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April 24, 2013

District Court Dismisses Complaint in Omnibus Case Alleging That EPA Failed to Consult under the Endangered Species Act for 382 Registered Pesticides

Bergeson & Campbell, P.C.

In a decision with enormous implications for pesticide registrants, on April 22, 2013, the U.S. District Court for the Northern District of California dismissed a complaint in Center for Biological Diversity, et al. v. EPA, a case often referred to as the “Mega-ESA” case. In this suit, the plaintiffs asserted that the U.S. Environmental Protection Agency (EPA) improperly failed to initiate or to reinitiate consultation under Endangered Species Act (ESA) Section 7(a)(2) for 382 separate registered pesticidal active ingredients. Rather than identifying any specific registration action by EPA concerning which there was a failure to consult, the plaintiffs based their complaint on the theory that EPA “retains discretionary control and involvement” over each of the identified pesticides and that such control constitutes ongoing administrative action requiring consultation under the ESA. The court decisively rejected this concept, holding that the plaintiffs “must allege a separate ESA claim corresponding to an affirmative act with respect to each of the 382 pesticides.”

In their complaint, the plaintiffs sought an order requiring EPA to initiate consultation for each of the 382 specified pesticides, as well as interim injunctive relief like that previously approved for other pesticides in a 2005 decision by the 9th Circuit Court of Appeals, Washington Toxics Coalition v. EPA. EPA and intervenors representing the affected pesticide registrants, including the trade association CropLife America, sought dismissal of the complaint on a variety of separate grounds, including the plaintiffs’ failure to identify specific EPA actions with respect to which there was an alleged failure to consult, the plaintiffs’ failure to allege facts that would support standing to challenge each such action, and lack of subject matter jurisdiction to seek review of any ESA claims for the 382 pesticides in District Court. The District Court agreed with EPA and the industry intervenors that the plaintiffs did not properly plead any specific cause of action under the ESA. Relying primarily on a 2012 decision by the 9th Circuit Court of Appeals, Karuk Tribe of California v. U.S. Forest Service, the court held that the plaintiffs must challenge specific registration actions concerning the identified pesticides, rather than relying on more amorphous assertions that EPA authority with respect to the pesticides constitutes “ongoing action.” The court also held that the plaintiffs must make specific allegations that would be sufficient to confer standing for each of the registration actions by EPA that they challenge.

Having found the complaint to be facially deficient, the court has afforded the plaintiffs an opportunity to refile a proper complaint. The court provided substantial additional guidance, however, concerning critical jurisdictional issues that will likely constrain the ability of the plaintiffs to refile successfully their complaint. The court found that jurisdiction concerning claims that EPA failed to consult under ESA Section 7(a)(2) with respect to specific registration actions resides in the same court where plaintiffs could seek review of those actions under Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Section 16. The court based this conclusion primarily on another 9th Circuit decision, American Bird Conservancy v. FCC, which held that jurisdiction over ESA claims concerning any administrative action that is subject to direct judicial review resides in the court where judicial review of that action can be obtained. The court found that “Plaintiffs ‘core objections’ are to the pesticide registrations themselves, which are governed under FIFRA’s administrative framework.” Thus, to refile their complaint successfully in District Court under this decision, the plaintiffs must not only allege that EPA has failed to consult with respect to one or more specific registration actions, but also that each action in question is subject to judicial review in District Court under FIFRA Section 16.

The court observed that judicial review of any pesticide registration action concerning which EPA provided prior notice in the Federal Register and an opportunity for public comment resides in the U.S. Courts of Appeal under FIFRA Section 16(b). In reaching this conclusion, the District Court relied primarily on a 2010 9th Circuit decision in United Farm Workers v. EPA. The court also addressed the sort of prior participation in the administrative process that would be sufficient to confer jurisdiction, noting that “it does appear that anyone who submits a comment to the EPA during the allotted time… may seek review of an adverse decision by the EPA in the court of appeals under FIFRA § 16(b).”


Although the District Court in this case has afforded the plaintiffs the ability to refile their ESA claims after identifying specific registration actions by EPA concerning which EPA failed to consult, under the decision, jurisdiction may not ultimately be available in any U.S. federal court with respect to plaintiffs’ allegations for most (if not all) of the 382 pesticides identified in the complaint. The issuance of a Reregistration Eligibility Decision (RED) and the subsequent administrative actions that effectuate the RED generally occur after publication of a notice in the Federal Register and an opportunity for public comment. Moreover, initial registration actions also may require notice and comment under FIFRA Section 3(c)(4) when the registration involves a new active ingredient or changed use pattern for an existing active ingredient. Thus, judicial review of most EPA actions concerning which the plaintiffs might assert a failure to consult under the ESA should be available only under FIFRA Section 16(b).

Even if it is presumed that one or more of the plaintiffs might have submitted an adverse comment during the administrative process preceding a specific registration action, and that there was at that time a substantive basis for claiming EPA should have consulted under ESA Section 7(a)(2) with respect to that action, FIFRA Section 16(b) establishes a 60-day period within which any judicial review must be sought. The Mega-ESA case has been pending for far longer than 60 days, and the plaintiffs did not submit any simultaneous prophylactic petition for review in the Court of Appeals with respect to any of the 382 identified pesticides. Thus, any claims under FIFRA Section 16(b) that may have existed at the time the Mega-ESA suit was filed should now be effectively time-barred.

It is possible that there is a registration action involving one or so of the 382 pesticides concerning which there was not a prior “public hearing” as that term was defined in United Farm Workers. Allegations of a failure to consult for that action could be susceptible to judicial review in District Court under FIFRA Section 16(a). In that event, the general six-year statute of limitations would apply for any such action, which could be brought only for affected products.

Looking forward, potential plaintiffs who intend to seek relief concerning an alleged failure to consult concerning a registered pesticide under ESA Section 7(a)(2) will need, under the decision, to participate in the notice and comment process preceding any registration action subject to review under FIFRA Section 16(b), and to seek timely judicial review of any alleged failure to consult within the 60-day statutory window. EPA will assess the need for consultation under ESA Section 7(a)(2) during the periodic registration review process established by FIFRA Section 3(g). In contrast to interim injunctive relief, any needed changes will be informed by a prior consultation process and adopted through the licensing process established by FIFRA. Plaintiffs who are otherwise time-barred could hypothetically file an administrative petition requesting new EPA action, and any denial of such a petition may provide a new opportunity for judicial review, but in practice the existence of this hypothetical remedy is unlikely to supplant the established registration processes under FIFRA.

The decision in the Mega-ESA case does not alter in any way the existing process for ESA consultations concerning pesticides, which is widely regarded to be in need of reform. The Fish and Wildlife Service and the National Marine Fisheries Service (the Services) are already overburdened by the number of consultations requested by EPA under the existing criteria and procedures, and this situation will only be exacerbated by revisions to the procedures for preparation of Biological Opinions that will be necessary in the wake of the recent decision by the 4th Circuit Court of Appeals in Dow Agrosciences v. National Marine Fisheries Service.

In addition, the long-awaited National Academy of Sciences report on various issues underlying endangered species assessments and EPA’s pesticide program is expected to be released very soon, perhaps as early as next week. This might also suggest changes to the current evaluations and coordination procedures between EPA and the Services.

Perhaps EPA and the Services will decide to reexamine the preliminary screening methodologies used by EPA and the process for initiation of consultation in an effort to focus available resources more closely on the most significant threats to endangered species. In the absence of administrative reform of the consultation process, it is probable that the pressure for legislative reform will continue to grow.