Dkt. Nos. 203, 204
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS
I. INTRODUCTION
In this action, Plaintiffs Center for Biological Diversity and Pesticide Action Network North America (“Plaintiffs”) allege the Environmental Protection Agency and Gina McCarthy, Administrator of the Environmental Protection Agency (collectively, “EPA”) violated the section 7(a)(2) of the Endangered Species Act (“ESA”) by failing to initiate and reinitiate consultations regarding the effect of pesticides on endangered species and critical habitats. •The Court-previously granted motions to dismiss filed by the EPA and Intervenors (collectively, “Defendants”), and allowed Plaintiffs to amend their allegations. See Center for Biological Diversity v. E.P.A., No. 11-0293 JCS,
Presently before the Court are Defendants’ Motions to Dismiss Plaintiffs’ Second Amended Complaint (hereafter, “Motions”). For the reasons explained below, the Motions to Dismiss are GRANTED in part and DENIED in part.
II. BACKGROUND
A. The Endangered Species Act (“ESA”)
The ESA provides for the listing of species as threatened or endangered. See 16 U.S.C. § 1533. The Secretary of Commerce and the Secretary of the Interior (collectively, the “Secretary”) share responsibility for implementing the ESA. The Secretary of Commerce is responsible for listed marine species and administers the ESA through the National Marine Fisheries Service (“NMFS”). The Secretary of the Interior is responsible for listed terrestrial and inland fish species and administers the ESA through the U.S. Fish & Wildlife Service (“FWS”). See id. § 1532(15); 50 C.F.R. §§ 17.11, 402.01(b). The NMFS and FWS are hereinafter collectively referred to as the “Service.”
Section 7(a)(2) of the ESA provides:
Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency action”) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical....
16 U.S.C. § 1536(a)(2). The “agency action” that triggers a federal agency’s duty to consult under section 7(a)(2) is the focus of this ESA litigation.
When Congress enacted the ESA, it authorized the Secretary “to promulgate such regulations as may be appropriate to enforce” the ESA. 16 U.S.C. § 1540(f). The Secretary has promulgated regulations that, inter alia, define “agency action” to include “all activities or programs of any kind authorized, funded or carried out ... by Federal agencies.” 50 C.F.R.
The ESA’s implementing regulations describe the consultation process required by section 7 of the ESA. Under 50 C.F.R. § 402.14(a), “[e]ach Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat.” See id. If the agency determines that an action “may affect listed species or critical habitat,” then “formal consultation [with the Service] is required.” Id. If formal consultation is required, the Service must prepare a biological opinion stating whether the proposed action is likely to “jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” Id. § 402.14(g). If the biological opinion finds that jeopardy is likely, it must include, if possible, “reasonable and prudent alternatives” to the proposed action. Id. § 402.14(h)(3). Thereafter, the agency determines how to proceed with its action in light of the Service’s biological opinion. Id. § 402.15.
The ESA regulations further provide that an agency must reinitiate consultation with the Service “where discretionary Federal involvement or control over the action has been retained or is authorized by law,” and when one of the following triggers occurs:
(a) If the amount or extent of taking specified in the incidental take statement is exceeded;
(b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered;
(c) If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or
(d)If a new species is listed or critical habitat designated that may be'affected by the identified action.
50 C.F.R. § 402.16.
The ESA contains a citizen suit provision which authorizes 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.” 16 U.S.C. § 1540(g)(1)(A). The citizen suit provision also provides that “district courts shall have jurisdiction ... to enforce any such provision or regulation.” Id. § 1540(g).
B. The Federal Insecticide, Fungicide and Rodenticide Act (“FI-FRA”)
FIFRA establishes a regulatory scheme for the distribution, sale and use of pesticides. 7 U.S.C. §§ 136 et seq. FIFRA defines a “pesticide” as “any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest .... ” 7 U.S.C. § 136(u). An “active ingredient” is defined as “an ingredient which will prevent, destroy, repel, or mitigate any pest.” Id. § 136(a)(1). A pesticide may contain one or more active ingredients. See, e.g., 7 U.S.C. § 136a(c)(l)(F)(i) (referring to “pesticides containing active ingredients”); 7 U.S.C. § 136a(c)(8) (referring to the EPA’s risk-benefit evaluation “of the ingredients of a pesticide or any of its uses”). Consistent with the language of FIFRA, the Court uses the terms “pesticide,” “product,” and “pesticide product” interchangeably in this order.
Under FIFRA, a pesticide may not be distributed or sold in the United States unless it has been registered by the EPA. 7 U.S.C. § 136a(a). FIFRA provides that the EPA “shall register a pesticide if’ the EPA determines:
(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.
7 U.S.C. § 136a(c)(5). These requirements will hereinafter be referred to as the “Paragraph 5 Requirements.”
Congress has constructed a detailed procedure for the registration of pesticides. See 7 U.S.C. § 136a(c). First, each applicant for the registration of a pesticide must file an application with the EPA with a statement which includes, inter alia, “the name of the pesticide,” “a complete copy of the labeling of the pesticide, a statement of all claims to be made for it, and any directions for its use,” and “the complete formula of the pesticide.” Id. § 136a(c)(l). The applicant must also submit data in support of registration. Id. § 136a(c)(2).
Promptly after receiving the applicant’s statement and data, the EPA must publish in the Federal Register “a notice of each application for registration of any pesticide if it contains any new active ingredient or if it would entail a changed use pattern. The notice shall provide for a period of 30 days in which any Federal agency or any other interested person may comment.” Id. § 136a(e)(5).
Upon receiving the application for regis- ' tration of a pesticide, the EPA must review the data and, “as expeditiously as possible,” either register a pesticide if the EPA determines that the pesticide complies with the Paragraph 5 Requirements, or, if the pesticide does not comply with the Paragraph 5 Requirements, notify the applicant of the EPA’s determination and the basis for that decision. Id. §§ 136a(e)(3)(A), 136a(c)(5), 136a(c)(6).
The EPA is required to give expedited review to applications for registration of an “end-use pesticide that, if registered as proposed, would be identical or substantially similar in composition and labeling to a currently-registered pesticide identified in the application,” or that would only differ in ways “that would not significantly increase the risk of unreasonable adverse effects on the environment.” Id. •§ 136a(c)(3)(B). A-pesticide may also be conditionally registered if the foregoing is met, and if “approving the registration or amendment in the manner proposed by the applicant would not significantly increase the risk of any unreasonable adverse effect on the environment.” Id. § 136a(c)(6).
