Center for Biological Diversity v. Environmental Protection Agency
65 F. Supp. 3d 742
N.D. Cal.2014Background
- CBD and Pesticide Action Network sue EPA for alleged violations of ESA §7(a)(2) by failing to initiate and reinitiate consultations regarding pesticides' effects on endangered species and critical habitats.
- Case followed an initial dismissal; SAC asserts 74 ESA claims across 50 active ingredients, all previously registered under FIFRA with REDs issued.
- Ninth Circuit two-pronged Karuk Tribe test: agency must affirmatively authorize or carry out activity and retain discretion to influence it for protected species.
- ESA and 50 C.F.R. § 402.14, 402.16 govern consultation and reinitiation; jurisdictional framework includes FIFRA §16 and its exclusive review venues.
- Court previously held that ongoing discretionary control alone does not trigger §7 duties and that some ESA claims may be time-barred or fall under FIFRA jurisdiction.
- Court grants in part and denies in part; some RED-based claims dismissed as untimely or not properly pled, while some reinitiation claims survive where actions were not superseded by reregistration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did RED issuance trigger the duty to consult under §7? | Plaintiffs contend REDs are affirmative agency actions requiring consultation. | Defendants argue REDs are not proper §7 triggers and are time-barred or subject to FIFRA review. | RED-based claims are dismissed for lack of jurisdiction/time-barred. |
| Does ongoing agency action constitute a trigger to initiate consultation under §7? | Ongoing control and subsequent actions show ongoing agency action requiring consultation. | Ongoing control alone is insufficient; triggers must be specific actions. | Ongoing agency action alone is insufficient; some amendment opportunities may exist, but general claim rejected. |
| Do reinitiation claims regarding 1989/1993 BiOps survive after reregistration superseded the original actions? | Reinitiation should be required if new information or changes trigger §402.16. | Superseding reregistration actions foreclose reinitiation on superseded registrations. | For superseded registrations, claims are dismissed with prejudice; for non-superseded cases, reinitiation claims survive. |
| Is 50 C.F.R. § 402.16 binding on EPA and Chevron deference applicable to EPA's reinitiation rule? | § 402.16 governs reinitiation with deference to Service's interpretation. | § 402.16 is binding and reasonable under Chevron; EPA may follow it. | § 402.16 is binding and a reasonable interpretation; deference accorded to Service regulations. |
Key Cases Cited
- Karuk Tribe of California v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012) (two-pronged test for when §7 consultation is required)
- United Farm Workers v. EPA, 592 F.3d 1080 (9th Cir. 2010) (public notice/comment as a 'hearing' for FIFRA §16(b))
- American Bird Conservancy v. FCC, 545 F.3d 1190 (9th Cir. 2008) (ESA jurisdiction and tied to FIFRA considerations)
- City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (U.S. 1958) (collateral attack considerations in agency orders)
- PG&E v. FERC, 464 F.3d 861 (9th Cir. 2006) (distinguishing between clarifications and modifications of agency orders)
- Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987) (deference to agency reinitiation/regulatory interpretations under §402.16)
- National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (Supreme Court 2007) (Chevron deference framework for agency interpretations)