Center for Biological Diversity v. United States Environmental Protection Agency ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Center for Biological
Diversity, Center for Food
Safety, and Defenders of
Wildlife,
Plaintiffs,
v.
United States Environmental Civil Action No. 14-942(GK)
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," "the Agency, " or "EPA") .
Intervenor-Defendants E.I. du Pont de Nemours and Company,
Syngenta Crop Protection LLC, and CropLife America ("Intervenor-
Defendants") 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, Replies, and the entire record herein, and for the
reasons stated below, Defendant's Motion to Dismiss shall be
granted, Intervenor-Defendants' Motion for Judgment on the
Pleadings shall be denied as moot, and Plaintiffs' Complaint shall
be dismissed.
I . BACKGROUND
A. Statutory Framework
1. Federal Insecticide, Fungicide, and Rodenticide Act
The Federal Insecticide, Fungicide, and Rodenticide Act
("FIFRA"), 7 U.S.C. § 136-136y, protects the environment from
"unreasonable adverse effects" arising from the use of pesticides,
Id. § 136a (a) . Under FIFRA, "no person . may distribute or
sell . . any pesticide that is not registered [with EPA]." Id.
EPA will "register" a pesticide if
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(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 pesticide containing "any new active
ingredient[,]" 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 within the meaning of the Administrative Procedure Act
("APA") 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.
Adm'r, E.P.A. I 592 F.3d 1080, 1082-83 (9th Cir. 2010).
Manufacturers may only distribute registered pesticides in a
manner consistent with the registration order's packaging,
labeling, and composition requirements. 7 U.S.C. § 136j; 69 Fed.
Reg. 47732, 47733 (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
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[EPA] to cancel or suspend a registration or to change a
classification not following a hearing and other final actions
. . . not committed to the discretion of [EPA] by law are judicially
reviewable by the [D] istrict [C] ourts of the United States." 7
U.S.C. § 136n(a) (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. "Upon the
filing of such petition the [C] ourt [of Appeals] shall have
exclusive jurisdiction to set aside the order complained of in
whole or in part." Id.
2. Endangered Species Act
The Supreme Court has called the Endangered Species Act
("ESA") "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. 16 U.S.C. § 1531(b). Section
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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 16 u .s .c . § 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) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 603 (1992) (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
1 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).
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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 § 1540 (g) . However, would-be citizen-
plaintiffs must provide an agency with written notice of any
alleged ESA violation 60 days before filing suit. 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 that this Court lacks subject
matter jurisdiction, the Court may look beyond the pleadings to
determine whether it has subject matter jurisdiction. Jerome
Stevens Pharm., Inc. v. Food & Drug
````````````````````=--``~-
Admin., 402 F.3d 1249, 1253-
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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 invited public comment on the
applications until March 30, 2012. Id. To facilitate public
comment, EPA created a public online docket for CTP. See EPA,
Cyantraniliprole - Initial Registration, proposed uses on crops,
turf, ornamentals, buildings, Docket EPA-HQ-OPP-2011-0668 (last
visited on March 25, 2015) f
http://www.regulations.gov/#!docketDetail;D=EPA-HQ-OPP-2011-
0668.
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].
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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, EPA accepted comments
until July 14, 2013. 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. ~ 38; "Cyantraniliprole - Response
to Public Comments on EPA' s 'Proposed Registration of the New
Active 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. AR at 1978-1995. EPA subsequently issued individual
orders specifically registering the active 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."
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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. ~ 10.
2. Procedural History
On March 22, 2014, Plaintiffs filed a Petition for Review
with our Court of Appeals, 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.
§ 136n (b)] I II 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. § 1536(a) (2),
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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 species or adverse modification of their
critical habitat [.] 11
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, Intervenor-
Defendants 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.
3 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).
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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, 549 F. Supp. 2d
93, 95 (D.D.C. 2008) (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, the Court must
"accept all of the factual allegations in [the] [C] omplaint as
true [.]" Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug
Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005) (citing United
States v. Gaubert, 499 U.S. 315, 327 (1991)) (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' challenge.
Section 16 (b) of FIFRA, codified at 7 U.S. C. § 136n (b) , vests
"exclusive jurisdiction" in the United States Courts of Appeals to
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hear challenges "to the validity" of FIFRA registration orders
issued "following a public hearing." The 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, 16 U.S. C. § 1540 (g) ( 1) (A) , which places
subject matter jurisdiction 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 things, the label restrictions
imposed by EPA. See e.g. , Compl. ~ 1 ("EPA' s failure to consult
. allows this pesticide to harm listed species."); id. ~ 36
(alleging that EPA conducted insufficient "species-specific
analysis" and failed to include appropriate use restrictions for
mixtures of CTP and another insecticide called thiamethoxam); id.
