Center for Biological Diversity v. U.S. Environmental Protection Agency
847 F.3d 1075
| 9th Cir. | 2017Background
- CBD sued EPA under the ESA (Section 7) alleging EPA failed to consult with the Services when reregistering 382 pesticides; the complaints focused on 31 "failure-to-consult" claims tied to specific active ingredients/products.
- EPA’s reregistration process: EPA issues a Reregistration Eligibility Decision (RED) for an active ingredient after review and public comment, then later reviews product‑specific data and reregisters individual pesticide products.
- District court dismissed many claims for (1) failure to allege affirmative agency action sufficient to trigger Section 7, (2) statute of limitations, and (3) lack of jurisdiction where FIFRA’s review scheme applied; it allowed amendment on certain product reregistration claims but CBD declined to amend and appealed.
- CBD’s Second Amended Complaint pleaded four sub-claim categories per active ingredient: (1) issuance/amendment of RED; (2) EPA’s continued discretionary control; (3) completion of all product reregistrations; (4) approval/reregistration of individual pesticide products (with dates).
- The Ninth Circuit assumed (but did not decide) RED issuance could be a triggering action, upheld dismissals of categories 1–3 largely on statute-of-limitations, jurisdiction, and Karuk‑style affirmative‑action grounds, and reversed dismissal of category 4 (product reregistrations) as not barred by collateral-attack doctrine in the posture presented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which limitations period applies to ESA Section 7 citizen suits challenging EPA registration/reregistration? | No limitations period applies because EPA’s Section 7 duties are ongoing; continuing violation tolls limitations. | Apply a general federal limitations period. | Apply the six‑year general statute (28 U.S.C. § 2401(a)); many RED-based claims were time‑barred. |
| Whether ESA or FIFRA jurisdictional scheme controls where claims challenge post‑notice REDs/orders | ESA citizen‑suit jurisdiction in district court allows enforcement of Section 7 duties. | Where claims are "inextricably intertwined" with FIFRA registration/reregistration after notice/comments, FIFRA's exclusive court‑of‑appeals route applies. | When a Section 7 claim challenges a final EPA order issued after notice/comment, FIFRA’s specific review path controls; those claims must be filed in a court of appeals. |
| What constitutes an "agency action" triggering Section 7 consultation (affirmative action requirement)? | EPA’s ongoing discretionary control and failure to consult constitutes ongoing agency action triggering Section 7. | Karuk requires an affirmative, discretionary action (authorization/funding/implementation with discretion); mere retention of control or "completion" dates are not enough. | Affirmative agency action required; continued discretionary control is necessary but insufficient; completion of reregistration (a date/fact) is not an affirmative act. Category 2 and 3 claims fail. |
| Whether product reregistrations (category 4) are impermissible collateral attacks on prior REDs | Product reregistrations are distinct affirmative actions that may trigger consultation; not necessarily an attack on RED analysis. | Product approvals merely implement RED conclusions; challenging them is an impermissible collateral attack if used to relitigate REDs. | Product reregistrations constitute affirmative, distinct actions for Section 7 purposes and are not categorically barred by the collateral‑attack doctrine as pleaded; district court’s dismissal of category 4 claims reversed (subject to statute‑of‑limitations/FIFRA limits). |
Key Cases Cited
- Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012) (two‑part test: agency must have affirmatively authorized/funded/carried out the activity and have discretion to influence it)
- American Bird Conservancy v. Fed. Commc’ns Comm’n, 545 F.3d 1190 (9th Cir. 2008) (where two statutes provide different review routes, apply the more specific statute when claims are inextricably intertwined)
- Wind River Mining Corp. v. United States, 946 F.2d 710 (9th Cir. 1991) (apply general six‑year statute for APA‑style procedural challenges when no specific limitations period exists)
- Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015) (agencies have ongoing duty to reinitiate ESA consultation when actions may affect listed species)
- Wash. Toxics Coal. v. EPA, 413 F.3d 1024 (9th Cir. 2005) (EPA’s continuing authority over pesticides creates an ongoing ESA obligation)