Dow Agrosciences LLC v. National Marine Fisheries Service
637 F.3d 259
4th Cir.2011Background
- This case involves a Fisheries Service BiOp issued to the EPA under ESA during FIFRA reregistration of chlorpyrifos, diazinon, and malathion.
- EPA sought reregistration under FIFRA; BiOp found likely to jeopardize salmonids and habitat, with conditions and an Incidental Take Statement.
- Pesticide Manufacturers challenged the BiOp in district court arguing ESA data were ignored and timing affected final actions.
- District court dismissed, holding BiOp reviewable only in court of appeals after EPA acts under FIFRA.
- Court of Appeals reversed and remanded, holding BiOp is final agency action subject to APA review and not exclusively reviewable under FIFRA.
- BiOp’s legal consequences include a safe harbor from ESA liability and potential impact on EPA’s reregistration decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the BiOp a final agency action reviewable under the APA? | Dow argues BiOp is final and governs rights. | Fisheries Service argues reregistration order governs review. | Yes, BiOp is final agency action. |
| Is there an adequate remedy in a court under FIFRA that precludes APA review? | APA review should not be precluded by FIFRA remedies. | EPA review is exclusive under FIFRA after final order. | No adequate FIFRA remedy precludes APA review. |
| Is the BiOp ripe for judicial review now before EPA acts on reregistration? | Ripeness is present due to direct legal consequences of BiOp. | Review should await EPA’s final reregistration decision. | Yes, it is ripe for review. |
| Did the district court have jurisdiction to review the BiOp, rather than defer to the FIFRA scheme? | District court should review directly under APA. | Review should occur in the court of appeals under FIFRA. | Yes, district court had jurisdiction; reversed dismissal. |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (1997) (BiOp final action with significant legal consequences)
- City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958) (exclusive review concepts and issues inhering in orders)
- Abbott Labs. v. Gardner, 387 U.S. 136 (1967) (standing presumption of reviewability for final agency actions)