CENTER FOR BIOLOGICAL DIVERSITY, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent E.I. du Pont De Nemours and Company, et al., Intervenors
No. 14-1036 Consolidated with 15-5168
United States Court of Appeals, District of Columbia Circuit.
Argued March 6, 2017 Decided June 30, 2017
861 F.3d 174
Travis Annatoyn, Attorney, U.S. Department of Justice, argued the cause for respondent/appellee. With him on the brief were John C. Cruden, Assistant Attorney General, and Andrew C. Mergen, Washington, DC, Ellen J. Durkee, Lesley Lawrence-Hammer, and Anna T. Katselas, Attorneys. Paul Cirino, Trial Attorney, entered an appearance.
Kirsten L. Nathanson, Warren U. Lehrenbaum, Washington, DC, and Sherrie A. Armstrong were on the brief for intervenor-respondents/intervenor-appellees in support of respondent.
Before: HENDERSON and TATEL, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Dissenting opinion filed by Senior Circuit Judge RANDOLPH.
KAREN LECRAFT HENDERSON, Circuit Judge:
The Endangered Species Act (“ESA“),
I. BACKGROUND
A. Statutory Landscape
Endangered Species Act
The ESA constitutes “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Indeed, the Congress enacted the ESA “to provide a means whereby the ecosystems upon which en-
“The ESA confers on the United States Departments of the Interior ... and of Commerce ... shared responsibilities for protecting threatened or endangered species of fish, wildlife and plants.” In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 415 (D.C. Cir. 2004) (footnotes omitted) (citing
The EPA, with input from the FWS or the NMFS, first makes an effects determination2 to determine whether a proposed action “may affect,”
The ESA contains a broad citizen-suit provision, authorizing “any person” to “commence a civil suit on his own behalf ... to enjoin any person, including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof.”
Federal Insecticide, Fungicide and Rodenticide Act
In enacting FIFRA, the Congress authorized the EPA to regulate the distribution, sale and use of pesticides “[t]o the extent necessary to prevent unreasonable adverse effects on the environment....” 3
(A) its composition is such as to warrant the proposed claims for it;
(B) its labeling and other material required to be submitted comply with the requirements of this subchapter;
(C) it will perform its intended function without unreasonable adverse effects on the environment; and
(D) when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment.
Like the ESA, FIFRA contains a citizen-suit provision. See
[I]n the case of actual controversy as to the validity of any order issued by the Administrator following a public hearing, any person who will be adversely affected by such order and who had been a party to the proceedings may obtain judicial review by filing in the United States court of appeals for the circuit wherein such person resides or has a place of business, within 60 days after the entry of such order, a petition praying that the order be set aside in whole or in part.... Upon the filing of such petition the court shall have exclusive jurisdiction to affirm or set aside the order complained of in whole or in part.
B. Factual Background
The Conservation Groups are three organizations dedicated to the protection and enjoyment of the environment and the nation‘s endangered species; their members assert recreational and aesthetic interests in observing native species in undisturbed, natural habitats. Pet‘rs’ Br. iii. For example, Jeffery Miller, a member of the Center for Biological Diversity (“Center“), considers himself “an avid amateur naturalist and birdwatcher [who] frequently visit[s] habitat for rare and endangered birds and other wildlife throughout California.” Miller Decl. ¶ 7. In particular, Miller claims “recreational, scientific, aesthetic, educational, moral, spiritual and conservation interests” in observing a particular insect—the Valley Elderberry Longhorn Beetle4—in its natural habitat. Miller Decl. ¶ 14. Likewise, John Buse, also a Center member, frequently visits Michigan‘s Van Buren State Park to observe rare wildlife, fish and plants. See Buse Decl. ¶¶ 9-10. Buse expresses an interest in “the Mitchell‘s satyr butterfly and its continued existence in the wild for its role as a native pollinator, for its beauty, and for its status as an indicator species for the health of the fens, bogs, and other wetlands.” Buse Decl. ¶ 11. Buse “intend[s] to return to Van Buren County ... to look for Mitchell‘s satyr butterflies.” Buse Decl. ¶ 12. His interest in the butterfly is shared by Martha Crouch, a member of the Center for Food Safety. Crouch plans to visit Berrien County, Michigan and hopes to “observe the Mitchell‘s satyr butterfly ... in [its] natu-
CTP is a broad spectrum insecticide used to combat pestilent threats to the citrus and blueberry industries. JA 459. On February 29, 2012, the EPA announced that it had received applications to register pesticide products containing CTP under FIFRA. Pesticide Products; Registration Applications, 77 Fed. Reg. 12,295, 12,295-97 (Feb. 29, 2012). The EPA created an online docket and invited public comment on the applications until March 30, 2012.
