Summary of a Recent
Judicial Development in
Environmental Law

Agency Action May Not Be Judicially Reviewed until Final

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Syngenta Crop Protection, Inc. v. EPA, 202 F. Supp. 2d 437 (M.D.N.C. 2002), the United States District Court for the Middle District of North Carolina denied a pesticide manufacturer's motions for preliminary injunction and a temporary restraining order. The plaintiff alleged that the United States Environmental Protection Agency (EPA) violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) by failing to protect the plaintiff's exclusive use data. The court held that the EPA had not conducted any final agency action capable of judicial review.

Background

The plaintiff, a corporation engaged in the business of developing, manufacturing, and selling crop protection chemicals, developed metolachlor in the 1970s. Id. at 441. The plaintiff conducted a number of studies to "develop, register, and maintain registration for metolachlor" at a cost of millions of dollars. Id. In 1996, the plaintiff produced a new version of metolachlor, which was designed to be more environmentally friendly and more efficient. Id. Because the new version of metolachlor posed a reduced threat to the environment, the EPA gave it an expedited review and issued a conditional registration under FIFRA § 3(c)(7)(C), 7 U.S.C. § 136a(c)(1)(F). Id. When the EPA registered the new pesticide, "it requested that [the plaintiff] voluntarily cancel its metolachlor registrations in order to motivate consumers to use the new, less polluting pesticide." Id. at 442. The plaintiff complied with the EPA's request in September 1999, and three months later, the EPA publicly announced that the cancellation of metolachlor would be effective June 26, 2000. Id. Thereafter, the plaintiff stopped paying registration fees for metolachlor; however, the EPA failed to immediately cancel the registration according to agency protocol. Id. In January 2000, defendant Cedar Chemical Corp. applied for a "me-too" or "follow-on" registration of a metolachlor-type product, and in October 2000, defendant Sipcam Agro USA notified the plaintiff that it was seeking the same. Id. Then, in September 2001, defendant Drexel Chemical Corp. followed suit. Id. The EPA granted all three defendants' registrations, and the plaintiff brought the instant action. Id.

Arguments

The EPA alleged that the court lacked subject matter jurisdiction to hear the plaintiff's claims because "Congress did not intend for FIFRA, 7 U.S.C. § 136n(c), to confer jurisdiction on private citizens or registrants to sue the government." Id. at 443. The agency also argued that the case was not ripe for review. Id.

The plaintiff claimed that the EPA's granting of its competitors' registrations of metolachlor-like products "violate[ed] its exclusive use protections under 40 C.F.R. § 152.116(a)." Id. at 442. Additionally, the plaintiff argued that the EPA should have cancelled its metolachlor registration when made that request and failed to pay registration fees. Id. Had the EPA cancelled the pesticide's registration upon the plaintiff's request, the plaintiff argued, "none of the conditional applicants' requests [could be] granted because the regulations allowing consideration of those applications require[d] that a registration with the same active ingredient exist[ed]." Id.

Analysis and Holdings

The court first addressed whether Congress had waived sovereign immunity in FIFRA §136n(c), therefore precluding judicial review in the instant case. Id. at 443. The court explained that "a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign." Id. (quoting Lane v. Pena, 518 U.S. 187, at 192 (1996)). Id. After examining the text of §136n(c), the court found that "the statute fail[ed] to unequivocally express that the government may be sued." Id. at 444.

Next, the court addressed whether the court had jurisdiction to review the action pursuant to FIFRA §136n(a). Id. at 445. The EPA conceded that Congress had waived sovereign immunity pursuant to §136n(a), but the agency argued that it had not engaged in any final agency action capable of judicial review. Id. For an agency's action to be final, two elements must be present: (1) the action must consummate the agency's decision-making process; and (2) the act must determine "rights and obligations." Id. at 446. After reviewing the statements of the EPA's attorneys as to whether Cedar Chemical's metolachlor application should be allowed or whether the plaintiff would be entitled to the thirty-day notice provision, the court found "no consistency among EPA counsel's statements to the [c]ourt sufficient to constitute a final action which consummated the EPA's decisionmaking process," and it further explained that "the statements were made in support of the EPA and there [was] nothing on the record to establish that the EPA itself endorsed the statements." Id. at 446-47.

Finally, the plaintiff "contend[ed] that its request for a preliminary injunction [was] ripe for review on its contention that the EPA ha[d] refused to provide notice under [§ 136n(a)] if it determine[d] that [the plaintiff's] data [was] eligible for exclusive use protection." Id. at 447. The plaintiff pointed to letters written by the EPA stating that the agency did not intend to give the plaintiff thirty-days notice before denying exclusive use protection. Id. at 448. However, the court held that the letters did not constitute the consummation of the EPA's decision-making process or foreclose the possibility that the agency would wait for thirty days. Id.

For these reasons, the court denied the plaintiff's motion for preliminary injunction and motion for stay pending appeal. Id. at 451.

The case was decided on April 11, 2002.