Summary of a Recent
Judicial Development in
Environmental Law

District Court Does Not Have Subject Matter Jurisdiction to Review
Challenged Pesticide Tolerance Decision

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In New York v. EPA, 350 F. Supp. 2d 429 (S.D.N.Y. 2004), the United States District Court for the Southern District of New York granted the United States Environmental Protection Agency's (EPA) motion to dismiss for lack of subject matter jurisdiction. A group of health, religious, environmental, and farmworker organizations challenged the EPA's determinations in reevaluating pesticide residue tolerances on produce. The court held that the Federal Food, Drug, and Cosmetic Act (FDCA) precluded judicial review under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

Background

Before foods treated with agricultural pesticides may be moved through interstate commerce, the EPA must set pesticide residue tolerance levels to assure food safety. Id. at 432. The EPA's regulatory tools are set forth in FIFRA, 7 U.S.C. § 136, and the FDCA, 21 U.S.C. §§ 301. Id. The EPA may also authorize tolerance exemptions through 21 U.S.C. §§ 331(a), 342(a)(2)(B), and 346a(a)(1)-(2), (b)(2)(A)(i). Id.

In 1996, Congress passed the Food Quality Protection Act (FQPA), Pub. L. No. 104-170, 110 Stat. 1489 (1996), requiring the EPA to go one step further to assure food safety. Id. Under the FQPA, in addition to its FIFRA and FDCA responsibilities, the EPA must reevaluate "the safety of all extant pesticide tolerances" and "apply a presumptive 'tenfold margin of safety in order to take into account potential pre- and post-natal toxicity and completeness of the data with respect to exposure and toxicity to infants and children.'" Id. Any departure from the margin of safety must be based on "reliable data" to assure the safety of infants and children. Id. After the FQPA took effect, the Administrator of the EPA departed from the ten-fold margin of safety "in its reassessment of permissible tolerances with respect to certain pesticides." Id. The State and the organizations "filed two separate actions challenging the Administrator's determinations." Id. at 431.

Arguments

The plaintiffs argued

that in leaving certain existing tolerances in place for these pesticides without applying the tenfold margin of safety, the EPA failed to take into account scientific data demonstrating serious safety risks, or otherwise acted in the absence of "reliable data" that the departure from the tenfold margin would be "safe for infants and children."
Id. at 432-33.

In response, the defendants argued for dismissal for lack of subject matter jurisdiction because the "challenged acts [were] not subject to review under the Administrative Procedure Act . . . and that plaintiffs failed to exhaust administrative remedies." Id. at 433. Specifically, the defendants argued that "the agency actions at issue [fell] under the APA's exception in 5 U.S.C. § 701(a)(1) for actions precluded from judicial review by statute, because section 408(h) of the FDCA sets forth an exclusive procedure for obtaining review of certain agency actions" and, in the alternative, they argued "that even if the APA's actions [were] not insulated from district court review by the FDCA, the challenged tolerance determinations [did] not qualify as 'final agency action' subject to judicial review under section 704 of the APA." Id. at 434.

Analysis and Holdings

To determine whether an agency's decision is final, the court looked to the Supreme Court's decision in Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). In Abbott, the Supreme Court provided two conditions to determine whether a particular agency decision was final: (1) "the action must mark the consummation of the agency's decisionmaking process"; and (2) the action must "be one by which rights or obligations have been determined, or from which legal consequences will flow." Id. at 434-35. The EPA argued that the tolerance determinations were not final agency decisions because:

(1) they were not accomplished through the issuance of a new regulation that "modified or revoked" a tolerance, but rather, left existing tolerances in place; (2) they were issued through "Reregistration Eligibility Decisions" . . . rather than through regulations; and (3) they may be challenged administratively under section 408(h) of the FDCA, 21 U.S.C. § 346a(h), the provision governing review of certain agency actions.
Id. at 434.

After reviewing the EPA's arguments, the instant court held that the agency's arguments were meritless, "belied by the EPA's own earlier description of the actions," "directly contradicted by the language of the APA and by controlling Supreme Court authority," and, at best, not dispositive. Id. at 434-36.

After determining that the EPA's tolerance determinations were sufficiently final for judicial review, the court considered whether the plaintiffs' claims fell within the APA's exception to judicial review provided in § 702(a)(1) because either the FDCA or FIFRA precluded it. Id. at 434. For judicial review to be precluded under the APA, the EPA was required to show that such preclusion was both Congressionally intended and specific. Id. at 437. The EPA noted § 408(h)(1) of the FDCA, which vested exclusive jurisdiction over certain agency determinations in the Courts of Appeals, and argued that it precluded judicial review under the APA of the EPA's determinations regarding pesticide residue tolerances on produce. Id. at 437-38. The court concluded that this section "clearly demonstrate[d] Congress's intent to preclude other avenues of review for determinations issued under the subsections to which it applie[d]." Id. at 438. Additionally, the court held that although FIFRA granted jurisdiction to review the tolerance determinations, it was irrelevant because § 408(h) precluded review under FIFRA or "any other provision of law." Id. at 446. For this reason, the court dismissed for lack of subject matter jurisdiction. Id. at 447.

The case was decided on August 4, 2004.