A year-long review period followed, during which time the EPA prepared an “Environmental Fate and Ecological Risk Assessment for the Registration of the New Chemical Cyantraniliprole.” JA 109. The ecological risk assessment determined that CTP is “highly toxic or very highly toxic” to multiple taxonomic groups, including terrestrial invertebrates such as butterflies and beetles. JA 257. Moreover, the assessment determined—using agricultural census data from 2007—that 1,377 endangered species’ habitats “overlap[ped] at the county-level with areas where cyantraniliprole is proposed to be used.” JA 259. Among the species with overlapping habitats were the Valley Elderberry Longhorn Beetle, JA 325, and the Mitchell‘s satyr butterfly, JA 373.
On June 6, 2013, the EPA announced its proposal to register CTP as a pesticide under FIFRA. Again, the EPA accepted public comment on the proposed action until July 14, 2013.6 On January 24, 2014, the EPA registered CTP as a pesticide under FIFRA and approved fourteen end-use products containing CTP. JA 420-46. Importantly, however, the EPA registered CTP without having made an effects determination or consulting with the FWS and/or the NMFS as required by
C. Procedural History
The Conservation Groups challenged the EPA‘s registration of CTP in two fora, alleging in both that the EPA violated section 7(a)(2) of the ESA by failing to consult before registering CTP. On March 21, 2014, the Conservation Groups provided the EPA a sixty-day notice letter of their intent to challenge the registration of CTP in district court under the ESA‘s citizen suit provision. See
On September 19, 2014, the EPA moved to dismiss the Conservation Groups’ complaint in district court. On May 14, 2015, the district court granted the motion, explaining “[o]n its face, [the Conservation Groups‘] Complaint gives rise to an ‘actual controversy as to the validity of the FIFRA Registration Order and is therefore governed by that Act‘s jurisdictional grant.” JA 80. In concluding that FIFRA vested exclusive jurisdiction over the Conservation Groups’ claims in the courts of appeals, the district court relied on the principle that, if “a special statutory review procedure [exists], it is ordinarily supposed that Congress intended that procedure to be the exclusive means of obtaining judicial review in those cases to which it applies.” JA 80 (quoting Media Access Project v. FCC, 883 F.2d 1063, 1067 (D.C. Cir. 1989)).
The Conservation Groups filed a timely notice of appeal and subsequently moved to consolidate their appeal of the district court judgment with their then-stayed petition for review. We granted the Conservation Groups’ motion on December 7, 2015.
II. ANALYSIS
A. Jurisdiction
We begin, as we must, with the jurisdictional issues. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (“[E]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review....” (internal quotation marks omitted)). There are two questions we must resolve: first, whether the Conservation Groups have standing to challenge the EPA‘s registration of CTP; and second, whether the district court has jurisdiction—under the ESA, FIFRA or both—to hear their challenge. Because we can approach jurisdictional issues in the order we see fit, see Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (declining to “dictate a sequencing of jurisdictional issues“), we begin with standing.
Standing
“Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.” Bender, 475 U.S. at 541, 106 S.Ct. 1326. “The Constitution limits our ‘judicial Power’ to ‘Cases’ and ‘Controversies,‘” West v. Lynch, 845 F.3d 1228, 1230 (D.C. Cir. 2017) (citing
Article III‘s “irreducible constitutional minimum of standing” requires a
“An association ‘has standing to sue under Article III of the Constitution of the United States only if (1) at least one of its members would have standing to sue in his own right; (2) the interest it seeks to protect is germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the member to participate in the lawsuit.‘” Am. Trucking Ass‘ns v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 247 (D.C. Cir. 2013) (quoting Rainbow/PUSH Coal. v. FCC, 330 F.3d 539, 542 (D.C. Cir. 2003)). When more than one association brings suit, “we need only find one party with standing” to satisfy the requirement. Ams. for Safe Access v. DEA, 706 F.3d 438, 443 (D.C. Cir. 2013); accord Tozzi v. HHS, 271 F.3d 301, 310 (D.C. Cir. 2001).
