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Ellis v. Housenger

United States District Court, N.D. California

May 8, 2017

STEVE ELLIS, ET AL., Plaintiffs,
v.
JACK HOUSENGER, et al., Defendants, and BAYER CROPSCIENCE, LP, et al., Defendant-Intervenors.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT; DIRECTIONS TO PARTIES

          MAXINE M. CHESNEY United States District Judge.

         Before the Court are three motions: (1) "Motion for Summary Judgment, " filed April 14, 2016, by plaintiffs Steve Ellis, Tom Theobald, Jim Doan, Bill Rhodes, Center for Food Safety, Beyond Pesticides, Sierra Club and Center for Environmental Health; (2) "Cross-Motion for Summary Judgment, " filed June 7, 2016, by defendants Gina McCarthy, Administrator of the United States Environmental Protection Agency, and Jack Housenger, Director of the Office of Pesticide Programs of EPA (collectively, "EPA"); and (3) "Cross-Motion for Summary Judgment, " filed June 20, 2016, by defendant-intervenors Bayer CropScience LP, Syngenta Crop Protection, LLC, Valent U.S.A. Corporation, and CropLife America (collectively, "Intervenors"). The motions have been fully briefed. Having read and considered the papers filed in support of and in opposition to the motions, the Court hereby rules as follows.[1]

         BACKGROUND

         By the instant action, plaintiffs, comprising four individuals and four public interest groups, "challenge the actions of [the EPA] to allow the ongoing use of pesticide products containing the active ingredients clothianidin and thiamethoxam." (See Second Amended Complaint (“SAC”) ¶ 1.) Plaintiffs allege the subject pesticides "have been shown to adversely impact the survival, growth, and health of honey bees and other pollinators vital to U.S. agriculture" and have "harmful effects on other animals, including threatened and endangered species." (See SAC ¶ 2.)

         More specifically, plaintiffs allege that the EPA failed to comply with the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") by denying plaintiffs' request, made in a petition submitted to the EPA, to suspend the registration of products containing clothianidin (see SAC ¶¶ 82, 104, 110), and by approving applications to register certain products containing clothianidin or thiamethoxam without first providing notice in the Federal Register (see SAC ¶¶ 37, 114, 121). Additionally, plaintiffs allege that the EPA violated the Endangered Species Act ("ESA") by failing to consult with the Fish and Wildlife Service ("FWS") prior to approving certain applications to register products containing clothianidin and thiamethoxam. (See SAC ¶¶ 49-50, 128, 132.)

         LEGAL STANDARD

         Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a "court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(a).

         The Supreme Court's 1986 "trilogy" of Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), requires that a party seeking summary judgment show the absence of a genuine issue of material fact. Once the moving party has done so, the nonmoving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." See Celotex, 477 U.S. at 324 (internal quotation and citation omitted). "When the moving party has carried its burden under Rule 56[ ], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the [opposing party's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). "[I]nferences to be drawn from the underlying facts, " however, "must be viewed in the light most favorable to the party opposing the motion." See Matsushita, 475 U.S. at 587 (internal quotation and citation omitted).

         DISCUSSION

         All parties seek summary judgment on the issue of liability as to the six claims alleged in the SAC.[2]

         A. First and Second Claims

         The First and Second Claims challenge the EPA's denial of a request made in a petition that was submitted to the EPA by four of the plaintiffs, specifically, a request to immediately suspend the registration of products containing clothianidin.

         1. Applicable Statutory and Regulatory Framework

         Under FIFRA, no pesticide may be distributed or sold unless it has been registered by the EPA. See 7 U.S.C. § 136a(a). If, after the EPA registers a pesticide, it "appears to the [EPA] that a pesticide . . . generally causes unreasonable adverse effects on the environment, " the EPA may issue a notice of intention "to cancel its registration or to change its classification." See 7 U.S.C. § 136d(b). If the EPA issues a notice of intention to cancel or change the classification of a registration, "a person adversely affected by the notice" may request a hearing, see 7 U.S.C. § 136d(b)(2), which hearing is conducted by an administrative law judge, see 40 C.F.R. § 164.20(c). "[C]ancellation or reclassification proceedings may take one or two years to complete." Love v. Thomas, 858 F.2d 1347, 1350 (9th Cir. 1988), cert. denied, 490 U.S. 1035 (1989)

         "If the [EPA] determines that action is necessary to prevent an imminent hazard during the time required for cancellation or change in classification proceedings, the [EPA] may, by order, suspend the registration of the pesticide immediately." 7 U.S.C. § 136d(c)(1). The term "imminent hazard" is defined as "a situation which exists when the continued use of a pesticide during the time required for [a] cancellation proceeding would be likely to result in unreasonable adverse effects on the environment or will involve unreasonable hazard to the survival of a species declared endangered or threatened." See 7 U.S.C. § 136(1). The term "unreasonable adverse effects on the environment" is defined as "any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." See 7 U.S.C. § 136(bb).

