Summary of a Recent
Judicial Development in
Environmental Law

Appellate Court's Review of Agency Action Is Generally Confined
to the Agency's Administrative Record

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Natural Resources Defense Council v. EPA, No. Civ. RDB 03-2444, 2005 WL 1241904 (D. Md. May 24, 2005), the United States District Court for the District of Maryland reversed a magistrate's order in part with respect to discovery of the United States Environmental Protection Agency (EPA) and affirmed in part with respect to discovery of the defendant intervenors. The appellee, Natural Resources Defense Council (NRDC), brought a citizen suit alleging that the EPA was violating Section 7(a) of the Endangered Species Act (ESA), 16 U.S.C. § 1531, by not consulting with either the Fish and Wildlife Service (FWS) or the National Marine and Fisheries Service (NMFS) regarding the effect of atrazine, a pesticide used to control week growth, on endangered species. Pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, the instant court limited the appellee's discovery of the EPA to the agency's administrative record and the information shared between the EPA and plaintiff-intervenors, but permitted discovery of the defendant-intervenors regarding the ecological effects assessment conducted during the EPA's Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) reregistration process of atrazine for the previous six years in relevant geographic areas.

Background

Registration and monitoring of pesticides are both part of the EPA's regulatory responsibilities pursuant to FIFRA. Section 4 of FIFRA, 7 U.S.C. §§ 136, requires pesticides that were registered with the EPA prior to November 1, 1984, be reregistered to ensure they do not cause "unreasonable adverse effects on the environment." Id. at *1. Because atrazine was registered prior to 1984, the NRDC argued that FIFRA required the agency to reregister the pesticide. Id. Specifically, the NRDC contended that the "reregistration process ha[d] triggered the EPA's duty to consult with FWS and/or NMFS, pursuant to Section 7(a) of the ESA." Id. Because the EPA had failed to conduct such consultations, the NRDC filed suit. Id. Before the magistrate, the two parties disputed several issues concerning the scope of discovery. Id. After the disputes were fully briefed and a hearing was held, the magistrate "granted NRDC's motion to compel discovery and denied the EPA's cross motion to limit the scope of review to the administrative record and Defendant-Intervenors' cross motion for entry of a protective order." Id. The EPA and the defendant-intervenors (collectively "appellants") appealed. Id.

Arguments

The appellants argued that the magistrate's findings were "contrary to law, in part, because she mischaracterized the nature of [the] case, mainly, that it [was] a failure-to-act case under the Administrative Procedure Act (APA), 5 U.S.C. § 551, containing a 'core question' concerning the 'potential effect of atrazine on certain endangered species.'" Id. at *3.

The NRDC argued "that a challenge under the ESA, alleging that an agency has failed to act, should not be limited to an administrative record generated under a separate statute and, therefore, discovery [was] appropriate." Id.

Analysis and Holdings

The court agreed with the EPA, finding the magistrate mischaracterized the action as a failure-to-act case, namely because the NRDC characterized the action as a failure-to-consult case. Id. at *8. Construing the matter as a failure-to-consult case, the court then examined the magistrate's "determination to permit extra-record evidence by allowing discovery of the EPA and the Defendant-Intervenors." Id. at *8. In discussing its power of review, it stated that "[g]enerally, a Court's review of an agency action is confined to the administrative record." Id. In fact, in the Ninth Circuit, courts may only go beyond the administrative record during discovery if: "1) an agency's failure to explain its action effectively frustrates judicial review; 2) it appears that the agency relied on materials not included in the record; 3) technical terms or complex subjects need to be explained; or 4) there is a strong showing of agency bad faith or improper behavior." Id. at *9. The NRDC neither alleged or showed "that 1) the EPA's failure to explain its action effectively frustrate[d] judicial review; 2) the EPA relied on materials not included in the record; 3) technical terms or complex subjects need[ed] to be explained; or 4) there [was] a strong showing of bad faith or improper behavior on the part of the EPA." Id. at *10. Ultimately, the court held that the magistrate's "discovery order granting NRDC's motion to compel discovery and denying EPA's cross motion for entry of a protective order project[ed] the Court into an administrative process, contrary to law and the intent of Congress." Id. at *11. Therefore, the court reversed the magistrate's decision in part, denied the NRDC's motion to compel as to the EPA, and granted the EPA's cross motion to limit discovery to its administrative record. Id.

The court's decision regarding discovery of the defendant-intervenors was different. In order to intervene in this action, the defendant-intervenors offered to "bring forth relevant independent information, ranging from unique safety data to practical agricultural experience using atrazine, that otherwise would not [have been] presented by the other parties, the absence of which would [have] adversely impact[ed] the proceedings." Id. The instant court held that this information was "an appropriate subject of discovery directed by NRDC to the Defendant-Intervenors." Id. Therefore, the court affirmed the magistrate's order allowing discovery of the defendant-intervenors regarding the ecological effects assessment conducted during the EPA's FIFRA reregistration process of atrazine for the previous six years in relevant geographic areas. Id. at *12.

The case was decided on May 24, 2005.