We have no difficulty finding that the Center meets the latter two elements of associational standing. See Am. Trucking Ass‘ns, 724 F.3d at 247. The Center, an organization “dedicated to the protection and enjoyment of the environment,” Pet‘rs’ Br. iii, has an “obvious interest in challenging” the EPA‘s failure to engage in consultation, Am. Trucking Ass‘ns, Inc., 724 F.3d at 247. As noted, consultation is “designed as an integral check on federal agency action, ensuring that such action does not go forward without full consideration of its effects on listed species.” Lujan, 504 U.S. at 603, 112 S.Ct. 2130 (Blackmun, J., dissenting). Moreover, neither the claim asserted (EPA‘s alleged violation of ESA‘s consultation requirement) nor the relief requested (order requiring “EPA to complete consultation and to report back to this Court every six months until consultation is complete“) requires any Center member to participate as a named plaintiff in the lawsuit.
The remaining question, then, is whether at least one Center member would have standing to sue in his own right. See Am. Trucking Ass‘ns, 724 F.3d at 247. The claim that the EPA failed to meet its statutory consultation obligation—that is, the EPA failed to “insure” that its actions were “not likely to jeopardize the continued existence of any endangered species or threatened species,”
The EPA‘s procedural omissions—its failure to make an effects determination and to consult—are necessary, but not sufficient, requirements for a procedural-rights plaintiff like the Center to establish standing. Fla. Audubon Soc., 94 F.3d at 664-65. The Center must also show that the failure to make an effects determination or to consult affects its members’ concrete aesthetic and recreational interests, WildEarth Guardians, 738 F.3d at 305; that its failures caused the EPA “to overlook the creation of a demonstrable risk not previously measurable (or the demonstrable increase of an existing risk) of serious environmental impacts that imperil [the members‘] particularized interest[s].” Fla. Audubon Soc., 94 F.3d at 666. We believe the Center has done just that. Center member John Miller has expressed “recreational, scientific, aesthetic, educational, moral, spiritual and conservation interests,” Miller Decl. ¶ 14, in observing the Valley Elderberry Longhorn Beetle in its natural California habitat, a habitat that Miller “regularly visit[s] ... three-to-four times a year.” Miller Decl. ¶ 13; see Fla. Audubon Soc., 94 F.3d at 667. Miller‘s interest in the beetle has yielded tangible results as he has “found Longhorn Beetle drill holes in elderberry trees.” Miller Decl. ¶ 12. He plans to continue his trips in the “hope” that he will “see Valley Elderberry Longhorn Beetles in the wild.” Miller Decl. ¶ 19. Likewise, member John Buse, a frequent visitor to Michigan‘s Van Buren State Park, “intend[s] to return to Van Buren County ... to look for Mitchell‘s satyr butterflies.” Buse Decl. ¶ 12. “[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.” Lujan, 504 U.S. at 562-63, 112 S.Ct. 2130. The EPA‘s registration of CTP without an effects determination or the requisite consultation, however, creates a “demonstrable risk” to the Valley Elderberry Longhorn Beetle in California and the Mitchell‘s satyr butterfly in Michigan, Fla. Audubon Soc., 94 F.3d at 666, in that, as the EPA‘s ecological assessment itself notes, CTP is “highly to very highly toxic” to terrestrial insects, JA 113, and
Establishing causation in the context of a procedural injury requires a showing of two causal links: “one connecting the omitted [procedural step] to some substantive government decision that may have been wrongly decided because of the lack of [that procedural requirement] and one connecting that substantive decision to the plaintiff‘s particularized injury.” See Fla. Audubon Soc‘y, 94 F.3d at 668. Importantly, with respect to the first link, the party seeking to establish standing need not show that but for the alleged procedural deficiency the agency would have reached a different substantive result. WildEarth Guardians, 738 F.3d at 306 (citing City of Dania Beach v. FAA, 485 F.3d 1181, 1186 (D.C. Cir. 2007)); Nat‘l Parks Conservation Ass‘n, 414 F.3d at 5. “All that is necessary is to show that the procedural step was connected to the substantive result.” Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94-95 (D.C. Cir. 2002). Here, the EPA‘s failure to make an effects determination or to consult is plainly “connected to” its registration of CTP as it approved the pesticide without considering CTP‘s effects, if any, on the threatened Valley Elderberry Longhorn Beetle or the endangered Mitchell‘s satyr butterfly species and without obtaining expert input from the FWS and/or the NMFS regarding CTP‘s ecological impact; these omitted steps unquestionably connect to the EPA‘s decision to register CTP. Indeed, FIFRA requires the EPA to consider whether a pesticide “will perform its intended function without unreasonable adverse effects on the environment” before registering it.