As part of the registration process for each pesticide, the EPA must classify the pesticide and the uses of the pesticide “as being for general use or for restricted use.” Id. § 136a(d)(l)(A). If the EPA determines that the pesticide “may generally cause ... unreasonable adverse ef-
After the pesticide is registered, a registrant may modify the EPA’s approved label for the pesticide if the registrant notifies the EPA “in writing no later than 60 days prior distribution or sale of a product bearing the modified label,” and the EPA “does not disapprove of the modification ....” Id. § 136a(c)(9)(C).
2. The “Reregistration” Program
In 1988, Congress enacted FIFRA § 4, which mandates that the EPA “reregister ... each pesticide containing any active ingredient contained in any pesticide first registered before November 1, 1984,” pursuant to a five-phase process. See 7 U.S.C. § 136a-l(a); H.R. Rep. 100-939 (1988), reprinted at 1988 U.S.C.C.A.N. 3474, 3478-79, 3529.
In phase one, the EPA was required to list “the active ingredients of the pesticides that will be reregistered.” Id. § 136a-1(b)(1). The order of the list was intended to prioritize active pesticide ingredients that pose relatively greater health and environmental concerns. See id. § 136a-l(c).
In phase two, the registrants were required to submit to the EPA their notice “to seek reregistration,” as well as identify “missing and inadequate information for such pesticides, and commitments by registrants to replace such missing or inadequate data within the applicable time period.” Id. § 136a — 1 (b)(2); see id. § 136a-1(d).
In phase three, the registrants submit required information to the EPA. See id. §§ 136a-l(b)(3), 136a-l(e). Such information includes, inter alia, a summary of each study concerning the active ingredient, a reformat of the data from each study, and any “additional factual information regarding unreasonable adverse effects on the environment of the pesticide ....” 7 U.S.C. § 136d(a)(2); see id. § 136a-l(e)(l).
In phase four, the EPA conducts “an independent, initial review” of the submission under phases two and three, identifies any outstanding data requirements, and issues requests for additional data. Id. § 136a-l(b)(4); see id. § 136a-lffi.
In phase five, the EPA reregisters the pesticides after the completion of several steps. First, the EPA must “conduct a thorough examination of all data submitted ... concerning an active ingredient .... ” Id. § 136a-l(g)(l). Second, the EPA must “make a determination as to eligibility for reregistration ... for all active ingredients subject to registration ...” Id. § 136a-1(a) (emphasis added). The EPA issues a Reregistration Eligibility Determination, or “RED,” which corresponds to an active pesticide ingredient. See id. Each RED “summarizes the risk assessment conclusions and outlines any risk reduction measures for the pesticide to continue to be registered in the U.S.”
“If the Administrator determines that a pesticide is eligible to be reregistered, the [EPA] shall reregister such pesticide within 6 months after the submission of the [product-specific] data concerning such pesticide ....” Id; see id. § 136a-1(g)(2)(B). The EPA also must take appropriate regulatory action if it “determines that a pesticide should not be registered ....” 1 U.S.C. § 136a-l(g)(2)(D).
The EPA started a pilot program ip 1998 to include" public participation with respect to the reregistration of organo-phosphate pesticides, and in 2000, the EPA solicited public comment to expand the pilot program for reregistration of all pesticides. See id.; 65 Fed. Reg. 14,200 (Mar. 15, 2000). In 2004, the EPA announced its program to provide opportunities for public comment with respect to pesticide reregistration to “increase transparency and stakeholder involvement in the development of pesticide risk assessment and risk management decisions.” 69 Fed. Reg. 26819 (May 14, 2004).
3. Registration Review
Congress also amended FIFRA by establishing the program of “Registration Review,” which requires the EPA to “complete the registration review of each pesticide or pesticide .case”
Through the promulgation of regulations, the EPA established a procedure for registration review that starts with the creation of “a docket for each registration review ease” that is open to the public. 40 C.F.R. § 155.50. The docket contains “information that will assist the public in understanding the types of information and issues” the EPA “may consider in the course of the registration review,” including “[r]isk assessment documents.” Id. § 155.50(a)(3). The EPA publishes notice in the Federal Register announcing the docket, and establishes a 60-day comment period in which “interested persons may identify any additional information they believe” should be considered in the course of registration review. Id. § 155.50(b).
In conducting the registration review, the EPA assesses “any changes that may have occurred since the Agency’s last registration decision to determine ... whether the pesticide still satisfies the FIFRA standard for registration.” 40 C.F.R. § 155.53(a). The EPA decides “whether any new data or information on the pesticide ... warrant conducting a new risk assessment or a new risk/benefit assessment.” Id. The EPA also considers “whether any new data or information regarding an individual pesticide product, ... such as data or information about an inert ingredient in the pesticide product or other information or data relating to the composition, labeling or use of the pesticide product, warrant additional review of a pesticide product’s registration.” Id.
The regulations further provide that the EPA “may determine that there is no need to reconsider a previous decision that a pesticide satisfies the standard of registration in FIFRA.” 40 C.F.R. § 155.46. “In such cases, instead of establishing a pesticide registration review case docket as described in § 155.50, the Agency may propose that ... no further review will be necessary.” Id. Prior to the decision to not conduct a registration review, the EPA provides notice and a 60-day the opportunity for public comment. See id.
4. Jurisdiction over FIFRA Actions
Judicial review over the EPA’s registration actions under FIFRA are governed by FIFRA § 16, which provides, in relevant part:
(a) District court review. Except as otherwise provided in this subchapter, the refusal of the Administrator to cancel or suspend a registration or to change a classification not following a hearing and other final actions of the Administrator not committed to the discretion of the Administrator by law are judicially reviewable by the district courts of the United States.
(b) Review by court of appeals. In 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.
7 U.S.C. § 136n. The Ninth Circuit has held that the EPA makes a decision following a “public hearing,” and therefore within the scope of FIFRA § 16(b), when it provides notice in the Federal Register and an opportunity for public comment. See United Farm Workers v. EPA,
C. History of this Case
Plaintiffs filed this case on January 20, 2011, asserting a single claim against the EPA for allegedly violating section 7(a)(2) of the-ESA by failing to initiate and reinitiate consultation with the Service with respect to its ongoing oversight of 382 active pesticides ingredients. The Court granted motions to intervene filed by various pesticide registrants. See Dkt. Nos. 14, 81, 157. On April 22, 2013, the Court granted motions to dismiss filed by the EPA and the Intervenors, and granted Plaintiffs leave to amend their allegations (hereafter, “Dismissal Order”). Center for Biological Diversity v. EPA, No. 11-0293 JCS, 2013 WL -1729573 (N.D.Cal. April 22, 2013) (“CBD v. EPA”); see also Dkt. No. 157.
