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, )

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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!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-

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