CENTER FOR BIOLOGICAL DIVERSITY et al v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Filing
50
MEMORANDUM OPINION to the Motion to Dismiss and Motion for Judgment on the Pleadings. Signed by Judge Gladys Kessler on 5/14/15. (CL, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Center for Biological
Diversity, Center for Food
Safety, and Defenders of
Wildlife,
Plaintiffs,
v.
Civil Action No. 14-942(GK)
United States Environmental
Protection Agency,
Defendant,
and
E.I. du Pont de Nemours and
Company, Syngenta Crop
Protection LLC, and CropLife
America,
Intervenor-Defendants
MEMORANDUM OPINION
Plaintiffs Center for Biological Diversity, Center for Food
Safety, and Defenders of Wildlife ("Plaintiffs") bring this action
against Defendant United States Environmental Protection Agency
("Defendant,"
"the
Government,"
Intervenor-Defendants
E.I.
du
"the
Pont
de
Agency, "
Nemours
or
"EPA") .
and
Company,
Syngenta Crop Protection LLC, and CropLife America ("IntervenorDefendants") joined this action with the Court's permission.
This matter is presently before the Court on the Government's
Motion to Dismiss
for Lack of
Jurisdiction
[Dkt.
No.
31]
and
Intervenor-Defendants' Motion for Judgment on the Pleadings [Dkt.
No. 41], which requests dismissal on similar grounds.
On September 19, 2014, the Government filed its Motion [Dkt.
No. 31], and on October 15, 2014, Intervenor-Defendants filed their
Motion [Dkt. No. 41]. On November 17, 2014, Plaintiffs filed their
combined Opposition to both Motions [Dkt. No. 43]. On December 10,
2014,
the Government and Intervenor-Defendants both filed their
Replies
[Dkt. Nos. 44 & 45]. Upon consideration of the Motions,
Opposition,
reasons
Replies,
stated
granted,
and the entire record herein,
below,
Defendant's
Intervenor-Defendants'
Motion
Motion
to
for
and for the
Dismiss
shall
be
Judgment
on
the
Pleadings shall be denied as moot, and Plaintiffs' Complaint shall
be dismissed.
I .
BACKGROUND
A.
Statutory Framework
1. Federal Insecticide,
The
Federal
("FIFRA"),
Insecticide,
7 U.S.C.
§
Fungicide, and Rodenticide Act
Fungicide,
136-136y,
protects
and
the
Rodenticide
environment
Act
from
"unreasonable adverse effects" arising from the use of pesticides,
Id.
§
sell .
136a (a) . Under FIFRA,
"no person .
may distribute or
. any pesticide that is not registered [with EPA]." Id.
EPA will "register" a pesticide if
-2-
(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. Id. § 136a(c) (5).
Before registering a
ingredient[,]"
pesticide containing
"any new active
EPA must provide the public with notice and the
opportunity to comment on "each application for registration [.]"
Id.
136a(c) (4). EPA's registration of a pesticide constitutes an
§
Order
("APA")
within
the
meaning
of
the
Administrative
and FIFRA. See Env't Def. Fund,
Procedure
Act
Inc. v. Costle, 631 F.2d
922, 926 (D.C. Cir. 1980); United Farm Workers of Am., AFL-CIO v.
Adm'r,
E.P.A.
Manufacturers
manner
I
592
may
consistent
F.3d
only
1080,
distribute
with
the
1082-83
registered
registration
labeling, and composition requirements.
Reg. 47732, 47733
(9th
pesticides
order's
7 U.S.C.
2010).
Cir.
§
in
a
packaging,
136j; 69 Fed.
(Aug. 5, 2004).
FIFRA divides judicial review between the District Courts and
the Courts of Appeals.
The appropriate forum depends,
in part,
upon whether EPA conducted a "public hearing" before issuing the
relevant order. 7 U.S.C.
