Summary of a Recent
Judicial Development in
Environmental Law

Formal FOIA Request Not Required to Challenge
EPA's FIFRA Reregistration Regime

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Natural Resources Defense Council v. Johnson, 488 F.3d 1002 (D.C. Cir. 2007), the United States Court of Appeals for the District of Columbia Circuit reversed and remanded the district court's decision that had granted the Environmental Protection Agency's ( EPA) motion to dismiss because the plaintiff lacked standing. The National Resources Defense Council (NRDC) alleged that the EPA violated statutory and regulatory reporting requirements by failing to follow Federal Advisory Committee Act (FACA) disclosure procedures in developing a pesticide reregistration program. The instant court held that the plaintiff was not required to file a formal Freedom of Information Act (FOIA) request to have standing.

Background

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136y, requires the EPA to administer a pesticide registration regime. Id. at 1003. Although the EPA originally registered atrazine in 1958, a subsequent amendment to FIFRA required the agency to reregister the chemical. Id. In January 2003, the agency issued an Interim Reregistration Eligibility Decision (IRED) announcing that products containing atrazine could be reregistered if the registrant could provide data confirming that atrazine did not cause unreasonable adverse effects. Id. To facilitate the reregistration process, the EPA agreed to help registrants develop an appropriate monitoring process in order to collect the necessary information. Id. The agency also issued an additional IRED to describe the monitoring system it had developed, and to announce the registration of Sygenta Crop Protection, the first product containing atrazine to reregister under the new regime. Id. Following the development of the monitoring system, the NRDC sued the agency in district court claiming that the procedure it used to develop the new monitoring regime did not comply with FACA. Id. The court held that the plaintiff lacked standing because it could not show that it requested and was denied specific agency records. Id. According to the district court, the NRDC needed to submit a FOIA request for documents rather than simply complaining that the EPA had violated FACA. Id. The NRDC appealed. Id.

Arguments

The NRDC claimed that the committees used by the agency to develop the reregistration monitoring program were advisory committees within the meaning of FACA. Id. As such, it asserted that the committees were subject to FACA's disclosure requirements, which the NRDC alleged were not followed. Id.

Analysis and Holdings

Although FACA incorporates FOIA's exemptions, the government's duty to disclose is otherwise independent of FOIA. Id. In applying this principle, the court held that the NRDC did not need to file a formal request for documents to maintain its action for alleged FACA violations. Id.

The case was decided on May 25, 2007.