         Subject to one exception, discussed below, the EPA may not issue an order of suspension unless it has "issued, or at the same time issues, a notice of intention to cancel the registration or change the classification of the pesticide" and "notif[ies] the registrant prior to issuing any suspension order." See 7 U.S.C. § 136d(c)(1). If the registrant does not request a hearing within five days, the "suspension order may be issued and shall take effect." See 7 U.S.C. § 136d(c)(2). If the registrant timely requests a hearing, the EPA conducts an "expedited hearing . . . on the question of whether an imminent hazard exists." See 7 U.S.C. §§ 136d(c)(1). Following the expedited hearing, the EPA "shall issue a final decision and order" addressing the issue of suspension. See 40 C.F.R. § 164.122(a). The "administrative suspension process" may take three to four months to complete. See Dow Chemical Co. v. Blum, 469 F.Supp. 892, 899, 902 (E.D. Mich. 1979); see also Love, 858 F.2d at 1353 n.10 (noting "suspension hearing would require approximately four months").

         The one instance in which the EPA may suspend a registration prior to issuing a notice of intention to cancel and prior to notifying the registrant is where "the [EPA] determines that an emergency exists that does not permit the [EPA] to hold a hearing before suspending." See 7 U.S.C. § 136d(c)(3). Upon issuing an "emergency" order of suspension, see 40 C.F.R. § 164.123(a), the EPA must, however, "immediately notify the registrant, " who, in turn, may request an expedited hearing on the question of whether an imminent hazard exists, see 40 C.F.R. § 164.123(b). Such "emergency order" of suspension remains in place pending the conclusion of the administrative suspension process. See 7 C.F.R. § 136d(c)(3); 40 C.F.R. § 164.123(b); see also National Coalition Against the Misuse of Pesticides v. EPA, 867 F.2d 636, 644 (D.C. Cir. 1989) (holding "[t]he extraordinary step of emergency suspension is available only if the requisite unreasonable harm would be likely to materialize during the pendency of ordinary suspension proceedings").

         2. Administrative Proceedings Conducted on Plaintiffs' Petition

         On March 20, 2012, plaintiffs Steve Ellis, Tom Theobald, the Center For Food Safety, and Beyond Pesticides, along with other individuals and entities who are not parties to the instant action, jointly submitted to the EPA an "Emergency Citizen Petition" ("Petition"). (See Administrative Record ("AR") 44323-44370.) In the Petition, plaintiffs requested that the EPA, inter alia, suspend clothianidin's registration "on an emergency basis, " or, alternatively, "promptly initiate Special Review and cancellation procedures for clothianidin pursuant to 7 U.S.C. § 136d[, ] and then suspend its registration pending completion of the cancellation procedures based on the ongoing and imminent harm posed." (See AR 44327.)[3] Thereafter, in support of the Petition, plaintiffs submitted supplemental filings dated, respectively, May 3, 2012, and June 18, 2012. (See AR 44598-618.)

         On July 17, 2012, the EPA issued a responsive letter, denominated a "partial response" ("Partial Response"). (See AR 44419-30.) The EPA explained therein that it was posting on its website for public comment "the [P]etition (including the [P]etition exhibits and supplemental filings), " its Partial Response thereto (see AR 44419), and "additional materials from other sources" (see AR 44420). The EPA then denied the request for an emergency order of suspension and stated it would respond to the other requests made in the Petition "[a]fter reviewing the public comments submitted." (See AR 44419.)

