Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 1 of 391
2
3

IN THE UNITED STATES DISTRICT COURT

4FOR THE NORTHERN DISTRICT OF CALIFORNIA

5
6

STEVE ELLIS, ET AL.,
Plaintiffs,

7
v.

8
9

JACK HOUSENGER, et al.,Defendants,

10

United States District Court
Northern District of California

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT;GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTIONS FOR
SUMMARY JUDGMENT; DIRECTIONSTO PARTIES

and

11
12

Case No. 13-cv-01266-MMC

BAYER CROPSCIENCE, LP, et al.,13

Defendant-Intervenors.

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15
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24
25
26

Before the Court are three motions: (1) "Motion for Summary Judgment," filed
April 14, 2016, by plaintiffs Steve Ellis, Tom Theobald, Jim Doan, Bill Rhodes, Center for
Food Safety, Beyond Pesticides, Sierra Club and Center for Environmental Health;(2) "Cross-Motion for Summary Judgment," filed June 7, 2016, by defendants Gina
McCarthy, Administrator of the United States Environmental Protection Agency, and JackHousenger, Director of the Office of Pesticide Programs of EPA (collectively, "EPA"); and(3) "Cross-Motion for Summary Judgment," filed June 20, 2016, by defendant-intervenors
Bayer CropScience LP, Syngenta Crop Protection, LLC, Valent U.S.A. Corporation, andCropLife America (collectively, "Intervenors"). The motions have been fully briefed.
Having read and considered the papers filed in support of and in opposition to the
motions, the Court hereby rules as follows.1

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1

By order filed October 25, 2016, the Court took the matters under submission.

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 2 of 39

BACKGROUND

1
2

By the instant action, plaintiffs, comprising four individuals and four public interest

3

groups, "challenge the actions of [the EPA] to allow the ongoing use of pesticide products

4

containing the active ingredients clothianidin and thiamethoxam." (See Second

5

Amended Complaint (“SAC”) ¶ 1.) Plaintiffs allege the subject pesticides "have been

6

shown to adversely impact the survival, growth, and health of honey bees and other7

pollinators vital to U.S. agriculture" and have "harmful effects on other animals, including

8

threatened and endangered species." (See SAC ¶ 2.)
More specifically, plaintiffs allege that the EPA failed to comply with the Federal

United States District Court
Northern District of California

910Insecticide, Fungicide, and Rodenticide Act ("FIFRA") by denying plaintiffs' request, made11

in a petition submitted to the EPA, to suspend the registration of products containing

12

clothianidin (see SAC ¶¶ 82, 104, 110), and by approving applications to register certain

13

products containing clothianidin or thiamethoxam without first providing notice in the

14

Federal Register (see SAC ¶¶ 37, 114, 121). Additionally, plaintiffs allege that the EPA

15violated the Endangered Species Act ("ESA") by failing to consult with the Fish and16

Wildlife Service ("FWS") prior to approving certain applications to register products

17

containing clothianidin and thiamethoxam. (See SAC ¶¶ 49-50, 128, 132.)LEGAL STANDARD

18

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a "court shall grant19
20

summary judgment if the movant shows that there is no genuine issue as to any material

21

fact and that the movant is entitled to judgment as a matter of law." See Fed. R. Civ. P.

2256(a).

23

The Supreme Court's 1986 "trilogy" of Celotex Corp. v. Catrett, 477 U.S. 317

24(1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric25

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), requires that a party seeking

26summary judgment show the absence of a genuine issue of material fact. Once the27

moving party has done so, the nonmoving party must "go beyond the pleadings and by

28[its] own affidavits, or by the depositions, answers to interrogatories, and admissions on2

United States District Court
Northern District of California

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 3 of 39

1file, designate specific facts showing that there is a genuine issue for trial." See Celotex,

2477 U.S. at 324 (internal quotation and citation omitted). "When the moving party has

3carried its burden under Rule 56[ ], its opponent must do more than simply show that4

there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586.

5

"If the [opposing party's] evidence is merely colorable, or is not significantly probative,

6summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations

7

omitted). "[I]nferences to be drawn from the underlying facts," however, "must be viewed

8

in the light most favorable to the party opposing the motion." See Matsushita, 475 U.S. at

9587 (internal quotation and citation omitted).

10

DISCUSSION

11

All parties seek summary judgment on the issue of liability as to the six claims

12

alleged in the SAC.2

13

A. First and Second Claims

14

The First and Second Claims challenge the EPA's denial of a request made in a15

petition that was submitted to the EPA by four of the plaintiffs, specifically, a request to16

immediately suspend the registration of products containing clothianidin.

17

1. Applicable Statutory and Regulatory Framework

18

Under FIFRA, no pesticide may be distributed or sold unless it has been registered19

by the EPA. See 7 U.S.C. § 136a(a). If, after the EPA registers a pesticide, it "appears

20

to the [EPA] that a pesticide . . . generally causes unreasonable adverse effects on the21environment," the EPA may issue a notice of intention "to cancel its registration or to22change its classification." See 7 U.S.C. § 136d(b). If the EPA issues a notice of intention

23

to cancel or change the classification of a registration, "a person adversely affected by24

the notice" may request a hearing, see 7 U.S.C. § 136d(b)(2), which hearing is conducted

25
2

26
27
28

In their cross-motion for summary judgment, the Intervenors join in the EPA’s
cross-motion for summary judgment (see Intervenors' Cross-Mot. at 1:2-3); accordingly,
the Court’s rulings on the arguments made by the EPA pertain equally to the Intervenors.
Where the Intervenors have made arguments in addition to those made by the EPA, theCourt has separately addressed those arguments herein.
3Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 4 of 39

1

by an administrative law judge, see 40 C.F.R. § 164.20(c). "[C]ancellation or2

reclassification proceedings may take one or two years to complete." Love v. Thomas,

3858 F.2d 1347, 1350 (9th Cir. 1988), cert. denied, 490 U.S. 1035 (1989)"If the [EPA] determines that action is necessary to prevent an imminent hazard

United States District Court
Northern District of California

45

during the time required for cancellation or change in classification proceedings, the6[EPA] may, by order, suspend the registration of the pesticide immediately." 7 U.S.C.

7§ 136d(c)(1). The term "imminent hazard" is defined as "a situation which exists when8

the continued use of a pesticide during the time required for [a] cancellation proceeding

9

would be likely to result in unreasonable adverse effects on the environment or will

10

involve unreasonable hazard to the survival of a species declared endangered or

11threatened." See 7 U.S.C. § 136(l). The term "unreasonable adverse effects on the12environment" is defined as "any unreasonable risk to man or the environment, taking into

13

account the economic, social, and environmental costs and benefits of the use of any

14pesticide." See 7 U.S.C. § 136(bb).

15

Subject to one exception, discussed below, the EPA may not issue an order of16

suspension unless it has "issued, or at the same time issues, a notice of intention to17

cancel the registration or change the classification of the pesticide" and "notif[ies] the18

registrant prior to issuing any suspension order." See 7 U.S.C. § 136d(c)(1). If the19registrant does not request a hearing within five days, the "suspension order may be

20

issued and shall take effect." See 7 U.S.C. § 136d(c)(2). If the registrant timely requests

21

a hearing, the EPA conducts an "expedited hearing . . . on the question of whether an

22imminent hazard exists." See 7 U.S.C. §§ 136d(c)(1). Following the expedited hearing,23

the EPA "shall issue a final decision and order" addressing the issue of suspension. See

24

40 C.F.R. § 164.122(a). The "administrative suspension process" may take three to four

25

months to complete. See Dow Chemical Co. v. Blum, 469 F. Supp. 892, 899, 902 (E.D.

26

Mich. 1979); see also Love, 858 F.2d at 1353 n.10 (noting "suspension hearing would

27

require approximately four months").

28

//
4

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 5 of 39

United States District Court
Northern District of California

1

The one instance in which the EPA may suspend a registration prior to issuing a2

notice of intention to cancel and prior to notifying the registrant is where "the [EPA]

3determines that an emergency exists that does not permit the [EPA] to hold a hearing

4

before suspending." See 7 U.S.C. § 136d(c)(3). Upon issuing an "emergency" order of5suspension, see 40 C.F.R. § 164.123(a), the EPA must, however, "immediately notify the6registrant," who, in turn, may request an expedited hearing on the question of whether an

7imminent hazard exists, see 40 C.F.R. § 164.123(b). Such "emergency order" of8suspension remains in place pending the conclusion of the administrative suspension

9

process. See 7 C.F.R. § 136d(c)(3); 40 C.F.R. § 164.123(b); see also National Coalition

10

Against the Misuse of Pesticides v. EPA, 867 F.2d 636, 644 (D.C. Cir. 1989) (holding

11"[t]he extraordinary step of emergency suspension is available only if the requisite

12

unreasonable harm would be likely to materialize during the pendency of ordinary

13

suspension proceedings").

14

2. Administrative Proceedings Conducted on Plaintiffs' Petition

15

On March 20, 2012, plaintiffs Steve Ellis, Tom Theobald, the Center For Food

16

Safety, and Beyond Pesticides, along with other individuals and entities who are not17parties to the instant action, jointly submitted to the EPA an "Emergency Citizen Petition"

18("Petition"). (See Administrative Record ("AR") 44323-44370.) In the Petition, plaintiffs

19

requested that the EPA, inter alia, suspend clothianidin's registration "on an emergency

20

basis," or, alternatively, "promptly initiate Special Review and cancellation procedures for21

clothianidin pursuant to 7 U.S.C. § 136d[,] and then suspend its registration pending

22

completion of the cancellation procedures based on the ongoing and imminent harm23

posed." (See AR 44327.) 3 Thereafter, in support of the Petition, plaintiffs submitted

24
3

25
26
27
28

The EPA may institute a "Special Review" to "help the [EPA] determine whether
to initiate procedures to cancel . . . or reclassify registration of a pesticide product." See
40 C.F.R. § 154.1(a). The EPA may initiate a Special Review “on [its] own initiative” or“at the suggestion of any interested party” who submits a “petition[ ] to begin the Special
Review process.” See 40 C.F.R. § 154.10; see also 40 C.F.R. § 154.7 (identifying“criteria for initiation of Special Review”). During the Special Review process, the EPA
creates a "docket," provides an opportunity for the registrant and others to submit
comments, and conducts, if it deems such proceedings appropriate, "informal public
5United States District Court
Northern District of California

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 6 of 39

1

supplemental filings dated, respectively, May 3, 2012, and June 18, 2012. (See AR

244598-618.)

