Center for Biological Diversity v. Environmental Protection Agency
2017 U.S. App. LEXIS 11668
| D.C. Cir. | 2017Background
- EPA registered the insecticide cyantraniliprole (CTP) under FIFRA without performing an ESA "effects" determination or consulting Fish and Wildlife Service/NMFS as required by ESA §7(a)(2) and implementing regulations. EPA had, however, conducted an ecological risk assessment and multiple notice-and-comment opportunities.
- Conservation Groups (Center for Biological Diversity, Center for Food Safety, Defenders of Wildlife) challenged the registration in district court under the ESA citizen‑suit provision and filed a protective petition for review in the D.C. Circuit under FIFRA.
- The district court dismissed the ESA citizen suit, holding FIFRA’s exclusive appellate-review provision governs when a FIFRA registration follows public notice/comment and thus the court of appeals has exclusive jurisdiction.
- On consolidation, the D.C. Circuit considered standing, the interaction of ESA citizen‑suit jurisdiction with FIFRA’s review scheme, and the proper remedy for EPA’s failure to consult.
- The D.C. Circuit (majority) found petitioners had Article III standing and that FIFRA §136n(b) supplied exclusive appellate jurisdiction because EPA’s notice-and-comment process constituted a "public hearing;" it remanded to EPA for ESA-compliant proceedings but declined to vacate the registration.
- Senior Judge Randolph dissented, arguing petitioners lacked standing because CTP was designated a "reduced risk" pesticide (likely to replace, not add to, more toxic alternatives) and petitioners failed to show a concrete, geographically specific increased risk to members.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (Article III) to challenge EPA’s failure to conduct an ESA effects determination and consultation | Petitioners: organizational standing via members who use/observe listed species in habitats that overlap areas of likely CTP use; procedural violation creates a demonstrable increased risk to their interests | EPA/Intervenors: petitioners cannot show a concrete, particularized, geographically specific increased risk; CTP is a "reduced risk" pesticide likely to reduce harms relative to alternatives | Majority: Petitioners have standing (procedural injury plus substantial probability of harm). Dissent: would reject standing. |
| Proper forum/jurisdiction for ESA claim arising from a FIFRA registration | Petitioners: ESA citizen suit in district court is appropriate; ESA creates independent procedural duty not subsumed by FIFRA | EPA: FIFRA §136n(b) grants exclusive jurisdiction to courts of appeals where registration follows a public hearing (broadly construed to include extensive notice-and-comment and an administrative record) | Held: FIFRA §136n(b) is the more specific review provision; because EPA’s process constituted a "public hearing," the court of appeals has exclusive jurisdiction; district court dismissal affirmed. |
| Merits: whether EPA violated ESA §7(a)(2) by failing to make effects determination and consult | Petitioners: EPA registered CTP without required effects determination/consultation, violating ESA §7(a)(2) and regs | EPA: did not contest failure to consult but argued risk analysis at taxa level and that registration provides environmental benefits; remedy should account for potential benefits | Held: EPA violated ESA by failing to make effects determination/consult; court remanded to EPA for proceedings consistent with ESA but declined to vacate the registration pending further action. |
| Remedy (vacatur vs. remand) for EPA’s procedural ESA violation | Petitioners: seek remand and immediate consultation (and asked for a court-imposed deadline/reporting) | EPA/Intervenors: urged limited relief given CTP’s reduced-risk designation and potential benefits | Held: Court remanded without vacatur (declining to set deadlines or require periodic reporting); emphasized agency reconsideration on remand. |
Key Cases Cited
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (Sup. Ct.) (ESA’s sweeping conservation purpose)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (Sup. Ct.) (Article III standing framework; procedural‑injury principles)
- Bender v. Williamsport Area School Dist., 475 U.S. 534 (Sup. Ct.) (appellate courts’ obligation to ensure jurisdiction)
- Environmental Defense Fund v. EPA, 485 F.2d 780 (D.C. Cir.) (FIFRA review exclusivity; policy favoring centralized appellate review)
- Environmental Defense Fund, Inc. v. Costle, 631 F.2d 922 (D.C. Cir.) (broad interpretation of "public hearing" where administrative record suffices)
- Florida Audubon Soc. v. Bentsen, 94 F.3d 658 (D.C. Cir.) (procedural‑injury standing requires causal link and substantial probability of harm)
- Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89 (D.C. Cir.) (vacatur/remand framework balancing seriousness of defects vs. disruptive consequences)
- Center for Biological Diversity v. EPA, 847 F.3d 1075 (9th Cir.) (holding ESA §7 claims tied to FIFRA registrations after notice/comment must comply with FIFRA jurisdictional provisions)