Summary of a Recent
Judicial
Development in
Environmental Law
EPA's Failure to Immediately Suspend or Cancel the Reregistration
of Wood Preservative did not Constitute Final Agency Action
under FIFRA
Eric H. FoyNational AgLaw Center Research Associate
Summary of Decision
In Beyond Pesticides v. Whitman, 294 F. Supp. 2d 1 (D.D.C. 2003), the United States District Court for the District of Columbia denied plaintiffs' motion for preliminary injunction because the court held that it lacked jurisdiction to hear the merits of the motion. Plaintiffs claimed that the Environmental Protection Agency (EPA) failed to suspend or cancel the registration of pentachlorophenol, as required by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and that the EPA's decision to engage in a reregistration process, rather than a special review, was an abuse of discretion. The court held that the EPA had not taken final agency action; therefore, the court lacked jurisdiction.
Background
Pentachlorophenol, the focus of plaintiffs' prayer for relief, is used primarily as a wood preservative to protect and treat utility poles. Id. at 4. In 1997, the EPA began a registration review for the preservative, which continued through the beginning of the instant action. Id. On November 27, 2002, the EPA completed a draft preliminary risk assessment of pentachlorophenol, but, at the time of plaintiffs' filing, the draft had not gone through internal agency review or public comment. Id. During the reregistration process, plaintiffs were in regular correspondence with the agency about the chemical's alleged risks to humans and the environment. Id. After years of correspondence, plaintiffs submitted a formal petition to the EPA calling for the immediate suspension and cancellation of pentachlorophenol's registration "based on EPA's past findings regarding [its] risk . . . [and] new evidence of its risk to public health and the environment." Id. at 6.
Arguments
The EPA argued that the court could not reach the merits of plaintiffs' claim for injunctive relief because it lacked jurisdiction under § 16 of FIFRA, 7 U.S.C. § 136n. Id. at 2. According to the agency, FIFRA required final agency action before the court could exercise jurisdiction over plaintiffs' claim. Id. The agency asserted that an action based on unreasonable delay was outside the scope of FIFRA's judicial review provision. Id. at 7.
Plaintiff argued that the agency's delay to suspend or cancel the registration of pentachlorophenol was unreasonable and that the EPA's inaction constituted final agency action under § 16 of FIFRA. Id. at 2. For this reason, plaintiffs asserted that the court's exercise of jurisdiction over the instant action was appropriate. Id.
Analysis and Holdings
Before the court could review the merits of plaintiffs' petition, it first examined whether it had jurisdiction. Id. at 7. Section 16 of FIFRA provides:
Except as otherwise provided in this subchapter, the refusal of the Administrator to cancel or suspend a registration or to change a classification not following a hearing and other final actions of the Administrator not committed to the discretion of the Administrator by law are judicially reviewable by the district courts of the United States.
Id.
The court held that the plain language of § 16 of FIFRA confined judicial review to final agency actions; therefore, the first and only issue before the court was whether the EPA had taken final agency action with regard to plaintiffs' contentions. Id. Plaintiffs presented case law supporting their proposition that agency inaction could be construed as final agency action capable of judicial review. Id. at 8. However, in the instant action, the EPA was currently conducting the reregistration process when plaintiffs filed their petition for judicial review. Id. at 9. Ultimately, the court held that "EPA's failure to engage in the type of review plaintiffs' prefer, at the time plaintiffs request it [was] not the type of 'inaction' tantamount to a final order under Section 16 of FIFRA." Id. at 10. For this reason, the court denied plaintiffs' motion for preliminary injunction because it lacked jurisdiction. Id.
The case was decided on June 20, 2003.