UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

Center for Biological 

Diversity, Center for Food 

Safety, and Defenders of 

Wildlife, 

Plaintiffs, 

v. 

United States Environmental 

Protection Agency, 

Civil Action No. 14-942(GK) 

Defendant, 

and 

E.I. du Pont de Nemours and 

Company, Syngenta Crop 

Protection LLC, and CropLife 

America, 

Intervenor-Defendants 

MEMORANDUM OPINION 

Plaintiffs Center for Biological Diversity, Center for Food 

Safety, and Defenders of Wildlife ("Plaintiffs") bring this action 

against Defendant United States Environmental Protection Agency 

("Defendant," "the Government," "the Agency, " or "EPA") . 

Intervenor-Defendants E.I. du Pont de Nemours and Company, 

Syngenta Crop Protection LLC, and CropLife America ("IntervenorDefendants") joined this action with the Court's permission. 

This matter is presently before the Court on the Government's 

Motion to Dismiss for Lack of Jurisdiction [Dkt. No. 31] and 
Intervenor-Defendants' Motion for Judgment on the Pleadings [Dkt. 

No. 41], which requests dismissal on similar grounds. 

On September 19, 2014, the Government filed its Motion [Dkt. 

No. 31], and on October 15, 2014, Intervenor-Defendants filed their 

Motion [Dkt. No. 41]. On November 17, 2014, Plaintiffs filed their 

combined Opposition to both Motions [Dkt. No. 43]. On December 10, 

2014, the Government and Intervenor-Defendants both filed their 

Replies [Dkt. Nos. 44 & 45]. Upon consideration of the Motions, 

Opposition, Replies, and the entire record herein, and for the 

reasons stated below, Defendant's Motion to Dismiss shall be 

granted, Intervenor-Defendants' Motion for Judgment on the 

Pleadings shall be denied as moot, and Plaintiffs' Complaint shall 

be dismissed. 

I . BACKGROUND 

A. Statutory Framework 

1. Federal Insecticide, Fungicide, and Rodenticide Act 

The Federal Insecticide, Fungicide, and Rodenticide Act 

("FIFRA"), 7 U.S.C. § 136-136y, protects the environment from 

"unreasonable adverse effects" arising from the use of pesticides, 

Id. § 136a (a) . Under FIFRA, "no person . may distribute or 

sell . . any pesticide that is not registered [with EPA]." Id. 

EPA will "register" a pesticide if 

-2-
(A) its composition is such as to warrant the proposed claims 

for it; 

(B) its labeling and other material required to be submitted 

comply with the requirements of this subchapter; 

(C) it will perform its intended function without 

unreasonable adverse effects on the environment; and 

(D) when used in accordance with widespread and commonly 

recognized practice it will not generally cause unreasonable 

adverse effects on the environment. Id. § 136a(c) (5). 

Before registering a pesticide containing "any new active 

ingredient[,]" EPA must provide the public with notice and the 

opportunity to comment on "each application for registration [.]" 

Id. § 136a(c) (4). EPA's registration of a pesticide constitutes an 

Order within the meaning of the Administrative Procedure Act 

("APA") and FIFRA. See Env't Def. Fund, Inc. v. Costle, 631 F.2d 

922, 926 (D.C. Cir. 1980); United Farm Workers of Am., AFL-CIO v. 

Adm'r, E.P.A. I 592 F.3d 1080, 1082-83 (9th Cir. 2010). 

Manufacturers may only distribute registered pesticides in a 

manner consistent with the registration order's packaging, 

labeling, and composition requirements. 7 U.S.C. § 136j; 69 Fed. 

Reg. 47732, 47733 (Aug. 5, 2004). 

