Summary of a Recent
Judicial Development in
Environmental Law

EPA's Failure to Suspend or Cancel Reregistration
Was Not Final Agency Action

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Beyond Pesticides v. Whitman, 360 F. Supp. 2d 69 (D.D.C. 2004), the United States District Court for the District of Columbia granted the Environmental Protection Agency's (EPA) motion to dismiss the plaintiffs' claims brought pursuant to Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the Resource Conservation and Recovery Act (RCRA), and Administrative Procedure Act (APA). The plaintiffs alleged that the EPA unlawfully failed to suspend and cancel registrations of wood preservation chemicals alleged to be harmful to humans and the environment. The court held that it lacked jurisdiction to hear any of the plaintiffs' claims.

Background

In June 2003, the instant court ruled that it did not have jurisdiction to hear the plaintiffs' motion for a preliminary injunction pursuant to FIFRA. Id. at 70-71. Specifically, in Beyond Pesticides v. Whitman, 294 F. Supp. 2d 1, 8 (D.D.C. 2003), the court stated that it lacked jurisdiction because FIFRA limited its judicial review authority to final agency actions. Id. at 71. Rather than waiting for the reregistration process to conclude, the plaintiffs filed the instant action. In the instant action, the plaintiffs conceded that the EPA was engaged in reregistering the wood preservation chemicals; however, they alleged that the agency's decision to start the reregistration process, instead of cancellation proceedings, constituted final agency action. Id.

Arguments

The plaintiffs alleged that the EPA unlawfully failed to suspend and cancel the registrations of three wood preservatives that allegedly caused adverse effects in humans and the environment. Id. at 70. They contended that the court had jurisdiction to hear its claims under FIFRA, RCRA, and the APA. Id. at 70.

Analysis and Holdings

As of the date on which the plaintiffs' instant petition was filed, the court was unaware of any final agency action having taken place since the court considered the plaintiffs' previous petition. Id. at 71. Because the EPA was still actively engaged in the reregistration process and had not conducted any final agency action, the court held that it lacked jurisdiction to hear plaintiffs' FIFRA claims. Id.

The court also held that it lacked jurisdiction to hear the plaintiffs' claims pursuant to the RCRA, stating that "[t]he plain language of RCRA clearly place[d] exclusive jurisdiction in the Court of Appeals." Id.

Finally, the court held that the plaintiffs' claims pursuant to the APA failed as well. Id. at 71. The APA allows plaintiffs to pursue a general cause of action when they have been adversely affected by agency action within the meaning of a relevant statute; however, plaintiffs may not do so when the relevant statute precludes judicial review, and as mentioned, both FIFRA and the RCRA precluded judicial review in the instant action. Id.

The case was decided on January 28, 2004.