In the Dismissal Order, the Court explained that Plaintiffs failed to state a claim under ESA § 7 in their original complaint because there was no allegation of any affirmative “agency action,” which is necessary to trigger the EPA’s duty to consult with the Service. CBD v. EPA
Plaintiffs failed to state a claim under ESA section 7 in the previous complaint because there was no allegation that the EPA undertook any affirmative act to satisfy the first prong of the Karuk Tribe test. CBD v. EPA,
Having held that Plaintiffs failed to allege an affirmative agency action that triggered ESA section 7’s consultation requirement, the Court discussed ¡subject-matter jurisdiction, although noting the analysis was “necessarily general given that Plaintiffs had not alleged specific affirmative acts for each pesticide triggering § 7 consultation.” CBD v. EPA
The Court also rejected the Plaintiffs’ contention that their ESA claim was exempt from a statute of limitations because the EPA’s actions were “ongoing.” CBD v. EPA
Finally, with respect to Plaintiffs’ claims that the EPA failed to reinitiate consultation with respect to pesticides addressed in the 1989 and 1998 Biological Opinions, the Court held that Plaintiffs allegations were “too general,” as Plaintiffs merely recited the language in 50 C.F.R. § 402.16. CBD v. EPA, 2013 WL. 1729573, at *11. Plaintiffs also misinterpreted “how the § 402.16 factors would require the EPA to reinitiate consultation” in many ways. Id.
The Court also discussed the intersection of claims for failing to reinitiate consultation with FIFRA § 16(b). While recognizing that “the majority of events listed in 50 C.F.R. § 402.16 ... do not arise from any act undertaken by the EPA,” the Court wrote that, “[i]f the modification of the identified action” as contemplated in § 402.16(c) “arises from an EPA action regulated by FIFRA, then jurisdiction over the appeal of such modification is governed by FIFRA § 16.” Id. at *22.
In response to the amended complaint Plaintiffs filed on June 5, 2013, the EPA and Intervenors moved for a more definite statement under Rule 12(e). See Dkt. Nos. 160, 165, 168. In an order dated November 25, 2013, the Court granted the motions in part, finding that the amended complaint was vague and ambiguous with respect to the affirmative acts which allegedly triggered the EPA’s duty to consult. CBD v. EPA, No. 11-0293 JCS,
The Court also denied the motions in part with respect to Plaintiffs’ claims against the EPA for failing to reinitiate consultation with respect to the active pesticide ingredients addressed in the Service’s 1989 and 1993 Biological Opinions. The Court wrote that “[cjontrary to Federal Defendant’s contention, the reinitiation claims are not similarly triggered by an affirmative agency action, but rather, are triggered by the factors listed in 5G C.F.R. § 402.16.” Id. at *6.
D. Second Amended Complaint
Plaintiffs' filed the Second Amended Complaint on January 21, 2014. See Dkt. No. 198 (Second Amended Complaint) (“SAC”). The Second Amended Complaint asserts 74 claims under the ESA involving 50 pesticide active ingredients. See id. ¶ 13. All 50 ingredients were first registered prior to November 1, 1984, and were subject to the reregistration program established by 7 U.S.C. § 136a-l. The EPA has issued REDs for all 50 active ingredients.
The Second Amended Complaint also asserts 43 causes of action regarding the EPA’s alleged failure to reinitiate consultation with respect to particular active ingredients that were addressed in the FWS’s 1989 and 1993 Biological Opinions (hereafter, “reinitiate claims”). SAC at 428-62, ¶¶ 1875-2218. Twenty-four of the 43 ingredients are also the subject of Plaintiffs’ failure-to-consult claims.
Plaintiffs also allege that “a trigger for reinitiation of consultation has occurred,” and that “[djespite the occurrence of a trigger, EPA has not reinitiated consultation with the Service.” See e.g., SAC ¶¶ 1878-79, 1886-87, 1894-95, 1902-03. The “triggers” discussed in the context of Plaintiffs’ reinitiate claims refer to the four changed circumstances listed in 50 C.F.R. § 402.16(a)-(d). Plaintiffs identify the “triggers” for the EPA’s duty to reinitiate consultation with respect to each pesticide ingredient in the factual section of the Second Amended Complaint. See e.g., SAC ¶¶ 859-68 (alleging § 402.16 triggers for the “2,4-D, salts and esters” active ingredient).
III. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
A motion to dismiss for lack of jurisdiction under Rule 12(b)(1) may take the form of a “facial attack” or a “factual attack.” Safe Air for Everyone v. Meyer,
B. Federal Rule of Civil Procedure Rule 12(b)(6)
“The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star. InCl v. Ariz. Corp. Comm’n,
Although a court generally may not consider materials beyond the pleadings under Rule 12(b)(6), a court may take judicial notice of matters of public record, Lee v. City of Los Angeles,
IV. DISCUSSION
A. Whether Plaintiffs State Claims against the EPA for Failing to Comply with ESA Section 7(a)(2) by Failing to Initiate Consultation with the Service
As noted above, in each failure-to-consult claim corresponding to an active pesticide ingredient, Plaintiffs identify four categories of “agency actions” which allegedly trigger the EPA’s duty to consult under section 7(a)(2). See, e.g., SAC ¶¶ 1569, 1579, 1589. These “actions” consist of: (1) the EPA’s issuance of the RED or amended RED; (2) the EPA’s “continued discretionary control and involvement in this pesticide’s registration,” which Plaintiffs allege is an “ongoing agency action”; (3) the “EPA’s completion of product reregistration for this pesticide”; and (4) the “EPA’s approvals of products containing this pesticide.” See, e.g., id.
For each category, the Court considers whether the alleged agency action triggers the EPA’s duty to initiate consultation to ensure compliance with section 7(a)(2) of the ESA.