         In denying an immediate suspension, the EPA found the Petition suffered from a "facial inadequacy, " specifically, the lack of "an explanation as to how the harm identified outweigh[ed] the benefits to growers and the agricultural economy from the use of the pesticide" (see AR 44423-24), and that, in any event, "nowhere in the [P]etition [did] [plaintiffs] explain how the use of clothianidin rises to the level of the FIFRA imminent hazard standard" (see AR 44424; see also AR 44425-30).[4] In setting forth said findings, the EPA stated that, "due to the emergency nature of [the] request, " it had only considered the materials "received prior to May 4, 2012" (see AR 44420), and that it would consider plaintiffs' supplemental filings, namely, those dated May 3, 2012, and June 18, 2012, along with the "additional materials from other sources, " once it had received the public comments, and thereafter would determine whether reconsideration was warranted (see AR 44419).[5]

         3. Merits of First and Second Claims

         In the First Claim, plaintiffs allege it was "arbitrary and capricious" for the EPA, when ruling on plaintiffs' request for an immediate suspension, not to consider plaintiffs' "supplemental filings." (See SAC ¶ 104.) In the Second Claim, plaintiffs allege the "EPA's failure to suspend the registrations of [clothianidin] products in view of their unreasonable adverse effects violates FIFRA." (See SAC ¶ 110.)

         District courts have jurisdiction to review "the refusal of the [EPA] to cancel or suspend a registration or change a classification not following a hearing." See 7 U.S.C. § 136n(a). Where a federal statute providing for judicial review of an agency's action does not itself provide a standard of review, the "general standard of review of agency action established in the Administrative Procedure Act ('APA')" applies. See Oregon Natural Resources Council v. Allen, 476 F.3d 1031, 1036 (2007). Here, FIFRA does not provide a standard of review for the denial of a request to immediately suspend a pesticide product, and, consequently, the standard set forth in the APA applies. Under the APA, a reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See 5 U.S.C. § 706(2). A plaintiff has the burden to show the agency's decision was improper, and, "[a]bsent a showing of arbitrary action, [courts] must assume that the [agency has] exercised [its] discretion appropriately." See Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976).

         a. Imminent Hazard: Harm to Endangered/Threatened Species

         As discussed above, the EPA has the authority to immediately suspend the registration of a pesticide "to prevent an imminent hazard." See 7 U.S.C. § 136d(c)(1). An "imminent hazard" is "a situation which exists when the continued use of a pesticide during the time required for [a] cancellation proceeding [1] would be likely to result in unreasonable adverse effects on the environment or [2] will involve unreasonable hazard to the survival of a species declared endangered or threatened . . . pursuant to the [ESA]." See 7 U.S.C. § 136(1).

         Plaintiffs argue the denial of their request for an immediate suspension was arbitrary and capricious for the reason that the Partial Response did not address the second of the two alternative definitions of "imminent hazard, " specifically, whether continued use of clothianidin would "involve unreasonable hazard to the survival of a species declared endangered or threatened." See id.

         In their Petition, plaintiffs cited to studies, articles and other publications addressing whether clothianidin causes harm to bees. Plaintiffs did not, however, cite to a study or article, or otherwise reference any evidence, to show the continued use of clothianidin would pose an unreasonable hazard to the survival of an endangered or threatened species.[6] Plaintiffs argue that the EPA nonetheless was required to address the second of the two alternative definitions of imminent harm. As the Petition referenced no evidence that could support such a finding, plaintiffs are arguing, in essence, that the EPA was itself required to locate any evidence that might support a showing that continued use of clothianidin would pose an unreasonable hazard to the survival of an endangered or threatened species and then to determine whether such evidence would suffice to support an immediate suspension.

         The issue presented is one of burden. Neither FIFRA nor its implementing regulations directly address the showing a party must make when it requests that the EPA immediately suspend the registration of a pesticide product on account of an asserted imminent hazard. As the EPA points out, however, the Code of Federal Regulations does provide that, at a contested hearing on the issue of whether an order of immediate suspension is proper, although "the ultimate burden of persuasion shall rest with the proponent of the registration, " the "proponent of suspension shall have the burden of going forward to present an affirmative case for the suspension." See 40 C.F.R. § 164.121(g). The Court finds the principle underlying said regulation, specifically, that the party who proposes a suspension bears the initial burden of coming forward with evidence in support thereof, is properly applied to any procedure by which a party seeks an immediate suspension.[7]

         As plaintiffs' Petition did not identify any evidence that might show an imminent hazard existed under the second of the two statutory definitions, plaintiffs did not meet their initial burden of presenting an "affirmative case, " see 40 C.F.R. § 164.121(g), for the suspension. Under such circumstances, the Court finds plaintiffs have not met their burden to show the EPA acted arbitrarily and capriciously when it did not address in the Partial Response whether an immediate suspension was necessary to prevent an unreasonable hazard to the survival of an endangered or threatened species.

         b. Imminent Harm: Unreasonable Adverse Effects on Environment

         Plaintiffs also argue that the EPA's failure to immediately suspend the petition, under the "unreasonable adverse effects on the environment" definition of "imminent harm, " see 7 U.S.C. § 136(1), was arbitrary and capricious.