3

On July 17, 2012, the EPA issued a responsive letter, denominated a "partial

4

response" ("Partial Response"). (See AR 44419-30.) The EPA explained therein that it5

was posting on its website for public comment "the [P]etition (including the [P]etition

6

exhibits and supplemental filings)," its Partial Response thereto (see AR 44419), and7"additional materials from other sources" (see AR 44420). The EPA then denied the8request for an emergency order of suspension and stated it would respond to the other9

requests made in the Petition "[a]fter reviewing the public comments submitted." (See10

AR 44419.)

11

In denying an immediate suspension, the EPA found the Petition suffered from a

12"facial inadequacy," specifically, the lack of "an explanation as to how the harm identified

13

outweigh[ed] the benefits to growers and the agricultural economy from the use of the14

pesticide" (see AR 44423-24), and that, in any event, "nowhere in the [P]etition [did]15[plaintiffs] explain how the use of clothianidin rises to the level of the FIFRA imminent

16

hazard standard" (see AR 44424; see also AR 44425-30).4 In setting forth said findings,

17

the EPA stated that, "due to the emergency nature of [the] request," it had only

18

considered the materials "received prior to May 4, 2012" (see AR 44420), and that it

19

would consider plaintiffs' supplemental filings, namely, those dated May 3, 2012, and20

June 18, 2012, along with the "additional materials from other sources," once it had

21

received the public comments, and thereafter would determine whether reconsideration

22

was warranted (see AR 44419).5

23
24
25

hearings." See 40 C.F.R. §§ 154.15, 154.26, 154.29. At the conclusion of a Special
Review, the EPA may, inter alia, issue notice of its intention to cancel a registration or tochange the classification of a registration. See 40 C.F.R. § 154.33(a).
4

26
27

With respect to the latter basis for its denial, the EPA attached to the Partial
Response a 30-page "Technical Support Document" in which it set forth a detailed
analysis of the studies cited in the Petition. (See AR 44431-60.)
5

28

The administrative record does not indicate whether, and if so when, the EPA
ruled on the remaining requests in the Petition.
6

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 7 of 39

1

3. Merits of First and Second Claims

2

In the First Claim, plaintiffs allege it was "arbitrary and capricious" for the EPA,

3

when ruling on plaintiffs' request for an immediate suspension, not to consider plaintiffs'

4"supplemental filings." (See SAC ¶ 104.) In the Second Claim, plaintiffs allege the5"EPA's failure to suspend the registrations of [clothianidin] products in view of their

6

unreasonable adverse effects violates FIFRA." (See SAC ¶ 110.)

United States District Court
Northern District of California

7

District courts have jurisdiction to review "the refusal of the [EPA] to cancel or8suspend a registration or change a classification not following a hearing." See 7 U.S.C.

9§ 136n(a). Where a federal statute providing for judicial review of an agency's action

10

does not itself provide a standard of review, the "general standard of review of agency

11

action established in the Administrative Procedure Act ('APA')" applies. See Oregon

12

Natural Resources Council v. Allen, 476 F.3d 1031, 1036 (2007). Here, FIFRA does not

13

provide a standard of review for the denial of a request to immediately suspend a

14

pesticide product, and, consequently, the standard set forth in the APA applies. Under

15

the APA, a reviewing court shall "hold unlawful and set aside agency action, findings, and16

conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not17

in accordance with law." See 5 U.S.C. § 706(2). A plaintiff has the burden to show the18

agency's decision was improper, and, "[a]bsent a showing of arbitrary action, [courts]

19

must assume that the [agency has] exercised [its] discretion appropriately." See Kleppe

20

v. Sierra Club, 427 U.S. 390, 412 (1976).

21

a. Imminent Hazard: Harm to Endangered/Threatened Species

22

As discussed above, the EPA has the authority to immediately suspend the23

registration of a pesticide "to prevent an imminent hazard." See 7 U.S.C. § 136d(c)(1).

24

An "imminent hazard" is "a situation which exists when the continued use of a pesticide25

during the time required for [a] cancellation proceeding [1] would be likely to result in

26

unreasonable adverse effects on the environment or [2] will involve unreasonable hazard

27

to the survival of a species declared endangered or threatened . . . pursuant to the28[ESA]." See 7 U.S.C. § 136(l).
7Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 8 of 39

United States District Court
Northern District of California

1

Plaintiffs argue the denial of their request for an immediate suspension was

2

arbitrary and capricious for the reason that the Partial Response did not address the3second of the two alternative definitions of "imminent hazard," specifically, whether

4continued use of clothianidin would "involve unreasonable hazard to the survival of a5

species declared endangered or threatened." See id.

6

In their Petition, plaintiffs cited to studies, articles and other publications

7

addressing whether clothianidin causes harm to bees. Plaintiffs did not, however, cite to8

a study or article, or otherwise reference any evidence, to show the continued use of

9clothianidin would pose an unreasonable hazard to the survival of an endangered or10threatened species.6 Plaintiffs argue that the EPA nonetheless was required to address

11

the second of the two alternative definitions of imminent harm. As the Petition referenced

12

no evidence that could support such a finding, plaintiffs are arguing, in essence, that the13

EPA was itself required to locate any evidence that might support a showing that

14

continued use of clothianidin would pose an unreasonable hazard to the survival of an

15

endangered or threatened species and then to determine whether such evidence would

16

suffice to support an immediate suspension.

17

The issue presented is one of burden. Neither FIFRA nor its implementing

18

regulations directly address the showing a party must make when it requests that the19

EPA immediately suspend the registration of a pesticide product on account of an

20

asserted imminent hazard. As the EPA points out, however, the Code of Federal

21

Regulations does provide that, at a contested hearing on the issue of whether an order of22

immediate suspension is proper, although "the ultimate burden of persuasion shall rest23

with the proponent of the registration," the "proponent of suspension shall have the24burden of going forward to present an affirmative case for the suspension." See 40

25
26
27
28

6

Although the Petition did state that "[n]umerous native Federally-listed insects
may be directly impacted and non-insect species, such as insectivorous birds, may be
indirectly affected [by clothianidin]" (see AR 44328), plaintiffs cited no evidence in supportof such assertion.
8

United States District Court
Northern District of California

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 9 of 39

1

C.F.R. § 164.121(g). The Court finds the principle underlying said regulation, specifically,

2

that the party who proposes a suspension bears the initial burden of coming forward with3

evidence in support thereof, is properly applied to any procedure by which a party seeks

4

an immediate suspension.7

5

As plaintiffs' Petition did not identify any evidence that might show an imminent

6

hazard existed under the second of the two statutory definitions, plaintiffs did not meet7

their initial burden of presenting an "affirmative case," see 40 C.F.R. § 164.121(g), for the8suspension. Under such circumstances, the Court finds plaintiffs have not met their

9burden to show the EPA acted arbitrarily and capriciously when it did not address in the

10

Partial Response whether an immediate suspension was necessary to prevent an

11unreasonable hazard to the survival of an endangered or threatened species.

12b. Imminent Harm: Unreasonable Adverse Effects on Environment

13

Plaintiffs also argue that the EPA's failure to immediately suspend the petition,

14

under the "unreasonable adverse effects on the environment" definition of "imminent

15

harm," see 7 U.S.C. § 136(l), was arbitrary and capricious.

16

As noted above, the term "unreasonable adverse effects on the environment" is17defined as "any unreasonable risk to man or the environment, taking into account the18

economic, social, and environmental costs and benefits of the use of any pesticide." See19

7 U.S.C. § 136(bb). "[T]he statute thus requires the EPA to consider the benefits as well20

as the risks of its use, including the economic consequences of suspension." See Love,21

858 F.2d at 1357; see also id. at 1350, 1358, 1361-62 (holding, although evidence

22

supported EPA's finding that challenged pesticide "may cause serious health risks to23

persons exposed to it, including sterility in men and birth defects in the unborn children of

24
7

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26
27
28

Although, as the Supreme Court has observed, "the ordinary rule, based on
considerations of fairness, does not place the burden upon a litigant of establishing facts
peculiarly within the knowledge of his adversary," see Campbell v. United States, 365
U.S. 85, 96 (1961), plaintiffs did not assert during the administrative process and havenot argued in the instant action that the facts pertinent to any effects clothianidin might
have on endangered or threatened species are peculiarly within the knowledge of the
EPA.
9Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 10 of 39

1

pregnant women," issuing order of immediate suspension was "arbitrary and capricious"

2

where EPA had not balanced risk of such harm against "economic impact of3

suspension").

4
5

reason that the "EPA failed to assess any alleged benefits from clothianidin's continued

6use." (See Pls.' Mot. at 30:8.) As noted above, the EPA found plaintiffs' request for an7

immediate suspension to be facially inadequate as it did not include "an explanation as to8

how the harm identified outweighs the benefits to growers and the agricultural economy

9from the use of the pesticide." (See AR 44423-24; see also AR 44429.) As the Petition10

in fact included no such explanation, the issue presented is, again, one of burden.

11
United States District Court
Northern District of California

Here, plaintiffs argue, the denial was arbitrary and capricious for the asserted

In that regard, plaintiffs cite no authority to support their implicit argument that

12

where a party seeks an immediate suspension under the first of the two alternative

13

definitions of imminent harm, such party, to meet its initial burden, need do no more than

14

identify a harm,8 and, for the reasons discussed above, the Court finds a petitioner who

15

proposes an immediate suspension bears the initial burden of making an "affirmative

16

case" for such relief. See 40 C.F.R. § 164.121(g). As the Petition lacked any showing

17

that the asserted harm outweighed the pesticide's benefits, plaintiffs did not meet their18

initial burden of presenting a case for an immediate suspension.919Under such circumstances, the Court finds plaintiffs have not met their burden to20

show the EPA, based on a finding of facial inadequacy, acted arbitrarily and capriciously

21
8

22
23
24
25
26

Plaintiffs rely on two cases holding the EPA, before suspending a pesticide
registration, must consider both "benefits" and "risks." See Love, 858 F.2d at 1357;
Environmental Defense Fund, Inc. v. EPA, 465 F.2d 528 (D.C. Cir. 1972). The citedcases, however, do not address the burden placed on a party petitioning the EPA for asuspension. In one of the cases, the EPA issued the suspension order on its own
initiative, see Love, 858 F.2d at 1350-51, and, in the other, the party petitioning for asuspension did offer evidence it contended showed the harm outweighed the benefits,
see Environmental Defense Fund, 465 F.2d at 539 (noting petitioner's "submission" to
EPA showing "alternative pest control mechanisms [were] available").
9

27
28

Plaintiffs did not assert during the administrative process and have not argued in
the instant action that facts pertinent to balancing the risks and benefits of clothianidin are
peculiarly within the knowledge of the EPA.
10

United States District Court
Northern District of California

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1

in denying the request for an immediate suspension.10

2c. Supplemental Filings3

As noted above, the EPA did not consider, at the time it issued the Partial

4

Response, two supplemental filings plaintiffs had submitted to the EPA in support of the5

Petition. Rather, as also noted, the EPA indicated it would consider those submissions

6

later in the administrative proceedings, specifically, after it had reviewed public comments

7

received in response to the Petition.

