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Center for Biological Diversity v. Environmental Protection Agency

United States Court of Appeals, District of Columbia Circuit

June 30, 2017

Center for Biological Diversity, et al., Petitioners
Environmental Protection Agency, Respondent E. I. du Pont de Nemours and Company, Et Al. Intervenors

          Argued March 6, 2017

         On Petition for Review of an Order of the United States Environmental Protection Agency and On Appeal from the United States District Court for the District of Columbia (No.1:14-cv-00942)

          Amanda W. Goodin argued the cause for petitioners/appellants. With her on the briefs were Kristen L. Boyles, Patti A. Goldman, George A. Kimbrell, and Jason C. Rylander.

          Travis Annatoyn, Attorney, U.S. Department of Justice, argued the cause for respondent/appellee. With him on the brief were John C. Cruden, Assistant Attorney General, and Andrew C. Mergen, Ellen J. Durkee, Lesley Lawrence-Hammer, and Anna T. Katselas, Attorneys. Paul Cirino, Trial Attorney, entered an appearance.

          Kirsten L. Nathanson, Warren U. Lehrenbaum, and Sherrie A. Armstrong were on the brief for intervenor-respondents/intervenor-appellees in support of respondent.

          Before: Henderson and Tatel, Circuit Judges, and Randolph, Senior Circuit Judge.



         The Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., and its implementing regulations require the United States Environmental Protection Agency ("EPA") to consult with certain wildlife services before taking any action that "may affect" an endangered species or its habitat. See 50 C.F.R. § 402.14(a). Nevertheless, the EPA issued a registration order authorizing the use of the pesticide cyantraniliprole ("CTP") without having made an ESA "effects" determination or satisfied its duty to consult. The Center for Biological Diversity, the Center for Food Safety and Defenders of Wildlife (collectively, "Conservation Groups") began two actions against the EPA: a complaint in district court under the ESA's citizen-suit provision and a petition for review in our Court pursuant to the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136 et seq. Because we conclude that FIFRA grants the court of appeals exclusive jurisdiction to review an ESA claim that is "inextricably intertwined" with a challenge to a pesticide registration order, we affirm the district court's dismissal of the Conservation Groups' ESA citizen suit. In addition, we grant the Conservation Groups' FIFRA petition and remand the case to the EPA for further proceedings as herein set forth.

         I. Background

         A. Statutory Landscape

         Endangered Species Act

         The ESA constitutes "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). Indeed, the Congress enacted the ESA "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved" and "to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). "The plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost." Tenn. Valley Auth, 437 U.S. at 184.

         "The ESA confers on the United States Departments of the Interior . . . and of Commerce . . . shared responsibilities for protecting threatened or endangered species of fish, wildlife and plants." In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 415 (D.C. Cir. 2004) (footnotes omitted) (citing 16 U.S.C. § 1533(a)). Section 7(a)(2) of the ESA mandates that every federal agency "shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification" of designated critical habitat. 16 U.S.C. § 1536(a)(2). That is, before taking any proposed action, agencies must consult with either the National Marine Fisheries Service ("NMFS"), located in the United States Department of Commerce, or the United States Fish and Wildlife Service ("FWS"), located in the United States Department of the Interior, to determine if the action will "jeopardize" endangered or threatened species.[1] 16 U.S.C. § 1532(15); 50 C.F.R. §§ 17.11, 402.01(b). This process, called-in shorthand-"consultation, " is "designed as an integral check on federal agency action, ensuring that such action does not go forward without full consideration of its effects on listed species." Lujan v. Defs. of Wildlife, 504 U.S. 555, 603 (1992) (Blackmun, J., dissenting); accord Defs. of Wildlife v. Jackson, 791 F.Supp.2d 96, 100 (D.D.C. 2011).

         The EPA, with input from the FWS or the NMFS, first makes an effects determination[2] to determine whether a proposed action "may affect, " 50 C.F.R. § 402.14(a), or "is not likely to adversely affect, " id. § 402.13(a), an endangered or threatened species or its habitat. If the EPA determines that an action "may affect" an endangered species, formal consultation is usually required. Id.§ 402.14(a)-(b). Formal consultation requires the FWS or the NMFS to prepare a "biological opinion" on whether the proposed action "is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat." Id. § 402.14(h)(3). If, however, the agency determines-with the written concurrence of the FWS or the NMFS-that "the action is not likely to adversely affect listed species or critical habitat, the consultation process is terminated, and no further action is necessary." Id. § 402.13(a).

         The ESA contains a broad citizen-suit provision, authorizing "any person" to "commence a civil suit on his own behalf . . . to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof." 16 U.S.C. § 1540(g)(1). "The district courts . . . have jurisdiction" of ESA citizen suits, id., but no action may be commenced "prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator." Id. § 1540(g)(2)(A)(i).

