Summary of a Recent
Judicial Development in
Environmental Law

Lack of Standing and Final Agency Action Defeat
Procedural Challenge to Registration of Pesticides

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Natural Resources Defense Council v. Johnson, 422 F. Supp. 2d 105 (D.D.C. 2006), the United States District Court for the District of Columbia granted the Environmental Protection Agency's (EPA) motion to dismiss the petition of the Natural Resources Defense Council (NRDC), which alleged that the EPA violated reporting requirements in its registration of pesticides. The court held that the agency had not taken final action, and that the NRDC lacked standing to bring its claim pursuant to the Federal Advisory Committee Act (FACA).

Background

The Natural Resources Defense Council was a non-profit organization that advocated for the proper registration of pesticides. Id. at 108. The registration and monitoring of pesticides are part of the EPA's regulatory responsibilities. Id. To protect against environmental harm, the agency performed periodic reviews of the two pesticides at issue, atrazine and dichlorvos. Id. Plaintiff alleged that its members were exposed to the two named chemicals in their food and drinking water. Id. On February 17, 2005, the NRDC filed suit in the instant court against the EPA alleging "rampant violations of key procedural requirements in connection with the agency's consideration of the adverse effects of various pesticides on human health and the environment." Id. The EPA filed a motion to dismiss and, in the alternative, a motion for summary judgment. Id.

Arguments

The NRDC alleged that the EPA's "review processes for atrazine and dichlorvos [did] not comply with the defendant's own implementing regulations"; that "defendant improperly relied on advisory committees during its periodic reviews of atrazine"; and that the "defendant entered into secret agreements with manufacturers of atrazine and dichlorvos, allowing the use of these pesticides to continue essentially unfettered." Id. Plaintiff sought judicial review of the EPA's actions.

The EPA argued that the court did not have subject matter jurisdiction to hear plaintiff's claims regarding the review processes because the agency had not yet taken final agency action. Id. at 109. The EPA also denied that it established and utilized an advisory committee, and further argued that plaintiff did not have standing to raise alleged violations of the FACA. Id. at 115.

Analysis and Holdings

Upon a motion to dismiss for lack of subject matter jurisdiction, the plaintiff carries the burden of establishing that the court has jurisdiction. Id. at 110. Generally, a court will only have subject matter jurisdiction to judicially review agency action when the agency's decision is final. Id. To determine whether a particular agency action is final, the court reviews the factual record for clues as to whether the agency's position is definitive and has a direct and immediate effect on the day-to-day business of the parties. Id. After reviewing the facts of the case, the court held that the agency had not taken final action with respect to the Atrazine and Dichlorvos Special Reviews, the Atrazine and Dichlorvos Registration Standards Process, or the Atrazine Reregistration Review. Id. at 110-14. As a result, the court held that it lacked subject matter jurisdiction to hear plaintiff's Administrative Procedure Act claims.

Before granting EPA's motion to dismiss plaintiff's FACA claim, the court reviewed the basic elements of party standing and reminded the parties that it was plaintiff's burden to establish standing in order for the court to exercise subject matter jurisdiction. Id. at 116. Plaintiff sought an order requiring the EPA to release all materials relating to the alleged advisory committees, as required by the FACA. Id. at 115. Because NRDC failed to make a Freedom of Information Act request for any documents, plaintiff did not suffer any injury. Id. at 115-16. Without suffering an injury in fact, the court held that plaintiff lacked standing to bring its FACA challenge. Id.

The case was decided on March 8, 2006.