United States Court of Appeals, District of Columbia Circuit
March 6, 2017
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
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.
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
Kirsten L. Nathanson, Warren U. Lehrenbaum, and Sherrie A.
Armstrong were on the brief for
intervenor-respondents/intervenor-appellees in support of
Before: Henderson and Tatel, Circuit Judges, and Randolph,
Senior Circuit Judge.
LECRAFT HENDERSON, CIRCUIT JUDGE:
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.
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.
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. 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).
EPA, with input from the FWS or the NMFS, first makes an
effects determination 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. §
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).
Insecticide, Fungicide and Rodenticide Act
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 . . . ." 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
(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).
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
Id. § 136n(b) (emphases added).
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-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." 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.
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 ...