Summary of a Recent
Judicial Development in
Pesticide Regulation

Farm Workers Challenge to Pesticide Re-registration
Survives Motion to Dismiss by Intervening Defendant

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In United Farm Workers v. Administrator, United States Environmental Protection Agency, No. C. 07-3950, 2008 WL 3929135 (N.D. Cal. Aug. 26, 2008), the United States District Court for the Northern District of California denied defendant intervenor Dow Agrosciences LLC's (DAS) motion to dismiss United Farm Workers' (plaintiffs) complaint alleging that violations of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) were committed during the re-registration process of chlorpyrifos, an insecticide. The court held that plaintiffs had adequately stated a claim under § 3(c)(5) of FIFRA because they claimed the administrator of the United States Environmental Protection Agency (EPA) had acted arbitrarily and capriciously, and not that the administrator failed to act at all.

Background

In September 2001, the EPA issued an Interim Re-registration Eligibility Decision (IRED) for chlorpyrifos. Id. at *1. To comply with FIFRA, the EPA must issue an IRED to lawfully re-register pesticides that were originally registered before November 1, 1984. Id. Plaintiffs filed suit asking the court to declare that the EPA acted arbitrarily, capriciously, and contrary to law when it approved the re-registration of chlorpyrifos for agricultural use, and sought injunctive relief ordering the EPA to make a new re-registration decision. Id. DAS moved to dismiss plaintiffs' claims. Id.

Arguments

Plaintiffs asserted that their action was brought pursuant to § 3(c)(5) of FIFRA, which provides that "the Administrator shall register a pesticide if the Administrator determines that . . . it will perform in its intended function without unreasonable adverse effects on the environment." Id. at *2.

DAS argued that the case was governed by § 16n(b) because, according to DAS, plaintiffs stated a claim pursuant to § 4 of FIFRA, and § 4 is subject to § 16n(b). Id. at *2. Essentially, DAS asserted that plaintiffs were charging that the administrator failed to act. Id.

Analysis and Holdings

The court stated that DAS was misguided in its argument. Id. at *3. According to the court, the EPA's alleged failure to take an action required under § 4 of FIFRA was not the thrust of plaintiffs' complaint. Id. Instead, plaintiffs claimed the administrator "acted arbitrarily and capriciously by selectively considering some data and disregarding others." Id. Plaintiffs argument, therefore, was governed by § 3(c)(5) of FIFRA as plaintiffs asserted, and good cause was shown. Id.

The case was decided on August 26, 2008.