FIFRA divides judicial review between the District Courts and 

the Courts of Appeals. The appropriate forum depends, in part, 

upon whether EPA conducted a "public hearing" before issuing the 

relevant order. 7 U.S.C. § 136n(a)&(b). Generally, "the refusal of 

-3-
[EPA] to cancel or suspend a registration or to change a 

classification not following a hearing and other final actions 

... not committed to the discretion of [EPA] by law are judicially 

reviewable by the [D] istrict [C] ourts of the United States." 7 

U.S.C. § 136n(a) (emphasis added). 

"In the case of actual controversy as to the validity of any 

order issued by [EPA] following a public hearing, any person who 

will be adversely affected by such order and who had been a party 

to the proceedings may obtain judicial review . . . in the United 

States [C] ourt of [A] ppeals." Id. at § 136n (b) (emphasis added) . 

A petition for review before the Court of Appeals must be filed 

"within 60 days after the entry of such order [.]" Id. "Upon the 

filing of such petition the [C] ourt [of Appeals] shall have 

exclusive jurisdiction to set aside the order complained of in 

whole or in part." Id. 

2. Endangered Species Act 

The Supreme Court has called the Endangered Species Act 

("ESA") "the most comprehensive legislation for the preservation 

of endangered species ever enacted by any nation." Babbit v. Sweet 

Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687, 698 (1995) 

(quoting Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180 (1978)). 

The Act aims to conserve endangered and threatened species and the 

ecosystems on which they depend. 16 U.S.C. § 1531(b). Section 

-4-
7(a) (1) of the ESA obligates federal agencies to "insure that any 

action authorized, funded, or carried out by such agency . . . is 

not likely to jeopardize the continued existence of any endangered 

species or result in the destruction or adverse modification" of 

designated critical habitats. 16 U.S.C. § 1536 (a) (2). 

In order to carry out this substantive obligation, when an 

agency determines that an action "may affect" any species listed 

as endangered or threatened ("listed species"), or its habitat, 

the agency must consult with experts in the United States Fish and 

Wildlife Service ("FWS") or the National Marine Fisheries Service 

( "NMF s" ) . i 16 u . s . c . § 15 3 6 (a) ( 2 ) ; 5 o c . F . R . § 4 O 2 . 14 (a) . 

"Consultation is 'designed as an integral check on federal agency 

action, ensuring that such action does not go forward without full 

consideration of its effects on listed species.'" Defenders of 

Wildlife v. Jackson, 791 F. Supp. 2d 96, 100 (D.D.C. 2011) (quoting 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 603 (1992) (Blackmun, 

J. , dissenting) . 

Agencies may forgo formal consultation, however, if they 

determine -- with FWS or NMFS's written concurrence -- that the 

proposed action is "not likely to adversely affect" any listed 

1 The NMFS, located in the Department of Commerce, is responsible 

for marine species, and the FWS, located in the Department of the 

Interior, is responsible for terrestrial and inland fish species. 

16 U.S.C. § 1532(15); 50 C.F.R. §§ 17.11, 402.0l(b). 

-5-
species or critical habitat. 50 C.F.R. §§ 402.13(a), 402.14(b) (1). 

When the formal consultation requirement is triggered, FWS or NMFS 

must prepare a "biological opinion" stating whether the proposed 

action "is likely to jeopardize the continued existence of listed 

species or result in the destruction or adverse modification of 

critical habitat." 50 C.F.R. § 402.14; see also 16 U.S.C. 

§ 1536 (a) (2). 

ESA's broad citizen-suit provision empowers "any person" to 

"commence a civil suit on his [or her] own behalf" to enjoin 

violations of the Act's provisions, including an agency's failure 

to consult. 16 U.S.C. §§ 1540 (g) (1) (A), 1536 (a) (2). The United 

States District Courts have subject matter jurisdiction to hear 

challenges brought under § 1540 (g) . However, would-be citizenplaintiffs must provide an agency with written notice of any 

alleged ESA violation 60 days before filing suit. Id. 

§ 1540 (g) (2) (A) . 

