United States District Court, N.D. California
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR SUMMARY
JUDGMENT Re: Dkt. Nos. 30, 32
WILLIAM H. ORRICK JUDGE
INTRODUCTION
The
Federal Insecticide, Fungicide, and Rodenticide Act, under
which the Environmental Protection Agency can regulate
pesticides, requires that active ingredients be disclosed on
pesticide labels. Inert ingredients are not subject to the
same requirements. For a decade plaintiffs Center for
Environmental Health, Beyond Pesticides and Physicians for
Social Responsibility have urged defendants Environmental
Protection Agency and its Administrator[1], (collectively
“EPA”), to require the disclosure of 371 inert
ingredients on the labels of pesticide products. They
previously filed an initial rulemaking petition and two
related lawsuits and now challenge the EPA’s May 2014
decision that effectively denied their petition. Both sides
have moved for summary judgment.
The
plaintiffs are understandably frustrated that the rulemaking
process they initiated almost ten years ago has generated no
concrete action. They may well be on the right side of the
policy argument. But the EPA is not mandated to require
disclosure of the inert ingredients at issue. Its decision to
pursue non-rulemaking alternatives to address the issue is
not arbitrary or capricious. As a result, I must GRANT the
EPA’s motion for summary judgment and DENY
plaintiffs’ motion for summary judgment.
BACKGROUND
In
August 2006, a coalition of numerous states and public health
organizations, including plaintiffs, petitioned the EPA to
initiate rulemaking to require the labeling of 371 inert
ingredients on pesticides. Three years later plaintiffs filed
a lawsuit against the EPA because it had not acted on the
petition. Ctr. for Envt’l Health Californians for
Pesticide Reform v. United States Environmental Protection
Agency, et al., No. 09-cv-02868-PJH (N.D. Cal. June 26,
2009), Dkt. No. 1. They alleged that the EPA’s
unreasonable delay in acting on the petition violated the
Administrative Procedure Act. The EPA issued a response in
September 2009, stating that it would be “initiating
rulemaking to increase the public availability of hazardous
inert ingredient identities for specific pesticide
formulations” but that it was “not committing []
to any particular outcome for rulemaking.” AR
2788.[2] Plaintiffs then voluntarily dismissed
their claims.
The EPA
initiated its rulemaking via an Advance Notice of Proposed
Rulemaking (“ANPR”) published in the Federal
Register on December 23, 2009. 74 Fed. Reg. 68, 215. The EPA
solicited comments on two alternative proposals - one that
would have required listing only “potentially
hazardous” inert ingredients and another that would
have required listing most or all inert ingredients,
regardless of hazard. 74 Fed. Reg. 68, 219-22. In response,
the EPA received 405 comments from the public. However, no
rule was issued as a result.
In
March 2014, plaintiffs filed a second lawsuit asserting that
the EPA had not taken further action to follow through on its
commitment to adopt a rule since it had published the ANPR in
December 2009. Ctr. for Envt’l Health v.
McCarthy, No. 14-cv-01013-WHO (N.D. Cal. March 5, 2014),
Dkt. No. 1. Plaintiffs once again alleged that the
EPA’s delay in completing the rulemaking process or
otherwise concluding the action violated the Administrative
Procedure Act. A little over two months later, on May 22,
2014, the EPA amended its 2009 response to plaintiffs’
2006 petition. The EPA’s amended response explained
that “the EPA has now decided not to pursue
finalization of the rulemaking it initiated seeking to
mandate the disclosure on the label of a pesticide of the
presence of a hazardous inert ingredient.” AR2875.
Instead it stated that it had “re-evaluated” how
to best address potentially hazardous inert ingredients and
believed a different approach was more appropriate. AR2877.
In the letter, the EPA asserted it would “review inert
ingredients currently listed for use in pesticides, update
that list, establish criteria for prioritization, and select
top candidate inert ingredients for further analysis and
potential action.” Id.
The EPA
thereafter moved for judgment on the pleadings in the 2014
lawsuit. Because the EPA had acted on plaintiffs’
underlying petitions, I granted the motion, finding that
there was no further relief that I could offer to the
plaintiffs and that the action was moot. Ctr. for
Envt’l Health v. McCarthy, No. 14-cv-01013-WHO,
(N.D. Cal. Sept. 15, 2014), Dkt. No. 31.
Plaintiffs’
instant lawsuit challenges the EPA’s May 2014 denial of
their rulemaking petition. Their complaint alleges a sole
cause of action under the Federal Insecticide, Fungicide, and
Rodenticide Act and the Administrative Procedure Act.
Plaintiffs seek, among other relief, to set aside the denial
and to remand the decision to the EPA to consider “the
evidence weighing in favor of disclosure of inert pesticides
ingredients.” Compl. at 14 [Dkt. No. 1]. They move for
summary judgment, arguing that the EPA’s decision to
deny plaintiffs’ rulemaking petition was arbitrary,
capricious, and contrary to the Federal Insecticide,
Fungicide, and Rodenticide Act. The EPA oppose and cross-move
for summary judgment, asserting that its decision was
reasonable and should be upheld. I held a hearing on June 8,
2016.
LEGAL
STANDARD
When a
district court reviews an administrative agency’s
decision, pursuant to the Administrative Procedures Act,
“summary judgment is an appropriate mechanism for
deciding the legal question of whether the agency could
reasonably have found the facts as it did.”
Occidental Eng’g Co. v. I.N.S., 753 F.2d 766,
770 (9th Cir.1985). The court does not resolve any issues of
disputed facts. Id. at 769. Instead, the court must
uphold an agency decision unless it is found to be
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law, ” or
“without observance of procedure required by
law.” 5 U.S.C. § 706(2). This is a
“deferential standard... designed to ensure that the
agency considered all of the relevant factors and that its
decision contained no clear error of judgment.”
Pac. Coast Fed’n of Fishermen’s Ass’n
v. Nat’l Marine Fisheries Serv., 265 F.3d
1028, 1034 (9th Cir. 2001). An agency action should be
overturned only when the agency has “relied on factors
which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product
of agency expertise.” Id.
DISCUSSION
I.
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