         As noted above, the term "unreasonable adverse effects on the environment" is defined as "any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." See 7 U.S.C. § 136(bb). "[T]he statute thus requires the EPA to consider the benefits as well as the risks of its use, including the economic consequences of suspension." See Love, 858 F.2d at 1357; see also id. at 1350, 1358, 1361-62 (holding, although evidence supported EPA's finding that challenged pesticide "may cause serious health risks to persons exposed to it, including sterility in men and birth defects in the unborn children of pregnant women, " issuing order of immediate suspension was "arbitrary and capricious" where EPA had not balanced risk of such harm against "economic impact of suspension").

         Here, plaintiffs argue, the denial was arbitrary and capricious for the asserted reason that the "EPA failed to assess any alleged benefits from clothianidin's continued use." (See Pls.' Mot. at 30:8.) As noted above, the EPA found plaintiffs' request for an immediate suspension to be facially inadequate as it did not include "an explanation as to how the harm identified outweighs the benefits to growers and the agricultural economy from the use of the pesticide." (See AR 44423-24; see also AR 44429.) As the Petition in fact included no such explanation, the issue presented is, again, one of burden.

         In that regard, plaintiffs cite no authority to support their implicit argument that where a party seeks an immediate suspension under the first of the two alternative definitions of imminent harm, such party, to meet its initial burden, need do no more than identify a harm, [8] and, for the reasons discussed above, the Court finds a petitioner who proposes an immediate suspension bears the initial burden of making an "affirmative case" for such relief. See 40 C.F.R. § 164.121(g). As the Petition lacked any showing that the asserted harm outweighed the pesticide's benefits, plaintiffs did not meet their initial burden of presenting a case for an immediate suspension.[9]

         Under such circumstances, the Court finds plaintiffs have not met their burden to show the EPA, based on a finding of facial inadequacy, acted arbitrarily and capriciously in denying the request for an immediate suspension.[10]

         c. Supplemental Filings

         As noted above, the EPA did not consider, at the time it issued the Partial Response, two supplemental filings plaintiffs had submitted to the EPA in support of the Petition. Rather, as also noted, the EPA indicated it would consider those submissions later in the administrative proceedings, specifically, after it had reviewed public comments received in response to the Petition.

         Under the APA, "due account shall be taken of the rule of prejudicial error, " see 5 U.S.C. § 706; in other words, to be entitled to an order setting aside an agency decision due to an error on the part of that agency, the plaintiff must show such error "was harmful, " see Shinseki v. Sanders, 556 U.S. 396, 406, 409-10 (2009) (holding § 706 is codification of "harmless error rule"). Here, even assuming the EPA acted arbitrarily in not considering plaintiffs' supplemental filings before it denied the request for an immediate suspension, plaintiffs suffered no prejudice thereby, as none of the supplemental filings addressed whether a suspension was necessary to prevent an unreasonable hazard to the survival of a species declared endangered or threatened under the ESA or whether the economic, social, and environmental benefits of clothianidin were outweighed by the risks of its continued use.

         Accordingly, plaintiffs have not shown they are entitled to relief based on the EPA's determination not to review plaintiffs' supplemental filings prior to ruling on the request for an immediate suspension.

         B. Third and Fourth Claims

         In the Third Claim, titled "EPA's Failure to Publish Notices of Pesticide Applications for Clothianidin Products Violated FIFRA and the APA, " plaintiffs allege the EPA registered seven products containing clothianidin without first providing in the Federal Register notice of the applications to register such products, and that, when the EPA approved said applications, it approved "new uses" for clothianidin, e.g., for use on lawns. (See SAC ¶¶ 114-16.)[11] In the similarly titled Fourth Claim, plaintiffs allege the EPA registered nineteen products containing thiamethoxam without first providing in the Federal Register notice of the applications to register those products, and, that when the EPA approved said applications, it approved "new uses" for thiamethoxam, e.g., for use on apples. (See SAC ¶¶ 121-23.)[12] Plaintiffs argue that, in light of the alleged failures by the EPA to provide notice to the public prior to registering the subject products, plaintiffs are entitled to an order vacating the subject registrations. (See SAC ¶ 137.)

