Natural Resources Defense Council v. JohnsonNatural Resources Defense Council v. Johnson
NATURAL RESOURCES DEFENSE COUNCIL, Pesticide Action Network North America, The Breast Cancer Fund, Physicians for Social Responsibility, New York Public Interest Research Group, Farmworker Legal Services of New York, Citizens Campaign for the Environment, Neighborhood Network Research Center, Citizens Environmental Coalition, Mid-Hudson Catskill Rural and Migrant Ministry, Environmental Advocates of New York, Plaintiffs-Appellants,
v.
Stephen L. JOHNSON, Administrator, United States Environmental Protection Agency, Defendants-Appellees,
Captan Task Force, Makhteshim-Agan of North America, Inc., Sygenta Crop Protection Inc., Monsanto Company, Gowan Company L.L.C., Bayer Crop-Science LP, CropLife America, Defendants-Intervenors-Appellees.
No. 04-5337-cv.
United States Court of Appeals, Second Circuit.
Argued: November 14, 2005.
Decided: August 22, 2006.
COPYRIGHT MATERIAL OMITTED Aaron S. Colangelo (Erik D. Olson, Jon P. Devine, Jr., on the brief), Natural Resources Defense Council, Washington, D.C. (Patti A. Goldman, Earthjustice, Seattle, Washington, Shelley Davis, Farmworker Justice Fund, Washington, D.C., of counsel), for Plaintiffs-Appellants.
Kathy S. Marks, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York, Sara L. Shudofsky, Assistant United States Attorney, of counsel), New York, New York (Jonathan J. Fleuchaus, Daniel M. Flores, United States Environmental Protection Agency, Washington, D.C., of counsel), for Defendants-Appellees.
Donald B. Mitchell (Stanley H. Abramson, Eric S. Baxter, on the brief), Arent Fox PLLC, Washington, D.C. (William J. McSherry, Jr., Janine M. Gargiulo, Arent Fox PLLC, New York, New York; David B. Weinberg, Wiley Rein & Fielding LLP, Washington, D.C., on the brief), for Defendants-Intervenors-Appellees.
Before: WINTER, STRAUB, and RAGGI, Circuit Judges.
WINTER, Circuit Judge.
The appellants in this action are eleven public health, environmental, religious and farmworker organizations, including the Natural Resources Defense Council (collectively, the "NRDC Appellants"). They appeal from Judge Lynch's dismissal of their complaint for lack of subject matter jurisdiction.
The complaint challenged the Environmental Protection Agency's ("EPA")1 decision to leave in effect certain pesticide "tolerances" (i.e., the maximum permissible amount of pesticide residues on food) for five pesticides after a systematic tolerance reassessment program required by the Food Quality Protection Act of 1996, Pub.L. No. 104-170, 110 Stat. 1489. Judge Lynch dismissed the complaint after concluding that
We affirm.
BACKGROUND
a) Statutory and Regulatory Scheme
The EPA regulates agricultural pesticides under two interrelated statutes: the Federal Food, Drug, and Cosmetic Act ("FFDCA"),
FIFRA imposes a federal licensing scheme on the sale, distribution, and use of pesticides.
To ensure the safety of consumers of pesticide-treated food, the FFDCA empowers the EPA to establish "tolerances," which set the maximum permissible level of pesticide residue on a particular food, or to grant exemptions from the tolerance requirement.
The EPA may "establish or leave in effect a tolerance for a pesticide chemical residue in or on a food only if the Administrator determines that the tolerance is safe."
In 1996, both FIFRA and the FFDCA were amended by the Food Quality Protection Act ("FQPA"), Pub.L. No. 104-170, 110 Stat. 1489. The FQPA required that the EPA reassess the safety of all then-existing tolerances — over 9,000 — and added to the FFDCA a range of detailed, scientific factors to be considered in the assessment of pesticide risks.