8

Under the APA, "due account shall be taken of the rule of prejudicial error," see 5

9

U.S.C. § 706; in other words, to be entitled to an order setting aside an agency decision10

due to an error on the part of that agency, the plaintiff must show such error "was11

harmful," see Shinseki v. Sanders, 556 U.S. 396, 406, 409-10 (2009) (holding § 706 is

12

codification of "harmless error rule"). Here, even assuming the EPA acted arbitrarily in13

not considering plaintiffs' supplemental filings before it denied the request for an

14

immediate suspension, plaintiffs suffered no prejudice thereby, as none of the

15

supplemental filings addressed whether a suspension was necessary to prevent an

16

unreasonable hazard to the survival of a species declared endangered or threatened

17

under the ESA or whether the economic, social, and environmental benefits of18

clothianidin were outweighed by the risks of its continued use.

19

Accordingly, plaintiffs have not shown they are entitled to relief based on the20

EPA's determination not to review plaintiffs' supplemental filings prior to ruling on the21

request for an immediate suspension.

22

B. Third and Fourth Claims

23
24

In the Third Claim, titled "EPA's Failure to Publish Notices of Pesticide
Applications for Clothianidin Products Violated FIFRA and the APA," plaintiffs allege the

25
10

26
27
28

Plaintiffs also challenge as arbitrary and capricious the EPA's denial to the extent
the EPA relied on the additional ground that plaintiffs had not shown a "substantial
likelihood of serious imminent harm." (See AR 44424.) The Court has not consideredherein such claimed error as, for the reasons stated above, plaintiffs have not shown the
EPA acted arbitrarily and capriciously in finding the Petition was facially inadequate.
11United States District Court
Northern District of California

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 12 of 39

1

EPA registered seven products containing clothianidin without first providing in the2Federal Register notice of the applications to register such products, and that, when the3

EPA approved said applications, it approved "new uses" for clothianidin, e.g., for use on

4lawns. (See SAC ¶¶ 114-16.)11 In the similarly titled Fourth Claim, plaintiffs allege the5

EPA registered nineteen products containing thiamethoxam without first providing in the

6

Federal Register notice of the applications to register those products, and, that when the7

EPA approved said applications, it approved "new uses" for thiamethoxam, e.g., for use

8

on apples. (See SAC ¶¶ 121-23.)12 Plaintiffs argue that, in light of the alleged failures by

9

the EPA to provide notice to the public prior to registering the subject products, plaintiffs

10

are entitled to an order vacating the subject registrations. (See SAC ¶ 137.)

11

1. Applicable Statutory and Regulatory Framework

12

As noted, no pesticide may be distributed or sold, unless the pesticide has been

13

registered by the EPA. See 7 U.S.C. § 136a(a). To register a pesticide, an applicant

14

must file with the EPA an application that includes certain information, such as "the15complete formula of the pesticide" and "a request that the pesticide be classified for

16

general use or for restricted use, or for both." See 7 U.S.C. § 136a(c)(1). The EPA "shall17

publish in the Federal Register . . . a notice of each application for registration of any

18

pesticide if it contains any new ingredient," see 7 U.S.C § 136a(c)(4), or, alternatively, "if19

it would entail a changed use pattern," see id., which alternative pertains when the20

application "proposes a new use" for the pesticide, see 40 C.F.R. § 152.102. When it

21

publishes such a notice in the Federal Register, the EPA must "provide for a period of 30

22days in which any Federal agency or any other interested person may comment," see 7

23
11

24
25
26
27
28

Although the SAC alleges the EPA, without notice to the public, approved twentyfour applications that sought new uses for clothianidin (see SAC ¶¶ 114-16), plaintiffs
clarify in their motion for summary judgment that only seven product registrations arechallenged by the Third Claim (see Wu Decl., filed April 14, 2016, Ex. V).
12

Although the SAC alleges the EPA, without notice to the public, approved fortyone applications that sought new uses for thiamethoxam (see SAC ¶¶ 121-23), plaintiffs
clarify in their motion for summary judgment that only nineteen product registrations arechallenged by the Fourth Claim (see Wu Decl., filed April 14, 2016, Ex. V).
12

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 13 of 39

1

U.S.C. § 136a(c)(4), and, in the event the EPA subsequently grants the application, it

2must "issue in the Federal Register a notice of issuance" and, inter alia, must "respond3[therein] to comments received on the notice of application," see 40 C.F.R. § 152.102.

4

2. Standing

5

At the outset, the EPA challenges plaintiffs' standing to bring the Third and Fourth

United States District Court
Northern District of California

6

Claims.

7"To satisfy Article III's standing requirements, a plaintiff must show (1) it has

8suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent,

9

not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of10

the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be

11

redressed by a favorable decision." Citizens for Better Forestry v. U.S. Dep't of

12

Agriculture, 341 F.3d 961, 969 (9th Cir. 2003) (internal quotation and citation omitted).

13

Where, as here, a plaintiff asserts a "procedural injury," see id. at 969-70 (holding

14

complaint alleging agency failed to provide "public notice" of proposed action and to15"solicit appropriate information from the public" asserted "procedural injury"), such plaintiff

16

establishes an injury in fact by showing "the procedures in question are designed to

17

protect some threatened concrete interest of his that is the ultimate basis of his standing,"

18

see Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001) (internal quotation19

and citation omitted), and establishes causation and redressibility by showing the20

asserted procedural right, "if exercised, could protect [his] concrete interests," see21

Defenders of Wildlife v. EPA, 420 F.3d 946, 957 (9th Cir. 2005) (emphasis omitted), rev'd

22

on other grounds, Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644

23(2007).

24

In its cross-motion for summary judgment, the EPA first notes that plaintiffs' motion

25

for summary judgment does not address plaintiffs' standing to bring the Third and Fourth

26

Claims. Under such circumstances, the EPA argues, the EPA is entitled to summary

27

judgment on the Third and Fourth Claims "because [p]laintiffs are now precluded from28

submitting new arguments and evidence with their reply brief." (See EPA's Cross-Mot. at
13

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 14 of 39

1
2

The purpose of the general rule against a moving party's making new arguments

3

in a reply is to avoid putting the non-moving party in a position where he/she is deprived

4of an opportunity to respond. Here, however, the EPA has not been deprived of such an

5

opportunity. Indeed, the Supreme Court has observed that, where, as here, the issue of6

standing is raised in a motion for summary judgment filed by the defendant, the plaintiff,

7

in its opposition, may offer evidence to establish its standing at that time. See Lujan v.

8

Defenders of Wildlife, 504 U.S. 555, 561 (1992). In opposing the EPA's cross-motion,

9plaintiffs have offered evidence they argue supports their standing to bring the Third and

10

Fourth Claims, thus affording the EPA an opportunity to respond thereto in its reply.

11
United States District Court
Northern District of California

5:12-14.) The Court disagrees.

12
13

Accordingly, the Court finds the EPA is not entitled to summary judgment on theabove-discussed procedural ground.
In their respective replies, neither the EPA nor the Intervenors challenge plaintiffs'

14

evidentiary showing as to standing with respect to the Third and Fourth Claims. The

15

Court nonetheless finds it appropriate to consider the issue. See D'Lil v. Best Western

16

Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir. 2008) (holding "[a] district court

17[has] the authority to raise the issue [of standing] sua sponte").

18

Plaintiffs rely on declarations from plaintiffs Steve Ellis, Tom Theobald, Jim Doan19

and Bill Rhodes, the individuals identified in the SAC as "Beekeeper and Honey Producer

20

Plaintiffs." (See SAC ¶ 15.) Each of these four plaintiffs avers he owns and operates a21

beekeeping company, that large numbers of his bees have been killed due to what he22

believes was the bees' exposure to clothianidin and thiamethoxam, that he has incurred

23

economic loss due to the deaths of his bees, and that his remaining bees forage on the24

types of crops, trees and other plants on which the products allegedly approved without

25

notice are to be used, e.g., "lawns" and "apples." (See Ellis Decl. ¶¶ 2-6, 11, 13, 15;

26

Theobald Decl. ¶¶ 2-5, 13-14, 17; Doan Decl. ¶¶ 2-6, 12, 16-17; Rhodes Decl. ¶¶ 2-4, 10,2715.) Each such plaintiff also avers that, had the EPA provided notice to the public of the

28

challenged applications, he would have submitted comments to the EPA. (See Ellis Decl.
14

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 15 of 391¶ 11; Theobald Decl. ¶ 19; Doan Decl. ¶ 18; Rhodes Decl. ¶ 16.)
The Court finds the above-referenced plaintiffs, in their respective declarations,

United States District Court
Northern District of California

23have sufficiently demonstrated they have an economic interest in their respective

4businesses that may be adversely affected by use of clothianidin and thiamethoxam,

5

which pesticides the EPA has acknowledged are "toxic to honey bees" (see AR 43254,

643634, 43748), and that said plaintiffs would have submitted comments to the EPA had

7they been afforded the opportunity to do so. See Summers v. Earth Island Institute, 555

8

U.S. 488, 497 (2009) (holding plaintiff who asserted cognizable interest in area affected9by agency action had standing to challenge failure to provide notice of agency action that

10

could adversely affect his interest "despite the possibility" that plaintiff's "right to comment

11

would not be successful in persuading [the agency] to avoid impairment of [plaintiff's]

12

concrete interests"); Citizens for Better Forestry, 341 F.3d at 971-72 (holding plaintiffs,

