Natural Resources Defense Council v. United States Environmental Protection Agency, 735 F.3d 873

Background

NRDC challenged EPA's conditional registration of AGS-20 (nanosilver textile treatment) under FIFRA § 3(c)(7)(C).
EPA performed a risk assessment focusing on consumers (children) and used a 3-year-old as the most vulnerable subpopulation.
EPA's decision documented MOEs and a 1,000 target MOE for short- and intermediate-term exposures; aggregate oral and dermal exposure was analyzed for a toddler who wears and mouths treated textiles.
NRDC argued EPA erred in (i) using toddlers instead of infants, (ii) finding no risk for aggregate exposure when MOE equaled 1,000, and (iii) excluding non-AGS-20 nanosilver sources from consideration.
The panelvacated in part, remanding for the MOE issue, while denying other challenges; NRDC and EPA briefs contemplated broader exposure considerations.
Judicial posture: the court has exclusive jurisdiction to affirm or set aside the EPA order in whole or in part under FIFRA.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Article III standing of NRDC	NRDC has credible threat of harm to its members' children.	NRDC lacks concrete imminent injury from conditional registration.	NRDC has standing; credible threat sufficient.
Use of toddlers vs infants for vulnerability	Infants are the most vulnerable; EPA erred by using three-year-olds.	Use of three-year-olds supported by agency practice and behavioral factors.	Agency's use of three-year-old body weight supported by substantial evidence; NRDC's claim denied.
MOE-based risk conclusion for surface-coated textiles	EPA's MOE calculation for aggregate dermal and oral exposure equals 1,000, indicating risk requiring mitigation.	EPA's calculations and rounding support no risk concern given MOEs exceed target after accounting for conservatism.	EPA's conclusion not supported; MOE = 1,000 constitutes risk concern; petition granted in part; remand.
Consideration of other nanosilver sources	EPA should perform aggregate risk assessment including nanosilver beyond AGS-20.	No statutory obligation to include other nanosilver sources in conditional review; data lacking.	EPA's decision not to include other nanosilver sources upheld; substantial evidence supports decision.

Key Cases Cited

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) (standing requires actual or imminent injury; credible threat suffices)
Vasquez v. Astrue, 572 F.3d 586 (9th Cir. 2009) (substantial evidence standard defers to agency expertise)
Nw. Food Processors Ass’n v. Reilly, 886 F.2d 1075 (9th Cir. 1989) (substantial evidence and deference to agency findings)
St. Elizabeth Cmty. Hosp. v. Heckler, 745 F.2d 587 (9th Cir. 1984) (deference for agency in scientific predictions)
Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490 (1981) (definition of substantial evidence; agency must be supported on record)
Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87 (1983) (agency action reviewed for reasoning relied upon)
Safe Air for Everyone v. EPA, 488 F.3d 1088 (9th Cir. 2007) (review begins and ends with agency's stated reasoning)
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (credible threat sufficient for standing in some contexts)
Coalition for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275 (D.C. Cir. 2012) (contrast on likelihood of avoiding exposure)
Lands Council v. McNair, 629 F.3d 1070 (9th Cir. 2010) (credible threat suffices for standing)
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) (agency action review and rationales)
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (uphold agency action on basis articulated by agency)
Envtl. Def. Fund, Inc. v. EPA, 548 F.2d 998 (D.C. Cir. 1976) (remanding EPA decisions and addressing multiple issues)
Envtl. Def. Fund, Inc. v. EPA, 510 F.2d 1292 (D.C. Cir. 1975) (remand and partial affirmation framework)
State Farm Mut. Auto. Ins. Co. v. MVM, 463 U.S. 29 (1983) (caution on reliance on post hoc rationalizations)