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~ 41 (alleging inadequacy of use restrictions placed on pesticide
labels under CTP Registration Order) . As relief, the Complaint
asks this Court to "[e]njoin, vacate, and set aside EPA's
authorization of any use of CTP." Compl. p. 22. In short, the
Complaint describes how CTP's Registration will 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. 7
U.S.C. § 136n(b); see also Humane Soc'y of U.S. v. E.P.A., 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] brought no claims under FIFRA or any
other statute." Pls. ' Opp' n at 10. Hence, in Plaintiffs' view,
this Court has subject matter jurisdiction under the ESA' s citizen-
suit provision, 16 U.S.C. § 1540 (g) (1) (A).
However, "[i] f a special statutory review procedure
[exists] , it is ordinarily supposed that Congress intended that
procedure to be the exclusive means of obtaining judicial review
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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 judicial review through
artful pleading." Sandwich Isels Commc'nc, Inc. v. Nat'l Exch.
Carrier Ass'n, 799 F. Supp. 2d 44, 51 (D.D.C. 2011) (citing Am.
Bird Conservancy v. FCC, 545 F.3d 1190, 1194 (9th Cir. 2008))
(internal quotation marks omitted); accord Ctr. for Biological
Diversity v. EPA, 2013 WL 1729573, at *18 ("Although Plaintiffs
only challenge the EPA' s failure to consult under ESA § 7,
Plaintiffs' 'core objections' are to the pesticide registrations
themselves, which are governed under FIFRA's administrative
framework." (internal citation omitted)); 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 scheme grants jurisdiction to the District Courts.
Envtl. Def. Fund, Inc. v. Envtl. Prat. Agency ("EDF"), 485 F.2d
780, 783 (D.C. Cir. 1973). In EDF, the D.C. Circuit considered
whether a challenge to a FIFRA registration order, which alleged
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violations of the National Environmental Policy Act ("NEPA"), 42
U.S. C. § 4321 et seq., could proceed in a U.S. 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 jurisdiction over petitions to
review a FIFRA order, 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, courts apply the
more specific legislation." Id. at 92. Similarly, in Am. Bird
Conservancy, 545 F.3d at 1193-94, 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.
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In a well-reasoned and thorough opinion, a magistrate judge
in the Northern District of California addressed exactly the
question presented here, 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) (citing
Am. Bird Conservancy, 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, Plaintiffs contend that application of FIFRA's
exclusive jurisdictional grant would create an 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 with
Communications Act's 60-day statute of limitations).
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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, such as FIFRA' s review
provision, 7 U.S. C. § 13 6n (b) , ESA' 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.").
For these reasons, the Court holds that FIFRA's
jurisdictional provision, 7 U.S. C. § 13 6n, governs Plaintiffs'
claim.
B. EPA's Registration Order Followed a "Public Hearing."
Plaintiffs contend that even if FIFRA's jurisdictional
statute governs this dispute, 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
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a hearing and other final actions not committed to the
discretion of the [agency]" is allocated to the District Courts.
Id. § 136n(a) (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 1084-
1087 (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 111. This circuit's seminal case concerning "public
hearings" under FIFRA is Environmental Defense Fund, Inc. v.
Castle, 631 F.2d 922, 926-32 (D.C. Cir. 1980). In Castle, our Court
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of Appeals declined to take a "literal approach" to the words
"public hearing" and concluded that because "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 [it] [was] wholly adequate for
judicial review, the proceedings[] antecedent to the [EPA] 's
order were a '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, 790 F.2d at 111; Nat'l
Grain Sorghum Producers Ass'n, Inc. v. E.P.A., 84 F.3d 1452, *3
(D.C. Cir. 1996) (holding that agency had satisfied "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
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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] to
include [a] gency orders following public notice and comment."
Defenders of Wildlife v. Jackson, 791 F. Supp. 2d 96, 102 n. 3
(D.D.C. 2011) (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 and opportunity for
public comment on several occasions. On February 29, 2012, EPA
provided notice in the Federal Register that it had received CTP
registration applications. 77 Fed. Reg. 12295-97. The Agency
provided the public with the opportunity to comment on the
Registration at that initial phase, and provided additional
opportunity to comment on March 23, 2012 and June 5, 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.
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This process resulted in an Administrative Record totaling
more than 113,000 pages. Plaintiffs responded to these
opportunities to be heard and provided significant input. See
Compl. ~ 38. The contents of the Record vary widely and include
legal arguments, the results of scientific studies, general
comments, and the registration applications themselves.
Nowhere in their Opposition do Plaintiffs point to any
particular inadequacy in the Record. Instead, Plaintiffs argue
that notice and the opportunity to comment 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 to guess where to file an
especially problematic feature given FIFRA' s brief statute of
limitations. While Plaintiffs' concerns are not trivial, this
Court does not write with a free hand, and must, of course, follow
controlling case law from the Court of Appeals. For all these
reasons, the Court concludes that EPA held a "public hearing"
within the meaning of 7 U.S.C. § 136n(b) prior to issuing the CTP
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Registration Order, and therefore, this Court lacks subject matter
jurisdiction to hear Plaintiffs' challenge.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion to Dismiss
shall be granted, Intervenor-Defendants' 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
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