B. Factual Background2 

1. Cyantraniliprole Registration 

The present controversy follows EPA's decision to permit the 

use of the chemical compound cyantraniliprole ("CTP") as an active 

2 Since the Motions at issue contend that this Court lacks subject 

matter jurisdiction, the Court may look beyond the pleadings to 

determine whether it has subject matter jurisdiction. Jerome 

Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253- ~~~~~~~~~~~~~~~~~~~~=--~~~-

-6-
ingredient in pesticides. On February 29, 2012, EPA announced in 

the Federal Register that it had received applications to register 

pesticide products containing CTP pursuant to FIFRA. 77 Fed. Reg. 

12295-97. Since no previously registered pesticides had included 

CTP as an active ingredient, EPA invited public comment on the 

applications until March 30, 2012. Id. To facilitate public 

comment, EPA created a public online docket for CTP. See EPA, 

Cyantraniliprole - Initial Registration, proposed uses on crops, 

turf, ornamentals, buildings, Docket EPA-HQ-OPP-2011-0668 (last 

visited on March 25, 2015) f 

http://www.regulations.gov/#!docketDetail;D=EPA-HQ-OPP-2011-

0668. 

On May 23, 2012, EPA published a Notice of Filing of pesticide 

petitions to establish tolerances for CTP in the Federal Register 

with another opportunity to comment on or before June 22, 2012. 77 

Fed. Reg. 30481-85; "Notice of Filing: Cyantraniliprole, Many 

Crops, from DuPont," AR at 13-16. 

On June 6, 2013, EPA placed on the public docket its proposal 

to register CTP as a new active ingredient and again invited public 

54 (D.C. Cir. 2005). Because this case involves a challenge to an 

administrative action, there is a significant administrative 

record in addition to the pleadings. Accordingly, the facts that 

follow are drawn both from Plaintiffs' Complaint [Dkt. No. 1] and 

the parties' Joint Appendix, which contains excerpts from the 

Administrative Record [Dkt. Nos. 46 & 47]. 

-7-
comment. See "Public Participation for Cyantraniliprole as a New 

Active Ingredient, Insecticide Formulated as a Technical Product 

and Fourteen End Use Products," AR at 1 7-19; "Proposed Registration 

of the New Active Ingredient Cyantraniliprole," AR at 888-901. 

Following a one-week deadline extension, EPA accepted comments 

until July 14, 2013. See "Extension of Public Comment Period to 

July 14, 2013," AR at 906. 

In total, EPA received twenty-three comments before the July 

14, 2013 deadline. See Compl. ~ 38; "Cyantraniliprole - Response 

to Public Comments on EPA' s 'Proposed Registration of the New 

Active Ingredient Cyantraniliprole , "' AR at 1996-2041; 

"Registration of the New Active Ingredient Cyantraniliprole," AR 

at 1978-95, 1990. 

EPA responded to each of the comments it received before the 

deadline, and on January 24, 2014, the agency approved the 

registration of CTP and fourteen end-use products containing the 

compound. AR at 1978-1995. EPA subsequently issued individual 

orders specifically registering the active ingredient CTP and 

fourteen end-use products and approving the labels for each. Compl. 

~ 39. All of EPA's orders relating to the registration of CTP and 

fourteen end-use products are collectively referred to herein as 

the "CTP Registration Order" or "CTP Registration." 

-8-
On March 21, 2014, Plaintiffs provided EPA with notice of 

their belief that the agency had violated Section 7 of the ESA by 

failing to consult with the FWS and the NMFS before registering 

CTP. Compl. ~ 10. 

2. Procedural History 

On March 22, 2014, Plaintiffs filed a Petition for Review 

with our Court of Appeals, challenging EPA's alleged failure to 

consult with FWS and NMFS. Petition, Ctr. for Biological Diversity, 

et al. v. U.S. EPA, 14-1036 (D.C. Cir.) [Dkt. No. 31-2]. Plaintiffs 

submitted their Petition "pursuant to § 16(b) of FIFRA [7 U.S.C. 

