Center for Environmental Health v. McCarthy

          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. ...