§
136n(a)&(b). Generally, "the refusal of
-3-
[EPA]
to
cancel
or
classification not
suspend
a
following a
registration
or
to
change
hearing and other final
a
actions
. . . not committed to the discretion of [EPA] by law are judicially
reviewable by the
U.S.C.
§
136n(a)
[D] istrict
[C] ourts of the United States."
7
(emphasis added).
"In the case of actual controversy as to the validity of any
order issued by [EPA]
following a public hearing, any person who
will be adversely affected by such order and who had been a party
to the proceedings may obtain judicial review . . . in the United
States
[C] ourt of
[A] ppeals." Id. at
§
136n (b)
(emphasis added) .
A petition for review before the Court of Appeals must be filed
"within 60 days after the entry of such order [.]" Id.
filing
of
such
petition
the
[C] ourt
[of
Appeals]
"Upon the
shall
have
exclusive jurisdiction to set aside the order complained of in
whole or in part." Id.
2. Endangered Species Act
The
("ESA")
Supreme
Court
has
called
the
Endangered
Species
Act
"the most comprehensive legislation for the preservation
of endangered species ever enacted by any nation." Babbit v. Sweet
Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687, 698 (1995)
(quoting Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180 (1978)).
The Act aims to conserve endangered and threatened species and the
ecosystems on which they depend.
-4-
16 U.S.C.
§
1531(b).
Section
7(a) (1) of the ESA obligates federal agencies 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 result in the destruction or adverse modification" of
designated critical habitats. 16 U.S.C.
§
1536 (a) (2).
In order to carry out this substantive obligation, when an
agency determines that an action "may affect" any species listed
as endangered or threatened
("listed species"),
or its habitat,
the agency must consult with experts in the United States Fish and
Wildlife Service ("FWS") or the National Marine Fisheries Service
( "NMF s" ) . i
u .s .c .
16
§
15 3 6 (a) ( 2 ) ;
5o
c .F . R.
§
4 O2 . 14 (a) .
"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.'"
Defenders of
Wildlife v. Jackson, 791 F. Supp. 2d 96, 100 (D.D.C. 2011)
Lujan v. Defenders of Wildlife, 504 U.S. 555, 603 (1992)
(quoting
(Blackmun,
J. , dissenting) .
Agencies
may
forgo
formal
consultation,
however,
if
they
determine -- with FWS or NMFS's written concurrence -- that the
proposed action is
"not likely to adversely affect"
any listed
The NMFS, located in the Department of Commerce, is responsible
for marine species, and the FWS, located in the Department of the
Interior, is responsible for terrestrial and inland fish species.
16 U.S.C. § 1532(15); 50 C.F.R. §§ 17.11, 402.0l(b).
-5-
1
species or critical habitat. 50 C.F.R.
§§
402.13(a), 402.14(b) (1).
When the formal consultation requirement is triggered, FWS or NMFS
must prepare a "biological opinion" stating whether the proposed
action "is likely to jeopardize the continued existence of listed
species or result in the destruction or adverse modification of
critical
§
habitat."
50
C.F.R.
§
402.14;
see
also
16
U.S.C.
1536 (a) (2).
ESA's broad citizen-suit provision empowers "any person" to
"commence a
civil
suit on his
[or her]
own behalf"
to enjoin
violations of the Act's provisions, including an agency's failure
to consult.
16 U.S.C.
§§
1540 (g) (1) (A),
1536 (a) (2).
The United
States District Courts have subject matter jurisdiction to hear
challenges brought under
plaintiffs
alleged
§
must
ESA
provide
violation
§
1540 (g) .
However,
would-be citizen-
an agency with written notice
60
days
before
filing
of
suit.
any
Id.
1540 (g) (2) (A) .
B.
Factual Background 2
1.
Cyantraniliprole Registration
The present controversy follows EPA's decision to permit the
use of the chemical compound cyantraniliprole ("CTP") as an active
2
Since the Motions at issue contend
matter jurisdiction, the Court may
determine whether it has subject
Stevens Pharm., Inc. v. Food & Drug
-6-
that this Court lacks subject
look beyond the pleadings to
matter jurisdiction. Jerome
Admin., 402 F.3d 1249, 1253-
~~~~~~~~~~~~~~~~~~~~=--~~~-
ingredient in pesticides. On February 29, 2012, EPA announced in
the Federal Register that it had received applications to register
pesticide products containing CTP pursuant to FIFRA. 77 Fed. Reg.