         1. Applicable Statutory and Regulatory Framework

         As noted, no pesticide may be distributed or sold, unless the pesticide has been registered by the EPA. See 7 U.S.C. § 136a(a). To register a pesticide, an applicant must file with the EPA an application that includes certain information, such as "the complete formula of the pesticide" and "a request that the pesticide be classified for general use or for restricted use, or for both." See 7 U.S.C. § 136a(c)(1). The EPA "shall publish in the Federal Register . . . a notice of each application for registration of any pesticide if it contains any new ingredient, " see 7 U.S.C § 136a(c)(4), or, alternatively, "if it would entail a changed use pattern, " see id., which alternative pertains when the application "proposes a new use" for the pesticide, see 40 C.F.R. § 152.102. When it publishes such a notice in the Federal Register, the EPA must "provide for a period of 30 days in which any Federal agency or any other interested person may comment, " see 7 U.S.C. § 136a(c)(4), and, in the event the EPA subsequently grants the application, it must "issue in the Federal Register a notice of issuance" and, inter alia, must "respond [therein] to comments received on the notice of application, " see 40 C.F.R. § 152.102.

         2. Standing

         At the outset, the EPA challenges plaintiffs' standing to bring the Third and Fourth Claims.

         "To satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Citizens for Better Forestry v. U.S. Dep't of Agriculture, 341 F.3d 961, 969 (9th Cir. 2003) (internal quotation and citation omitted). Where, as here, a plaintiff asserts a "procedural injury, " see id. at 969-70 (holding complaint alleging agency failed to provide "public notice" of proposed action and to "solicit appropriate information from the public" asserted "procedural injury"), such plaintiff establishes an injury in fact by showing "the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing, " see Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001) (internal quotation and citation omitted), and establishes causation and redressibility by showing the asserted procedural right, "if exercised, could protect [his] concrete interests, " see Defenders of Wildlife v. EPA, 420 F.3d 946, 957 (9th Cir. 2005) (emphasis omitted), rev'd on other grounds, Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007).

         In its cross-motion for summary judgment, the EPA first notes that plaintiffs' motion for summary judgment does not address plaintiffs' standing to bring the Third and Fourth Claims. Under such circumstances, the EPA argues, the EPA is entitled to summary judgment on the Third and Fourth Claims "because [p]laintiffs are now precluded from submitting new arguments and evidence with their reply brief." (See EPA's Cross-Mot. at 5:12-14.) The Court disagrees.

         The purpose of the general rule against a moving party's making new arguments in a reply is to avoid putting the non-moving party in a position where he/she is deprived of an opportunity to respond. Here, however, the EPA has not been deprived of such an opportunity. Indeed, the Supreme Court has observed that, where, as here, the issue of standing is raised in a motion for summary judgment filed by the defendant, the plaintiff, in its opposition, may offer evidence to establish its standing at that time. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In opposing the EPA's cross-motion, plaintiffs have offered evidence they argue supports their standing to bring the Third and Fourth Claims, thus affording the EPA an opportunity to respond thereto in its reply.

         Accordingly, the Court finds the EPA is not entitled to summary judgment on the above-discussed procedural ground.

         In their respective replies, neither the EPA nor the Intervenors challenge plaintiffs' evidentiary showing as to standing with respect to the Third and Fourth Claims. The Court nonetheless finds it appropriate to consider the issue. See D'Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir. 2008) (holding "[a] district court [has] the authority to raise the issue [of standing] sua sponte").

         Plaintiffs rely on declarations from plaintiffs Steve Ellis, Tom Theobald, Jim Doan and Bill Rhodes, the individuals identified in the SAC as "Beekeeper and Honey Producer Plaintiffs." (See SAC ¶ 15.) Each of these four plaintiffs avers he owns and operates a beekeeping company, that large numbers of his bees have been killed due to what he believes was the bees' exposure to clothianidin and thiamethoxam, that he has incurred economic loss due to the deaths of his bees, and that his remaining bees forage on the types of crops, trees and other plants on which the products allegedly approved without notice are to be used, e.g., "lawns" and "apples." (See Ellis Decl. ¶¶ 2-6, 11, 13, 15; Theobald Decl. ¶¶ 2-5, 13-14, 17; Doan Decl. ¶¶ 2-6, 12, 16-17; Rhodes Decl. ¶¶ 2-4, 10, 15.) Each such plaintiff also avers that, had the EPA provided notice to the public of the challenged applications, he would have submitted comments to the EPA. (See Ellis Decl. ¶ 11; Theobald Decl. ¶ 19; Doan Decl. ¶ 18; Rhodes Decl. ¶ 16.)

