Home » Case Summaries » 2017 » Natural Resources Defense Council v. U.S. Environmental Protection Agency, 857 F.3d 1030 (9th Cir. 2017).


Natural Resources Defense Council v. U.S. Environmental Protection Agency, 857 F.3d 1030 (9th Cir. 2017).


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The Natural Resources Defense Council (NRDC)[1] petitioned the United States Court of Appeals for the Ninth Circuit for review of a pesticide registration promulgated by the United States Environmental Protection Agency (EPA). NRDC challenged EPA’s conditional registration of NSPW-L30SS (NSPW) under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).[2] NRDC argued that EPA failed to substantially support its finding that use of NPSW was in the public interest. Reviewing the grant of conditional registration for substantial evidence, the Ninth Circuit concluded that EPA failed to adequately support its public interest finding. The court vacated the registration in whole.

NSPW is an antimicrobial materials preservative incorporated into plastics and textiles to suppress the growth of bacteria, algae, fungus and mold.[3] The active ingredient in NSPW is nanosilver, a version of conventional silver with a much smaller particle size. Although silver is the active ingredient in other registered materials preservatives, the FIFRA Scientific Advisory Panel cautioned that its hazard profile may differ from conventional silver and recommended that EPA treat nanosilver as different from other forms of silver.

In 2015, EPA determined that NSPW would not cause unreasonable adverse effects on the environment and granted NSPW conditional registration. EPA found that compared to conventional silver preservatives, NSPW used less silver and was less likely to release silver into the environment in detectable quantities. Reasoning that NSPW had the potential to reduce risks caused by silver, EPA found that granting conditional registration was in the public interest. NRDC opposed the conditional registration during public notice and comment and petitioned the Ninth Circuit for review of EPA’s decision.

Noting the absence of any prior decision considering the public interest requirement under FIFRA, the court derived a test by consulting the text of the statute and the legislative history. The statute sets forth that EPA may conditionally register a pesticide for the limited period of time that data is gathered only if EPA first determines that “use of the pesticide is in the public interest.”[4] The legislative history further indicates that the conditional registration should be reserved for a truly exceptional case, and that the public interest requirement is a more stringent test.

The Ninth Circuit then considered whether EPA’s finding that NSPW’s potential to reduce the amount of silver released into the environment satisfied the public interest test. NRDC argued that EPA’s conclusion relied on two unsubstantiated assumptions: 1) that current users of conventional silver pesticide would switch to NSPW, and 2) that NSPW would not be incorporated into other new products. To the first point, EPA argued that as a logical matter NSPW would be substituted for conventional silver. For support, EPA referenced a 1983 Federal Register entry suggesting that, given the finite and inelastic nature of the pesticide market, increased competition may shift demand from one product to another. To the second point, EPA argued only that no evidence suggested NSPW would be incorporated into new products. While the Ninth Circuit did not foreclose the possibility that EPA could have proven these assumptions, the court found that EPA had failed to support its public interest finding with substantial evidence.

In sum, the Ninth Circuit found that, in granting NSPW with conditional registration, the EPA failed to support the required public interest finding with substantial evidence. Accordingly, the Ninth Circuit vacated the conditional registration.

Footnotes    (↵ returns to text)

  1. Petitioners included Center for Food Safety and International Center for Technology Assessment.
  2. 7 U.S.C. §§ 136–136y (2012).
  3. Under FIFRA, pesticides include ‘‘any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest.’’ 7 U.S.C. § 136(u). Pests include, among other organisms, fungus, virus, bacteria, or other microorganisms. Id. § 136(t).
  4. Id. § 136a(c)(7).
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