13

who had aesthetic and recreational interests in forests, were injured by government's

14

failure to afford them opportunity to be heard prior to its taking action with respect to15

forests; explaining, "the harm consists of added risk to the environment that takes place16

when government decisionmakers make up their minds without having before them an17analysis (with public comment) on the likely effects on their decision on the environment")

18(internal quotation and citation omitted).
Accordingly, the Court finds plaintiffs Steve Ellis, Tom Theobald, Jim Doan and Bill

19
20

Rhodes have standing to assert the Third and Fourth Claims. 13

21

//

22

//

23
24
25
26
27
28

13

In light of the Court's finding that the above-referenced four plaintiffs havestanding to assert the Third and Fourth Claims, the Court does not consider herein
whether other declarants, who are members of the organizational plaintiffs and who averthey were denied an opportunity to submit comments in response to the subject
applications (see Carman Decl. ¶¶ 7, 19-23; Cox Decl. ¶¶ 2, 10-11; Feldman Decl. ¶¶ 2,
15-19; Kimbrell Decl. ¶¶ 2, 12-14, 16), also have standing. See Carey v. Population
Services Int'l, 431 U.S. 678, 682 (1977) (holding that when court finds one plaintiff has
standing to bring claim, it has "no occasion" to determine if other plaintiffs have standing).
15

United States District Court
Northern District of California

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 16 of 39

1

3. Merits

2

The alleged procedural deficiency on which plaintiffs base the Third and Fourth

3

Claims is that, without first affording notice to the public and an opportunity for the public

4

to be heard, the EPA registered products containing clothianidin and thiamethoxam for5

new uses.

6

The EPA argues it is entitled to judgment, on the asserted ground that when it

7

registered the subject products, it did not approve a new use. In support of its argument,

8

the EPA cites to evidence in the administrative record that, with respect to each9

registration challenged in the Third and Fourth Claims, shows the use or uses for which

10

the EPA gave its approval were uses for which the EPA had previously given approval

11

when it had earlier registered a different product. (See EPA's Cross-Mot. Exs. 3, 4.)14

12

Plaintiffs offer no evidence to the contrary. Rather, plaintiffs argue the EPA has not

13

shown it gave the public notice before it registered the earlier products and,

14

consequently, has not shown the prior approvals are "precedential 'new uses.'" (See Pls.'

15

Opp. at 34:1-16.)

16

As discussed above, the EPA is required to give public notice when an applicant

17

seeking to register a pesticide product "proposes a new use" for the pesticide. See 40

18

C.F.R. § 152.102. Here, it is undisputed that the EPA, when it registered the products

19

challenged by plaintiffs in the Third and Fourth Claims, approved uses for which it

20

previously had given approval. Assuming, arguendo, the prior registrations approving

21

new uses were issued without notice to the public, such registrations were subject to22challenge at that time. See 7 U.S.C. § 136n. Nothing in FIFRA nor the implementing

23

regulations, however, provides that a proposed use is "new" if the EPA previously

24

approved the same use in a manner that violated FIFRA's notice provisions.

25

Consequently, even assuming the prior approvals on which the EPA relies were issued in

26
27
28

14

The cited exhibits identify the portions of the administrative record in which theprior approvals are located.
16

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 17 of 39

1

violation of FIFRA's notice provisions, plaintiffs have failed to show the EPA violated

2

FIFRA's notice provisions when it registered the products challenged in the Third and3

Fourth Claims.

45

Fourth Claims.

6

C. Fifth and Sixth Claims

7

United States District Court
Northern District of California

Accordingly, defendants are entitled to summary judgment as to the Third andIn the Fifth Claim, titled "EPA's Actions in Approving Clothianidin Products and8

Labels Violated the ESA," plaintiffs allege the EPA violated the ESA by "approving

9

registrations or use approvals" of twenty-four "clothianidin product registrations" without

10

first consulting with the FWS "regarding the potential adverse effects of clothianidin on

11

threatened and endangered species and critical habitat." (See SAC ¶ 128.)15 In the Sixth

12

Claim, titled "EPA's Actions in Approving Thiamethoxam Products and Labels Violated

13

the ESA,” plaintiffs allege the EPA "took agency action" forty-nine times with respect to14

forty-three "thiamethoxam product registrations." (See SAC ¶ 132.) In sum, plaintiffs

15

challenge seventy-three actions by said two Claims.

16

1. Applicable Statutory Framework

17

Under the ESA, the FWS and the National Marine Fisheries Service (“NMFS”) are18

required to determine which species are "endangered" or "threatened," see 16 U.S.C.

19§ 1533(a),16 and all other federal agencies "shall, in consultation with and with the20

assistance of [the FWS and the NMFS], insure that any . . . agency action . . . is not likely

21

to jeopardize the continued existence of any endangered species or threatened species,"22

see 16 U.S.C. § 1536(a)(2). In particular, "[e]ach federal agency" is required to "review

23
24
25
26

15

Although the Fifth Claim challenges twenty-eight registrations (see id.), theCourt, on June 8, 2016, approved the parties' stipulation to dismiss the Fifth Claim to theextent it is based on the EPA's registration of Titan FL, Three-Way VAP, Proceed Plus,and AE 1283742.
16

27
28

The FWS administers the ESA "with respect to terrestrial and freshwater
species," while the NMFS administers the ESA "with respect to marine species." See
National Wildlife Federation v. FEMA, 345 F. Supp. 2d 1151, 1167 (W.D. Wash. 2004).
17

United States District Court
Northern District of California

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 18 of 39

1

its actions at the earliest possible time to determine whether any action may affect listed2

species or critical habitat," and, if it makes such determination, "formal consultation [with3

the FWS or NMFS] is required." See 50 C.F.R. § 402.14(a).

4

2. Lack of Jurisdiction Under 7 U.S.C. § 136n(b)5Relying on 7 U.S.C. § 136n(b), the Intervenors contend the Court lacks jurisdiction

6

to consider whether the EPA violated the ESA with respect to three of the actions

7

challenged in the Fifth Claim and two of the actions challenged in the Sixth Claim.

8

Specifically, the Intervenors argue, the Court lacks jurisdiction to consider, with respect to

9

the Fifth Claim, the registrations of Darlex Insecticide, Sepresto 75 WS and Prosper

10Evergol, and, with respect to the Sixth Claim, the registrations of Agita 1GB Fly Bait and11

Agita 10 WG.

12Plaintiffs argue that the Court has jurisdiction to consider the entirety of the Fifth

13

and Sixth Claims pursuant to the jurisdictional provisions of the ESA, which allow a14

plaintiff to file in district court a claim "to enjoin any person, including the United States

15. . . who is alleged to be in violation of any provision of [the ESA]," see 16 U.S.C.

16§ 1540(g)(1), whereas the Intervenors argue that, with respect to the five actions

17

identified above, the jurisdictional provisions of FIFRA, not the ESA, apply.

18

Under FIFRA, in particular, 7 U.S.C. § 136n, if a plaintiff challenges "the validity of19

any order issued by the [EPA] following a public hearing," the claim must be filed in "the20

United States court of appeals for the circuit wherein [the plaintiff] resides or has a place21

of business," see 7 U.S.C. § 136n(b); a plaintiff challenging "other final actions of the

22[EPA]" must file the claim in a district court, see 7 U.S.C. § 136n(a). The Intervenors

23

argue that the EPA, prior to registering Darlex Insecticide, Sepresto 75 WS, Prosper

24

Evergol, Agita 1GB Fly Bait and Agita 10 WG, conducted a "public hearing" within the25

meaning of § 136n(b). In support thereof, the Intervenors offer evidence showing the26

EPA published in the Federal Register notice of the applications for registration of those

27

five products and afforded the public an opportunity to submit comments, and that the28

EPA's registration of the five products occurred after the expiration of the deadline to18

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 19 of 39

United States District Court
Northern District of California

1submit comments. (See Schulson Decl. Exs. 1-7.)

2

Where an agency issues a decision following its having published in the Federal

3

Register a notice inviting public comment on the subject, the agency has conducted a4"public hearing" for purposes of § 136n(b). See Center for Biological Diversity v. U.S.

5

EPA, 847 F.3d 1075, 1090 (9th Cir. 2017) (citing United Farm Workers of America, AFL-

6

CIO v. EPA, 592 F.3d 1080, 1082-84 (9th Cir. 2010)); see also United Farm Workers,

7592 F.3d at 1082 (noting "'hearing' includes proceedings in which there is no presentation

8of public argument"). Consequently, where, as here, a plaintiff challenges the EPA's

9

failure to consult with the FWS prior to registering a pesticide product, a conflict exists

10

between the ESA and FIFRA when that registration is "preceded by a public comment

11

and notice period published in the Federal Register." See Center for Biological Diversity,

12847 F.3d at 1090. In such situations, the jurisdictional limitations of FIFRA apply, as

13§ 136n(b) is the "more specific legislation." See id. at 1089-90. Thus, only a court of

14

appeals has jurisdiction to hear a claim brought under the ESA for failure to consult,

15

where the challenged action was taken following "a public comment and notice period."

16

See id. at 1090.

17Here, as the EPA's decisions to register the above-referenced five products

18

occurred after a "public hearing" within the meaning of § 136n(b), the Court lacks

19

jurisdiction to review the propriety of those five registrations. See id.
Accordingly, defendants are entitled to judgment on the Fifth Claim, to the extent it

20
21

is based on the EPA's registrations of Darlex Insecticide, Sepresto 75 WS and Prosper

22

Evergol, and are entitled to judgment on the Sixth Claim, to the extent is based on the23

EPA's registrations of Agita 1GB Fly Bait and Agita 10 WG.

24

3. Standing

25

As to the remaining sixty-eight actions challenged in the Fifth and Sixth Claims,

26

the Court next considers defendants' argument that plaintiffs lack standing to challenge

27

the EPA's alleged failure to consult with the FWS before approving the subject

28

//
19

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 20 of 39

United States District Court
Northern District of California

1applications.17

2"[A]lleged violations of [the ESA's] consultation requirement constitute a

3

procedural injury for standing purposes." Natural Resources Defense Council v. Jewell,

4749 F.3d 776, 783 (9th Cir.), cert. denied, 135 S. Ct. 676 (2014). Consequently, as set

5

forth above, to establish standing, a plaintiff must show the ESA consultation procedures

6"are designed to protect some threatened concrete interest of his that is the ultimate

7

basis of his standing," see Cantrell, 241 F.3d at 679 (internal quotation and citation

8

omitted), and that compliance with those procedures "could protect [his] concrete

9interests," see Natural Resources Defense Council, 749 F.3d at 783 (emphasis in

10

original).