         The Court finds the above-referenced plaintiffs, in their respective declarations, have sufficiently demonstrated they have an economic interest in their respective businesses that may be adversely affected by use of clothianidin and thiamethoxam, which pesticides the EPA has acknowledged are "toxic to honey bees" (see AR 43254, 43634, 43748), and that said plaintiffs would have submitted comments to the EPA had they been afforded the opportunity to do so. See Summers v. Earth Island Institute, 555 U.S. 488, 497 (2009) (holding plaintiff who asserted cognizable interest in area affected by agency action had standing to challenge failure to provide notice of agency action that could adversely affect his interest "despite the possibility" that plaintiff's "right to comment would not be successful in persuading [the agency] to avoid impairment of [plaintiff's] concrete interests"); Citizens for Better Forestry, 341 F.3d at 971-72 (holding plaintiffs, who had aesthetic and recreational interests in forests, were injured by government's failure to afford them opportunity to be heard prior to its taking action with respect to forests; explaining, "the harm consists of added risk to the environment that takes place when government decisionmakers make up their minds without having before them an analysis (with public comment) on the likely effects on their decision on the environment") (internal quotation and citation omitted).

         Accordingly, the Court finds plaintiffs Steve Ellis, Tom Theobald, Jim Doan and Bill Rhodes have standing to assert the Third and Fourth Claims.[13]

         3. Merits

         The alleged procedural deficiency on which plaintiffs base the Third and Fourth Claims is that, without first affording notice to the public and an opportunity for the public to be heard, the EPA registered products containing clothianidin and thiamethoxam for new uses.

         The EPA argues it is entitled to judgment, on the asserted ground that when it registered the subject products, it did not approve a new use. In support of its argument, the EPA cites to evidence in the administrative record that, with respect to each registration challenged in the Third and Fourth Claims, shows the use or uses for which the EPA gave its approval were uses for which the EPA had previously given approval when it had earlier registered a different product. (See EPA's Cross-Mot. Exs. 3, 4.)[14]Plaintiffs offer no evidence to the contrary. Rather, plaintiffs argue the EPA has not shown it gave the public notice before it registered the earlier products and, consequently, has not shown the prior approvals are "precedential 'new uses.'" (See Pls.' Opp. at 34:1-16.)

         As discussed above, the EPA is required to give public notice when an applicant seeking to register a pesticide product "proposes a new use" for the pesticide. See 40 C.F.R. § 152.102. Here, it is undisputed that the EPA, when it registered the products challenged by plaintiffs in the Third and Fourth Claims, approved uses for which it previously had given approval. Assuming, arguendo, the prior registrations approving new uses were issued without notice to the public, such registrations were subject to challenge at that time. See 7 U.S.C. § 136n. Nothing in FIFRA nor the implementing regulations, however, provides that a proposed use is "new" if the EPA previously approved the same use in a manner that violated FIFRA's notice provisions. Consequently, even assuming the prior approvals on which the EPA relies were issued in violation of FIFRA's notice provisions, plaintiffs have failed to show the EPA violated FIFRA's notice provisions when it registered the products challenged in the Third and Fourth Claims.

         Accordingly, defendants are entitled to summary judgment as to the Third and Fourth Claims.

         C. Fifth and Sixth Claims

         In the Fifth Claim, titled "EPA's Actions in Approving Clothianidin Products and Labels Violated the ESA, " plaintiffs allege the EPA violated the ESA by "approving registrations or use approvals" of twenty-four "clothianidin product registrations" without first consulting with the FWS "regarding the potential adverse effects of clothianidin on threatened and endangered species and critical habitat." (See SAC ¶ 128.)[15] In the Sixth Claim, titled "EPA's Actions in Approving Thiamethoxam Products and Labels Violated the ESA, ” plaintiffs allege the EPA "took agency action" forty-nine times with respect to forty-three "thiamethoxam product registrations." (See SAC ¶ 132.) In sum, plaintiffs challenge seventy-three actions by said two Claims.

