Gravel2Gavel Construction & Real Estate Law Blog
On June 30, the U.S. Court of Appeals for the District of Columbia issued an important ruing regarding the Environmental Protection Agency’s (EPA) regulation and registration of pesticides. The case is Center for Biological Diversity, et al. v. EPA, and it involves the intersection of the Endangered Species Act (ESA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The Court of Appeals granted the FIFRA petition, dismissed the ESA petition, and remanded the matter to EPA without vacatur for additional consideration by EPA. Remand “without vacatur” is a judicial remedy that permits the agency’s order or rule to remain in effect after they are remanded by the reviewing court for further agency proceedings. The dissenting judge argued that the plaintiffs had not satisfied their burden of proof to establish their right to maintain this lawsuit.
These decision illustrates the powerful role the federal courts play in the proper interpretation of the environmental laws that apply to many industries and commercial and industrial activities.
The EPA issued a registration for the pesticide cyantraniliprole (CTP) following the rulemaking procedures of FIFRA. Admittedly, EPA did not make an ESA “effects determination” regarding the effects of the use of the pesticide on various protected species or follow the special ESA governmental consultation procedures. But, EPA did develop an exhaustive ecological risk assessment which persuaded EPA that the new pesticide was generally less toxic than the alternatives. (Apparently the new pesticide was more efficient that the older pesticides used to control pests to the citrus and blueberry industries.)
The plaintiffs filed two lawsuits protesting this EPA action; one lawsuit was filed in the U.S. District Court under the citizen suit provisions of the ESA, and the other was filed in the U.S. Court of Appeals under the judicial review provisions of FIFRA. The Court of Appeals held, in a 2 to 1 decision, that FIFRA was the controlling statute, and the Court of Appeals was the appropriate forum; it could review an ESA claim that was “inextricably related” to a challenge to a pesticide registration action of EPA.
On appeal, the Court of Appeals considered whether the Center has standing to sue under Article III of the U.S. Constitution. An association has such standing if
(1) at least one of its members would have standing to sue in his own right;
(2) the interest it seeks to protect is germane to its purpose; and
(3) neither the claim asserted nor the relief requested requires the member to participate in the lawsuit.
And, only one association need have standing. The Court of Appeals confirmed that it had “no difficulty finding that the Center meets the latter two elements of association standing.” “The Center, an organization ‘dedicated to the protection and enjoyment of the environment,’ has an ‘obvious interest in challenging’ the EPA’s failure to engage in consultation.” (Internal citations omitted). It further found that “neither the claim asserted (EPA’s alleged violation of ESA’s consultation requirement) nor the relief requested (order requiring ‘EPA to complete consultation and to report back to this Court every six months until consultation is complete’) requires any Center member to participate as a named plaintiff in the lawsuit.”
The Court of Appeals went on to confirm that “[t]he EPA’s procedural omissions—its failure to make an effects determination and to consult—are necessary, but not sufficient, requirements for a procedural-rights plaintiff like the Center to establish standing… The Center must also show that the failure to make an effects determination or to consult affects its members’ concrete aesthetic and recreational interests…; that its failures caused the EPA ‘to overlook the creation of a demonstrable risk not previously measurable (or the demonstrable increase of an existing risk) of serious environmental impacts that imperil [the members’] particularized interest[s].” The Court of Appeals “believe[d] the Center has done just that.”
Center member John Miller has expressed ‘recreational, scientific, aesthetic, educational, moral, spiritual and conservation interests,” in observing the Valley Elderberry Longhorn Beetle in its natural California habitat, a habitat that Miller ‘regularly visit[s] . . . three-to-four times a year.’ Miller’s interest in the beetle has yielded tangible results as he has ‘found Longhorn Beetle drill holes in elderberry trees.’ He plans to continue his trips in the ‘hope’ that he will ‘see Valley Elderberry Longhorn Beetles in the wild.’ Likewise, member John Buse, a frequent visitor to Michigan’s Van Buren State Park, ‘intend[s] to return to Van Buren County . . . to look for Mitchell’s satyr butterflies.’ (Internal citations omitted).
The Court of Appeals next confirmed that “the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.” It went on to conclude that the conservation groups “possess standing to press their ESA section 7(a)(2) challenge but that they must petition for our review pursuant to 7 U.S.C. 136n(b).”
The Court of Appeals next affirmed the District Court’s dismissal of the ESA citizen suit and proceeded to the merits of their FIFRA petition for review. In short form, the Court of Appeals noted that “[t]he EPA ‘does not contest that it has not made an ‘effects’ determination or initiated consultation regarding its registration order for [CTP] consistent with the ESA and its implementing regulations.” Accordingly, it found that “EPA has therefore violated section 7(a)(2) of the ESA by registering CTP before making an effects determination or consulting with the [U.S. Fish and Wildlife Service] or the [National Marine Fisheries Service].”
Accordingly, the Court of Appeals found that its only task was to determine the appropriate remedy. “Alongside its grant of exclusive jurisdiction, FIFRA vests the Court with the authority ‘to affirm or set aside the order complained of in whole or in part.” Ultimately, the Court of Appeals remanded the matter without vacatur to the EPA for proceedings consistent with its opinion, citing to EPA’s exhaustive ecological risk assessment.