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Feb
09

Court Rejects Most of NGOs’ ESA Pesticides Claims

The United States Court of Appeals rejected most of the environmentalist NGOs’ claims in the case Center for Biological Diversity v. EPA. The court provided the following summary of its lengthy decision (footnotes omitted”):

“The panel affirmed in part, and reversed in part, the district court’s dismissal of plaintiffs’ claims arising from their citizen suit alleging that the U.S. Environmental Protection Agency violated the Endangered Species Act (“ESA”) when it registered certain pesticide active ingredients and pesticide products without undertaking consultation with the National Marine Fisheries Service and the United States Fish and Wildlife Service (collectively “the Service”).

The ESA requires federal agencies to consult with the Service to ensure that their discretionary actions do not jeopardize endangered and threatened species, or adversely modify a listed species’ critical habitat. The Federal Insecticide, Fungicide and Rodenticide Act charges the EPA with the obligation to register and reregister pesticide active ingredients and pesticide products.

Plaintiffs framed thirty-one failure-to-consult claims for relief with each claim centering on one pesticide active ingredient. With each pesticide active ingredient, plaintiffs identified four categories of agency actions which allegedly triggered the EPA’s duty to consult under Section 7(a)(2) of the ESA, and these comprised the sub-claims.

Concerning plaintiffs’ category one sub-claims, which identified the EPA’s issuance of the Reregistration Eligibility Decisions as an agency action, the panel held that all category one sub-claims were properly dismissed by the district court as either time-barred or jurisdictionally barred. Specifically, the panel held that where, as here, the plaintiffs alleged that an agency failed to comply with the ESA’s procedural requirements, the general six-year statute of limitations period, set forth in 28 U.S.C. § 2401(a), applied. The panel also held that an ESA Section 7 claim raised after the EPA undertook public notice and comment must comply with the jurisdictional provisions of the Federal Insecticide, Fungicide and Rodenticide Act, and a plaintiff must file a petition for review in the court of appeals within 60 days of the entry of the contested final order.

Concerning plaintiffs’ category two sub-claims, which alleged that the EPA’s continued discretionary control of the pesticide’s registration constituted agency action, the panel affirmed the district court’s dismissal of all category two subclaims because they failed to identify an affirmative agency action that would trigger a Section 7 consultation.
Concerning plaintiffs’ category three sub-claims, which alleged that the EPA’s completion of pesticide reregistration for a specific pesticide active ingredient was an agency action, the panel held that the completion of the reregistration was simply a fact, and therefore it could not trigger Section 7 consultation. The panel affirmed the dismissal of category three sub-claims.

Concerning plaintiffs’ category four sub-claims, which alleged that the EPA’s approval of individual pesticide products was an agency action, the panel reversed the district court’s dismissal of all category four sub-claims. The panel agreed with the district court that pesticide product reregistration was an affirmative agency action, but disagreed that those claims were barred by the collateral attack doctrine. The panel remanded for further proceedings.

Judge Bea dissented in part. Judge Bea agreed with most of the majority opinion, but dissented from the conclusion that the category four sub-claims were not a collateral attack on the EPA’s prior approval of the pesticides in those products. Judge Bea would affirm the district court’s dismissal of the category four sub-claims.”

Click here to read the court’s entire decision.

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