12295-97. Since no previously registered pesticides had included
CTP as an active ingredient,
applications
comment,
until
March
EPA created a
EPA invited public comment on the
30,
2012.
Id.
To
public online docket
facilitate
for CTP.
public
See EPA,
Cyantraniliprole -
Initial Registration, proposed uses on crops,
turf,
buildings,
ornamentals,
visited
on
Docket EPA-HQ-OPP-2011-0668
March
25,
(last
2015)
f
http://www.regulations.gov/#!docketDetail;D=EPA-HQ-OPP-20110668.
On May 23, 2012, EPA published a Notice of Filing of pesticide
petitions to establish tolerances for CTP in the Federal Register
with another opportunity to comment on or before June 22, 2012. 77
Fed.
Reg.
30481-85;
"Notice
of
Filing:
Cyantraniliprole,
Many
Crops, from DuPont," AR at 13-16.
On June 6, 2013, EPA placed on the public docket its proposal
to register CTP as a new active ingredient and again invited public
54 (D.C. Cir. 2005). Because this case involves a challenge to an
administrative action, there is a significant administrative
record in addition to the pleadings. Accordingly, the facts that
follow are drawn both from Plaintiffs' Complaint [Dkt. No. 1] and
the parties' Joint Appendix, which contains excerpts from the
Administrative Record [Dkt. Nos. 46 & 47].
-7-
comment. See "Public Participation for Cyantraniliprole as a New
Active Ingredient,
Insecticide Formulated as a Technical Product
and Fourteen End Use Products," AR at 1 7-19; "Proposed Registration
of the New Active Ingredient Cyantraniliprole," AR at 888-901.
Following a
one-week deadline extension,
until July 14, 2013.
EPA accepted comments
See "Extension of Public Comment Period to
July 14, 2013," AR at 906.
In total, EPA received twenty-three comments before the July
14, 2013 deadline. See Compl.
~
to Public Comments on EPA' s
'Proposed Registration of the New
Active
38; "Cyantraniliprole - Response
Ingredient Cyantraniliprole
, "'
AR at
1996-2041;
"Registration of the New Active Ingredient Cyantraniliprole," AR
at 1978-95, 1990.
EPA responded to each of the comments it received before the
deadline,
and
on
January
24,
2014,
the
agency
approved
the
registration of CTP and fourteen end-use products containing the
compound.
orders
AR at
1978-1995.
EPA
specifically registering
subsequently
the
active
issued
individual
ingredient
CTP
and
fourteen end-use products and approving the labels for each. Compl.
~
39. All of EPA's orders relating to the registration of CTP and
fourteen end-use products are collectively referred to herein as
the "CTP Registration Order" or "CTP Registration."
-8-
On March 21,
2014,
Plaintiffs provided EPA with notice of
their belief that the agency had violated Section 7 of the ESA by
failing to consult with the FWS and the NMFS before registering
~
CTP. Compl.
2.
10.
Procedural History
On March 22,
2014,
Plaintiffs filed a
with our Court of Appeals,
Petition for Review
challenging EPA's alleged failure to
consult with FWS and NMFS. Petition, Ctr. for Biological Diversity,
et al. v. U.S. EPA, 14-1036 (D.C. Cir.)
[Dkt. No. 31-2]. Plaintiffs
submitted their Petition "pursuant to
§
§
136n (b)]
I
II
16(b) of FIFRA [7 U.S.C.
which provides for review of "any [FIFRA] order issued
by the [EPA] Administrator following a public hearing" in the Court
of
Appeals.
Id.
~
3.