Under
A reassessment review under
The establishment, revocation, or modification of a tolerance occurs under the procedures set forth in
Once a regulation or order is issued pursuant to
The only provision relating to judicial review in
[i]n a case of actual controversy as to the validity of any regulation issued under subsection (e)(1)(C) of [
b) EPA's Implementation of the FQPA Amendments
Much of the tolerance reassessment program has been conducted concurrently with a similar program under FIFRA to re-evaluate pesticide registrations. See
REDs for two pesticides at issue in this case, alachlor and captan, were issued in 1998 and 1999, respectively. U.S. EPA, Reregistration Eligibility Decision (RED): Alachlor (1998) (available at http://www.epa.gov/oppsrrd1/REDs/0063.pdf) [hereinafter "Alachlor RED"]; U.S. EPA, Reregistration Eligibility Decision (RED): Captan (1998) (available, as amended, at http://www.epa.gov/oppsrrd1/REDs/0120red.pdf) [hereinafter "Captan Red"]. Concluding "that the established tolerances for alachlor, with amendments and changes as specified in this document, meet the safety standards under the FQPA amendments," the EPA determined that of 38 tolerances, five should be revoked and six should be modified to contain an increased tolerance value. Alachlor RED at 181, 185-87. Making similar findings with respect to captan, the EPA found that 61 of the 66 tolerances needed some sort of adjustment. Captan RED at 62, 66-72.
The three other pesticides at issue in this case, diazinon, disulfoton, and oxydemeton-methyl, are members of a large group of pesticides known as organophosphates, which share a common mechanism of toxicity and whose exposure can cause cumulative effects on humans. See 67 Fed.Reg. 56,557, 56,558 (Sept. 4, 2002). Because the EPA determined that the cumulative risks of several organophosphates, including diazinon, disulfoton, and oxydemeton-methyl, made at most minimal or negligible contributions to the overall risk associated with organophosphates, the tolerances for these organophosphates were maintained "regardless of the outcome of the [organophosphate] cumulative assessment and any potential regulatory action taken as a result of that assessment." 67 Fed.Reg. 56,557, 56,558 (Sept. 4, 2002); see also 67 Fed.Reg. 56,555 (Sept. 4, 2002); 67 Fed.Reg. 52,987 (Aug. 14, 2002); 67 Fed.Reg. 46,972, 46,974 (July 17, 2002); 67 Fed.Reg. 35,991, 35,993 (May 22, 2002).
c) District Court Proceedings
On September 15, 2003, the NRDC Appellants filed the present action.2 On December 23, 2003, an amended complaint was filed challenging the EPA's reassessment and retention of tolerances for 146 pesticide-food pairs involving five pesticides: alachlor, captan, diazinon, disulfoton, and oxydemeton-methyl. Specifically, the NRDC Appellants argued that the EPA's decision to leave these tolerances in effect after reassessment was improper because: (i) the EPA ignored its statutory duty under the FFDCA to include an additional tenfold margin on safety in order to protect infants and children; (ii) the EPA failed to designate the children of farmworkers as a major identifiable subgroup especially vulnerable to the reassessed pesticides; (iii) for eleven organophosphates, the EPA left in effect tolerances whose level exceeded the safe level for children; (iv) for 120 tolerances, the EPA erroneously reduced the acute dietary risk posed by the pesticide by relying on data based on the estimated percentage of the crop treated with the pesticide; and (v) in violation of FIFRA, the EPA unlawfully relied on a confidential, proprietary computer model developed by the pesticide industry to conduct 118 organophosphate tolerance reassessments.
On March 25, 2004, the district court granted a motion to intervene on behalf of an association of pesticide manufacturers and distributors and several of its member companies (the "CropLife Appellees"). All appellees moved to dismiss the amended complaint on the ground that the district court lacked subject matter jurisdiction because the language of
After holding that the disputed tolerance reassessments were final agency actions, the district court granted the motions to dismiss. It held that
More specifically, the court found that the language of
clearly demonstrates Congress's intent to preclude other avenues of review for determinations issued under the subsections to which it applies. Moreover, the provision's broad language, specifying that it covers "any issue as to which review is or was obtainable," indicates an intention to sweep in any challenge to an agency action that could have been appealed through the procedures it references, regardless of whether such internal review was actually pursued. That is, subsection [346a](h) explicitly applies not merely to cases in which administrative review was pursued, such that appellate review is obtainable under subsection [346a](h)(1), but also to cases in which such review was obtainable had the appropriate steps been taken. A litigant challenging an administrative decision governed by these provisions thus cannot, by skipping the internal review procedures of subsection [346a](g), avoid the jurisdiction of the Courts of Appeals and proceed instead to the District Courts under the APA, by arguing that, in the absence of an order under subsection [346a](g)(2)(C), subsection [346a](h)(1) is inapplicable.