11

The "desire to use or observe an animal species" is "undeniably a cognizable

12interest for purposes of standing." See Lujan, 504 U.S. at 562-63. Here, plaintiffs argue

13the "ultimate basis" of their standing, see Cantrell, 241 F.3d at 679, is their interest in

14

viewing certain threatened or endangered species.

15

Specifically, plaintiffs offer declarations from members of plaintiff Sierra Club and16plaintiff Center for Food Safety, in which the declarants identify particular threatened or17

endangered species they have viewed or have attempted to view at specific locales,

18

which locales they intend to visit in the future at specified times to view the species. (See19

Sekura Decl. ¶ 16 (averring she visits Conneaut Sandspit in Northeastern Ohio "several

20

times a year," and will visit "for the coming fall migration," to observe "piping plover" and21"red knots"); id. ¶¶ 17-18, 20 (averring she regularly visits Magee Marsh in western Ohio22

to view "Kirtland's warbler," Sheldon Marsh in Huron, Ohio to view "piping plovers," and23

Cuyahoga Valley National Park, as well as Cleveland Metro-parks, to view "Indiana bat

24

habitat")); Hinerfeld Decl. ¶¶ 22-23 (averring he regularly visits Tryon Creek State Park

25
26
27
28

17

To the extent the EPA asserts it is entitled to judgment for the reason thatplaintiffs first address the issue of standing in their opposition to defendants' crossmotions rather than in plaintiffs' motion, the Court, for the reasons stated above withrespect to the Third and Fourth Claims, disagrees.
20United States District Court
Northern District of California

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 21 of 39

1

and Springwater Trail in Oregon, where he looks for "northern spotted owl," and regularly

2visits Willamette Valley in Oregon, where he looks for "Fender's blue butterfly"); Ferrato

3

Decl. ¶¶ 14, 16-17 (averring she "frequently and routinely" visits Cleveland Lakefront

4

Nature Preserve to view "piping plover," and "frequently visits" Cuyahoga Valley National

5

Park, as well as Cleveland Metro-parks, to view "habitat for piping plover" and "Indiana

6bat"); Hess Decl. ¶¶ 11, 13-19 (averring he regularly visits and will continue to visit

7

Central Texas, Ding Darling National Wildlife Refuge in Florida, the Ochlocknee River in

8

Florida, and Sarasota, Florida, to look for, view and photograph "black-capped vireo,"

9"golden-cheeked warbler," "Audubon's crested caracara," "piping plover," "red-cockaded

10

woodpecker," "wood stork," and "Florida scrub jay"); Zaber Decl. ¶¶ 10-12, 14 (averring

11

he regularly visits and will continue to visit specified sites in Wisconsin, Michigan and

12

Illinois to view habitat of "Karner blue butterfly," "Hine's emerald dragonfly" and "northern

13long-eared bat"); Goller Decl. ¶¶ 2, 8 (averring she visits "two times each week"

14

Cuyahoga Valley National Park and Cleveland Metro-parks to "look[ ] for the piping

15

plover" and will continue to do so); Owens Decl. ¶¶ 12-13 (averring she regularly visits16

specified rivers, parks, forests, lakes, estuaries, and preserves in San Diego and Imperial

17

Counties in California, to look for "Coastal California gnatcatcher," "California least tern,"

18"western snowy plover," "light-footed clapper rail," "Least Bell's vireo," "Quino

19

checkerspot butterfly," "southwestern willow flycatcher," "arroyo toad," "San Diego fairy

20

shrimp," "desert kit fox," "peninsular bighorn sheep" and "Yuma clapper rail"); Markham

21

Decl. ¶¶ 7-8 (averring she has planted lupine in her garden in Stevens Point, Wisconsin,

22

to attract "Karner blue butterfly," which species she desires to view); Crouch Decl. ¶ 14

23

(averring she regularly hikes and plans to continue hiking in Monroe County, Indiana,

24

where she looks for "American burying beetle"); see also id. ¶ 20 (averring she intends in25"summer of 2017" to visit Sarett Nature Center in Indiana to view "Mitchells' satyr

26

butterfly").)27
28

The Court finds, and defendants have not disputed, the above-identified
declarations suffice to identity the "ultimate basis" of plaintiffs' standing, see Cantrell, 241
21

United States District Court
Northern District of California

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 22 of 39

1

F.3d at 679, as they establish the declarants' interests in viewing specific endangered or2

threatened species at particular locales in the United States. Consequently, to establish

3

the EPA's alleged lack of compliance with the ESA's consultation requirements caused4

the declarants to incur an injury in fact, plaintiffs must show such consultation5

requirements protect the declarants' interests in the threatened and endangered species

6

they have identified. See Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d

71220, 1229 (9th Cir. 2008).

8

The next question is whether plaintiffs have sufficiently shown they have a9"threatened concrete interest," see Cantrell, 241 F.3d at 679, i.e., an "injury in fact," see10

id. In that regard, the Court first notes, the purpose of the ESA's consultation

11

requirement is "avoidance of harm to listed species." See Salmon Spawning & Recovery

12

Alliance, 545 F.3d at 1229. Here, plaintiffs offer evidence that the types of crops and13

plants for which clothianidin and thiamethoxam have been approved for use, e.g., corn

14

and lawns, are located in or in the near vicinity of the locales in which the declarants view

15or seek to view endangered and threatened species (see Wu Decl. ¶¶ 3-4, Exs. A, B;

16

Sekura Decl. ¶¶ 16-18; Hess Decl. ¶¶ 22, 24; Ferrato Decl. ¶ 18; Hess ¶¶ 13-16; Zaber

17

Decl. ¶¶ 13-16: Owens Decl. ¶¶ 12-13; Markham Decl. ¶¶ 3, 8; Crouch Decl. ¶¶ 12, 14),18

and that the use of clothianidin and thiamethoxam may increase the risk of harm to those19

species (see, e.g., Wu Decl. Ex. L at 2 (AR 75065) (statement by EPA in "Pesticide Fact

20

Sheet" that, with respect to clothianidin, "exposure to treated seeds through ingestion

21

may result in chronic toxic risk to . . . endangered small birds (e.g., songbirds) and22

acute/chronic toxicity risk to . . . endangered mammals"); id. Ex. L at 16 (statement by

23

EPA that "[c]lothianidin is expected to present acute and/or chronic toxic risk to24endangered/threatened birds and mammals via possible ingestion of treated corn and25

canola seeds" and "[e]ndangered/threatened non-target insects may be impacted via

26

residue laden pollen and nectar"); AR 43539-40 (assessment by EPA that "only a few

27

seeds" of corn or canola treated with clothianidin "may be necessary to cause

28

reproductive and/or development effects" on endangered "small birds" and "mammals");
22

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 23 of 39

1

AR 42673, 42787-830 (EPA document identifying over eight hundred "federally listed and2endangered species that will potentially be affected from thiamethoxam usage" on

3

blackberries, broccoli, collards, grapes, lettuce, and other specified crops, as well as on

4turf grass); AR 43280 (assessment by EPA that, when thiamethoxam is used on "dry bulb

5

onions and peanuts as a seed treatment" and on "corn, carrots, leafy vegetables, and6

brassica (cole) leafy vegetables," it has "potential direct effects" and/or "indirect effects"

7

on "federally listed taxa," such as "birds," "terrestrial-phase amphibians" and "mammals");8

see also AR 42404, 43005-12, 43025, 43059-61, 43086-88, 43432-33, 43634, 43675-80;

943748, 43789-93.)

United States District Court
Northern District of California

10

The EPA argues plaintiffs' showing is insufficient to establish an injury in fact, as

11

the evidence cited by plaintiffs does not, according to the EPA, "prove that some

12

concrete injury will imminently result from the specific EPA decisions at issue." (See13

EPA's Reply at 3:13-14.) Plaintiffs, however, "need not assert any specific injury will

14

occur," but only that "environmental consequences might be overlooked as a result of

15

deficiencies in the government's analysis under [the ESA]." See Citizens for Better

16

Forestry, 341 F.3d at 971-72 & n.6 (internal quotation and citation omitted); Cantrell, 241

17F.3d at 679 (holding plaintiff alleging procedural injury "need not show the substantive

18

environmental harm is imminent"); see also Summers, 555 U.S. at 497 (observing party

19

alleging procedural injury caused by agency's failure to provide public notice of proposed20

action would have standing "despite the possibility" such agency, if it afforded plaintiff

21

right to comment, might not be "persuad[ed]" thereby).18 Put another way, a plaintiff, for22

purposes of standing, need only show the EPA's decision to register a challenged

23

product "arguably may affect" endangered or threatened species. See Defenders of24

Wildlife v. Flowers, 414 F.3d 1066, 1069 (9th Cir. 2005) (holding, where plaintiffs

25

challenged agency's failure to consult, plaintiffs established standing by showing

26
18

27
28

Indeed, to accept the EPA's argument would, in essence, require plaintiffs to"conduct the same environmental investigation [they] seek[ ] . . . to compel the agency toundertake." See Citizens for Better Forestry, 341 F.3d at 971 n.6, 972.
23

United States District Court
Northern District of California

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 24 of 39

1"agency's decisions arguably may affect" specific endangered species in which plaintiffs

2

had cognizable interest); see also Natural Resource Defense Council, 749 F.3d at 776,

3

780, 783-84 (holding, where plaintiffs alleged EPA failed to comply with ESA prior to4

approving water supply contracts, plaintiffs established standing by showing that "if the5[agency] engage[d] in adequate consultation, the [contracts] could better protect

6[p]laintiffs' concrete interest in [endangered species] than the contracts [did] currently").

7

The Intervenors argue plaintiffs have not, however, shown a "causal link between

8

any product approved by the EPA in any of the challenged agency actions . . . and [the9declarants'] interest in a listed species" (see Intervenors' Reply at 4:13-17), as, according10

to the Intervenors, plaintiffs have not shown the particular geographic locales identified by

11

the declarants could be affected by the registered clothianidin and thiamethoxam

12

products challenged in the Fifth and Sixth Claims. As set forth below, the Court

13

disagrees.