Finally, we believe that the “relaxed redressability requirement” is also met. WildEarth Guardians, 738 F.3d at 306. A procedural-rights plaintiff need not show that “court-ordered compliance with the procedure would alter the final [agency decision.]” Nat‘l Parks Conservation Ass‘n, 414 F.3d at 5. Instead, as the plaintiffs did in WildEarth Guardians v. Jewell, all the Center need show is that a revisitation of the registration order that includes an effects determination and any required consultation would redress Center members’ injury because the EPA could reach a different conclusion. 738 F.3d at 306. We believe the Center has made that showing: notwithstanding the EPA‘s assertion that a “serious possibility” exists that the CTP registration order would remain unchanged following any effects determination and consultation, Resp‘t‘s Br. 61-62, there remains at least the possibility that it could reach a different conclusion—say, by modifying the registration order.
ESA‘s & FIFRA‘s Jurisdictional Provisions
We next turn to the dueling jurisdictional provisions of the ESA and of FIFRA. The ESA‘s citizen-suit provision authorizes broad challenges to violations of the ESA and its implementing regulations. See
We have previously held that where “a special statutory review procedure [exists], it is ordinarily supposed that Congress intended that procedure to be the exclusive means of obtaining judicial review in those cases to which it applies.” Media Access Project, 883 F.2d at 1067 (quoting City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979)); accord Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 77 (D.C. Cir. 1984) (“[A] statute which vests jurisdiction in a particular court cuts off original jurisdiction in other courts in all cases covered by that statute.“); cf. D. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 76 L.Ed. 704 (1932) (“Specific terms prevail over the general in the same or another statute which otherwise might be controlling.“). In the past, our Court and our sister circuits have required an environmental challenge to be brought in accordance with a specific judicial review statute rather than under a broad citizen-suit provision.
In Environmental Defense Fund v. EPA, for example, we considered whether a challenge to a FIFRA registration order based on alleged violations of the National Environmental Policy Act (NEPA) (per curiam),
In a recent holding, the Ninth Circuit considered the question at issue here—whether a plaintiff may bring a suit in district court alleging that the EPA violated section 7(a)(2) of the ESA by failing to consult before issuing a FIFRA order. Ctr. for Biological Diversity v. EPA, 847 F.3d 1075, 1088 (9th Cir. 2017). The Ninth Circuit noted that “when two jurisdictional statutes draw different routes of appeal, the well-established rule is to apply only the more specific legislation.” Id. at 1089 (internal quotation marks omitted) (quoting Am. Bird Conservancy v. FCC, 545 F.3d 1190, 1194 (9th Cir. 2008)). Finding FIFRA‘s judicial review provision more specific than the ESA‘s citizen-suit provision, the Ninth Circuit held “that for the purposes of FIFRA, a Section 7 [ESA] claim raised after the EPA undertakes public notice and comment must comply with FIFRA‘s jurisdictional provisions.”9
Because FIFRA‘s grant of exclusive jurisdiction to the court of appeals to review registration orders is more specific than the ESA‘s citizen-suit provision, see
The Conservation Groups’ arguments to the contrary are unavailing. They argue that the district court is the proper forum because the EPA‘s decision to register CTP did not follow a “public hearing” as required by
The Conservation Groups also insist that their ESA challenge is not “inextricably intertwined” with FIFRA because the ESA sets forth an “independent, procedural duty to consult under Section 7(a)(2)” wholly separate from any FIFRA-based attack on the validity of the CTP registration order. Pet‘rs’ Br. 22. But the Conservation Groups did not object to the EPA‘s failure to consult in vacuo, see Am. Bird Conservancy, 545 F.3d at 1193; rather, their failure to consult claim was a means to a broader end—a challenge to the validity of the CTP registration order itself. Ctr. for Biological Diversity, 847 F.3d at 1089 (ESA section 7(a)(2) claim “inherently challenge[s] the validity” of FIFRA registration order).