Id. at 438. The district court concluded that the NRDC Appellants could have challenged the EPA's reassessment decisions using the procedures of
The district court also dismissed the NRDC Appellants' claims of jurisdiction under FIFRA. Id. at 446-47. The district court held that because
DISCUSSION
a) Standard of Review
"When reviewing a district court's Rule 12(b)(1) determination of its subject matter jurisdiction, we review factual findings for clear error and legal conclusions de novo." Wake v. United States,
b) Judicial Review under the APA
The APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."
"Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved." Block v. Cmty. Nutrition Inst.,
Before addressing the NRDC Appellants' arguments that the APA provides for judicial review in the district court, we must determine whether the challenged decisions represent final agency action. If the decision to leave certain tolerances in place is not final action, APA review would be inappropriate. See In re SEC ex rel. Glotzer,
c) Judicial Review Under the FFDCA
Because the EPA's tolerance reassessments represent final agency action, the APA permits review in the district court unless it is "fairly discernable" that
Despite the absence of an overarching judicial review provision, both the language and the statutory scheme of
First, the language of
In mounting its challenge to those tolerance reassessments left in effect, the NRDC could have raised (and indeed still can raise) every issue presented in their complaint in a petition to modify or revoke the tolerance pursuant to
Had the NRDC Appellants filed a
Hence, a challenge to a decision to leave a tolerance in effect is an issue for which review was obtainable under
Furthermore, it is "fairly discernable" from the statutory scheme that jurisdiction is not appropriate in the district court. Block,
The NRDC Appellants advance two main arguments in response. First, they contend that a reassessment decision to leave a tolerance in effect under
We conclude that these arguments are unavailing. While it is true that neither
Moreover, the NRDC Appellants' reliance on
Furthermore, those cases cited by the NRDC Appellants as supporting district court jurisdiction are quite distinguishable from the present case. In NRDC v. Whitman, No. 99-03701,
The NRDC Appellants also rely on American Farm Bureau v. EPA,
The present case is distinguishable from American Farm Bureau because the plaintiffs there were challenging the EPA's general policy decisions and failure to issue regulations. These issues could not have been raised using
Because the NRDC Appellants' claims involve issues that could have been raised using the procedures enumerated in
d) Judicial Review Under FIFRA
Even if the FFDCA precludes review of their claims under the APA, the NRDC Appellants claim that FIFRA Section 16a,
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.
However, FIFRA's grant of jurisdiction to the district courts is irrelevant. The NRDC Appellants "challenge the registration of pesticides under FIFRA only through their challenge to the tolerances set under the FDCA." New York v. United States EPA,
CONCLUSION
For the foregoing reasons, the district court properly dismissed the complaint for lack of subject matter jurisdiction. The decision of the district court is therefore affirmed.
Notes:
Notes
EPA Administrator Stephen L. Johnson is substituted as Defendant-AppelleeSee
An action filed by the states of New York, New Jersey, Connecticut, and Massachusetts was consolidated with the NRDC Appellants' action because both lawsuits challenged the safety of certain EPA pesticide reassessment decisions, and thus involved common questions of fact and law. Although the district court's order and opinion dismissed both lawsuits, the state plaintiffs have not appealed
An issue is defined as "[a] point in dispute between two or more parties" and is not limited to particular kinds of actions. Black's Law Dictionary 835 (7th ed. 1999);see also Webster's Third New Int'l Dictionary 1201 (1981) ("a matter that is in dispute"; "a point in question in law or fact").