Ninth Circuit Clears EPA on Most Pesticide Claims

SAN FRANCISCO (CN) – The Ninth Circuit ruled Thursday that for the most part the U.S. Environmental Protection Agency properly reregistered pesticide ingredients and products, though it reversed and remanded some claims brought by environmentalists.

The Center for Biological Diversity and the Pesticide Action Network North America originally sued the EPA over 382 pesticide ingredients, saying it had failed to consult with the National Marine Fisheries Service and the Fish and Wildlife Service as required under Section 7 of the Endangered Species Act.

After multiple rounds of litigation, the groups submitted separate failure-to-consult claims focusing on particular pesticide ingredients, 31 of which were at issue in this appeal.

The claims stated that the EPA performed four categories of agency actions, involving either issuing, controlling, completing or approving ingredient reregistration, that should have required Section 7 consultation.

The district court dismissed with leave to amend all 31 claims, finding that some were time-barred, in others that the court lacked jurisdiction, or that the actions did not trigger Section 7 consultation or were barred as impermissible collateral attack.

U.S. Circuit Judge Richard Paez wrote the Thursday ruling for the three-judge panel. He found the district court correct in all its rulings save one: He said that claims related to the EPA reregistering pesticide products are not barred as collateral attack.

The panel referred to those claims as category four subclaims, and, like the district court, agreed that they are agency actions triggering Section 7 consultation.

“As noted, defendants argue, and the district court agreed, that the category four subclaims alleging the reregistration of pesticide products as independent triggering actions are simply collateral attacks on the issuance of the REDs [Reregistration Eligibility Decisions], which are time-barred or jurisdictionally barred,” Paez wrote.

However, “under the governing statute … a product reregistration incorporates data not available during the process for issuing a RED, and necessarily involves a determination distinct from those made during the RED process because a pesticide active ingredient and a pesticide product are not the same.”

In all other matters, though, the district court was right.

The issuance of REDs, regardless of whether they count as agency actions, are either outside of the six-year statute of limitations or more properly before the court of appeals.

The EPA’s continued control over the pesticides does not constitute an agency action, and the completion of the registration is simply a fact.

Circuit Judge Carlos Bea dissented on the collateral-attack doctrine, while agreeing on all other rulings.

“The district court realized that allowing [plaintiff] CBD to challenge every product approval simply because those products contain a particular pesticide would undermine the Federal Insecticide, Fungicide, and Rodenticide Act,” Bea wrote. “The category four subclaims fail to allege anything particular about the products approved that required the EPA to consult with the Service. Instead, the category four sub-claims attempt to relitigate the EPA’s prior approval of pesticides because the EPA later approved products that contain those pesticides.”

Stephanie Parent, senior attorney for the Center for Biological Diversity, argued the case. Neither she nor the Department of Justice’s Environment & Natural Resources Division could be reached for comment Thursday.

CropLife America, an intervenor in the case on behalf of the EPA, praised the panel’s ruling.

“We are pleased that the Ninth Circuit Court of Appeals has upheld the lower court’s ruling that this lawsuit was a challenge to pesticide registrations and should be treated as such by the courts,” CropLife America said in a statement. “Through the national pesticide regulatory statute, Congress recognized the needs of growers and the regulated community for certainty in the availability of products that are necessary and vital to the U.S. food system. Here, the court of appeals has acknowledged the importance of those protections. Unfortunately, today’s decision still leaves unresolved the full conflict between the ESA and the pesticide registration law (FIFRA). CropLife America remains committed to pursuit of that satisfactory resolution.”

The Pesticide Action Network also expressed pleasure with the ruling.

“As a long-time Iowa farmer, I know first-hand the value of native pollinators,” said Denise O’Brien, founder of Women’s Food and Agriculture Network and PANNA board vice president. “This court decision on harmful pesticides is not just a win for the plaintiffs, it’s a win for farmers.”

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