Earlier this month, a federal district court in California partially granted motions to dismiss a second amended complaint filed by the Center for Biological Diversity and the Pesticide Action Network alleging that the Environmental Protection Agency (“EPA”) violated the Endangered Species Act (“ESA”) by failing to initiate and reinitiate consultations with the National Marine Fisheries Service and Fish & Wildlife Service (“the Service”) regarding the effect of 50 pesticide ingredients on endangered species and critical habitats. Ctr. for Biological Diversity v. Envtl. Protec. Agency, (N.D. Cal. 2014) 11-CV-00293-JCS, 2014 WL 3974778. The court rejected most claims as barred by the statute of limitations, for lack of jurisdiction, or for failure to state a claim, but found that claims relating to 11 pesticides adequately pleaded events triggering the EPA’s duty to reinitiate consultation.
In January 2011, the plaintiffs filed an initial complaint against the EPA, asserting the EPA had violated the ESA by failing to initiate and reinitiate consultation with the Service for 382 pesticides for which the Service had provided ongoing oversight. Thereafter, in April 2013, the court granted EPA’s motions to dismiss and granted plaintiffs leave to amend. The court granted the dismissal as a result of the plaintiffs’ failure to state a claim, evidenced through the lack of any stated allegation as to any affirmative “agency action,” a necessary component to prompt the EPA’s duty to consult with the Service. The court also noted that some of the claims were time-barred, as the challenges to the issuance of a re-registration eligibility determination (“RED”) were brought outside the six-year statute of limitations for such causes of action. After the plaintiffs amended their complaint, the court, in November 2013, still dismissed the claims in part, finding that the amended complaint was vague and ambiguous as to the affirmative acts which purportedly triggered the EPA’s duty to consult.
The plaintiffs then filed a Second Amended Complaint (“SAC”) in January 2014, asserting 74 claims under the ESA with respect to the effect of 50 pesticide ingredients on endangered species and critical habitats. All 50 ingredients were first registered before November 1, 1984, the date triggering action through the reregistration program. The EPA has issued REDs for the 50 ingredients.
The SAC also asserted 31 causes of action regarding the EPA’s alleged failure to consult. With regard to these claims, the plaintiffs identified four categories of “agency actions” which allegedly trigger the EPA’s duty to consult under Section 7 of the ESA. With regard to the first agency action — the EPA’s issuance of the RED or amended RED — the court held that 15 of the claims rely on REDs issued outside the six-year statute of limitation period as the affirmative agency action which allegedly triggered the EPA’s duty to consult. As such, the claims were time-barred. The court further reasoned that, with respect to each RED issued within the statutory period, the claims lacked subject matter jurisdiction. Accordingly, the court dismissed those claims.
Second, the plaintiffs contended that the EPA’s “continued discretionary control and involvement in this pesticide’s registration” constituted an “ongoing agency action,” triggering the EPA’s duty to consult. The court explained that an “aggregation of acts that otherwise would not be sufficient to trigger the duty” to consult was inadequate. The plaintiffs then further contended that the legal standard for failure to consult and reinitiate claims was inconsistent. The court responded that the standards laid out in 50 C.F.R. Section 402.14(a) were comprehensive, not inconsistent.
Third, the plaintiffs alleged that the “completion of product registration” for each pesticide constituted an affirmative agency act triggering the duty to consult. The court held that the plaintiffs may not base their failure-to-consult claims on the EPA’s “completion” of product reregistration — as opposed to the actual registration actions — for products containing a particular active ingredient.
Finally, the court explained that, with regard to whether the EPA’s post-RED reregistration of products containing the pesticide constituted an “agency action” under Section 7, it must consider the framework of the two-part test laid out in Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012). First, a court must determine whether a federal agency affirmatively authorized, funded or carried out the underlying activity. Second, a court must assess whether the agency had some discretion to influence or change the activity for the benefit of a protected species. In the instant case, the court found that the plaintiffs had sufficiently alleged that the EPA affirmatively authorized, funded and carried out pesticide product reregistrations with respect to each pesticide ingredient and that the EPA had discretion to influence whether to reregister pesticides, thus affecting protected species. As such, the court determined that the plaintiffs had sufficiently alleged affirmative agency actions under Section 7. Nonetheless, the court still was powerless to make a determination regarding the post-RED reregistration, as it found it had no jurisdiction to entertain claims challenging the analyses or conclusions contained in the RED. Further, the SAC failed to identify which issues raised by the post-RED acts triggered a duty to consult. Accordingly, the court allowed the plaintiffs an opportunity to amend.
With regard to whether the plaintiffs sufficiently stated claims against the EPA under ESA Section 7 by failing to reinitiate consultation with the Service, the court found that the plaintiffs failed to identify an agency action that would give rise to a duty to reinitiate consultation with respect to many of the pesticides at issue. The court explained that “the actions on which the EPA initially consulted with the Service have been superseded by reregistration, and the plaintiffs have not identified any consultation on the more recent actions that could be reinitiated.” Still, the plaintiffs’ complaint did not allege that reregistration was complete for certain other ingredients. With respect to those ingredients and the pesticides that made up the ingredients, no superseding reregistration had occurred where original reregistration was not present. The court then held that the plaintiffs adequately pled events triggering a duty to reinitiate consultation, and, as such, the motions to dismiss the reinitiation claims as to those ingredients were denied.