In sum, we conclude that the Conservation Groups possess standing to press their ESA section 7(a)(2) challenge but that they must petition for our review pursuant to
B. The Merits
As noted, the ESA requires the EPA to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification” of “designated critical habitat” through consultation.
Our only task, then, is to determine the appropriate remedy. Alongside its grant of exclusive jurisdiction, FIFRA vests the Court with the authority “to affirm or set aside the order complained of in whole or in part.”
For the foregoing reasons, we grant the petition for review and remand without vacatur to the EPA for proceedings consistent with this opinion.13
So ordered.
RANDOLPH, Senior Circuit Judge, dissenting:
I disagree that petitioners—the Conservation Groups—have standing under Article III of the Constitution to proceed with their petition for review.1
The case is about the Environmental Protection Agency‘s approval of a new insecticide. The Conservation Groups claim that their members will suffer injuries because EPA allegedly neglected to follow proper procedures in approving the insecticide. The “deprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing.” Summers v. Earth Island Institute, 555 U.S. 488, 496, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009); see Maj. Op. 182-83. The Conservation Groups must therefore demonstrate, among other things, that at least one of their members will suffer a concrete injury from EPA‘s
For the Conservation Groups to do so is “substantially more difficult” here because their members are not objects of the challenged agency action. Lujan v. Defenders of Wildlife, 504 U.S. 555, 562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citation omitted). That their standing depends only on a future injury—they have claimed no past injury—makes the difficulty even more acute. See Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235, 240 (D.C. Cir. 2015). The Conservation Groups thus must show a “substantial probability” that the challenged agency action will injure their members. Id. (alterations omitted). See also Cty. of Delaware, Pa. v. Dep‘t of Transp., 554 F.3d 143, 147-48 (D.C. Cir. 2009).
There are two major obstacles to standing, neither of which these petitioners are able to overcome. First, the Conservation Groups have failed to show that the insecticide—“cyantraniliprole“—will harm their members relative to the status quo ante. Without that showing, the pesticide‘s registration inflicts no harm. See Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 915-18 (D.C. Cir. 2015). In other words, as the majority points out, the Conservation Groups must show an “increased risk of injury.” Maj. Op. 183 (citation omitted).
Cyantraniliprole is what the Environmental Protection Agency calls a “Reduced Risk” insecticide. That designation permits expedited registration of pesticides that provide environmental benefits relative to the status quo. See
The Conservation Groups do not contest these EPA findings. They argue instead that the environmental benefits depend on cyantraniliprole replacing rather than supplementing the more harmful pesticides, and that this court should not “assume” that users of cyantraniliprole will do so. Petitioner Reply Brief 23-24. Yet this court need not assume anything. EPA found that cyantraniliprole “is expected to be an alternative to a number of insecticide classes....” Registration of Cyantraniliprole at 14. That is so not only because cyantraniliprole is “one of the least toxic alternatives that would be available for citrus growers,” but also because the pesticide is “considered to be more efficacious than current registrations of more toxic compounds” for control of many pests.