However,
the
Petition makes
clear
that
Plaintiffs filed in the Court of Appeals only to preserve their
claim in light of FIFRA's 60-day statute of limitations. Petition
at ~ 4.
On April 28, 2014,
Plaintiffs asked our Court of Appeals to
stay consideration of their Petition to allow litigation before
this Court to proceed. Pet' rs' Mot. to Stay at 3 [Dkt. No. 31-3].
On June 13,
the Court of Appeals granted Plaintiffs'
Motion to
Stay.
On June 3, 2014, Plaintiffs filed their Complaint before this
Court, alleging that EPA violated the ESA, 16 U.S.C.
-9-
§
1536(a) (2),
and the APA, 5 U.S.C.
§§
701-706, by registering CTP and fourteen
end-use products without consulting FWS and NMFS.
Compl.
~~
44-
49. The Complaint asks this Court to declare EPA in violation of
ESA
§
7 (a) (2)
and
to
"[e] njoin,
vacate,
and
set
aside
EPA' s
authorization of any use of CTP that does·not include protections
necessary to avoid harm to listed species, until such time as EPA
has put in place adequate permanent measures that ensure against
jeopardy
to
listed
critical habitat [.]
11
species
or
adverse
modification
of
their
Id. p. 22. The Complaint asserts three grounds
for this Court's subject matter jurisdiction: the federal question
statute, 28 U.S.C.
§
§
1331; ESA's citizen-suit provision, 16 U.S.C.
1540 (g) (1); and in the alternative, FIFRA, 7 U.S.C.
§
136n(a).
Id. ~~ 9-10.
On September 19,
2014,
the Government filed its Motion to
Dismiss for Lack of Jurisdiction. On October 15, 2014, IntervenorDefendants filed their Motion for Judgment on the Pleadings. 3 On
November 17, 2014, Plaintiffs filed their combined Opposition. On
December 10, 2014, the Government and Intervenor-Defendants filed
their Replies.
Under Fed. R. Civ. P. 24(c), parties seeking to intervene must
answer the complaint with "the claim or defense for which
intervention is sought. 11 Thus, a motion under Fed. R. Ci v. P. 12 (b)
was unavailable to Intervenors. See Yates v. Dist. Of Columbia,
324 F.3d 724, 725 (D.C. Cir. 2003).
-103
II.
STANDARD OF REVIEW
As courts of
limited jurisdiction,
federal
courts possess
only those powers specifically granted to them directly in the
U.S. Constitution or by Congress. Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). Hence, under Fed. R. Civ. P.
12(b) (1), Plaintiffs bear the burden of showing by a preponderance
of the evidence that this Court has subject matter jurisdiction.
Carney Hosp. Transitional Care Unit v. Leavitt,
93, 95 (D.D.C. 2008)
549 F. Supp. 2d
(citing McNutt v. Gen. Motors Acceptance Corp.
of Ind., 298 U.S. 178, 189 (1936)). In deciding whether to grant
a
motion to dismiss
for
lack of
jurisdiction,
"accept all of the factual allegations in
true [.]"
Admin.,
Jerome
Stevens
402 F.3d 1249,
Pharmaceuticals,
1253-54
(D.C.
States v. Gaubert, 499 U.S. 315, 327
the
[the]
Inc.
Cir.
(1991))
[C] omplaint as
v.
2005)
Court must
Food
&
Drug
(citing United
(internal quotation
marks omitted). However, the Court may look beyond the Complaint's
factual
allegations to determine whether it has subject matter
jurisdiction. Id.
III. ANALYSIS
The only question presently before the Court is whether it
has
subject matter jurisdiction to hear Plaintiffs'
Section 16 (b)
of FIFRA,
codified at
7 U.S. C.
§
challenge.
136n (b) ,
vests
"exclusive jurisdiction" in the United States Courts of Appeals to
-11-
hear challenges
issued
"to the validity" of FIFRA registration orders
"following
a
public
The
hearing."