§ 136n (b)] I II which provides for review of "any [FIFRA] order issued 

by the [EPA] Administrator following a public hearing" in the Court 

of Appeals. Id. ~ 3. However, the Petition makes clear that 

Plaintiffs filed in the Court of Appeals only to preserve their 

claim in light of FIFRA's 60-day statute of limitations. Petition 

at ~ 4. 

On April 28, 2014, Plaintiffs asked our Court of Appeals to 

stay consideration of their Petition to allow litigation before 

this Court to proceed. Pet' rs' Mot. to Stay at 3 [Dkt. No. 31-3]. 

On June 13, the Court of Appeals granted Plaintiffs' Motion to 

Stay. 

On June 3, 2014, Plaintiffs filed their Complaint before this 

Court, alleging that EPA violated the ESA, 16 U.S.C. § 1536(a) (2), 

-9-
and the APA, 5 U.S.C. §§ 701-706, by registering CTP and fourteen 

end-use products without consulting FWS and NMFS. Compl. ~~ 44-

49. The Complaint asks this Court to declare EPA in violation of 

ESA § 7 (a) (2) and to "[e] njoin, vacate, and set aside EPA' s 

authorization of any use of CTP that does·not include protections 

necessary to avoid harm to listed species, until such time as EPA 

has put in place adequate permanent measures that ensure against 

jeopardy to listed species or adverse modification of their 

critical habitat [.] 11 Id. p. 22. The Complaint asserts three grounds 

for this Court's subject matter jurisdiction: the federal question 

statute, 28 U.S.C. § 1331; ESA's citizen-suit provision, 16 U.S.C. 

§ 1540 (g) (1); and in the alternative, FIFRA, 7 U.S.C. § 136n(a). 

Id. ~~ 9-10. 

On September 19, 2014, the Government filed its Motion to 

Dismiss for Lack of Jurisdiction. On October 15, 2014, IntervenorDefendants filed their Motion for Judgment on the Pleadings. 3 On 

November 17, 2014, Plaintiffs filed their combined Opposition. On 

December 10, 2014, the Government and Intervenor-Defendants filed 

their Replies. 

3 Under Fed. R. Civ. P. 24(c), parties seeking to intervene must 

answer the complaint with "the claim or defense for which 

intervention is sought. 11 Thus, a motion under Fed. R. Ci v. P. 12 (b) 

was unavailable to Intervenors. See Yates v. Dist. Of Columbia, 

324 F.3d 724, 725 (D.C. Cir. 2003). 

-10-
II. STANDARD OF REVIEW 

As courts of limited jurisdiction, federal courts possess 

only those powers specifically granted to them directly in the 

U.S. Constitution or by Congress. Kokkonen v. Guardian Life Ins. 

Co. of Am., 511 U.S. 375, 377 (1994). Hence, under Fed. R. Civ. P. 

12(b) (1), Plaintiffs bear the burden of showing by a preponderance 

of the evidence that this Court has subject matter jurisdiction. 

Carney Hosp. Transitional Care Unit v. Leavitt, 549 F. Supp. 2d 

93, 95 (D.D.C. 2008) (citing McNutt v. Gen. Motors Acceptance Corp. 

of Ind., 298 U.S. 178, 189 (1936)). In deciding whether to grant 

a motion to dismiss for lack of jurisdiction, the Court must 

"accept all of the factual allegations in [the] [C] omplaint as 

true [.]" Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug 

Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005) (citing United 

States v. Gaubert, 499 U.S. 315, 327 (1991)) (internal quotation 

marks omitted). However, the Court may look beyond the Complaint's 

factual allegations to determine whether it has subject matter 

jurisdiction. Id. 

III. ANALYSIS 

The only question presently before the Court is whether it 

has subject matter jurisdiction to hear Plaintiffs' challenge. 

