New York v. U.S. E.P.A.

• Decision Date: 04 August 2004
• Docket Number: No. 03 Civ. 7176(GEL).,No. 03 Civ. 7155(GEL).,03 Civ. 7155(GEL).,03 Civ. 7176(GEL).
• Citation: 350 F.Supp.2d 429
• Parties: State of NEW YORK, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants and Croplife America, et al., Intervening Defendants. National Resources Defense Council, et al., Plaintiffs, v. Michael O. Leavitt, Administrator, et al., Defendants, and Croplife America, et al., Intervening Defendants.
• Court: U.S. District Court — Southern District of New York

350 F.Supp.2d 429

State of NEW YORK, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants and Croplife America, et al., Intervening Defendants.

National Resources Defense Council, et al., Plaintiffs, v. Michael O. Leavitt, Administrator, et al., Defendants, and Croplife America, et al., Intervening Defendants.

No. 03 Civ. 7155(GEL).

No. 03 Civ. 7176(GEL).

United States District Court, S.D. New York.

August 4, 2004.

COPYRIGHT MATERIAL OMITTED

Karen R. Kaufmann, David A. Munro, Assistant, Attorneys General; Eliot Spitzer, Attorney, General of the State of New York, Albany, New York, for plaintiffs State of New York, et al.

Nancy S. Marks, National Resources Defense Council, New York, NY; Eric D. Olson and Aaron Colangelo, National Resources Defense Council, Washington, DC; Patti A. Goldman and Grant Allen Cope, Earthjustice, Seattle, WA, for plaintiffs NRDC et al., of counsel.

Kathy S. Marks, Assistant Unites States Attorney, New York, NY; Jonathan J. Fleuchaus and Daniel M. Flores, Office of General Counsel, United States Environmental Protection Agency, for defendants EPA and Leavitt, of counsel.

Janine M. Gargiulo, Arent Fox PLLC, New York, NY; Stanley H. Abramson, Donald B. Mitchell, Jr., Eric S. Baxter, Arent Fox PLLC, Washington, DC; David B. Weinberg, Howrey Simon Arnold & White, Washington DC, for intervening defendants, of counsel.

OPINION AND ORDER

LYNCH, District Judge.

Plaintiffs — the States of New York, New Jersey, Connecticut and Massachusetts (the "State plaintiffs"), and the National Resources Defense Council, along with eleven other nongovernmental public health, environmental, religious, and farmworker organizations (the "NRDC plaintiffs") — filed two separate actions challenging the Environmental Protection Agency's ("EPA") determinations on its reassessment of the safety of various pesticide residues on foods under the Food Quality Protection Act, Pub.L. No. 104-170, 110 Stat. 1489 (1996). The complaints were consolidated on April 22, 2004. Intervenor-defendant CropLife America, an association of companies involved in the manufacture and distribution of pesticides, and several of its member companies filed a motion to intervene in the case, which was granted on May 29, 2004. The EPA and the CropLife defendants each moved to dismiss, and briefing was conducted on a coordinated schedule. Because the Court lacks subject matter jurisdiction over the action, defendants' motions will be granted.

BACKGROUND

Agricultural pesticides are regulated under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136-136y, and the Federal Food Drug and Cosmetic Act ("FDCA"), 21 U.S.C. §§ 301-394.¹ The regulatory scheme requires that before a particular food treated with pesticide may be moved in interstate commerce, the EPA must set a "tolerance," or maximum permissible level of pesticide residue, that has been determined to be "safe" for use on that food; alternatively, the EPA may allow for an "exemption" from that tolerance. 21 U.S.C. §§ 331(a), 342(a)(2)(B), 346a(a)(1)-(2), (b)(2)(A)(i). The EPA must set a separate tolerance for each pesticide's use on each food. Thus, if a particular pesticide is to be used on apples, pears, and grapes, a separate tolerance must be set for each.

In 1996, Congress enacted the Food Quality Protection Act ("FQPA"), Pub.L. No. 104-170, 110 Stat. 1489 (1996), which amended this regulatory scheme to require the EPA to reevaluate on a set time-schedule the safety of all extant pesticide tolerances. Id. § 103, 110 Stat. at 1490, § 405, 110 Stat. at 1514-35 (codified at 7 U.S.C. § 136a-1(g)(2); 21 U.S.C. § 346a(q)). In undertaking this reevaluation, the EPA was to take into account a set of risk factors, including not only those resulting from exposure to pesticides in food, but also "all other exposures for which there is reliable information." Id. § 405, 110 Stat. at 1514-35 (codified at 21 U.S.C. § 346a(b)(2)(A)(ii)). The FQPA provided that in conducting its reassessments, the EPA must apply a presumptive "tenfold margin of safety in order to take into account potential pre- and post-natal toxicity and completeness of the data with respect to exposure and toxicity to infants and children." Id. (codified at 21 U.S.C. § 346a(b)(2)(C)(ii)). The statute permits the Administrator to use a different factor "only if, on the basis of reliable data, such margin will be safe for infants and children." Id.