Government
and
Intervenor-Defendants contend that, although Plaintiffs' Complaint
exclusively
alleges
ESA
violations,
it
also
challenges
the
validity of EPA's Registration of CTP under FIFRA. Thus, according
to the Government and Intervenor-Defendants, this case falls under
FIFRA's grant of exclusive jurisdiction to the Courts of Appeals.
Plaintiffs argue that their action is governed by the ESA's
citizen-suit provision,
subject
matter
16 U.S. C.
jurisdiction
1540 (g) ( 1) (A) , which places
§
in
the
District
Courts.
In
the
alternative, Plaintiffs contend that EPA's Registration of CTP did
not
"follow[]
a public hearing"
and is therefore outside of
§
136n(b) 's exclusive grant of jurisdiction to the Courts of Appeals.
A.
FIFRA's Grant of Jurisdiction Governs Plaintiff's
Action.
Plaintiffs' Complaint discusses at length the environmental
effects of CTP and criticizes aspects of the CTP Registration
Order,
including,
among
other
imposed by EPA. See e.g. , Compl.
things,
~
1
the
label
restrictions
("EPA' s failure to consult
. allows this pesticide to harm listed species."); id.
(alleging
that
EPA
conducted
insufficient
~ 36
"species-specific
analysis" and failed to include appropriate use restrictions for
mixtures of CTP and another insecticide called thiamethoxam); id.
-12-
~
41 (alleging inadequacy of use restrictions placed on pesticide
labels under CTP Registration Order) . As relief,
asks
this
Court
to
"[e]njoin,
vacate,
authorization of any use of CTP."
Complaint
describes
how
CTP's
Compl.
and
p.
Registration
the Complaint
set
22.
aside
EPA's
In short,
will
the
result
in
"unreasonable adverse effects on the environment [,]" 7 U.S. C.
§
136a(a), and asks the Court to overturn the agency's Order.
On its face,
Plaintiffs' Complaint gives rise to an "actual
controversy as to the validity" of the FIFRA Registration Order
and is therefore governed by that Act's jurisdictional grant.
U.S.C.
§ 136n(b); see also Humane Soc'y of U.S. v.
E.P.A.,
7
790
F.2d 106, 110 (D.C. Cir. 1986).
Plaintiffs
attempt
to
escape
FIFRA's
review
procedure
codified at 7 U.S.C. §136n, arguing that "[t]his case presents a
single claim:
that EPA violated its procedural duty to
consult under Section 7(a) (2) before finalizing the Registration
of CTP.
[Plaintiffs have]
other statute." Pls. '
brought no claims under FIFRA or any
Opp' n at 10.
Hence,
in Plaintiffs'
view,
this Court has subject matter jurisdiction under the ESA' s citizensuit provision, 16 U.S.C. § 1540 (g) (1) (A).
However,
[exists] ,
"[i] f
a special statutory review procedure
it is ordinarily supposed that Congress intended that
procedure to be the exclusive means of obtaining judicial review
-13-
in those cases to which it applies." Media Access Project v. FCC,
883 F.2d. 1063, 1067 (D.C. Cir. 1989). For that reason, P+aintiffs
"may not escape an exclusive avenue of
artful pleading."
Carrier Ass'n,
Sandwich Isels Commc'nc,
799 F.
Bird Conservancy v.
(internal
only
Supp.
FCC,
EPA,
challenge
Plaintiffs'
2d 44,
545
quotation marks
Diversity v.
the
EPA' s
are
(internal
v.
Nat'l Exch.
2011)
1194
(citing Am.
(9th Cir.
accord Ctr.
at *18
failure
Inc.
(D.D.C.
F.3d 1190,
2013 WL 1729573,
which
framework."
51
omitted);
'core objections'
themselves,
judicial review through
to
for
2008))
Biological
("Although Plaintiffs
consult
under
ESA
§
7,
are to the pesticide registrations
governed
under
FIFRA's
citation
omitted));
administrative
City
of
Tacoma,
Washington v. Nat'l Marine Fisheries Serv., 383 F. Supp. 2d 89, 93
(D.D.C.