Section 16 (b) of FIFRA, codified at 7 U.S. C. § 136n (b) , vests 

"exclusive jurisdiction" in the United States Courts of Appeals to 

-11-
hear challenges "to the validity" of FIFRA registration orders 

issued "following a public hearing." The Government and 

Intervenor-Defendants contend that, although Plaintiffs' Complaint 

exclusively alleges ESA violations, it also challenges the 

validity of EPA's Registration of CTP under FIFRA. Thus, according 

to the Government and Intervenor-Defendants, this case falls under 

FIFRA's grant of exclusive jurisdiction to the Courts of Appeals. 

Plaintiffs argue that their action is governed by the ESA's 

citizen-suit provision, 16 U.S. C. § 1540 (g) ( 1) (A) , which places 

subject matter jurisdiction in the District Courts. In the 

alternative, Plaintiffs contend that EPA's Registration of CTP did 

not "follow[] a public hearing" and is therefore outside of § 

136n(b) 's exclusive grant of jurisdiction to the Courts of Appeals. 

A. FIFRA's Grant of Jurisdiction Governs Plaintiff's 

Action. 

Plaintiffs' Complaint discusses at length the environmental 

effects of CTP and criticizes aspects of the CTP Registration 

Order, including, among other things, the label restrictions 

imposed by EPA. See e.g. , Compl. ~ 1 ("EPA' s failure to consult 

. allows this pesticide to harm listed species."); id. ~ 36 

(alleging that EPA conducted insufficient "species-specific 

analysis" and failed to include appropriate use restrictions for 

mixtures of CTP and another insecticide called thiamethoxam); id. 

-12-
~ 41 (alleging inadequacy of use restrictions placed on pesticide 

labels under CTP Registration Order) . As relief, the Complaint 

asks this Court to "[e]njoin, vacate, and set aside EPA's 

authorization of any use of CTP." Compl. p. 22. In short, the 

Complaint describes how CTP's Registration will result in 

"unreasonable adverse effects on the environment [,]" 7 U.S. C. § 

136a(a), and asks the Court to overturn the agency's Order. 

On its face, Plaintiffs' Complaint gives rise to an "actual 

controversy as to the validity" of the FIFRA Registration Order 

and is therefore governed by that Act's jurisdictional grant. 7 

U.S.C. § 136n(b); see also Humane Soc'y of U.S. v. E.P.A., 790 

F.2d 106, 110 (D.C. Cir. 1986). 

Plaintiffs attempt to escape FIFRA's review procedure 

codified at 7 U.S.C. §136n, arguing that "[t]his case presents a 

single claim: that EPA violated its procedural duty to 

consult under Section 7(a) (2) before finalizing the Registration 

of CTP. [Plaintiffs have] brought no claims under FIFRA or any 

other statute." Pls. ' Opp' n at 10. Hence, in Plaintiffs' view, 

this Court has subject matter jurisdiction under the ESA' s citizensuit provision, 16 U.S.C. § 1540 (g) (1) (A). 

However, "[i] f a special statutory review procedure 

[exists] , it is ordinarily supposed that Congress intended that 

procedure to be the exclusive means of obtaining judicial review 

-13-
in those cases to which it applies." Media Access Project v. FCC, 

883 F.2d. 1063, 1067 (D.C. Cir. 1989). For that reason, P+aintiffs 

"may not escape an exclusive avenue of judicial review through 

artful pleading." Sandwich Isels Commc'nc, Inc. v. Nat'l Exch. 

Carrier Ass'n, 799 F. Supp. 2d 44, 51 (D.D.C. 2011) (citing Am. 

Bird Conservancy v. FCC, 545 F.3d 1190, 1194 (9th Cir. 2008)) 

(internal quotation marks omitted); accord Ctr. for Biological 

Diversity v. EPA, 2013 WL 1729573, at *18 ("Although Plaintiffs 

only challenge the EPA' s failure to consult under ESA § 7, 

Plaintiffs' 'core objections' are to the pesticide registrations 

themselves, which are governed under FIFRA's administrative 

framework." (internal citation omitted)); City of Tacoma, 

Washington v. Nat'l Marine Fisheries Serv., 383 F. Supp. 2d 89, 93 

(D.D.C. 2005) ("Styling its complaint as an independent action 

against the NMFS does not enable the City of Tacoma to evade the 

clear jurisdictional provision of the [Federal Power Act.]"). 