         Federal Insecticide, Fungicide and Rodenticide Act

         In enacting FIFRA, the Congress authorized the EPA to regulate the distribution, sale and use of pesticides "[t]o the extent necessary to prevent unreasonable adverse effects on the environment . . . ."[3] 7 U.S.C. § 136a(a). Under FIFRA, a pesticide may not be distributed or sold in the United States unless it has first been "registered" by the EPA. Id. That is, the "EPA issues a license, referred to as a 'registration, ' for each specific pesticide product allowed to be marketed; the registration approves sale of a product with a specific formulation, in a specific type of package, and with specific labeling limiting application to specific uses." 69 Fed. Reg. 47, 732, 47, 733 (Aug. 5, 2004). The EPA registers a pesticide if the agency determines:

(A) its composition is such as to warrant the proposed claims for it;
(B) its labeling and other material required to be submitted comply with the requirements of this subchapter;
(C) it will perform its intended function without unreasonable adverse effects on the environment; and
(D) when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment.

7 U.S.C. § 136a(c)(5).

         Like the ESA, FIFRA contains a citizen-suit provision. See id. § 136n. Unlike the ESA, however, judicial review of a FIFRA order proceeds in one of two ways, depending on, inter alia, whether the EPA conducts a "public hearing" before issuing its order. Id. If a claim challenges "the refusal of the [EPA] to cancel or suspend a registration or to change a classification not following a hearing" the order is "judicially reviewable by the district courts of the United States." Id. § 136n(a) (emphasis added). Conversely:

[I]n the case of actual controversy as to the validity of any order issued by the Administrator following a public hearing, any person who will be adversely affected by such order and who had been a party to the proceedings may obtain judicial review by filing in the United States court of appeals for the circuit wherein such person resides or has a place of business, within 60 days after the entry of such order, a petition praying that the order be set aside in whole or in part . . . . Upon the filing of such petition the court shall have exclusive jurisdiction to affirm or set aside the order complained of in whole or in part.

Id. § 136n(b) (emphases added).

         B. Factual Background

         The Conservation Groups are three organizations dedicated to the protection and enjoyment of the environment and the nation's endangered species; their members assert recreational and aesthetic interests in observing native species in undisturbed, natural habitats. Pet'rs' Br. iii. For example, Jeffery Miller, a member of the Center for Biological Diversity ("Center"), considers himself "an avid amateur naturalist and birdwatcher [who] frequently visit[s] habitat for rare and endangered birds and other wildlife throughout California." Miller Decl. ¶ 7. In particular, Miller claims "recreational, scientific, aesthetic, educational, moral, spiritual and conservation interests" in observing a particular insect-the Valley Elderberry Longhorn Beetle[4]-in its natural habitat. Miller Decl. ¶ 14. Likewise, John Buse, also a Center member, frequently visits Michigan's Van Buren State Park to observe rare wildlife, fish and plants. See Buse Decl. ¶ 9-10. Buse expresses an interest in "the Mitchell's satyr butterfly and its continued existence in the wild for its role as a native pollinator, for its beauty, and for its status as an indicator species for the health of the fens, bogs, and other wetlands." Buse Decl. ¶ 11. Buse "intend[s] to return to Van Buren County . . . to look for Mitchell's satyr butterflies." Buse Decl. ¶ 12. His interest in the butterfly is shared by Martha Crouch, a member of the Center for Food Safety. Crouch plans to visit Berrien County, Michigan and hopes to "observe the Mitchell's satyr butterfly . . . in [its] natural habitat."[5] Crouch Decl. ¶ 12. Crouch asserts that "[if] the Mitchell's satyr butterfly . . . is harmed or caused to go extinct because of new and increased exposure to pesticides formulated with CTP, [her] enjoyment of observing wildlife species would greatly suffer by never having the opportunity to observe these butterflies in their natural habitat." Crouch Decl. ¶ 12.

         CTP is a broad spectrum insecticide used to combat pestilent threats to the citrus and blueberry industries. JA 459. On February 29, 2012, the EPA announced that it had received applications to register pesticide products containing CTP under FIFRA. Pesticide Products; Registration Applications, 77 Fed. Reg. 12, 295, 12, 295-97 (Feb. 29, 2012). The EPA created an online docket and invited public comment on the applications until March 30, 2012. Id. at 12, 295. Two months later, on May 23, 2012, the EPA published a Notice of Filing announcing its receipt of a related petition to establish CTP as a "new tolerance[]" under the "regulations for residues of pesticides in or on food commodities." Receipt of Several Pesticide Petitions Filed for Residues ...

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