14

None of the challenged registrations issued by the EPA limit the use of the

15

products to any geographic locale, and the administrative record includes numerous

16

statements by the EPA confirming the pesticides at issue are used throughout the United

17

States. (See AR 43633 (statement by EPA that "there are no apparent geographic

18

limitations for the use of [clothianidin] within the United States"); Wu Decl., filed April 14,

19

2016, Ex. L at 16 (AR 75066) (statement by EPA that "potential use sites" for clothianidin

20"cover the entire U.S."); AR 43252, 43280, 43312-410 (assessment by EPA "identif[ying]

21

potential direct effects" and "indirect effects" on listed species in all 50 states as result of22

use of thiamethoxam on dry bulb onions, peanut seeds, carrots, brassica (cole) leafy

23

vegetables, corn, and leafy vegetable seeds); AR 43061 (table by EPA identifying 41

24states with listed species "directly/indirectly affected" by use of thiamethoxam on citrus

25

fruits and tree nuts).)

26

Under such circumstances, the Court finds the declarants' interests in viewing

27

listed species at the particular parks, rivers, marshes and other geographic locations

28

identified in their respective declarations suffice to establish the requisite causal link. See
24

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 25 of 39

1

United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669,2

686-88 (1973) (holding plaintiffs, who alleged their recreational interests in "forests,

3

streams, mountains and other resources in the Washington metropolitan area" were4

adversely affected by agency action, sufficiently established injury in fact, where

5challenged action "allegedly ha[d] an adverse environmental impact on all the natural

6

resources of the country").
Accordingly, the Court finds plaintiffs have adequately demonstrated an injury in

7
8

United States District Court
Northern District of California

9

fact.
The remaining issue as to standing is whether, if the EPA were to comply with the10

ESA, such action "could protect [plaintiffs'] concrete interests." See Natural Defenders

11

Defense Council, 749 F.3d at 783 (emphasis in original). In that regard, the EPA argues,

12

were the Court to direct the EPA to comply with the ESA's consultation requirements, no13

action thereafter taken by the EPA could protect plaintiffs' interests in any listed species,

14

because, according to the EPA, not all products containing clothianidin and15

thiamethoxam are challenged by the Fifth and Sixth Claims, and, consequently, "growers

16

and other pesticide users . . . could simply substitute other existing clothianidin and17thiamethoxam products" if the EPA did not allow the products challenged by plaintiffs to18

continue to be sold. (See EPA's Reply at 6:12-15.)

19

Plaintiffs, however, are required to show only that "the relief requested -- that the20

agency follow the correct procedure -- may influence the agency's ultimate decision of21

whether to take or refrain from taking a certain action." See Salmon Spawning &22

Recovery Alliance, 545 F.3d at 1226-27. As discussed above in connection with the First

23

and Second Claims, the EPA has the power to give notice of its intention to cancel a

24registered pesticide when it appears the pesticide "generally causes unreasonable

25

adverse effects on the environment," see 7 U.S.C. § 136d(b), and to suspend use of the26

pesticide during cancellation proceedings, see 7 U.S.C. § 136d(c)(1). Consequently,

27

were plaintiffs to prevail on the remaining portions of the Fifth and Sixth Claims and if the28

EPA, after consultation with the NWS, were to find use of the challenged clothianidin and25

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 26 of 39

1thiamethoxam products may adversely affect listed species, the EPA could find the non-2

challenged clothianidin and thiamethoxam products likewise pose a sufficient threat to3listed species to warrant its taking action as to those products as well, particularly given

4that the uses for many of the challenged products, as discussed above, had been

5

approved previously for unchallenged products.

6

United States District Court
Northern District of California

7

Accordingly, the Court finds plaintiffs have standing to assert the remaining
portions of the Fifth and Sixth Claims.

8

4. Merits

9

As set forth above, the ESA requires federal agencies to consult with the FWS or

10

the NMFS to insure "agency action . . . is not likely to jeopardize the continued existence11of any endangered species or threatened species." See 16 U.S.C. § 1536(a)(2). "An

12

agency may avoid the consultation requirement only if it determines that its action will13

have 'no effect' on a listed species or critical habitat." Karuk Tribe v. United States

14

Forestry Service, 681 F.3d 1006, 1027 (9th Cir. 2012), cert. denied, 133 S. Ct. 1579

15

(2013).

16

Here, the EPA concedes it has not consulted either said agency nor made a "no17

effect" determination with respect to the actions challenged in the Fifth and Sixth Claims.

18(See EPA's Cross-Mot. at 21:5-7.) Accordingly, in the absence of a showing that the19

ESA's consultation requirements do not apply to the remaining sixty-eight alleged agency

20

actions identified in the Fifth and Sixth Claims, plaintiffs, with respect to those agency

21

actions, are entitled to a finding in their favor on the issue of liability.19

22
23

The Court next considers the Intervenors' argument that the ESA's consultation
requirements apply to none of the remaining agency actions, as well as the EPA's

24
19

25
26
27
28

In their respective briefs, the parties disagree as to directions the Court should
give the EPA in an order of remand. In particular, the parties disagree as to whether, inthe event judgment is entered in favor of plaintiffs, the Court should direct the EPA toengage in consultation or only direct the EPA to determine whether it should engage in
consultation. As the sole issue before the Court at the present time is the issue of
liability, the Court does not address herein what directions should be included in any
order of remand.
26

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 27 of 39

1argument that the ESA's consultation requirements do not apply to the majority of those2

actions.
a. Lack of Agency Action

3
4

The EPA argues that eleven of the remaining sixty-eight challenged actions are5

not "agency actions" within the meaning of the ESA, and, consequently, that plaintiffs

6

cannot show the EPA had a duty to consult prior to taking those eleven actions.
The duty to consult is “trigger[ed]” only if the agency engages in "agency action."

United States District Court
Northern District of California

7
8

See Karuk Tribe, 681 F.3d at 1021 (internal quotation and citation omitted). To

9determine whether an agency, for purposes of the ESA, has engaged in an "agency

10

action," courts apply a "two-fold" test. See id. The court first determines "whether [the]11agency affirmatively authorized, funded, or carried out the underlying activity," and,12

second, "whether the agency had some discretion to influence or change the activity for13

the benefit of a protected species." See id.

14(1) Converting Registrations from Conditional to Unconditional

15

Two of the above-referenced eleven actions concern conversions from conditional16

to unconditional registrations.
In May 2003, the EPA issued notices "conditionally" registering Poncho 600 and

17
18

Clothianidin Technical Insecticide for a period of three years. (See AR 67402-03, 67632-

1934.) At that time, the EPA imposed certain conditions on the registrants, including

20

requiring them to submit seven studies "to satisfy the data gaps in the data base for21

clothianidin." (See AR 67402-03, 67632-34.) Thereafter, in May 2008, the EPA issued

22

notices conditionally registering the two products for an additional year,20 and requiring

23

the registrants to submit, within the one-year period, one of the seven studies identified in

24

//

25

//

26
20

27
28

No party has cited a document in the administrative record indicating whether
Poncho 600 and Clothianidin Technical were conditionally registered between May 2006
and May 2008, and, if so, what conditions were imposed on any such registration.
27

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 28 of 391

the 2003 notices. (See AR 75102-03, 75121-22.)21 In April 2009, the EPA issued notices

2conditionally registering the two products for another one-year period, in which notices

3

the EPA stated it had received and was reviewing all the studies. (See AR 75119-20;

4

see also AR 75109.) Lastly, in April 2010, the EPA issued an "unconditional" registration

5

for each of the two products. (See AR 67408, 67649.)

United States District Court
Northern District of California

6

Plaintiffs, as part of the Fifth Claim, allege the two unconditional registrations

7

issued in 2010 were "agency actions triggering [a] duty to consult." (See SAC ¶ 128.)

8

The EPA argues plaintiffs cannot establish a duty to consult existed because, the EPA

9asserts, its "decisions to convert these registrations from conditional to unconditional

10[were] non-discretionary." (See EPA's Cross-Mot. at 15:23-28.)

11

A registration under FIFRA may be "unconditional," see 7 U.S.C. § 136a(c)(5), 40

12

C.F.R. § 152.115(a), or "conditional," see 7 U.S.C. § 136a(c)(7). Here, in 2003, the EPA

13issued conditional registrations for Poncho 600 and Clothianidin Technical Insecticide

14

under § 136(c)(7)(C), which provides as follows:

15
16
17
18
19
20
21

The [EPA] may conditionally register a pesticide containing an active
ingredient not contained in any currently registered pesticide for a periodreasonably sufficient for the generation and submission of required data(which are lacking because a period reasonably sufficient for generation of
the data has not elapsed since the [EPA] first imposed the datarequirement) on the condition that by the end of such period the [EPA]
receives such data and the data do not meet or exceed risk criteria
enumerated in regulations issued under [FIFRA], and on such otherconditions as the [EPA] may prescribe. A conditional registration under thissubparagraph shall be granted only if the [EPA] determines that use of thepesticide during such period will not cause any unreasonable adverse effecton the environment, and that use of the pesticide is in the public interest.
See 7 U.S.C. § 136a(c)(7)(C). The 2008 and 2009 conditional registrations were issued

22
under § 136a(c)(7)(A), which provides as follows:
23
24
25

The [EPA] may conditionally register . . . a pesticide if the [EPA] determinesthat (i) the pesticide and proposed use are identical or substantially similar
to any currently registered pesticide and use thereof, or differ only in waysthat would not significantly increase the risk of unreasonable adverse

26
21

27
28

In the May 2008 notices, the EPA acknowledged the registrants' submission ofother studies identified in the 2003 notices and stated the submitted studies were "underreview." (See id.)28

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 29 of 39

1
2
3
4
5
6

effects on the environment, and (ii) approving the registration . . . in themanner proposed by the applicant would not significantly increase the riskof any unreasonable adverse effect on the environment. An applicant
seeking conditional registration . . . under [§ (c)(7)(A)] shall submit suchdata as would be required to obtain [unconditional] registration of a similar
pesticide under [§ 136a(c)(5)]. If the applicant is unable to submit an itemof data because it has not yet been generated, the Administrator may
register . . . the pesticide under such conditions as will require thesubmission of such data not later than the time such data are required to besubmitted with respect to similar pesticides already registered under[FIFRA].
See 7 U.S.C. § 136a(c)(7)(A). Thereafter, as noted, the EPA, in 2010, unconditionally7
registered Poncho 600 and Clothianidin Technical under § 136a(c)(5), which, in relevant
8part, provides as follows:
910

United States District Court
Northern District of California

11
12
13

The [EPA] shall register a pesticide if the [EPA] determines that . . . (A) its
composition is such as to warrant the proposed claims for it; (B) its labelingand other material required to be submitted comply with the requirements of[FIFRA]; (C) it will perform its intended function without unreasonable
adverse effects on the environment; and (D) when used in accordance withwidespread and commonly recognized practice it will not generally cause
unreasonable adverse effects on the environment.
See 7 U.S.C. § 136a(c)(5).