Specifically with respect to FIFRA registration, the D.C. 

Circuit has held that plaintiffs must bring all challenges to an 

Order's validity before the Courts of Appeals, even when a separate 

statutory scheme grants jurisdiction to the District Courts. 

Envtl. Def. Fund, Inc. v. Envtl. Prat. Agency ("EDF"), 485 F.2d 

780, 783 (D.C. Cir. 1973). In EDF, the D.C. Circuit considered 

whether a challenge to a FIFRA registration order, which alleged 

-14-
violations of the National Environmental Policy Act ("NEPA"), 42 

U.S. C. § 4321 et seq., could proceed in a U.S. District Court 

parallel to litigation before the Court of Appeals. Id. at 783. 

Ordering the parties to seek dismissal of their District Court 

suit, the Court said, "[w]hen the Congress required that [C]ourts 

of [A] ppeals exercise exclusive jurisdiction over petitions to 

review a FIFRA order, it was to insure speedy resolution of the 

validity of EPA determinations." Id. (internal citations omitted). 

When further factual development is unnecessary, litigation before 

a District Court would cause needless delay. Id. 

The logic of EDF applies beyond the two statutory schemes the 

Court considered in that case. In City of 'Tacoma, 383 F. Supp. 2d 

at 92, the District Court held that an ESA claim challenging an 

order by the Federal Energy Regulatory Commission was subject to 

the exclusive jurisdiction of the Court of Appeals. Although ESA's 

text grants subject matter jurisdiction to the District Courts, 

"[i] t is well-established that when two jurisdictional statutes 

provide different avenues for judicial review, courts apply the 

more specific legislation." Id. at 92. Similarly, in Am. Bird 

Conservancy, 545 F.3d at 1193-94, the Court of Appeals for the 

Ninth Circuit held that plaintiffs could not avoid the Hobbs Act's 

exclusive grant of jurisdiction to the Courts of Appeals to review 

certain FCC orders by limiting their pleadings to ESA claims. 

-15-
In a well-reasoned and thorough opinion, a magistrate judge 

in the Northern District of California addressed exactly the 

question presented here, finding that EPA' s alleged "failure to 

consult [is] inextricably intertwined with agency actions governed 

by a regulatory framework." Ctr. for Biological Diversity v. 

E.P.A., 2013 WL 1729573, at *21 (N.D. Cal. Apr. 22, 2013) (citing 

Am. Bird Conservancy, 545 F.3d at 1193.). Relying on the Ninth 

Circuit's ample FIFRA and ESA precedent, the Court held that the 

plaintiff's ESA claim was, in fact, subsumed by FIFRA's grant of 

exclusive jurisdiction to the Courts of Appeals. Id. at *14; see 

also Council for Endangered Species Act Reliability v. Jackson, 

2011 WL 5882192, at *5-6 (D. Ariz. Nov. 23, 2011) (similar 

reasoning and same result) . Plaintiffs have failed to show how the 

facts of this case or the law of this circuit compel a different 

outcome. 

Instead, Plaintiffs contend that application of FIFRA's 

exclusive jurisdictional grant would create an irreconcilable 

conflict between FIFRA's 60-day statute of limitations and ESA's 

60-day notice requirement. However, such a conflict "is an 

illusion[.]" Am. Bird Conservancy, 545 F.3d at 1195 (holding that 

ESA's citizen-suit notice provision did not conflict with 

Communications Act's 60-day statute of limitations). 

-16-
In order to protect Plaintiffs' procedural position, the 

Government concedes that if Plaintiffs do not rely on the ESA's 

citizen-suit provision for subject matter jurisdiction, they need 

not provide the Government with ESA notice before filing suit. 

