Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law

On June 30, 2017, the D.C. Court of Appeals granted conservation groups’ petition for review of the Environmental Protection Agency (EPA)’s approval of a pesticide in Center for Biological Diversity v. EPA. The Court agreed with conservation groups that before approving for use the pesticide cyantraniliprole (CTP), the EPA did not fully comply with the Endangered Species Act. The Court granted the petition for review and remanded the action without vacatur to the EPA for further proceedings. You can read the full opinion here.

EPA’s registration of CTP

CTP is an insecticide that is used in the citrus and blueberry industries. The EPA announced its review of CTP after receiving applications to register the insecticide under  the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) in February of 2012. The EPA invited public comment in both in March and June of 2012. In conducting the ecological risk assessment of CTP during its year-long review period, the EPA determined that CTP is “highly toxic or very highly toxic” to groups such as butterflies and beetles, and that 1,377 endangered species’ habitats overlapped with areas CTP was proposed for use.

Nevertheless, the EPA announced on June 6, 2013 it proposal to register CTP under FIFRA. Public comment was invited again. CTP was registered as a pesticide under FIFRA and approved for use on January 24, 2014. CTP was registered by the EPA without making an effects determination or consulting with the Fish and Wildlife Service or the National Marine Fisheries Service as required by federal law.

EPA’s obligations under the Endangered Species Act

The Endangered Species Act (EPA) requires the EPA to consult with wildlife services when implementing regulations “before taking any action that ‘may affect’ an endangered species or its habitat.” (See 50 C.F.R. § 402.14(a)). Before approving CTP for use, the EPA did not make an ESA effects determination. Conservation groups alleged that by failing to do so, the EPA also breached its duty to consult and therefore was in violation of the EPA.

The ESA confers shared responsibilities on federal agencies for protecting threatened or endangered species. Section 7(a)(2) of the Act mandates that before taking proposed action, agencies must consult with the Fish and Wildlife Service or the National Marine Fisheries Service in order to determine whether the proposed action presents a danger, or will “jeopardize” endangered or threatened species.  This 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.”

After seeking input from the Fish and Wildlife Service or National Marine Fisheries Service, the EPA should makes an effects determination. This determination expresses whether a proposed action may adversely affect or conversely, is not likely to adversely affect, a threatened or endangered species. If the EPA finds the action to potentially adversely affect a threatened or endangered species, a formal consultation process is required. This process requires the Fish and Wildlife Service or National Marine Fisheries Service to prepare a formal opinion of the likelihood of harm to a species.

Background of this Legal Action

Conservation groups filed two legal actions against the EPA as a result of this alleged violation. First, a complaint was filed in district court under the ESA’s citizen-suit provision. Second, a petition for review of the EPA’s actions was filed in the D.C. Court of Appeals under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) (See 7 U.S.C. § 136 et seq.).  The second action was stayed by this Court until the outcome of the first action was adjudicated by the district court.

The citizen-suit provision of the ESA authorizes any person to take action and vests jurisdiction of this action in the federal district courts. However, it dictates that 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.” (See 16 U.S.C. § 1540(g)(2)).

FIFRA authorizes the EPA to regulate the distribution, sale, and use of pesticides in order to prevent unreasonable adverse effects on the environment. (See 7 U.S.C. § 736a(a)). FIFRA requires the registration of pesticides by the EPA before they may be sold or distributed in the United States. FIFRA also contains a citizen-suit provision. Judicial review of claims under FIFRA proceed in two ways, depending on whether there is a public hearing conducted by EPA before its decision. If a hearing is not held, jurisdiction to hear these claims lies in the district court. If a hearing is held, however, jurisdiction lies in the Court of Appeals. Three public hearings were held by the EPA here.

The district court granted the EPA’s motion to dismiss the first action, finding that the claim gave rise to an actual controversy under FIFRA and was therefore governed under the jurisdictional grant of FIFRA – making jurisdiction proper in the Court of Appeals. The Court of Appeals agreed. Both claims were then consolidated into this action.

Analysis of this Action

Jurisdiction and Standing

The D.C. Court of Appeals found that the conservation groups satisfied the federal jurisdictional requirements and had standing as (1) they were adversely affected by the registration of CTP, (2) they challenged the validity of CTP registration based on the EPA’s failure to consult and to make an effects determination, and (3) the challenge was filed after the appropriate public hearing and comment periods.

Dissenting Judge Randolph disagreed that the conservation groups had standing before this court. Article III of the Constitution grants a procedural right to standing when some concrete interest is deprived. Judge Randolph argued that conservation groups failed to show that CTP would harm their members (for example, by providing an example of a listed species harmed since CTP’s 2014 registration), which rendered the pesticide’s registration harmless. Nevertheless, the majority found the conservation groups to have standing under Article III.

Court finds EPA in violation of ESA; CTP registration remains in effect for now

Because the EPA did not contest that it did not make an effects determination or initiate consultation with the required parties, the Court determined that the EPA violated section 7(a)(2) of the ESA when it registered CTP before making an effects determination or consulting with the Fish and Wildlife Service or National Marine Fisheries Service.

In deciding the appropriate remedy for the violation, the Court considered whether to vacate the EPA’s registration of CTP until the appropriate effects determination and consultation were completed. In deciding whether to vacate, the Court considered “the seriousness of the order’s deficiencies” and the “disruptive consequences of an interim change that may itself be changed.” In a previous case, this court remanded without vacature if vacating would, even if temporarily, defeat the enhanced protection of environmental values covered by the EPA action or rule at hand.

The Court decided not to vacate the EPA’s registration of CTP. Even though the EPA did not make the required effects determination or consult as required, the Court stressed that “it did not register CTP in total disregard of the pesticide’s potential deleterious effects.” This determination was based on action indicating that the EPA considered CTP less toxic to wildlife than the leading alternative pesticides, which were currently in use and would likely be replaced by the use of CTP. Therefore, the D.C. Court of Appeals allowed the CTP registration order to remain in effect until the EPA replaces it with an order consistent with its decision that will “maintain enhanced protection of the environmental values covered by the CTP registration order.”  This means that the EPA will be required to conduct the required effects determination and, if this determination indicates that the action will adversely affect a threatened or endangered species, formal consultation will be necessary to replace CTP’s registration order. Until that time, the current CTP registration order will remain in force.