Home » Case Summaries » 2017 » Center for Biological Diversity v. U.S. Environmental Protection Agency, 847 F.3d 1075 (9th Cir. 2017).


Center for Biological Diversity v. U.S. Environmental Protection Agency, 847 F.3d 1075 (9th Cir. 2017).


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The Center for Biological Diversity (CBD) filed suit against the United States Environmental Protection Agency (EPA) and intervenors[1] on February 2, 2017, in the United States District Court for the Northern District of California. CBD alleged Endangered Species Act (ESA)[2] and Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)[3] violations. Specifically, CBD challenged EPA’s reregistration eligibility determinations (REDs) for different pesticides, alleging that EPA failed to consult with relevant agencies before issuing the REDs. According to CBD, approving the pesticides through the REDs “may affect” various listed endangered species or their habitats. On appeal by defendants, the United States Court of Appeals for the Ninth Circuit affirmed in part, reversed in part, and remanded.

The ESA seeks to protect and conserve endangered and threatened species and their habitats. The statute requires federal agencies to consult with National Marines Fisheries Service and Fish and Wildlife Service to ensure their discretionary actions do not jeopardize endangered and threatened species, or adversely modify a listed species’ critical habitat. FIFRA charges EPA with the obligation to register and reregister pesticide active ingredients and pesticide products. FIFRA provides a comprehensive regulatory scheme for the use, sale, and labeling of pesticide active ingredients and pesticide products. In this case, CBD alleged consultation violations with 382 pesticides through thirty-one claims for relief in its amended complaint. The district court ruled in favor of EPA but granted CBD leave to amend or add facts regarding impermissible collateral attacks.[4] Instead of amending, CBD appealed the decision. The Ninth Circuit affirmed all the dismissals but one; the court concluded that the district court erred regarding the collateral attack doctrine.

The court analyzed CBD’s claim in four categories to determine whether each category constituted an agency action. First, category one dealt with the claims on EPA’s issuance of the RED or amended RED. Second, category two dealt with EPA’s continued discretionary control and involvement in the pesticide’s active ingredients and registration. Category three dealt with EPA’s completion of pesticide product reregistration for specific active ingredients. Last, category four dealt with EPA’s approvals of pesticide products containing a pesticide’s active ingredient.

The first issue was whether to apply a statute of limitations for a Section 7 citizen suit[5] filed in a district court that challenges EPA’s decision to register or reregister a pesticide ingredient or product. This raised a statute of limitations question of first impression for the court. CBD argued for no limitations because EPA had a continuing duty to comply. The court disagreed and dismissed the category one sub-claims because when a statute does not specify a limitation, federal courts must apply the general statute of limitations that most closely addresses the basis for plaintiff’s claim.

The next issue was whether subject matter jurisdiction existed for the district court to properly hear sixteen remaining category one sub-claims. The court held that, for purposes of FIFRA, a Section 7 claim raised after EPA undertakes public notice and comment must comply with FIFRA’s jurisdictional provisions. The claims did not comply, and so the provisions supported the district court’s dismissal of the sixteen remaining sub-claims for lack of subject matter jurisdiction.

Next, the court turned to category two sub-claims. CBD alleged that the continued discretionary control and involvement in these pesticide registrations constituted ongoing agency action. CBD reasoned that EPA’s “ongoing violation” provides an adequate basis for a Section 7 claim, and consequently, a plaintiff should not be required to identify a separate and affirmative discretionary action for a Section 7 claim to accrue. The court disagreed, finding that an ESA claim accrues only when an agency takes discretionary, affirmative action. Here, the court found that CBD had “conflate[d] an ongoing duty with an ongoing violation.”[6]

The court next reviewed the category three sub-claims alleging that EPA’s completion of all pesticide product reregistration for a particular pesticide active ingredient created an affirmative agency action triggering Section 7 consultation. The court held that completion of a pesticide product reregistration differed from the official act of seeking registration. The court described the completion of reregistration as nothing more than “a date,” and held it cannot trigger Section 7 consultation.

In the final category of four sub-claims, CBD contended that EPA’s approval of individual pesticide products was an affirmative agency action triggering ESA Section 7 consultation. On this issue, the court agreed with the district court that pesticide product reregistration was an affirmative agency action. The court also disagreed that these claims were a collateral attack on the publication of the REDs. The court reasoned that publication of a RED for a pesticide active ingredient was not the agency’s final decision on reregistration of a pesticide product. Since a RED does not contain all the research upon which EPA relied when reaching its decision, the reregistration of an individual pesticide product was its own triggering action. The court further reasoned that the collateral attack doctrine did not apply because CBD did not seek to unravel a prior agency order or attempt to challenge any of the analyses contained in the REDs. Based on this analysis, the Ninth Circuit reversed the district court’s dismissal of all category four sub-claims.

In sum, the Ninth Circuit affirmed the dismissal of all category one, two, and three sub-claims and reversed the dismissal of all category four sub-claims.

Footnotes    (↵ returns to text)

  1. Responsible Industry for a Sound Environment, Southern Crop Production Association, Western Plant Health Association, Midamerica Croplife Association, American Farm Bureau Federation, American Chemistry Council, National Agricultural Aviation Association, National Alliance of Forest Owners, National Corn Growers Association, National Cotton Council, National Council of Farmer Cooperatives, National Potato Council, Oregonians for Food and Shelter, USA Rice Federation, and Washington Friends of Farms and Forests.
  2. 16 U.S.C. §§ 1531–1544 (2012).
  3. 7 U.S.C. §§ 136–136y (2012).
  4. Ctr. for Biological Diversity v. U.S. Envtl. Prot. Agency, 65 F. Supp. 3d 742, 772 (N.D. Cal. 2017).
  5. 16 U.S.C. § 1536(n).
  6. Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1087 (9th Cir. 2003).
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