Gov't's Reply at 3. Where parties rely on another statutory grant 

to provide subject matter jurisdiction, such as FIFRA' s review 

provision, 7 U.S. C. § 13 6n (b) , ESA' s notice requirement simply 

does not apply. Cf. Washington v. Daley, 173 F.3d 1158, 1170 n.16 

(9th Cir. 1999) ("Because [plaintiff's] claims were brought under 

the Magnuson Act, the Endangered Species Act's notice requirement 

need not be met."). 

For these reasons, the Court holds that FIFRA's 

jurisdictional provision, 7 U.S. C. § 13 6n, governs Plaintiffs' 

claim. 

B. EPA's Registration Order Followed a "Public Hearing." 

Plaintiffs contend that even if FIFRA's jurisdictional 

statute governs this dispute, EPA failed to conduct a "public 

hearing" before issuing the CTP Registration Order, and therefore, 

7 U.S.C. § 136n(a) does provide this Court with subject matter 

jurisdiction. Section 136n divides subject matter jurisdiction to 

hear FIFRA challenges between the District Courts and the Courts 

of Appeals. Judicial review of EPA's "refusal . . to cancel or 

suspend a registration or to change a classification not following 

-17-
a hearing and other final actions not committed to the 

discretion of the [agency]" is allocated to the District Courts. 

Id. § 136n(a) (emphasis added). Whereas, a "controversy as to the 

validity of any order issued by [EPA] following a public hearing" 

must be brought before one of the Courts of Appeals. Id. § 136n(b) 

(emphasis added) . Thus, whether Plaintiffs' challenge is properly 

before this Court or the Court of Appeals depends on whether the 

CTP Registration Order "follow[ed] a public hearing." Id. 

Plaintiffs argue that "public hearing," as used in § 136n, 

calls for more than "mere notice and an opportunity for written 

comment." Pls.' Opp' n at 25. Relying primarily on Black's Law 

Dictionary (9th Ed. 2009) and a dissenting opinion from the Ninth 

Circuit Court of Appeals, United Farm Workers, 592 F.3d at 1084-

1087 (Pregerson, J. dissenting), Plaintiffs contend that "public 

hearing" is properly read to require a "quasi-judicial proceeding 

overseen by a hearing examiner[.]" Pls.' Opp'n at 23, 29. 

However, Plaintiffs' position is directly contradicted by 

binding precedent, which holds that the adequacy of the record 

not the formality of the proceedings -- governs the question of 

whether there has been a "public hearing." E.g., Humane Soc'y, 790 

F.2d at 111. This circuit's seminal case concerning "public 

hearings" under FIFRA is Environmental Defense Fund, Inc. v. 

Castle, 631 F.2d 922, 926-32 (D.C. Cir. 1980). In Castle, our Court 

-18-
of Appeals declined to take a "literal approach" to the words 

"public hearing" and concluded that because "Congress designed 

[the] review provisions with the jurisdictional touchstone of the 

reviewable record in mind, the crucial inquiry is whether such a 

record is available." Humane Soc'y, 790 F.2d at 110-11 (discussing, 

construing, and reaffirming Cost le, 631 F. 2d at 925) (internal 

quotation marks omitted) . Accordingly, despite "the lack of public 

notice, the absence of public participation, and the lack of any 

type of oral presentation by the parties[,]" the Costle Court held 

that "[b] ecause the record before [it] [was] wholly adequate for 

judicial review, the proceedings[] antecedent to the [EPA] 's 

order were a 'public hearing' granting [the Court of Appeals] 

jurisdiction to review the challenged order." Castle, 631 F.2d at 

927, 932. 

Our Court of Appeals has repeatedly acknowledged Cost le' s 

continuing vitality. E.g., Humane Soc'y, 790 F.2d at 111; Nat'l 

Grain Sorghum Producers Ass'n, Inc. v. E.P.A., 84 F.3d 1452, *3 

(D.C. Cir. 1996) (holding that agency had satisfied "public 

hearing" requirement despite lack of formal hearing because it had 

created an "adequate record for review in a court of appeals") . 