         1. Applicable Statutory Framework

         Under the ESA, the FWS and the National Marine Fisheries Service (“NMFS”) are required to determine which species are "endangered" or "threatened, " see 16 U.S.C. § 1533(a), [16] and all other federal agencies "shall, in consultation with and with the assistance of [the FWS and the NMFS], insure that any . . . agency action . . . is not likely to jeopardize the continued existence of any endangered species or threatened species, " see 16 U.S.C. § 1536(a)(2). In particular, "[e]ach federal agency" is required to "review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat, " and, if it makes such determination, "formal consultation [with the FWS or NMFS] is required." See 50 C.F.R. § 402.14(a).

         2. Lack of Jurisdiction Under 7 U.S.C. § 136n(b)

         Relying on 7 U.S.C. § 136n(b), the Intervenors contend the Court lacks jurisdiction to consider whether the EPA violated the ESA with respect to three of the actions challenged in the Fifth Claim and two of the actions challenged in the Sixth Claim. Specifically, the Intervenors argue, the Court lacks jurisdiction to consider, with respect to the Fifth Claim, the registrations of Darlex Insecticide, Sepresto 75 WS and Prosper Evergol, and, with respect to the Sixth Claim, the registrations of Agita 1GB Fly Bait and Agita 10 WG.

         Plaintiffs argue that the Court has jurisdiction to consider the entirety of the Fifth and Sixth Claims pursuant to the jurisdictional provisions of the ESA, which allow a plaintiff to file in district court a claim "to enjoin any person, including the United States . . . who is alleged to be in violation of any provision of [the ESA], " see 16 U.S.C. § 1540(g)(1), whereas the Intervenors argue that, with respect to the five actions identified above, the jurisdictional provisions of FIFRA, not the ESA, apply.

         Under FIFRA, in particular, 7 U.S.C. § 136n, if a plaintiff challenges "the validity of any order issued by the [EPA] following a public hearing, " the claim must be filed in "the United States court of appeals for the circuit wherein [the plaintiff] resides or has a place of business, " see 7 U.S.C. § 136n(b); a plaintiff challenging "other final actions of the [EPA]" must file the claim in a district court, see 7 U.S.C. § 136n(a). The Intervenors argue that the EPA, prior to registering Darlex Insecticide, Sepresto 75 WS, Prosper Evergol, Agita 1GB Fly Bait and Agita 10 WG, conducted a "public hearing" within the meaning of § 136n(b). In support thereof, the Intervenors offer evidence showing the EPA published in the Federal Register notice of the applications for registration of those five products and afforded the public an opportunity to submit comments, and that the EPA's registration of the five products occurred after the expiration of the deadline to submit comments. (See Schulson Decl. Exs. 1-7.)

         Where an agency issues a decision following its having published in the Federal Register a notice inviting public comment on the subject, the agency has conducted a "public hearing" for purposes of § 136n(b). See Center for Biological Diversity v. U.S. EPA, 847 F.3d 1075, 1090 (9th Cir. 2017) (citing United Farm Workers of America, AFL-CIO v. EPA, 592 F.3d 1080, 1082-84 (9th Cir. 2010)); see also United Farm Workers, 592 F.3d at 1082 (noting "'hearing' includes proceedings in which there is no presentation of public argument"). Consequently, where, as here, a plaintiff challenges the EPA's failure to consult with the FWS prior to registering a pesticide product, a conflict exists between the ESA and FIFRA when that registration is "preceded by a public comment and notice period published in the Federal Register." See Center for Biological Diversity, 847 F.3d at 1090. In such situations, the jurisdictional limitations of FIFRA apply, as § 136n(b) is the "more specific legislation." See id. at 1089-90. Thus, only a court of appeals has jurisdiction to hear a claim brought under the ESA for failure to consult, where the challenged action was taken following "a public comment and notice period." See id. at 1090.

         Here, as the EPA's decisions to register the above-referenced five products occurred after a "public hearing" within the meaning of § 136n(b), the Court lacks jurisdiction to review the propriety of those five registrations. See id.

         Accordingly, defendants are entitled to judgment on the Fifth Claim, to the extent it is based on the EPA's registrations of Darlex Insecticide, Sepresto 75 WS and Prosper Evergol, and are entitled to judgment on the Sixth Claim, to the extent is based on the EPA's registrations of Agita 1GB Fly Bait and Agita 10 WG.

         3. ...


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