It is the Administrator's departure from the presumptive tenfold margin in its reassessment of permissible tolerances with respect to certain pesticides that plaintiffs principally challenge here.² Specifically, plaintiffs argue that in leaving certain existing tolerances in place for these pesticides without applying the tenfold margin of safety, the EPA failed to take into account scientific data demonstrating serious safety risks, or otherwise acted in the absence of "reliable data" that the departure from the tenfold margin would be "safe for infants and children." Id. The NRDC plaintiffs raise the additional claims that the EPA failed to designate farmworkers' children as a special subpopulation with heightened vulnerability to pesticide exposure, that it approved several tolerances that exceeded the agency's own calculated safe level for children's exposure, that it reduced its estimate of the acute health threats of certain pesticide uses based on percentage of crop treated, and that it relied on a "secret, industry-developed computer model" in conducting its reassessments, in violation of FIFRA, 7 U.S.C. § 136h(d). (NRDC Compl. ¶¶ 104-110, 145-47.)

Defendants move to dismiss on the ground of lack of subject matter jurisdiction, arguing that the challenged acts are not subject to review under the Administrative Procedure Act ("APA"), and that plaintiffs failed to exhaust administrative remedies. Because defendants are correct that, under the terms of the FDCA, this is neither the proper forum nor the proper time for plaintiffs' claims, the motions to dismiss will be granted.

DISCUSSION

I. Standard of Review

On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) when the defendant challenges the legal sufficiency of the plaintiff's assertion of jurisdiction, the court must accept all facts alleged in the complaint as true and draw all reasonable inferences in the plaintiff's favor.³ Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir.2000). Dismissal is only appropriate when "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Id.

II. Judicial Review under the APA

Plaintiffs assert jurisdiction under the federal question statute, 28 U.S.C. § 1331, which, in combination with the APA, 5 U.S.C. § 702, provides for judicial review of federal administrative actions. See Califano v. Sanders, 430 U.S. 99, 105-07, 97 S.Ct. 980, 51 L.Ed.2d 192, (1977);⁴ Lunney v. U.S., 319 F.3d 550, 557-58 (2d Cir.2003). The APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof," and waives the government's sovereign immunity in actions for relief "other than money damages" against officials acting in their official capacity. 5 U.S.C. § 702; see also Department of Army v. Blue Fox, Inc., 525 U.S. 255, 260-61, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999) (recognizing APA's waiver of sovereign immunity). The cause of action provided under the APA applies to "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704.

The Supreme Court has specified that "the Administrative Procedure Act's generous review provisions must be given a hospitable interpretation." Abbott Laboratories v. Gardner, 387 U.S. 136, 140-41, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (citations and quotations omitted), overruled on other grounds by Califano, 430 U.S. 99, 105-07, 97 S.Ct. 980, 51 L.Ed.2d 192. The waiver of immunity is not unlimited, however, as the APA carves out exceptions in cases where "(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. § 701(a). These exceptions are to be construed narrowly in light of the APA's strong presumption in favor of judicial review, and claims should be considered precluded "only upon a showing of `clear and convincing evidence' of a contrary legislative intent." Abbott Labs., 387 U.S. at 141 & n. 2, 87 S.Ct. 1507.

Defendants advance three challenges to the Court's jurisdiction under the APA. Their principal argument is that the agency actions at issue fall under the APA's exception in 5 U.S.C. § 701(a)(1) for actions precluded from judicial review by statute, because section 408(h) of the FDCA sets forth an exclusive procedure for obtaining review of certain agency actions. See 21 U.S.C. § 346a(h). They argue in the alternative that even if the APA's actions are not insulated from district court review by the FDCA, the challenged tolerance determinations do not qualify as "final agency action" subject to judicial review under section 704 of the APA. And finally, they argue that plaintiffs should be required to exhaust their administrative remedies, under both the express statutory terms of section 408(h) of the FDCA, 21 U.S.C. § 346a(h), and the prudential doctrine of exhaustion.

In approaching these objections, it is appropriate to consider first whether the APA's general judicial review provision applies to the plaintiffs' claims, and then, if it does, whether they fall under the exception in section 702(a)(1) because either the FDCA or FIFRA precludes judicial review. If review is precluded, the prudential exhaustion argument need not be reached.

A. Application of the APA

According to defendants, the APA does not apply to plaintiffs' claims at all because...