Center for Biological Diversity v. EPA, No. 14-16977 (9th Cir. 2017)
Annotate this CaseCBD filed suit alleging that EPA violated the Endangered Species Act (ESA), 16 U.S.C. 1531, when it reregistered certain pesticide active ingredients and pesticide products without undertaking consultation with the Service as required by section 1536(a)(2) of the ESA (Section 7). The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. 136(u), charges EPA with the obligation to register and reregister pesticide active ingredients and pesticide products. At issue are the 31 failure-to-consult Claims for Relief. In regard to the category one sub-claims, the court assumed, but did not hold, that EPA's issuance of a Reregistration Eligibility Decision (RED) is an agency action that triggers Section 7 consultation. The court need not decide whether the issuance of a RED is a triggering action because the court held that all category one sub-claims were properly dismissed by the district court as either time-barred or jurisdictionally barred. In regard to the category two sub-claims, the court concluded that these claims failed to identify an affirmative agency action that would trigger Section 7 consultation and affirmed the district court's dismissal of these claims. In regard to the category three sub-claims, the court agreed with the district court that the completion of pesticide product reregistration is simply a fact, and therefore it cannot trigger Section 7 consultation. Finally, in regard to the category four sub-claims, the court agreed with the district court that pesticide product reregistration is an affirmative agency action, but disagreed that those claims are barred by the collateral attack doctrine and require further amendments to the Second Amended Complaint. Accordingly, the court affirmed in part, reversed in part and remanded.
Court Description: Environmental Law. 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. 4 CTR. FOR BIOLOGICAL DIVERSITY V. EPA 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 sub- claims 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. CTR. FOR BIOLOGICAL DIVERSITY V. EPA 5 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.
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