707 F.3d 462
4th Cir.2013Background
- FIFRA requires EPA reregistration of legacy pesticides chlorpyrifos, diazinon, and malathion; EPA consulted with NMFS under ESA through a Biological Opinion (BiOp).
- NMFS concluded the pesticides would jeopardize 27 salmonid species and adversely modify habitat, prompting restrictions; EPA did not consult Interior for a BiOp at that stage.
- District court dismissed the APA challenge, later reversed on appeal, with this opinion addressing remand after the BiOp was vacated.
- On remand, NMFS submitted a Hawkes affidavit and the district court considered post hoc explanations; Manufacturers challenged reliance on those materials.
- We hold the district court erred by relying on post hoc rationalizations and by accepting an unexplained 96-hour exposure model, outdated data, and uniform buffers; vacate BiOp and remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 96-hour exposure assumption explained | Manufacturers: NMFS failed to justify the 96-hour continuous exposure model. | NMFS contends the model is a valid laboratory standard used as part of multiple factors. | BiOp arbitrary for failing to justify the 96-hour assumption. |
| Reliance on outdated water data | Manufacturers: NMFS relied on old USGS data despite newer data showing reduced use and exposure. | NMFS argued older data were still informative and mitigating factors were acknowledged. | BiOp arbitrary for not adequately explaining reliance on outdated data. |
| Uniform buffer reasoning and economic feasibility | Manufacturers: One-size-fits-all buffers across diverse waterways are unjustified and economically infeasible. | NMFS asserted buffers were precautionary to reduce drift; ESA does not require multiple options here. | BiOp arbitrary for failing to justify uniform buffers and address economic feasibility. |
| Use of post hoc explanations and affidavits | Manufacturers: District court relied on counsel arguments and Hawkes affidavit not in the record. | NMFS argued explanations were within the administrative record or proper post hoc rationalizations. | Chenery and related cases require reliance on the agency record; post hoc materials improper. |
| Finality and reviewability of BiOp | Manufacturers: BiOp is reviewable final agency action under APA. | EPA argued finalization depended on FIFRA; BiOp review should wait for reregistration order. | BiOp is reviewable final agency action; vacate and remand for renewed process. |
Key Cases Cited
- Chenery Corp. v. United States, 318 U.S. 80 (1943) (court may not consider post hoc rationalizations; must rely on agency record)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (agency record and contemporaneous rationales; limits on post hoc explanations)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (requires reasoned decisionmaking; rational connection between facts and choices)
- Satellite Broadcasting & Communications Ass’n v. FCC, 275 F.3d 337 (4th Cir. 2001) (need for rational basis linking facts to agency choice)
- Sierra Club v. EPA, 671 F.3d 955 (9th Cir. 2012) (cogent explanation needed when newer data exist; arbitrary to ignore current data)
- Southwest Center for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515 (9th Cir. 1998) (need to explain why chosen alternative over others when both justified)
- Greenpeace v. Nat’l Marine Fisheries Serv., 55 F. Supp. 2d 1248 (W.D. Wash. 1999) (review standards for alternatives and economic feasibility in BiOps)
- Chenery Corp. v. United States, 118 S. Ct. 455 (N/A) (duplicate entry to emphasize rational-record requirement)