2005)
("Styling its complaint as an independent action
against the NMFS does not enable the City of Tacoma to evade the
clear jurisdictional provision of the [Federal Power Act.]").
Specifically with respect
to
FIFRA registration,
the D.C.
Circuit has held that plaintiffs must bring all challenges to an
Order's validity before the Courts of Appeals, even when a separate
statutory
Envtl.
780,
scheme
Def.
783
Fund,
(D.C.
grants
jurisdiction
Inc. v.
Cir.
1973).
Envtl.
to
the
Prat. Agency
In EDF,
the D.C.
District
("EDF"),
Courts.
485 F.2d
Circuit considered
whether a challenge to a FIFRA registration order, which alleged
-14-
violations of the National Environmental Policy Act
U.S. C.
§
4321 et seq.,
could proceed in a U.S.
("NEPA"), 42
District Court
parallel to litigation before the Court of Appeals.
Id.
at 783.
Ordering the parties to seek dismissal of their District Court
suit, the Court said, "[w]hen the Congress required that [C]ourts
of
[A] ppeals exercise exclusive
review a FIFRA order,
jurisdiction over petitions to
it was to insure speedy resolution of the
validity of EPA determinations." Id. (internal citations omitted).
When further factual development is unnecessary, litigation before
a District Court would cause needless delay. Id.
The logic of EDF applies beyond the two statutory schemes the
Court considered in that case. In City of 'Tacoma, 383 F. Supp. 2d
at 92,
the District Court held that an ESA claim challenging an
order by the Federal Energy Regulatory Commission was subject to
the exclusive jurisdiction of the Court of Appeals. Although ESA's
text grants subject matter jurisdiction to the District Courts,
"[i] t
is well-established that when two jurisdictional statutes
provide different avenues for judicial review,
more
specific legislation."
Conservancy,
Id.
at
545 F.3d at 1193-94,
92.
courts apply the
Similarly,
in Am.
Bird
the Court of Appeals for the
Ninth Circuit held that plaintiffs could not avoid the Hobbs Act's
exclusive grant of jurisdiction to the Courts of Appeals to review
certain FCC orders by limiting their pleadings to ESA claims.
-15-
In a well-reasoned and thorough opinion, a magistrate judge
in
the
Northern District
question presented here,
of
California
addressed
exactly
the
finding that EPA' s alleged "failure to
consult [is] inextricably intertwined with agency actions governed
by
a
regulatory
framework."
Ctr.
for
Biological
Diversity v.
E.P.A., 2013 WL 1729573, at *21 (N.D. Cal. Apr. 22, 2013)
Am.
Bird Conservancy,
(citing
545 F.3d at 1193.). Relying on the Ninth
Circuit's ample FIFRA and ESA precedent, the Court held that the
plaintiff's ESA claim was, in fact,
subsumed by FIFRA's grant of
exclusive jurisdiction to the Courts of Appeals. Id. at *14; see
also Council for Endangered Species Act Reliability v. Jackson,
2011
WL
5882192,
at
*5-6
(D.
Ariz.
Nov.
23,
2011)
(similar
reasoning and same result) . Plaintiffs have failed to show how the
facts of this case or the law of this circuit compel a different
outcome.
Instead,
exclusive
Plaintiffs
jurisdictional
contend
grant
that
would
application
create
an
of
FIFRA's
irreconcilable
conflict between FIFRA's 60-day statute of limitations and ESA's
60-day
notice
requirement.
However,
such
a
conflict
"is
an
illusion[.]" Am. Bird Conservancy, 545 F.3d at 1195 (holding that
ESA's
citizen-suit
notice
provision
did
not
conflict
Communications Act's 60-day statute of limitations).
-16-
with
In order
to
protect
Plaintiffs'
procedural
position,
the
Government concedes that if Plaintiffs do not rely on the ESA's
citizen-suit provision for subject matter jurisdiction, they need
not provide the Government with ESA notice before filing suit.