For each pesticide ingredient, Plaintiffs allege that the EPA’s issuance of a RED was an affirmative agency act that triggered the duty to consult. See, e.g., SAC ¶¶ 1569, 1579, 1589. The EPA contends that every challenge to the issuance of a RED must be dismissed because the REDs were issued outside the statute of limitations and/or constitute orders following a hearing as interpreted by the Ninth Circuit in United Farm Workers,
In the previous order, the Court ■held that the six-year statute of limitations in 28 U.S.C. § 2401(a) governs Plaintiffs’ claims. CBD v. EPA,
The Court also held in the Dismissal Order that it lacked jurisdiction over Plaintiffs ESA claims that are based on the EPA’s registration actions that follow a notice and public comment period. CBD v. EPA
The EPA states that, with respect to each RED issued after January 20, 2005, the RED was issued after a notice was provided in the Federal Register and public comment was solicited. The EPA attaches Exhibit A to its motion brief, which reflects a table listing these REDs, as well as the citation to the Federal Register demonstrating that a notice and comment period took place. See e.g., 71 Fed. Reg. 66518 (Nov. 15, 2006) (seeking public comment for the EPA’s new risk assessment for Acephate); 70 Fed. Reg. 76820 (Dec. 28, 2005) (seeking public comment for the EPA’s new risk assessment for Dicamba & salts).
Plaintiffs do not challenge the EPA’s representation that these notice and comment periods reflected in Exhibit A took place with respect to the EPA’s issuance of
2. Ongoing Agency Action
The Court next addresses Plaintiffs’ contention that the EPA’s “continued discretionary control and involvement in this pesticide’s registration,” which Plaintiffs state is an “ongoing agency action,” triggers the EPA’s duty to consult. In the previous Dismissal Order, the Court rejected Plaintiffs’ contention that “continued discretionary control” is sufficient to trigger an agency’s duty to initiate consultation under § 7(a)(2). CBD v. EPA,
Plaintiffs do, however, present their “ongoing agency action” argument with a new twist. Plaintiffs contend the Dismissal Order “may also be interpreted as requiring Plaintiffs to identify further affirmative actions in order to provide an adequate showing of ongoing agency action.” Opposition at 11 (emphasis added). Plaintiffs cite the Ninth Circuit in Karuk Tribe: ‘Where private activity is proceeding pursuant to a vested right or to a previously issued license, an agency has no duty to consult under Section 7 if it takes no further affirmative action regarding the activity.” Karuk Tribe,
Plaintiffs argue that they have cured the defects in their previous complaint by alleging “further affirmative action regarding the activity.” While designating the underlying agency action as the EPA’s issuance of a RED, Plaintiffs allege that the EPA undertook “further affirmative actions” to show that the agency action is “ongoing agency action.” For instance, with respect to the pesticide ingredient 1,3-dichloropropene, Plaintiffs state that:
EPA issued “Soil Fumigant Risk Assessments” in 2010, initiated reregistration review for 1,3-dichloropropene in 2013, published an Updated RED Fact Sheet (that includes additional mitigation measures beyond those in the 1998 RED) in 2008, completed product reregistration in 2008, and approved various individual product labels.
Opposition at 10. Plaintiffs contend that these “further affirmative actions” provide “an adequate showing of ongoing agency action,” and trigger the “ongoing duty to consult.” Opposition at 10.
Plaintiffs’ argument is based on a misreading of the Ninth Circuit’s decision in Karuk Tribe. The use of the words “affirmative actions” in Karuk Tribe referred to actions which, in their own right, triggered a duty to consult. There is no indication that the court was referring to a mere aggregation of acts that otherwise would not be sufficient to trigger the duty. To the extent Plaintiffs argue that these actions constitute an agency action in its own right, the Court addresses the issues below.
The Court also rejects Plaintiffs’ contention that the Court’s previous order created an “inconsistency” with respect to the legal standard for failure-to-consult- and
First, Plaintiffs mischaracterize the Dismissal Order to the extent they say the Court held that “ongoing agency action” is irrelevant to the to the failure-to-consult analysis. See Opposition at 11. In the Dismissal Order, the Court specifically acknowledged that an affirmative agency action can be ongoing. CBD v. EPA,
The retention of discretionary control is necessary but insufficient to trigger an agency’s duty to both reinitiate consultation and initiate consultation. See 50 C.F.R. §§ 402.03, 402.16; Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
The distinctive standards triggering the duties to initiate and reinitiate consultation are not inconsistent; they are comprehensive. Agencies must initiate consultation when the agency determines that an agency action “may affect listed species or critical habitat.” 50 C.F.R. § 402.14(a). Agencies may also be required to reinitiate consultation when circumstances change after the initial formal consultation. See 50 C.F.R. § 402.16 (duty to reinitiate may be triggered when there is new information, a modification to the agency action, new species and habitat are listed, or when the specified “take” is exceeded). The fact an agency must reinitiate consultation when the factors in 50 C.F.R. § 402.16 are met “insure[s]” that an agency action “is not likely to jeopardize” listed species or critical habitat after the initial formal consultation. 16 U.S.C. § 1536(a)(2).
3. Completion of Product Reregistration for each Pesticide
Plaintiffs allege that the “completion of product reregistration” for each pesticide constitutes an affirmative agency act triggering the duty to consult. See, e.g., SAC ¶¶ 1569, 1579, 1589. However, as the EPA correctly points out, the “completion of product reregistration is not an affirmative action of any sort; it is a fact.” EPA Br. at 16. The EPA acts when it reregisters a pesticide product.
4. EPA’s Reregistrations of Products containing, the Pesticide
i. Whether Pesticide Product Reregistrations Constitute an Affirmative Agency Act
Whether the EPA’s post-RED reregistration of pesticide products constitutes an “agency action” under section 7 must be considered within the framework of Karuk Tribe’s two-part test:
First, we ask whether a federal agency affirmatively authorized, funded, or carried out the underlying activity. Second, we determine whether the agency had some discretion to influence or change the activity for the benefit of a protected species.
Karuk Tribe,
First,' Plaintiffs have sufficiently alleged that the EPA affirmatively authorized, funded, and carried out pesticide product reregistrations with respect to each pesticide ingredient. Karuk Tribe,
Second, Plaintiffs have also alleged that the EPA has “discretionary Federal . involvement or control.” 50 C.F.R. § 402.03; see SAC ¶ 1567. This requirement considers whether the EPA had discretion to decide whether to rereg-ister pesticide products containing, for example, 1,3-dicloropropene. See Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
When determining whether to reregister a pesticide, the EPA exercises discretion in a series of determinations reflected in 7 U.S.C. § 136a(c)(5). With respect to each pesticide product, the EPA determines whether:
(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.
