United States District Court, N.D. California
ORDER GRANTING MOTION OF CROPLIFE AMERICA TO INTERVENE AS DEFENDANT Re: Dkt. No. 21
JOSEPH C. SPERO, Chief Magistrate Judge.
This is an environmental regulation case brought by the Center for Biological Diversity against the U.S. Department of the Interior ("DOI"), the U.S. Fish and Wildlife Service ("FWS"), and agency officials (collectively, "Federal Defendants"). Plaintiff alleges that Federal Defendants violated the Endangered Species Act ("ESA"), 16 U.S.C §§ 1531 et seq., and the Administrative Procedure Act ("APA"), 5 U.SC. §§ 500 et seq., by failing to complete consultations with the U.S. Environmental Protection Agency ("EPA") regarding the effects of three EPA-registered pesticides on two species in the California Bay Delta. Plaintiff seeks injunctive and declaratory relief, including an order directing Federal Defendants to complete consultations with EPA regarding the challenged pesticides and an order restricting the use of the challenged pesticides until such consultations are complete. CropLife America ("CropLife") now brings a Motion to Intervene as Defendant ("Motion to Intervene") in which it seeks to represent the interests of pesticide producers in this action. See dkt. no. 21. The Court finds the matter suitable for resolution without oral argument and vacates the hearing on the Motion to Intervene scheduled for July 24, 2015. See Civ. L.R. 7-1(b). The hearing on the Motion for Judgment on the Pleadings and the case management conference set for the same day shall remain on calendar. For the reasons set forth below, CropLife's Motion to Intervene is GRANTED.
A. Background Law
1. Pesticide Registration by EPA
The Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 135 et seq., provides that all pesticides must be registered by EPA prior to being sold or distributed in the United States. See 7 U.S.C. § 136a. To register a pesticide with EPA, an applicant must specify the pesticide's intended use and provide scientific research results demonstrating the pesticide's environmental safety. See 7 U.S.C. § 136a(c). EPA will register a pesticide upon the determination that the pesticide will not cause "unreasonable adverse effects on the environment, " when the pesticide is "perform[ing] its intended function" and is "used in accordance with widespread and commonly recognized practice." See id. After registering a pesticide, EPA must periodically review the pesticide's registration to confirm the pesticide's continued satisfaction of EPA's environmental standards. See 7 U.S.C. § 136a(g). Upon review, a pesticide may be re-registered or removed from the list of registered pesticides. See 7 U.S.C. § 136a-1.
2. Interagency Consultation with FWS
Section 7(a)(2) of the ESA requires all federal agencies to consult with FWS to ensure that the agencies' considered actions are "not likely to jeopardize the continued existence of any [FWS-listed threatened or endangered] species or result in the destruction or adverse modification of [any FWS-designated critical] habitat of such species." See 16 U.S.C. § 1536(a)(2). If a federal agency determines that any of its considered actions "may affect" an FWS-listed species or critical habitat, "formal consultation" with FWS leading to an FWS-issued "biological opinion" is required, unless the federal agency, after an "informal consultation" with FWS, determines that the considered action is "not likely to adversely affect" the listed species or critical habitat, and FWS concurs. See 50 C.F.R. § 402.14(a)-(b). A federal agency's consultation with FWS must be concluded within 90 days of initiation or "within such time as is mutually agreeable" to the agency and FWS. See 16 U.S.C. § 1536(b)(1)(A). The EPA may be required to reinitiate consultations under some circumstances, such as when new information reveals that an action may affect a listed species or critical habitat in a manner not previously considered. See 50 C.F.R. § 402.16.
EPA registration and re-registration of pesticides under FIFRA constitutes federal agency action subject to the interagency consultation requirements of the ESA. Washington Toxics Coal. v. Envtl. Prot. Agency, 413 F.3d 1024, 1032 (9th Cir. 2005) ("even though EPA registers pesticides under FIFRA, it must also comply with the ESA when threatened or endangered species are affected"). On the other hand, in the absence of some affirmative act or authorization, the mere fact that EPA has continuing regulatory authority and discretionary control with respect to pesticide registrations is not sufficient to trigger a duty to initiate consultation under Section 7. See Order Granting Motion to Intervene; Granting Motions to Dismiss and Dismissing Complaint with Leave to Amend, No. 3:11-cv-00293-JCS at 14-15 (N.D. Cal. Apr. 22, 2013) (dkt. no. 157) (citing Karuk Tribe of California v. U.S. Forest Service, 681 F.3d 1006, 1021 (9th Cir. 2012) ( en banc )).
3. Withheld or Delayed Agency Action under the APA
The APA requires federal agencies to conclude matters presented to them "[w]ith due regard to the parties or their representatives and within a reasonable time." See 5 U.S.C. § 555(b). Section 706(1) of the APA authorizes reviewing courts to "compel agency action unlawfully withheld or unreasonably delayed." See 5 U.S.C. § 706(1).
B. The Federal Defendants
DOI is the federal agency charged with interagency consultations under the ESA. See 16 U.S.C. § 1532(15). However, DOI has delegated the responsibility to carry out ESA interagency consultations to FWS. See 16 U.S.C. § 1536(a)(2); see also 50 C.F.R. § 402.01(b). Sally Jewell is ...