issuing any suspension order." See 7 U.S.C. § 136d(c)(1). If the registrant does not request a hearing within five days, the "suspension order may be issued and shall take effect." See 7 U.S.C. § 136d(c)(2). If the registrant timely requests a hearing, the EPA conducts an "expedited hearing ... on the question of whether an imminent hazard exists." See 7 U.S.C. §§ 136d(c)(1). Following the expedited hearing, the EPA "shall issue a final decision and order" addressing the issue of suspension. See 40 C.F.R. § 164.122(a). The "administrative suspension process" may take three to four months to complete. See Dow Chemical Co. v. Blum, 469 F.Supp. 892, 899, 902 (E.D. Mich. 1979) ; see also Love, 858 F.2d at 1353 n.10 (noting "suspension hearing would require approximately four months").

The one instance in which the EPA may suspend a registration prior to issuing a notice of intention to cancel and prior to notifying the registrant is where "the [EPA] determines that an emergency exists that does not permit the [EPA] to hold a hearing before suspending." See 7 U.S.C. § 136d(c)(3). Upon issuing an "emergency" order of suspension, see 40 C.F.R. § 164.123(a), the EPA must, however, "immediately notify the registrant," who, in turn, may request an expedited hearing on the question of whether an imminent hazard exists, see 40 C.F.R. § 164.123(b). Such "emergency order" of suspension remains in place pending the conclusion of the administrative suspension process. See 7 C.F.R. § 136d(c)(3); 40 C.F.R. § 164.123(b) ; see also National Coalition Against the Misuse of Pesticides v. EPA, 867 F.2d 636, 644 (D.C. Cir. 1989) (holding "[t]he extraordinary step of emergency suspension is available only if the requisite unreasonable harm would be likely to materialize during the pendency of ordinary suspension proceedings").

2. Administrative Proceedings Conducted on Plaintiffs' Petition

On March 20, 2012, plaintiffs Steve Ellis, Tom Theobald, the Center For Food Safety, and Beyond Pesticides, along with other individuals and entities who are not parties to the instant action, jointly submitted to the EPA an "Emergency Citizen Petition" ("Petition"). (See Administrative Record ("AR") 44323–44370.) In the Petition, plaintiffs requested that the EPA, inter alia, suspend clothianidin's registration "on an emergency basis," or, alternatively, "promptly initiate Special Review and cancellation procedures for clothianidin pursuant to 7 U.S.C. § 136d [,] and then suspend its registration pending completion of the cancellation procedures based on the ongoing and imminent harm posed." (See AR 44327.)³ Thereafter, in support of the Petition, plaintiffs submitted supplemental filings dated, respectively, May 3, 2012, and June 18, 2012. (See AR 44598–618.)

On July 17, 2012, the EPA issued a...