7 U.S.C. § 136a(c)(5); see also id. § 136a-1(g)(2)(C) (“The Administrator shall determine whether to reregister a pesticide by determining whether such pesticide meets the requirements of section 136a(c)(5) of this title.”). While the EPA is required to undertake these determinations, the EPA exercises its discretion when determining whether the foregoing factors are met, and ultimately," whether or not to reregister the pesticide. Accordingly, there is “discretionary Federal involvement or control” over the pesticide product reregistrations. 50 C.F.R. § 402.03.
Accordingly, the Court finds that Plaintiffs have sufficiently alleged affirmative agency actions in the EPA’s reregistration of pesticide products, and that the EPA retains discretionary control over such product reregistrations.
ii. Whether the Challenges to Product Registrations are Collateral Attacks on the EPA’s Issuance of REDs
Plaintiffs allege that the EPA’s “approval of products containing” the challenged active pesticide ingredients do “not follow a hearing and are therefore judicially reviewable by the district court under FI-FRA § 16(a), 7 U.S.C. § 136n(a).” SAC ¶ 123. Defendants do not challenge Plaintiffs’ allegation that there is no notice and comment period prior to the EPA’s approval of pesticide products. Therefore, it appears that review over EPA’s reregistration of pesticide products falls within the scope of FIFRA section 16(a), as opposed to the issuance of a RED for the active pesticide ingredient, which generally follows a notice and comment period. See 7 U.S.C. § 136n; United Farm Workers,
Moreover, the tables in the Second Amended Complaint only list pesticide products that were reregistered after January 20, 2005. See, e.g., ¶¶ 120, 145. Therefore, the six-year statute of limitations in 28 U.S.C. § 2401(a) would hot bar Plaintiffs claims.
Nevertheless, Defendants contend that Plaintiffs’ challenge to the post-RED product approvals amounts to an improper “collateral attack” on the REDs. The EPA contends that, “like a direct challenge to the REDs themselves,” Plaintiffs’ challenge to the post-RED product approvals is barred by FIFRA section 16(b) and the six-year statute of limitations in 28 U.S.C. § 2401(a). EPA Br. at 16. Accordingly, the Court decides whether jurisdiction to
The Supreme Court discussed improper collateral attacks in City of Tacoma v. Taxpayers of Tacoma,
While the State’s petition was pending in the Ninth Circuit, the City filed an action in superior court seeking a judgment declaring valid the City’s issuance of revenue bonds to fund the project. Id. at 329,
The United States Supreme Court reversed the Washington Supreme Court’s decision because the State’s challenges to the project in superior court were “impermissible collateral attacks upon ... the final judgment of the Court of Appeals.” Id. at 334,
In so holding, the Court noted that the State “participated in the hearing before the Commission” where it “vigorously objected to -the issuance of the license.” Id. at 337,
The Ninth Circuit addressed the question of whether a challenge to an agency order may be an improper collateral attack on a prior agency action. In Pacific Gas & Electric v. FERC,
To determine whether a petition for review is barred as a collateral attack on a prior order, we must determine whether the order upon which the petition is based “was merely a clarification of a prior order, or whether it was a modification of a prior order.” ... The latter is renewable on appeal, while review of the former is barred as an impermissible collateral attack. To differentiate between a clarification and a modification, we ask “whether a reasonable party in the petitioner’s position would have perceived a very substantial risk that the original order meant what the Commission now says it meant.”
PG & E,
In PG & E, the Ninth Circuit held it “lack[ed] subject matter jurisdiction to entertain PG & E’s petition for review because it is an impermissible collateral attack on a prior FERC order” issued in a “Refund Proceeding.” PG & E,
In this case, to determine whether Plaintiffs’ challenge to the post-RED product approvals amounts an improper collateral attack on the REDs, the Court first considers the statutory framework under which pesticide products are reregistered. The ultimate objective of the reregistration program, which ends not with the RED but with a number of steps after the RED, is for the EPA to “reregister ... each registered pesticide containing any active ingredient contained in any pesticide first registered before November 1, 1984....” 7 U.S.C. § 136a-l(a) (emphasis added). In addition to issuing the RED under § 136a-l(g)(2)(A), the EPA must solicit “product-specific data regarding the pesticide ...” Id. § 136a-l(g)(2)(B)(i). This data must be considered when determining whether each pesticide product complies with the Paragraph 5 Requirements. See id. § 136a-l(g)(2)(C).
It is not dispositive that the EPA considers the RED to be the most important step in this process: the EPA’s website states that product reregistration is merely “the EPA’s program for implementing reregistration eligibility decisions
Turning to Plaintiffs’ allegations, however, the Court agrees with Defendants that the Second Amended Complaint does not identify any facts that demonstrate the product reregistrations raised any new issues regarding the EPA’s compliance with section 7 of the ESA that could not have been raised in a timely challenge to the EPA’s issuance of a RED. The question is whether they must when the reregistration of pesticide products was the final act of the reregistration program created by Congress. See id. § 136a-l(g)(2)(C).
Plaintiffs attempt to distinguish this case from PG & E, where the Ninth Circuit held that PG & E lodged a collateral attack on a prior order in a Refund Proceeding. PG & E,
PG & E did not petition for the review of this order in the Refund Proceeding. Rather, PG & E petitioned for review of a subsequent FERC order granting an amendment proposed by Cal-ISO to rerun past invoices using an accounting method (hereafter, “Method”) by which “only those parties who caused the energy imbalances would bear the expense of balancing the grid.” Id. at 866. The Ninth
FERC simply clarified and implemented its previous order in the Refund Proceeding. From FERC’s explicit adoption of the ALJ’s findings, a reasonable party in PG & E’s position should have known that the [Method] was to apply to the re-run. Thus, to challenge FERC’s approval of the [Method], PG & E’s only option was to petition for review' of the order entered in the Refund Proceeding. PG & E cannot obtain two bites of the proverbial apple by petitioning for review here as well.
Id. at 869.