14
The EPA argues that its decisions to convert the two registrations from conditional15
to unconditional were "non-discretionary" because its decisions in 2010 were "based
16
solely on the registrants' submission of specific studies the EPA had required in 2003."
17(See EPA's Cross-Mot. at 15:26 - 16:1.) By way of further explanation, the EPA states
18"[t]he only thing the [EPA] may consider is determining whether the registrant met the19
dat[a] submission deadline and that its submission is acceptable under the applicable
20
data sufficiency criteria or 'such other conditions as the [EPA] may prescribe.'" (See id. at
21
16:14-16 (quoting 7 U.S.C. § 136a(c)(7)(C).) The Court is not persuaded.
22
At the outset, the Court notes that the authority the EPA cites for the above
23
proposition is § 136a(c)(7)(C), a statute governing conditional registrations. Before the24
EPA may register a pesticide product on an unconditional basis, however, it must, as set
25
forth above, determine the product "will perform its intended function without
26
unreasonable adverse effects on the environment" and that "when used in accordance
27
with widespread and commonly recognized practice it will not generally cause
2829Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 30 of 39

1

unreasonable adverse effects on the environment." See 7 U.S.C. § 136a(c)(5). An

2

unconditional registration, unlike a conditional registration, has no temporal limitation, and3nothing in § 136a(c)(5) suggests that any of its requirements are inapplicable to products

4that previously have been registered on a conditional basis.
Moreover, the regulations governing FIFRA registrations point up the differing

United States District Court
Northern District of California

5
6

decisions the EPA must make when it registers a pesticide on an unconditional as

7

opposed to a conditional basis. The regulation pertaining to unconditional registrations,8

specifically, 40 C.F.R. § 152.112, provides, in keeping with the above-referenced statute,

9that before the EPA may issue an unconditional registration, it must make a number of10findings, including, as set forth in § 152.112(e), that "the product will perform its intended

11function without unreasonable adverse effects on the environment, and that, when used

12

in accordance with widespread and commonly recognized practice, the product will not

13

generally cause unreasonable adverse effects on the environment." See 40 C.F.R.

14§ 152.112(e).
By contrast, the regulations pertaining to the issuance of conditional registrations,

15
16

specifically, 40 C.F.R. §§ 152.113 and 152.114, while requiring the EPA to determine

17

certain of the "criteria in § 152.112 . . . have been satisfied," do not require at that time a18determination as to the criteria set forth in § 152.112(e), i.e., a determination that use of19

the product for an unlimited period of time will not adversely affect the environment. See

20

40 C.F.R. §§ 152.113(a)(3), 152.114(c) (listing by subsection all criteria that "must have21

been satisfied"; omitting subsection (e)). Rather, as the Ninth Circuit has observed, "[t]he22

EPA conditionally registers a pesticide when there is insufficient data to evaluate the23environmental effects of a new pesticide." See Pollinator Stewardship Council v. EPA,

24

806 F.3d 520, 523 (9th Cir. 2015). A conditional registration thus provides for what is, in

25

effect, a trial period during which the product can be used while the registrant obtains

26

additional data required by the EPA, which the EPA then reviews to determine whether

27

issuance of an unconditional registration is appropriate.

28

//
30

United States District Court
Northern District of California

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 31 of 39

1Here, consistent with the above-described procedure, the EPA initially registered

2

Poncho 600 and Clothianidin Technical on a conditional basis in light of its finding that it3

lacked sufficient data to determine whether issuance of unconditional registrations was

4proper, see Pollinator Stewardship Council, 806 F.3d at 523 (holding "[u]conditional

5

registration necessarily requires sufficient data to evaluate the environmental risks"), and,6

as discussed above, required the registrants to provide seven specified studies to assist

7

the EPA in making such a determination, including "an acceptable Seed Leaching study,"

8

as well as "additional analysis of . . . the materials used in the previously submitted

9

mutagenicity studies," and "an acceptable Aerobic Aquatic Metabolism study" (see AR

1067402-03, 67632-34). "[S]tudies . . . pertain[ing] to leaching" are used by the EPA to11assess, inter alia, "potential environmental hazards related to . . . habitat loss of wildlife

12

resulting from pesticide residue movement or transport in the environment," see 40

13

C.F.R. § 161.202(d)(4) (2010), "mutagenicity studies" are used by the EPA to assess,

14

inter alia, "hazards to . . . domestic animals," see 40 C.F.R. § 161.202(e)(5) (2010), and15"aerobic . . . metabolism studies" are used by the EPA to assess, inter alia, "the16persistence of [the] pesticide" in the environment, see 40 C.F.R. § 161.202(d)(3) (2010).

17

As set forth above, the test applicable to the "agency action inquiry," see Karuk18

Tribe, 681 F.3d at 1021, is "whether the agency had some discretion to influence or

19change the activity for the benefit of a protected species," id. Here, when the EPA

20

ordered studies to be submitted by the registrants, it did so for the purpose of determining

21

whether the conditional registrations should be converted to unconditional registrations

22

under § 136a(c)(5), which determination, as set forth above, required the EPA to review

23

and assess the results of those studies, in order to determine whether Poncho 600 and

24

Clothianidin would "perform [their] intended function without unreasonable adverse

25

effects on the environment" and would "not generally cause unreasonable adverse

26

effects on the environment." See 7 U.S.C. § 136a(c)(5). Conducting such an27

assessment and making such a determination cannot be equated with the wholly non-28

discretionary task of stamping the materials "Received."
31

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 32 of 39

1
2

registrations of Poncho 600 and Clothianidin Technical Insecticide to unconditional

3

registrations constituted "agency action" for purposes of the ESA.

4
5
6

United States District Court
Northern District of California

Accordingly, the Court finds the 2010 decisions to convert the conditional(2) Notice of Applications for New Uses
Nine of the above-referenced eleven actions concern what plaintiffs allege areapprovals and defendants contend are notices.

7

In the remaining portion of the Sixth Claim, plaintiffs allege the EPA engaged in8

forty-seven "agency actions," which actions include, according to plaintiffs, the EPA's

9having issued "new use approvals" for the following products on the following dates:

10(1) Cruise 70 WS Insecticide on October 26, 2009; (2) Thiamethoxam Technical on

11

March 19, 2010; (3) Thiamethoxam Technical on May 5, 2010; (4) Thiamethoxam

12

Technical on July 6, 2011; (5) Cruiser Insecticide on March 19, 2010; (6) Cruiser

13

Insecticide on May 5, 2010; (7) Cruiser Insecticide on July 6, 2011; (8) Optigard ZT

14

Insecticide on August 18, 2010; and (9) Optigard Flex Liquid on August 18, 2010. (See15

SAC ¶ 132.) The EPA argues that, as to these nine alleged "agency actions," the EPA

16

did not "affirmatively authorize[ ], fund[ ], or carr[y] out" any activity, see Karuk Tribe, 681

17F.3d at 1021, but, rather, gave the public notice of its receipt of an application to register18

products and invited the public to comment thereon.

19

In support thereof, the EPA relies on the Federal Register, which indicates that, on

20

each of the nine dates identified above, the EPA gave notice to the public of a pending

21

application for approval of a new use for a product containing thiamethoxam. See 74

22Fed. Reg. at 54999 (giving notice, on October 29, 2009, of application to register new use

23

for Cruiser 70 WS Insecticide); 75 Fed. Reg. at 13282 (giving notice, on March 19, 2010,24of application to register new use for both Thiamethoxam Technical and Cruiser

25

Insecticide); 75 Fed Reg. at 24696 (giving notice, on May 5, 2010, of application to26

register new use for both Thiamethoxam Technical and Cruiser Insecticide); 75 Fed. Reg.

27

at 51045 (giving notice, on August 18, 2010, of applications to register new use for

28

Optigard ZT Insecticide and for Optigard Flex Liquid); 75 Fed. Reg. at 39396 (giving
32

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 33 of 39

1

notice, on July 6, 2011, of application to register new use for both Thiamethoxam

2

Technical and Cruiser Insecticide).

3

Plaintiffs, although appearing to "concede" in their opposition that the nine subject

4

actions were not approvals of applications to register pesticide products (see Pls.' Opp. at

5

10:24-26), offer no explanation as to how the act of giving the public notice of a pending

6

application constitutes "agency action" within the meaning of the ESA, nor is any such

7

explanation otherwise apparent. Rather, the Court agrees with the EPA that giving notice8

is not "agency action," as the EPA did not, by providing such notice, take any "affirmative

9

action" or provide any "federal authorization" with respect to any application. See Karuk

10

Tribe, 681 F.3d at 1021 (internal quotation and citation omitted).

United States District Court
Northern District of California

11
12

Accordingly, defendants are entitled to judgment on the Sixth Claim to the extent it
is based on the nine alleged "new use approvals."b. Collateral Attack Doctrine

13
14

The Intervenors argue that all remaining agency actions challenged in the Fifth

15

and Sixth Claims are barred by the collateral attack doctrine, and the EPA argues that all

16

but two of the remaining agency actions are so barred.22

17"The collateral attack doctrine prevents litigants from relitigating the merits of18

previous administrative proceedings or evading established administrative procedures by

19raising a claim that is inescapably intertwined with a review of the procedures and merits

20

surrounding an underlying agency order." Center for Biological Diversity, 847 F.3d at

211092 (internal quotation, alterations and citation omitted). "At its core, the doctrine

22

prohibits a plaintiff from using a later order that implements a prior agency action as a23

vehicle to undo the underlying action or order." Id.

24

All of the remaining agency actions are conditional or unconditional registrations of

25

specific products containing either clothianidin or thiamethoxam, which pesticides appear

26
27
28

22

The EPA does not contend its conditional registrations of Poncho Beta andCruise PD Insecticide are barred by the collateral attack doctrine.
33

United States District Court
Northern District of California

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 34 of 39

1

in products previously registered in, respectively, 2003 and 2000. (See Schulman Decl.