Even if one were to assume that the insecticide would prove a net detriment to listed species, the Conservation Groups encounter a second obstacle to standing. They fail to show that an injury to those listed species would harm their members. We apply “even more exacting scrutiny” when the challenged government action is based on the “independent acts of third parties” and where the effect of the action would not be “located at a particular site.” Fla. Audubon, 94 F.3d at 667, 670 (citation omitted). In this case, the pesticide registration authorizes cyantraniliprole for multiple sites throughout the country, but the Conservation Groups have provided no evidence of the application of cyantraniliprole to any particular site.3 Even if the Conservation Groups could point to some harm to a listed species near a cyantraniliprole-eligible crop, one could only speculate, without more, whether cyantraniliprole or a more toxic pesticide caused that harm. The Conservation Groups also cannot establish that going forward, their members will visit locations where cyantraniliprole has been applied. This lack of geographic specificity dooms the Conservation Groups’ standing allegations. See
The majority ignores these problems. It acknowledges that the Conservation Groups must show an increased risk to their members’ interests, Maj. Op. 182-83, but then fails to consider the effect of cyantraniliprole relative to the status quo ante. The majority comes closest when it says that the pesticide “offers net environmental benefits” and “provides the growers with an effective tool that has a more favorable toxicological profile compared to currently registered alternatives.” Maj. Op. 189, 189 n.11 (citation and alterations omitted). But those facts, of course, support this dissent. The Conservation Groups’ second problem—the lack of geographic specificity in its submissions—is scarcely mentioned in the majority opinion. The opinion merely notes a “geographical nexus” or “overlap” between potential cyantraniliprole crop areas and listed species, and it then shifts to other issues. Maj. Op. 183, 184-85 (citation omitted). The majority offers no analysis of how any harm to the listed species would harm the Conservation Groups’ members.
The member declarations suggest that any harm is exceedingly unlikely. Consider, for instance, the species identified in the declarations. The declarants refer to 27 species of concern. Of those 27, only 20 are actually endangered or threatened. Eleven of those 20 are either mammals or birds, for which cyantraniliprole is classified as “practically nontoxic.” Registration of Cyantraniliprole at 10. The remaining 9 consist of 1 freshwater fish, 5 butterflies, 2 beetles, and 1 dragonfly. Yet of those 9 species, only one declarant can confirm seeing one species. For the other 8 species—which include the two species mentioned in the majority opinion, Maj. Op. 179—the declarants’ claim that they will
After eliminating those unseen fish and insects, and unharmed mammals and birds, we have left one butterfly—the Bay Checkerspot. To assess the potential harm to that butterfly from cyantraniliprole, the Conservation Groups and the intervening pesticide-registrants submitted expert declarations. The competing experts both attempted to compare the extent to which the Bay Checkerspot Butterfly overlapped with those areas that contained cyantraniliprole-eligible crops sometime between 2010 and 2014—called “labeled crop” areas. See Bradley Decl. ¶ 7; Fairbrother Decl. ¶ 24 n.24. That these “labeled crop” areas need only have had cyantraniliprole-eligible crops over a five-year period renders this measurement over-inclusive, but both experts used it. The intervenor‘s expert considered the critical habitat of the Bay Checkerspot and, despite the over-inclusivity of the measure, found only a 0.06 percent overlap with the labeled crops. Kern Decl. ¶ 25. The Conservation Groups’ expert, on the other hand, employed data for both the “elemental occurrence” of the Bay Checkerspot—those areas where the butterfly has been observed—and its critical habitat, and the expert initially found approximately a 15 percent overlap on both measures. Bradley Decl. ¶ 10. Because elemental occurrence records “can be of varying accuracy,” however, the Conservation Groups’ expert “further refined” his analysis to include “just high quality records.” Bradley Decl. ¶ 11. When he did so, he found “no data” on the overlap between the Checkerspot and the labeled crops. Bradley Decl. ¶ 12.
Remember, too, that even if the Conservation Groups had demonstrated an overlap between the insecticide and the butterfly, standing would still depend on the two showings discussed above—that cyantraniliprole harms the butterfly relative to alternatives and that some member would witness it having done so. It requires, in other words, the following chain of events: (1) that third parties not before the court use cyantraniliprole on their crops; (2) that those unidentified crops overlap with the listed species; (3) that cyantraniliprole, against the available evidence, proves harmful to those species; and (4) that the Conservation Groups’ members are somehow adversely affected. This “lengthy chain of conjecture” renders the Conservation Groups’ standing assertions thoroughly unconvincing. Fla. Audubon, 94 F.3d at 666.
Because I would dismiss the petition for review, there is no need to separately address the majority‘s flawed remedy of remanding without vacating. See Natural Resources Defense Council v. E.P.A., 489 F.3d 1250, 1262-64 (D.C. Cir. 2007) (Randolph, J., concurring).
Notes
Effects of the action refers to the direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline. The environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process. Indirect effects are those that are caused by the proposed action and are later in time, but still are reasonably certain to occur. Interrelated actions are those that are part of a larger action and depend on the larger action for their justification. Interdependent actions are those that have no independent utility apart from the action under consideration.