Plaintiffs attempt to distinguish PG & E on the basis that the post RED actions in this case are not “merely a clarification” of the prior order. Opposition at 24. The Ninth Circuit has established a test in PG & E to determine whether a subsequent agency order is a “clarification” or a “modification.” In that case, the court found that “PG & E should have perceived a very substantial risk ... from FERC’s order in the Refund Proceeding” that the reallocation would occur. Id. at 869-70 (emphasis added) (citing Dominion Res., Inc. v. FERC,
Here, to the extent that Plaintiffs seek to challenge any of the analyses or conclusions contained in the RED, this court has no jurisdiction to entertain such a claim. Moreover, to the extent that, from those analyses and conclusions the parties “should have perceived a very substantial risk” that any new decisions raised by post RED proceedings would be implemented, such subsequent determinations are “clarifications” of the prior RED and are not subject to challenge here.
Any other conclusion would undermine the exclusive jurisdiction of the court of appeals established by § 16(b). If an aggrieved party could challenge the conclusions of the RED just because they were implemented in a subsequent order, as a practical matter there would be no exclusive jurisdiction in the court of appeals to consider challenges to the RED.
However, the SAC fails to identify which issues raised by the post RED acts triggered a duty to consult. Accordingly, on this record, the court cannot determine whether the post RED product reregistration actions “substantially alter[ed] the meaning or scope” of the REDs. What is clear is what cannot be challenged: analy-ses and conclusions made in the RED. What is being challenged here is less clear.
Accordingly, the Court will give Plaintiffs an opportunity to amend to cure this failing.
B. Whether Plaintiffs State Claims against the EPA under ESA Section 7(a)(2) by Failing to Reinitiate Consultation with the Service
. The Court now considers whether Plaintiffs’ have sufficiently pled claims against the EPA for violating section 7 of the ESA by failing to reinitiate consultation with respect to certain pesticides addressed in the 1989 and 1993 Biological Opinions. The EPA and Intervenors present two main arguments relating to Plaintiffs’ rein-itiate claims.
On the other hand, with respect to certain pesticides at issue, the SAC does not indicate that they have been reregis-tered — even where a RED or similar reregistration event has occurred for the active ingredients. As to those pesticides, in the absence of reregistration, the original reregistration has not been superseded, and the plaintiffs have adequately pleaded events triggering a duty to reinitiate consultation.
1. Chevron Deference should be Accorded to 50 C.F.R. § 402.16
Section 7(a)(2) of the ESA provides that “[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize” endangered species or critical habitat. 16 U.S.C.§ 1536(a)(2). In 1986, the Secretary promulgated regulations that, inter alia, define the consultation process required by section 7 of the ESA. See, e.g., 50 C.F.R. § 402.02 (defining “agency action” to include “all activities or programs of any kind authorized, funded or carried out ... by Federal agencies”); 50 C.F.R. § 402.14 (requiring formal consultation if a federal agency determines that an agency action “may affect listed species or critical habitat”). The regulation supporting Plaintiffs’ reinitiate claims provides as follows:
Reinitiation of formal consultation is required and shall be requested by the Federal agency or by the Service, where discretionary Federal involvement or control over the action has been retained or is authorized by law and:
(a) If the amount or extent of taking specified in the incidental take statement is exceeded;
(b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent ntit previously considered;
(c) If the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or
(d) If a new species is listed or critical habitat designated that may be affected by the identified action.
50 C.F.R. § 402.16 (emphasis added).
On more than one occasion, the Supreme Court has recognized that “ ‘[t]he latitude the ESA gives the Secretary in enforcing the statute, together with the degree of
The Ninth Circuit has also accorded deference to the Service’s regulations implementing section 7 of the ESA. In Conservation Congress v. U.S. Forest Service, to determine whether cumulative effects of an agency action must be considered during an informal consultation, the Ninth Circuit deferred to the Service’s distinctive rules for formal and informal consultations.
■ The Ninth Circuit has specifically accorded deference to determinations of the Service under the regulation that requires federal agencies to reinitiate consultation when the circumstances in 50 C.F.R. § 402.16 are present.
Intervenors contend that ' 50 C.F.R. § 402.16 is “not binding on EPA and ... not judicially enforceable.” Intervenors Br. at 18. Notably, the EPA has made no such argument in this case. By framing the issue as whether the EPA is “bound” by § 402.16, Intervenors attempt to circumvent the foregoing precedent according deference to the Service’s regulations issued under section 7 of the ESA. Inter-venors do not contend that 50 C.F.R. § 402.16 should not be accorded Chevron deference. Intervenors make no argument relating to Chevron deference at all, despite the emphasis on Chevron in Plaintiffs’ opposition brief. Nevertheless, In-tervenors raise an issue that should be addressed within the framework of Chevron and its progeny.
Although the Ninth Circuit has accorded deference to 50 C.F.R. § 402.16 in previous circumstances, see Sierra,
The first question is whether “Congressional intent regarding the meaning of the text in question is clear from the statute’s plain language.” River Watch,
The Court next considers whether the regulation comports with the requirements set forth in United States v. Mead Corp.,
While Intervenors avoid any mention of Chevron and its progeny, Intervenors still rely on its principles by contending that “[bjecause Congress did not place the Services in charge of determining ESA Section 7 compliance, the Service cannot adopt rules that dictate or change what ESA Section 7 requires.” Intervénors Br. at 19. In essence, this is an argument that the Service exceeded its authority by promulgating regulations which require feder
• Intervenors’ argument is not without support. As Intervenors point out, four Supreme Court Justices have acknowledged that Congress gave the Secretary relatively less controlling authority with respect to section 7 of the ESA than the other sections:
Whereas in other contexts the ESA is quite explicit as to the Secretary’s controlling authority, see, e.g., 16 U.S.C. § 1533(a)(1) (“The Secretary shall” promulgate regulations determining endangered species); § 1535(d)(1) (“The Secretary is authorized to provide financial assistance to any State”), with respect to consultation the initiative, and hence arguably the initial responsibility for determining statutory necessity, lies with the agencies (“Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any” funded action is not likely to jeopardize endangered or threatened species) (emphasis added)).
Lujan v. Defenders of Wildlife,
Indeed, when promulgating the regulations under section 7, the Service responded to “[sjeveral commenters” who argued that “Congress did not intend that the Service interpret or implement section 7, and believed that the Service should recast the regulations as ‘nonbinding guidelines’ that would govern only the Service’s role in consultation.”
that Congress, reviewed with approval the section 7 regulations issued on January 4, 1978, when deliberating over the*769 1978 Amendments to the Act .... Also, the Service was urged by the House Committee, through its comments on the proposed rule, to press forward with the issuance of this final rule.