Gov't's Reply at 3. Where parties rely on another statutory grant
to provide subject matter jurisdiction,
provision,
7 U.S. C.
§
13 6n (b) ,
ESA' s
such as FIFRA' s
review
notice requirement simply
does not apply. Cf. Washington v. Daley, 173 F.3d 1158, 1170 n.16
(9th Cir. 1999)
("Because [plaintiff's] claims were brought under
the Magnuson Act, the Endangered Species Act's notice requirement
need not be met.").
For
these
reasons,
jurisdictional provision,
the
Court
7 U.S. C.
§
holds
13 6n,
that
FIFRA's
governs Plaintiffs'
claim.
B.
EPA's Registration Order Followed a "Public Hearing."
Plaintiffs
statute governs
contend
that
this dispute,
even
if
FIFRA's
jurisdictional
EPA failed to conduct a
"public
hearing" before issuing the CTP Registration Order, and therefore,
7 U.S.C.
§
136n(a)
does provide this Court with subject matter
jurisdiction. Section 136n divides subject matter jurisdiction to
hear FIFRA challenges between the District Courts and the Courts
of Appeals. Judicial review of EPA's "refusal .
. to cancel or
suspend a registration or to change a classification not following
-17-
a
hearing and other final
discretion of the
Id.
§
136n(a)
actions
not committed to the
[agency]" is allocated to the District Courts.
(emphasis added). Whereas, a "controversy as to the
validity of any order issued by [EPA] following a public hearing"
must be brought before one of the Courts of Appeals. Id.
§
136n(b)
(emphasis added) . Thus, whether Plaintiffs' challenge is properly
before this Court or the Court of Appeals depends on whether the
CTP Registration Order "follow[ed] a public hearing." Id.
Plaintiffs argue that "public hearing," as used in
§
136n,
calls for more than "mere notice and an opportunity for written
comment."
Pls.'
Opp' n at
25.
Relying primarily on Black's Law
Dictionary (9th Ed. 2009) and a dissenting opinion from the Ninth
Circuit Court of Appeals, United Farm Workers, 592 F.3d at 10841087
(Pregerson, J. dissenting),
Plaintiffs contend that "public
hearing" is properly read to require a "quasi-judicial proceeding
overseen by a hearing examiner[.]" Pls.' Opp'n at 23, 29.
However,
Plaintiffs'
position is
directly contradicted by
binding precedent, which holds that the adequacy of the record
not the formality of the proceedings -- governs the question of
whether there has been a "public hearing." E.g., Humane Soc'y, 790
F.2d
at
hearings"
111.
This
under
circuit's
FIFRA
is
seminal
Environmental
case
concerning
Defense
Fund,
"public
Inc.
v.
Castle, 631 F.2d 922, 926-32 (D.C. Cir. 1980). In Castle, our Court
-18-
of Appeals declined to take a
"public hearing"
"literal approach"
and concluded that because
to the words
"Congress designed
[the] review provisions with the jurisdictional touchstone of the
reviewable record in mind, the crucial inquiry is whether such a
record is available." Humane Soc'y, 790 F.2d at 110-11 (discussing,
construing,
and reaffirming Cost le,
631 F. 2d at
925)
(internal
quotation marks omitted) . Accordingly, despite "the lack of public
notice, the absence of public participation, and the lack of any
type of oral presentation by the parties[,]" the Costle Court held
that "[b] ecause the record before
judicial review,
order were a
[it]
[was] wholly adequate for
the proceedings[] antecedent to the [EPA] 's
'public hearing'
granting
[the Court of Appeals]
jurisdiction to review the challenged order." Castle, 631 F.2d at
927, 932.
Our Court of Appeals has repeatedly acknowledged Cost le' s
continuing vitality. E.g., Humane Soc'y,
Grain Sorghum Producers Ass'n,
(D.C.
Cir.
1996)
(holding
Inc. v.
that
790 F.2d at 111; Nat'l
E.P.A.,
agency
had
84 F.3d 1452,
satisfied
*3
"public
hearing" requirement despite lack of formal hearing because it had
created an "adequate record for review in a court of appeals") .
