CENTER FOR BIOLOGICAL DIVERSITY et al v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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
Civil Action No. 14-942(GK)
United States Environmental
E.I. du Pont de Nemours and
Company, Syngenta Crop
Protection LLC, and CropLife
Plaintiffs Center for Biological Diversity, Center for Food
Safety, and Defenders of Wildlife ("Plaintiffs") bring this action
against Defendant United States Environmental Protection Agency
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
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,
the Government and Intervenor-Defendants both filed their
[Dkt. Nos. 44 & 45]. Upon consideration of the Motions,
and the entire record herein,
and for the
Pleadings shall be denied as moot, and Plaintiffs' Complaint shall
1. Federal Insecticide,
Fungicide, and Rodenticide Act
"unreasonable adverse effects" arising from the use of pesticides,
136a (a) . Under FIFRA,
"no person .
may distribute or
. any pesticide that is not registered [with EPA]." Id.
EPA will "register" a pesticide if
(A) its composition is such as to warrant the proposed claims
(B) its labeling and other material required to be submitted
comply with the requirements of this subchapter;
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
"any new active
EPA must provide the public with notice and the
opportunity to comment on "each application for registration [.]"
136a(c) (4). EPA's registration of a pesticide constitutes an
and FIFRA. See Env't Def. Fund,
Inc. v. Costle, 631 F.2d
922, 926 (D.C. Cir. 1980); United Farm Workers of Am., AFL-CIO v.
labeling, and composition requirements.
Reg. 47732, 47733
136j; 69 Fed.
(Aug. 5, 2004).
FIFRA divides judicial review between the District Courts and
the Courts of Appeals.
The appropriate forum depends,
upon whether EPA conducted a "public hearing" before issuing the
relevant order. 7 U.S.C.
136n(a)&(b). Generally, "the refusal of
hearing and other final
. . . not committed to the discretion of [EPA] by law are judicially
reviewable by the
[C] ourts of the United States."
"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
[C] ourt of
[A] ppeals." Id. at
(emphasis added) .
A petition for review before the Court of Appeals must be filed
"within 60 days after the entry of such order [.]" Id.
exclusive jurisdiction to set aside the order complained of in
whole or in part." Id.
2. 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.
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
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 .
15 3 6 (a) ( 2 ) ;
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
its effects on listed species.'"
Wildlife v. Jackson, 791 F. Supp. 2d 96, 100 (D.D.C. 2011)
Lujan v. Defenders of Wildlife, 504 U.S. 555, 603 (1992)
J. , dissenting) .
determine -- with FWS or NMFS's written concurrence -- that the
proposed action is
"not likely to adversely affect"
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).
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
1536 (a) (2).
ESA's broad citizen-suit provision empowers "any person" to
suit on his
violations of the Act's provisions, including an agency's failure
1540 (g) (1) (A),
1536 (a) (2).
States District Courts have subject matter jurisdiction to hear
challenges brought under
1540 (g) .
an agency with written notice
1540 (g) (2) (A) .
Factual Background 2
The present controversy follows EPA's decision to permit the
use of the chemical compound cyantraniliprole ("CTP") as an active
Since the Motions at issue contend
matter jurisdiction, the Court may
determine whether it has subject
Stevens Pharm., Inc. v. Food & Drug
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,
EPA created a
EPA invited public comment on the
public online docket
Initial Registration, proposed uses on crops,
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
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].
comment. See "Public Participation for Cyantraniliprole as a New
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.
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
38; "Cyantraniliprole - Response
"Registration of the New Active Ingredient Cyantraniliprole," AR
at 1978-95, 1990.
EPA responded to each of the comments it received before the
registration of CTP and fourteen end-use products containing the
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."
On March 21,
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
On March 22,
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
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
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'
On June 3, 2014, Plaintiffs filed their Complaint before this
Court, alleging that EPA violated the ESA, 16 U.S.C.
and the APA, 5 U.S.C.
701-706, by registering CTP and fourteen
end-use products without consulting FWS and NMFS.
49. The Complaint asks this Court to declare EPA in violation of
7 (a) (2)
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
critical habitat [.]
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.
Id. ~~ 9-10.
On September 19,
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
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).
STANDARD OF REVIEW
As courts of
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
motion to dismiss
"accept all of the factual allegations in
402 F.3d 1249,
States v. Gaubert, 499 U.S. 315, 327
[C] omplaint as
marks omitted). However, the Court may look beyond the Complaint's
allegations to determine whether it has subject matter
The only question presently before the Court is whether it
subject matter jurisdiction to hear Plaintiffs'
Section 16 (b)
7 U.S. C.
136n (b) ,
"exclusive jurisdiction" in the United States Courts of Appeals to
"to the validity" of FIFRA registration orders
Intervenor-Defendants contend that, although Plaintiffs' Complaint
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
16 U.S. C.
1540 (g) ( 1) (A) , which places
alternative, Plaintiffs contend that EPA's Registration of CTP did
a public hearing"
and is therefore outside of
136n(b) 's exclusive grant of jurisdiction to the Courts of Appeals.