/¿(citing H.R. Conf. Rep. No. 1804, 95th Cong., 2d Sess. 18 (1978)). The Service stated that it was “satisfied that it has ample authority and legislative mandate to issue this rule, and believes that uniform consultation standards and procedures are necessary to meet its obligations under section 7.”
The Court finds that in promulgating 50 C.F.R. § 402.16, the Service did not exceed its authority because § 402.16 simply defines a process by which federal agencies comply with their obligations under section 7(a)(2) of the ESA. When the Service promulgated the regulations under section 7 of the ESA, the Service justified the mandatory nature of agencies’ obligations to initiate consultation under 50 C.F.R. § 402.14, and to reinitiate consultation under 50 C.F.R. § 402.14, on the mandatory language of section 7(a)(2). The Service expressly “declined” to substitute the word “may” for “shall” when describing federal agencies’ responsibilities under 50 C.F.R. § 402.14(a) to determine whether formal consultation is required, noting, “Federal agencies have an obligation under section 7(a)(2) of the Act to determine whether their actions may affect listed species and whether formal consultation is required under these regulations.”
Indeed, the Service has distinguished between the “procedural” regulations that were promulgated under section 7 of the ESA, and the “substantive policy” adopted by Federal agencies after the section 7 consultation takes place. The Service noted that “[o]nce the mandatory consultation has taken place, ... the ultimate responsibility for determining agency action in light of section 7 still rests with the particular Federal agency that was engaged in consultation.” Id. (quoting 43 Fed. Reg. 870, 871 (Jan. 4, 1978)). In plain terms, the Service has promulgated “procedural regulations” under section 7 that “do not dictate results but prescribe a process by which the Service will consult in keeping with the Act.”.
In holding that the Service did not exceed its delegated authority in promulgating 50 C.F.R. § 402.16, the Court notes that § 402.16 does not authorize the Service to compel other federal agencies to initiate or reinitiate consultation. Indeed, the Service writes in the preamble to the 1986 Final Rules that “it lacks authority to require the initiation of consultation.” 51 Fed. Reg. 19926, 19928 (June 3, 1986). The Service also recognizes “its lack of authority to require Federal agencies to reinitiate consultation if they choose not to.” Id. at 19956 (emphasis added).
Intervenors quote several passages to support the argument that “[t]he ESA does not give the FWS the power to order other agencies to comply with its requests
Having found that the Service did not exceed is delegated authority in promulgating 50 C.F.R. § 402.16, the Court considers whether the Service’s interpretation of section 7(a)(2) is “a reasonable policy choice for the agency to make.” River Watch,
The Court finds that § 402.16 is a reasonable interpretation of section 7. There are textual reasons that support this conclusion. See Sweet Home,
The ESA’s “broad purpose” also supports the promulgation of rules defining the circumstances under which it is necessary to reinitiate consultation. Sweet Home,
2. The “Agency Actions” for the Rein-itiate Claims Have Been Superseded for Reregistered Pesticides
In 1989, the FWS issued a Biological Opinion entitled, “Effects of Pesticides on Aquatic Endangered Species,” which addressed several pesticide active ingredients included in Plaintiffs’ reinitiate claims. See SAG ¶¶ 845-46. In 1993, the FWS issued another Biological Opinion, entitled “Effects of 16 Vertebrate Control Agents
As the EPA recognizes in its brief, the FWS issues a biological opinion after a formal consultation with an agency regarding an agency action. See EPA Br. at 6; 50 C.F.R. § 402.14(h) (noting that the “biological opinion shall include ... [a] detailed discussion of the effects of the action on listed species or critical habitat”). As for the 1989 and 1993 Biological Opinions at issue in this case, the relevant agency action was the EPA’s registration of the pesticide chemicals discussed in the Biological Opinions. This is sufficiently alleged in the Second Amended Complaint, see SAC ¶¶ 845-50.
Nonetheless, the EPA contends that if a RED is issued after the pesticide was discussed in the FWS’s 1989 and 1993 Biological Opinions, the issuance of that RED constitutes a “new” agency action, which supersedes the prior agency action. The EPA contends there can be no duty to reinitiate consultation on an agency action which has been superseded. Moreover, the EPA contends that because there was no initial consultation on the new agency action (i.e., the issuance of a RED), there can be no reinitiation of a consultation that never occurred. See EPA Br. at 20-23; EPA Reply Br. at 11-14; see also Interve-nor Br. at 15 (agreeing with the EPA that “the SAC fails to identify any EPA action subject to prior consultation for which consultation should have been reinitiated”).
For certain pesticides and their active ingredients, the Court agrees. When an agency consults with the Service, it does so about a particular agency action. Here, the pesticide registrations that gave- rise to the two Biological Opinions'are the agency actions in question. However, pursuant to statute, all of those registrations were subject to the reregistration requirements passed by Congress. Indeed, Plaintiffs allege that for many of the pesticides at issue in the reinitiation claims, the EPA has already completed reregistration.
The Court disagrees, however, with the EPA’s argument as to which subsequent actions supersede the original registrations. The actions that triggered the Biological Opinions were product registrations, which are superseded by product reregistrations — not by REDs, which determine eligibility of active ingredients. And while, as discussed above, the SAC alleges that reregistration is complete for products ■ containing many active ingredients, it does not allege that reregistration is complete for certain other active ingredients.
V. CONCLUSION
For the foregoing reasons, Defendants’ Motions to Dismiss are GRANTED in part and DENIED in part. Claims 1 through 31 are dismissed with leave to amend as described above. Claims 32 through 74 are dismissed in part without leave to amend.
IT IS SO ORDERED.
Notes
. The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c).
. Moreover, ”[p]roducts which have the same formulation, are manufactured by the same person, the labeling of which contains the same claims, and the labels of which bear a designation identifying the product as the same pesticide may be registered as a single pesticide; and additional names and labels shall be added to the registration by supplemental statements.” 7 U.S.C. § 136a(e).
. http://www.epa.gov/pesticides/ reregistration/definitions.htm (last visited July 12, 2014).
. A “case” may be “composed of 1 or more active ingredients and the products associated with the active ingredients.” 7 U.S.C. § 136a(g)(l)(A)(iii).