2

Exs. 21, 24; Intervenors' Req. for Judicial Notice Exs. 1-2.) The Intervenors argue

3plaintiffs' challenges to the current registrations are, in effect, challenges to the earlier

4

registrations and, as such, are barred by the collateral attack doctrine. The EPA takes a5similar but slightly narrower position, in confining its argument to the challenges that

6

concern current registrations for products that not only contain clothianidin or

7thiamethoxam, but are identical or substantially similar to earlier-registered products.

8(See EPA's Cross-Mot. Exs. 1, 2.) In response, plaintiffs argue that the EPA's duty to

9consult as to "every discretionary agency action," see National Wildlife Federation v.

10

National Marine Fisheries Service, 524 F.3d 917, 929 (9th Cir. 2008), encompasses its

11

determinations whether to register pesticide products containing a pesticide that has

12been approved for use in other products, even if the newer products are identical or

13

substantially similar to products whose registrations are not challenged.

14

As the Ninth Circuit has explained, the collateral attack doctrine does not bar a

15

claim that the EPA failed to consult when it registered a pesticide product, provided the16

EPA has not merely "rubber stamp[ed]" the application in light of an earlier decision not

17

challenged by the plaintiff. See Center for Biological Diversity, 847 F.3d at 1093. Put

18

another way, where the EPA, in deciding whether to approve a new application, does19

more than simply adopt its decision as to an earlier application, a plaintiff who challenges

20

the new registration "does not seek to unravel a prior agency order." See id.

21

Here, there is no showing by defendants that the EPA, when it registered any

22

product that is the subject of the remaining portions of the Fifth and Sixth Claims, did

23

nothing other than adopt a prior decision. Nor does it appear such a showing could be

24

made, as even where an applicant seeks to register a pesticide for uses that are

25"identical or substantially similar to any currently registered pesticide," the EPA

26

nonetheless is required to make at that time a finding that "approving the registration . . .

27

in the manner proposed by the applicant would not significantly increase the risk of any

28

unreasonable adverse effect on the environment." See 7 U.S.C. § 136a(c)(7)(A).
34

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 35 of 39

1
2

Accordingly, the Court finds the collateral attack doctrine does not bar any of theremaining portions of the Fifth and Sixth Claims.
c. Conclusion as to Fifth and Sixth Claims

345

the claim challenges the registration of the following three products:

6(1) Darlex Insecticide on March 18, 2010;

7(2) Sepresto 75 WS on April 28, 2010; and

8(3) Prosper Evergol on May 11, 2012.

9

United States District Court
Northern District of California

As to the Fifth Claim, defendants are entitled to summary judgment to the extent

As to the Fifth Claim, plaintiffs are entitled to summary judgment on the issue of10

liability to the extent the claim challenges the registration of the following twenty-one

11

products:

12(1) Aloft GC SC Insecticide on October 18, 2007;

13(2) Aloft LC SC Insecticide on October 18, 2007;

14(3) Aloft GC G Insecticide on October 18, 2007;

15(4) Aloft LC G Insecticide on October 18, 2007;16(5) V-10170 2.13SC Insecticide on January 4, 2008;17(6) Insecticide TD Concentrate on January 28, 2008;18(7) V-10170 5 FS Insecticide on February 28, 2008;

19(8) Poncho Beta on March 7, 2008;20(9) V-10170 0.25G GL Insecticide on January 27, 2009;21(10) Flower, Rose, and Shrub Care III on July 30, 2009;22(11) Flower, Rose, and Shrub Care II on August 24, 2009;23(12) Insecticide TD Granule on December 28, 2009;24(13) Poncho/Votivo on March 16, 2010;25(14) Poncho 600 on April 22, 2010;26(15) Clothianidin Technical Insecticide on April 22, 2010;27(16) Poncho/GB 126 on April 29, 2011;28(17) Inovate Seed Protectant on June 21, 2011;35

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 36 of 391(18) NipsIt Suite Cereals of Seed Protectant on December 21, 2011;2(19) NipsIt Suite Canola Seed Protectant on January 6, 2012;3(20) Inovate Neutral Seed Protectant on January 25, 2012; and4(21) Ernesto Quantum on May 11, 2012.

5
6

As to the Sixth Claim, defendants are entitled to summary judgment to the extent
the claim challenges the following eleven actions:7(1) registration of Agita 1GB Fly Bait on December 8, 2010;8(2) registration of Agita 10 WG on December 8, 2010;9(3) alleged new use approval of Cruise 70 WS Insecticide on October 26,
2009;

10

(4) alleged new use approval of Thiamethoxam Technical on March 19,

United States District Court
Northern District of California

11

2010;

12
13

(5) alleged new use approval of Thiamethoxam Technical on May 5, 2010;14(6) alleged new use approval of Thiamethoxam Technical on July 6, 2011;15(7) alleged new use approval of Cruiser Insecticide on March 19, 2010;16(8) alleged new use approval of Cruiser Insecticide on May 5, 2010;17(9) alleged new use approval of Cruiser Insecticide on July 6, 2011;18(10) alleged new use approval of Optigard ZT Insecticide on August 18,
2010; and19(11) alleged new use approval of Optigard Flex Liquid on August 18, 2010.

20
21

As to the Sixth Claim, plaintiffs are entitled to summary judgment on the issue of22

liability to the extent the claim challenges the registration of the following thirty-eight23

products:

24(1) Optigard Ant Gel Bait on April 4, 2007;

25(2) Thiamethoxam Ant Killer Gel on April 4, 2007;

26(3) Endigo ZC on August 21, 2007;

27(4) THX/MXM/FDL CZ on September 20, 2007;

28(5) Thiamethoxam Lawn & Landscape 0.33G on November 2, 2007;36

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 37 of 39

1(6) Thiamethoxam Lawn & Landscape 0.22G on November 2, 2007;

2(7) Platinum 75 SG Insecticide on January 17, 2008;

3(8) Optigard Flex Liquid on March 28, 2008;

4(9) Thiamethoxam 0.02/Lambda-cyhalothrin on April 4, 2008;5(10) CruiserMaxx Cereals on April 16, 2008;6(11) Voliam Flexi Insecticide on August 25, 2008;7(12) Durivo on August 26, 2008;8(13) Avicta Duo on October 31, 2008;9(14) Cruiser 70 WS Insecticide on November 20, 2008;10(15) Thiamethoxam 0.40/Lambda-cyhalothrin 0.16 ME Concentrate

United States District Court
Northern District of California

11
12
13

on May 12, 2009;(16) Thiamethoxam 0.010/Lambda-cyhalothrin 0.004 ME RTU on May 12,
2009;

14

(17) Meridian 0.20G on June 22, 2009;15(18) Meridian 0.14G on July 1, 2009;16(19) Avicta Duo 250 on October 27, 2009;17(20) Agri-Flex Miticide/Insecticide on April 6, 2010;18(21) CruiserMaxx Vibrance Cereals on June 20, 2010;19(22) CruiserMaxx Rice on July 20, 2010;20(23) Optigard Liquid Ant Bait on August 2, 2010;21(24) Four-Way VAP on October 29, 2010;22(25) Avicta Complete Corn 500 on June 15, 2011;23(26) Cruiser PD Insecticide on August 5, 2011;24(27) Difenoconazole 0.170/Thiamethoxam 0.010/Lambda-cyhalothrin 0.004

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ME RTU on August 5, 2011;(28) Difenoconazole 0.66/Thiamethoxam 0.40/Lambda-cyhalothrin 0.16 ME
Concentrate on August 5, 2011;(29) Avicta Complete Corn 250 on October 19, 2011;37

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 38 of 391(30) Caravan G on January 11, 2012;2(31) THX_MXM_FDL_TBZ FS on February 2, 2012;3(32) CruiserMaxx EZ on February 2, 2012;4(33) Derby on April 23, 2012;5(34) Tandem on April 23, 2012;6(35) CruiserMaxx Peanuts on April 30, 2012;7(36) Solvigo Miticide/Insecticide on June 21, 2012;8(37) Adage Delux on August 23, 2012; and9(38) Adage Premier on August 23, 2012.
CONCLUSION

United States District Court
Northern District of California

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For the reasons stated above:12

1. Plaintiffs' motion for summary judgment is hereby GRANTED in part and13
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DENIED in part as follows:a. As to the Fifth Claim, plaintiffs are entitled to summary judgment on the15

issue of liability to the extent such claim challenges the registrations of the twenty-one

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products identified above at page 35, line 9, through page 36, line 4.

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b. As to the Sixth Claim, plaintiffs are entitled to summary judgment on the18

issue of liability to the extent such claim challenges the registrations of the thirty-eight19

products identified above at page 36, line 21, through page 38, line 9.

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c. In all other respects, plaintiffs' motion is DENIED.
2. Defendants' motions for summary judgment are hereby GRANTED in part and
DENIED in part, as follows:a. As to the First, Second, Third and Fourth Claims, defendants are entitledto summary judgment.
b. As to the Fifth Claim, defendants are entitled to summary judgment to26

the extent the claim challenges the registrations of the three products identified above at

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page 35, lines 4 through 8.

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c. As to the Sixth Claim, defendants are entitled to summary judgment to38

Case 3:13-cv-01266-MMC Document 269 Filed 05/08/17 Page 39 of 39

1

the extent such claim challenges the eleven actions identified above at page 36, lines 5

2through 20.

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3. As to the Fifth and Sixth Claims, to the extent plaintiffs have established the5

EPA's liability, the parties are hereby DIRECTED to meet and confer, and to thereafter

6

file, no later than May 26, 2017, a jointly proposed briefing schedule and hearing date, or,7

if the parties are unable to agree on a schedule, a joint filing in which they set forth their8

respective proposals.

9

United States District Court
Northern District of California

d. In all other respects, defendants' motions are DENIED.

4. In light of the above rulings on the issue of liability, and the amount of time that10

has passed since the parties last participated in any form of court-sponsored ADR, the11parties are hereby REFERRED back to Magistrate Judge Jacqueline Scott Corley and12are hereby DIRECTED to contact her chambers forthwith to schedule a settlement

13

conference, which, at the parties' election, may be conducted in advance of the above-14

referenced briefing.

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IT IS SO ORDERED.

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Dated: May 8, 2017
MAXINE M. CHESNEY
United States District Judge

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