FIFRA's Grant of Jurisdiction Governs Plaintiff's
Plaintiffs' Complaint discusses at length the environmental
effects of CTP and criticizes aspects of the CTP Registration
imposed by EPA. See e.g. , Compl.
("EPA' s failure to consult
. allows this pesticide to harm listed species."); id.
analysis" and failed to include appropriate use restrictions for
mixtures of CTP and another insecticide called thiamethoxam); id.
41 (alleging inadequacy of use restrictions placed on pesticide
labels under CTP Registration Order) . As relief,
authorization of any use of CTP."
"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.
§ 136n(b); see also Humane Soc'y of U.S. v.
F.2d 106, 110 (D.C. Cir. 1986).
codified at 7 U.S.C. §136n, arguing that "[t]his case presents a
that EPA violated its procedural duty to
consult under Section 7(a) (2) before finalizing the Registration
other statute." Pls. '
brought no claims under FIFRA or any
Opp' n at 10.
this Court has subject matter jurisdiction under the ESA' s citizensuit provision, 16 U.S.C. § 1540 (g) (1) (A).
a special statutory review procedure
it is ordinarily supposed that Congress intended that
procedure to be the exclusive means of obtaining judicial review
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
Sandwich Isels Commc'nc,
Bird Conservancy v.
2013 WL 1729573,
judicial review through
are to the pesticide registrations
Washington v. Nat'l Marine Fisheries Serv., 383 F. Supp. 2d 89, 93
("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
Circuit has held that plaintiffs must bring all challenges to an
Order's validity before the Courts of Appeals, even when a separate
whether a challenge to a FIFRA registration order, which alleged
violations of the National Environmental Policy Act
4321 et seq.,
could proceed in a U.S.
parallel to litigation before the Court of Appeals.
Ordering the parties to seek dismissal of their District Court
suit, the Court said, "[w]hen the Congress required that [C]ourts
[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
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,
is well-established that when two jurisdictional statutes
provide different avenues for judicial review,
545 F.3d at 1193-94,
courts apply the
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.
In a well-reasoned and thorough opinion, a magistrate judge
question presented here,
finding that EPA' s alleged "failure to
consult [is] inextricably intertwined with agency actions governed
E.P.A., 2013 WL 1729573, at *21 (N.D. Cal. Apr. 22, 2013)
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,
reasoning and same result) . Plaintiffs have failed to show how the
facts of this case or the law of this circuit compel a different
conflict between FIFRA's 60-day statute of limitations and ESA's
illusion[.]" Am. Bird Conservancy, 545 F.3d at 1195 (holding that
Communications Act's 60-day statute of limitations).
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,
7 U.S. C.
13 6n (b) ,
such as FIFRA' s
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.").
7 U.S. C.
EPA's Registration Order Followed a "Public Hearing."
EPA failed to conduct a
hearing" before issuing the CTP Registration Order, and therefore,
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
hearing and other final
discretion of the
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.
(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
calls for more than "mere notice and an opportunity for written
Opp' n at
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.
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
Castle, 631 F.2d 922, 926-32 (D.C. Cir. 1980). In Castle, our Court
of Appeals declined to take a
and concluded that because
to the words
[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,
and reaffirming Cost le,
631 F. 2d at
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
order were a
[was] wholly adequate for
the proceedings antecedent to the [EPA] 's
[the Court of Appeals]
jurisdiction to review the challenged order." Castle, 631 F.2d at
Our Court of Appeals has repeatedly acknowledged Cost le' s
continuing vitality. E.g., Humane Soc'y,
Grain Sorghum Producers Ass'n,
790 F.2d at 111; Nat'l
84 F.3d 1452,
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
United Farm Workers,
F.3d at 1083.
another District Court in this Circuit has noted that "[c]ourts
have generally interpreted [§ 136n(b) 's jurisdictional grant]
[a] gency orders
Defenders of Wildlife v.
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
Record by providing notice
public comment on several occasions.
On February 29,
provided notice in the Federal Register that it had received CTP
opportunity to comment on March 23,
2012 and June 5,
Fed. Reg. 30481-85; AR 888-901.
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.
This process resulted in an Administrative Record totaling
to be heard and provided significant
38. The contents of the Record vary widely and include
comments, and the registration applications themselves.
particular inadequacy in the Record.
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.
view, that rule requires the Court to look into the administrative
record prematurely -- before establishing its power to hear the
Court does not write with a free hand, and must, of course, follow
controlling case law from the Court of Appeals.
concludes that EPA held a
within the meaning of 7 U.S.C.
For all these
136n(b) prior to issuing the CTP
Registration Order, and therefore, this Court lacks subject matter
jurisdiction to hear Plaintiffs' challenge.
shall be granted,
Motion to Dismiss
Motion for Judgment on
the Pleadings shall be denied as moot, and Plaintiff's Complaint
2 0 15
United States District Judge
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