Moreover, relying in part on Costle, the Ninth Circuit has directly 

addressed the issue Plaintiffs raise, holding that notice and the 

opportunity to comment constitute a "public hearing" for purposes 

-19-
of § 136n(b). United Farm Workers, 592 F.3d at 1083. Finally, 

another District Court in this Circuit has noted that "[c]ourts 

have generally interpreted [§ 136n(b) 's jurisdictional grant] to 

include [a] gency orders following public notice and comment." 

Defenders of Wildlife v. Jackson, 791 F. Supp. 2d 96, 102 n. 3 

(D.D.C. 2011) (citing Humane Soc'y, 790 F.2d at 112; United Farm 

Workers, 592 F.3d at 1082-83) . 4 

Before issuing the CTP Registration Order, EPA developed the 

Administrative Record by providing notice and opportunity for 

public comment on several occasions. On February 29, 2012, EPA 

provided notice in the Federal Register that it had received CTP 

registration applications. 77 Fed. Reg. 12295-97. The Agency 

provided the public with the opportunity to comment on the 

Registration at that initial phase, and provided additional 

opportunity to comment on March 23, 2012 and June 5, 2013. Id.; 

Fed. Reg. 30481-85; AR 888-901. 

4 Plaintiffs argue that other sections of FIFRA, not here at issue, 

should guide this Court's analysis, noting that § 6(d) of FIFRA 

sets forth elaborate requirements for a "public hearing, including 

for notice, evidence, testimony, subpoenas, . deadlines for 

decisions, and the standard of review." Pls. Opp'n at 24 (citing 

7 U.S.C. § 136d(d)). However, as Plaintiffs acknowledge elsewhere 

in their brief, Pls.' Opp'n at 25, our Court of Appeals has 

previously rejected the argument that "public hearing" as used in 

§ 136n(b) includes the elaborate procedures described in FIFRA's 

§ 6(d). Costle, 631 F.2d at 928. 

-20-
This process resulted in an Administrative Record totaling 

more than 113,000 pages. Plaintiffs responded to these 

opportunities to be heard and provided significant input. See 

Compl. ~ 38. The contents of the Record vary widely and include 

legal arguments, the results of scientific studies, general 

comments, and the registration applications themselves. 

Nowhere in their Opposition do Plaintiffs point to any 

particular inadequacy in the Record. Instead, Plaintiffs argue 

that notice and the opportunity to comment are categorically 

insufficient to produce an adequate record. As the discussion of 

our Court of Appeals' precedent above makes plain, this argument 

is without merit. 

Finally, Plaintiffs contend that it makes no sense to treat 

adequacy of the record as the jurisdictional lynchpin. In their 

view, that rule requires the Court to look into the administrative 

record prematurely -- before establishing its power to hear the 

case and forces plaintiffs to guess where to file an 

especially problematic feature given FIFRA' s brief statute of 

limitations. While Plaintiffs' concerns are not trivial, this 

Court does not write with a free hand, and must, of course, follow 

controlling case law from the Court of Appeals. For all these 

reasons, the Court concludes that EPA held a "public hearing" 

within the meaning of 7 U.S.C. § 136n(b) prior to issuing the CTP 

-21-
Registration Order, and therefore, this Court lacks subject matter 

jurisdiction to hear Plaintiffs' challenge. 

IV. CONCLUSION 

For the foregoing reasons, Defendant's Motion to Dismiss 

shall be granted, Intervenor-Defendants' Motion for Judgment on 

the Pleadings shall be denied as moot, and Plaintiff's Complaint 

shall be dismissed. An Order shall accompany this Memorandum 

Opinion. 

May J if, 2 0 15 

United States District Judge 

Copies to: attorneys on record via ECF 

-22-