. The 50 pesticide active ingredients at issue are: 1,3-dichloropropene, 2-4 D salts and esters, acephate, alachlor, aldicarb, atrazine, bensulide, brodifacoum, bromadiolone, bromethalin, captan, carbaryl, chlorophaci-none, chlorothalonil, chlorpyrifos, cypermeth-rin, dazomet, diazinon, dicamba and salts, dichlorprop, dimethoate, diphacinone, diur-on, ethoprop, MCPA salts-esters, malathion, mancozeb, methomyl, metolachlor & isomers, metribuzin, naled, oxydemeton-methyl, oxy-fluorfen, paraquat dichloride, pendimethalin, permethrin, phorate, phosmet, profenofos, propanil, propargite, S,S,S-tributyl phospho-rotrithioate, simazine, terbufos, thiobencarb, thiophanate-methyl, trichlorofon, trifluralin, warfarin, and zinc phosphide. The REDs for each pesticide active ingredient can be found at: http://www.epa.gov/oppsrrdl/ reregistration/status.htm (last visited July 13, 2014).
. The 24 ingredients at issue in both failure-to-consult and reinitiation claims are: 2,4-D, salts and esters (claims 2 and 32); acephate (claims 3 and 33);' atrazine (claims 5 and 35); bensulide (claims 6 and 36); bromadiolone (claims 7 and 38); captan (claims 8 and 40); carbayl (claims 9 and 41); chlorathalonil (claims 10 and 43); chlorpyrifos (claims 11 and 44); diazinon (claims 12 and 47); dicam-ba and salts (claims 13 and 48); diuron (claims 14 and 52); ethoprop (claims 15 and 53); methomyl (claims 17 and 56); naled (claims 20 and 57); oxydemeton-methyl (claims 21 and 58); oxyfluorfen (claims 22 and 59); paraquat dichloride (claims 23 and 60); pendimethaline (claims 24 and 61); pho-rate (claims 25 and 63); phosmet (claims 26 and 64); propargite (claims 28 and 66); S,S,S-tributyl phosphorotrithioate (claims 29 and 68); and trifluralin (claims 31 and 72).
. This includes Plaintiff's 4th, 8th, 10th, 14th, 16th, 17th, 18th, 19th, 22nd, 23rd, 24th, 27th, 28th, 30th and 31st causes of action. Respectively, these causes of action correspond to the following paragraph in the Second Amended Complaint, pesticide ingredient, and date of RED issuance: ¶ 1599 (alachlor, 1998 RED); ¶ 1639 (captan, RED 2004); ¶ 1659 (chlorthalonil, RED 1999); ¶ 1699 (diuron, RED 2003); ¶ 1719 (MCPA, salts and esters, RED 2004); ¶ 1729 (methomyl, RED 1998); ¶ 1739 (metolachlor and isomers, RED 1994); ¶ 1749 (metribuzin, RED 1997); ¶ 1779 (oxyfluorfen, RED 2002); ¶ 1789 (paraquat dichloride, RED 1997); ¶ 1799 (pen-dimethalin, RED 1997); ¶ 1829 (propanil, RED 2003); ¶ 1839 (propargite, RED 2001); ¶ 1859 (thiobencarb, RED 1997); ¶ 1869 (trifluralin, RED 2004).
. However, any claim based on the product reregistration actions taken before that date are time barred.
. http://www.epa.gov/pesticides/ reregistration/product-reregistration.htm
. By contrast, Congress expressly delegated authority to the EPA to “establish a procedure for accomplishing the periodic review of registrations.” 7 U.S.C. § 136a(g)(l)(A)(ii).
. Plaintiffs state that Defendants have asserted three arguments, noting that Intervenors write the following in their brief: “Plaintiffs also may not collaterally attack the REDs by
. The Ninth Circuit has also relied on 50 C.F.R. § 402.16 in cases where deference was not specifically discussed. See Salmon Spawning & Recovery Alliance v. Gutierrez,
. The cases Intervenors cite in support of this proposition are distinguishable. See Adams Fmit Co. v. Barrett,
. In Defenders of Wildlife, in the context of considering whether a court injunction ordering the FWS to issue a regulation under section 7 would redress the plaintiffs’ injuries, as relevant to standing, the plurality wrote that such a regulation "would not remedy respondents’ alleged injury unless the funding agencies were bound by the Secretary’s regulation, which is very much an open question.” Defenders of Wildlife,
. The SAC alleges that reregistration has been completed with respect to products containing the following active ingredients: 2,4-D (¶ 864); acephate (¶ 881); aldicarb (¶ 897); atrazine (¶ 921); bensulide (¶ 936); broma-diolone (¶ 968); captan (¶ 997); carbaryl (¶ 1023); chlorophacinone (¶ 1038); chloro-thalonil (¶ 1055); chlorpyrifos (¶ 1079); diazi-non (¶ 1127); dicamba (¶ 1143); dichlorprop (¶ 1157); diphacinone (¶ 1189); diuron (¶ 1206); ethoprop (¶ 1222); methomyl (¶ 1274); naled (¶ 1289); oxydemeton-methyl (¶ 1304); oxyfluorfen (¶ 1320); paraquat dichloride (¶ 1335); pendimethalin (¶ 1351); phorate (¶ 1382); phosmet (¶ 1397); profeno-fos (¶ 1412); propargite (¶ 1429); S,S,S-tribu-tyl phosphorotrithioate (¶ 1459); terbufos (¶ 1476); thiophanate-methyl (¶ 1491); trichlorofon (¶ 1506); and trifluralin (¶ 1523) (all citations refer to SAC).
. "THE COURT: ... Don’t you agree that where there’s been a reregistration of pesticide, you reregister products or you reregis-tered an ingredient. When you have reregis-tered these things, the original registration ... is no longer something that the users and manufacturers of those pesticides have to follow. Isn’t that right? They have to follow the new one instead. Isn’t that correct?
"MR. AUGUSTINE: Yes, that’s true.” Transcript of Oral Argument, CBD v. EPA, No. 11-0293 JCS (N.D. Cal. Aug. 8, 2014).
. These active ingredients are: brodifacoum (Claim 37); bromethalin (Claim 39); cyper-methrin (Claim 45); dazomet (Claim 46); dimethoate (Claim 50); malathion (Claim 54); mancozeb (Claim 55); permethrin (Claim 62); simazine (Claim 67); warfarin (Claim 73); and zinc phosphide (Claim 74).
. As discussed above, the claims identified at footnote 17, supra, are not dismissed.