Moreover, relying in part on Costle, the Ninth Circuit has directly
addressed the issue Plaintiffs raise, holding that notice and the
opportunity to comment constitute a "public hearing" for purposes
-19-
of
§
136n(b).
United Farm Workers,
592
F.3d at 1083.
Finally,
another District Court in this Circuit has noted that "[c]ourts
have generally interpreted [§ 136n(b) 's jurisdictional grant]
include
[a] gency orders
following
public
notice
Jackson,
791 F.
Supp.
Defenders of Wildlife v.
(D.D.C. 2011)
and
to
comment."
2d 96,
102 n. 3
(citing Humane Soc'y, 790 F.2d at 112; United Farm
Workers, 592 F.3d at 1082-83) . 4
Before issuing the CTP Registration Order, EPA developed the
Administrative
Record by providing notice
public comment on several occasions.
and
opportunity
On February 29,
2012,
for
EPA
provided notice in the Federal Register that it had received CTP
registration
provided
the
Registration
applications.
public
at
that
with
77
the
initial
Fed.
Reg.
12295-97.
opportunity
phase,
opportunity to comment on March 23,
and
to
The
comment
provided
2012 and June 5,
Agency
on
the
additional
2013.
Id.;
Fed. Reg. 30481-85; AR 888-901.
4
Plaintiffs argue that other sections of FIFRA, not here at issue,
should guide this Court's analysis, noting that § 6(d) of FIFRA
sets forth elaborate requirements for a "public hearing, including
for notice, evidence, testimony, subpoenas,
. deadlines for
decisions, and the standard of review." Pls. Opp'n at 24 (citing
7 U.S.C. § 136d(d)). However, as Plaintiffs acknowledge elsewhere
in their brief, Pls.' Opp'n at 25, our Court of Appeals has
previously rejected the argument that "public hearing" as used in
§ 136n(b) includes the elaborate procedures described in FIFRA's
§ 6(d). Costle, 631 F.2d at 928.
-20-
This process resulted in an Administrative Record totaling
more
than
opportunities
Compl.
legal
~
113,000
pages.
Plaintiffs
responded
to be heard and provided significant
these
to
input.
See
38. The contents of the Record vary widely and include
arguments,
the
results
of
scientific
studies,
general
comments, and the registration applications themselves.
Nowhere
in
their
Opposition
do
Plaintiffs
particular inadequacy in the Record.
Instead,
that
comment
notice
and
the
opportunity
to
point
to
any
Plaintiffs argue
are
categorically
insufficient to produce an adequate record. As the discussion of
our Court of Appeals' precedent above makes plain, this argument
is without merit.
Finally, Plaintiffs contend that it makes no sense to treat
adequacy of the record as the jurisdictional lynchpin.
In their
view, that rule requires the Court to look into the administrative
record prematurely -- before establishing its power to hear the
case
and
forces
plaintiffs
especially problematic
limitations.
While
feature
to
guess
given
Plaintiffs'
where
FIFRA' s
concerns
are
to
brief
not
file
an
statute of
trivial,
this
Court does not write with a free hand, and must, of course, follow
controlling case law from the Court of Appeals.
reasons,
the Court
concludes that EPA held a
within the meaning of 7 U.S.C.
§
For all these
"public hearing"
136n(b) prior to issuing the CTP
-21-
Registration Order, and therefore, this Court lacks subject matter
jurisdiction to hear Plaintiffs' challenge.
IV.
CONCLUSION
For
the
foregoing
shall be granted,
reasons,
Defendant's
Intervenor-Defendants'
Motion to Dismiss
Motion for Judgment on
the Pleadings shall be denied as moot, and Plaintiff's Complaint
shall
be
dismissed.
An
Order
shall
accompany
this
Memorandum
Opinion.
May
Jif,
2 0 15
United States District Judge
Copies to: attorneys on record via ECF
-22-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?