Center for Biological Diversi v. EPA , 861 F.3d 174 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 6, 2017 Decided June 30, 2017
No. 14-1036
CENTER FOR BIOLOGICAL DIVERSITY, ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
E. I. DU PONT DE NEMOURS AND COMPANY, ET AL.
INTERVENORS
Consolidated with 15-5168
On Petition for Review of an Order of the
United States Environmental Protection Agency and
On Appeal from the United States District Court for the
District of Columbia
(No.1:14-cv-00942)
Amanda W. Goodin argued the cause for
petitioners/appellants. With her on the briefs were Kristen L.
Boyles, Patti A. Goldman, George A. Kimbrell, and Jason C.
Rylander.
2
Travis Annatoyn, Attorney, U.S. Department of Justice,
argued the cause for respondent/appellee. With him on the
brief were John C. Cruden, Assistant Attorney General, and
Andrew C. Mergen, Ellen J. Durkee, Lesley
Lawrence-Hammer, and Anna T. Katselas, Attorneys. Paul
Cirino, Trial Attorney, entered an appearance.
Kirsten L. Nathanson, Warren U. Lehrenbaum, and
Sherrie A. Armstrong were on the brief for intervenor-
respondents/intervenor-appellees in support of respondent.
Before: HENDERSON and TATEL, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Senior Circuit Judge
RANDOLPH.
KAREN LECRAFT HENDERSON, Circuit Judge:
The Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531et seq., and its implementing regulations require the United
States Environmental Protection Agency (“EPA”) to consult
with certain wildlife services before taking any action that
“may affect” an endangered species or its habitat. See 50 C.F.R.
§ 402.14(a). Nevertheless, the EPA issued a registration order
authorizing the use of the pesticide cyantraniliprole (“CTP”)
without having made an ESA “effects” determination or
satisfied its duty to consult. The Center for Biological
Diversity, the Center for Food Safety and Defenders of
Wildlife (collectively, “Conservation Groups”) began two
actions against the EPA: a complaint in district court under the
ESA’s citizen-suit provision and a petition for review in our
Court pursuant to the Federal Insecticide, Fungicide and
3
Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136 et seq. Because
we conclude that FIFRA grants the court of appeals exclusive
jurisdiction to review an ESA claim that is “inextricably
intertwined” with a challenge to a pesticide registration order,
we affirm the district court’s dismissal of the Conservation
Groups’ ESA citizen suit. In addition, we grant the
Conservation Groups’ FIFRA petition and remand the case to
the EPA for further proceedings as herein set forth.
I. BACKGROUND
A. Statutory Landscape
Endangered Species Act
The ESA constitutes “the most comprehensive legislation
for the preservation of endangered species ever enacted by any
nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978).
Indeed, the Congress enacted the ESA “to provide a means
whereby the ecosystems upon which endangered species and
threatened species depend may be conserved” and “to provide
a program for the conservation of such endangered species and
threatened species.” 16 U.S.C. § 1531(b). “The plain intent of
Congress in enacting [the ESA] was to halt and reverse the
trend toward species extinction, whatever the cost.” Tenn.
Valley Auth, 437 U.S. at 184.
“The ESA confers on the United States Departments of the
Interior . . . and of Commerce . . . shared responsibilities for
protecting threatened or endangered species of fish, wildlife
and plants.” In re Am. Rivers & Idaho Rivers United, 372 F.3d
413, 415 (D.C. Cir. 2004) (footnotes omitted) (citing 16 U.S.C.
§ 1533(a)). Section 7(a)(2) of the ESA mandates that every
federal agency “shall, in consultation with and with the
assistance of the Secretary, insure that any action authorized,
funded, or carried out by such agency . . . is not likely to
4
jeopardize the continued existence of any endangered species
or threatened species or result in the destruction or adverse
modification” of designated critical habitat. 16 U.S.C.
§ 1536(a)(2). That is, before taking any proposed action,
agencies must consult with either the National Marine Fisheries
Service (“NMFS”), located in the United States Department of
Commerce, or the United States Fish and Wildlife Service
(“FWS”), located in the United States Department of the
Interior, to determine if the action will “jeopardize”
endangered or threatened species.1 16 U.S.C. § 1532(15); 50
C.F.R. §§ 17.11, 402.01(b). This process, called—in
shorthand—“consultation,” is “designed as an integral check
on federal agency action, ensuring that such action does not go
forward without full consideration of its effects on listed
species.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 603 (1992)
(Blackmun, J., dissenting); accord Defs. of Wildlife v. Jackson,
791 F. Supp. 2d 96, 100 (D.D.C. 2011).
The EPA, with input from the FWS or the NMFS, first
makes an effects determination2 to determine whether a
1
Consultation with FWS experts is appropriate if the agency
action “may affect” terrestrial or inland fish species and with NMFS
experts if the agency action “may affect” a marine species. 16 U.S.C.
§ 1532(15); 50 C.F.R. §§ 17.11, 402.01(b).
2
Regarding the effects determination, the EPA’s implementing
regulation provides:
Effects of the action refers to the direct and indirect
effects of an action on the species or critical habitat,
together with the effects of other activities that are
interrelated or interdependent with that action, that
will be added to the environmental baseline. The
environmental baseline includes the past and present
impacts of all Federal, State, or private actions and
other human activities in the action area, the
5
proposed action “may affect,” 50 C.F.R. § 402.14(a), or “is not
likely to adversely affect,” id. § 402.13(a), an endangered or
threatened species or its habitat. If the EPA determines that an
action “may affect” an endangered species, formal consultation
is usually required. Id.§ 402.14(a)-(b). Formal consultation
requires the FWS or the NMFS to prepare a “biological
opinion” on whether the proposed action “is likely to
jeopardize the continued existence of listed species or result in
the destruction or adverse modification of critical habitat.” Id.
§ 402.14(h)(3). If, however, the agency determines—with the
written concurrence of the FWS or the NMFS—that “the action
is not likely to adversely affect listed species or critical habitat,
the consultation process is terminated, and no further action is
necessary.” Id. § 402.13(a).
The ESA contains a broad citizen-suit provision,
authorizing “any person” to “commence a civil suit on his own
behalf . . . to enjoin any person, including the United States and
any other governmental instrumentality or agency . . . who is
alleged to be in violation of any provision of this chapter or
regulation issued under the authority thereof.” 16 U.S.C.
anticipated impacts of all proposed Federal projects
in the action area that have already undergone
formal or early section 7 consultation, and the
impact of State or private actions which are
contemporaneous with the consultation in process.
Indirect effects are those that are caused by the
proposed action and are later in time, but still are
reasonably certain to occur. Interrelated actions are
those that are part of a larger action and depend on
the larger action for their justification.
Interdependent actions are those that have no
independent utility apart from the action under
consideration.
50 C.F.R. § 402.02.
6
§ 1540(g)(1). “The district courts . . . have jurisdiction” of ESA
citizen suits, id., but no action may be commenced “prior to
sixty days after written notice of the violation has been given
to the Secretary, and to any alleged violator.” Id.
§ 1540(g)(2)(A)(i).
Federal Insecticide, Fungicide and Rodenticide Act
In enacting FIFRA, the Congress authorized the EPA to
regulate the distribution, sale and use of pesticides “[t]o the
extent necessary to prevent unreasonable adverse effects on the
environment . . . .”3 7 U.S.C. § 136a(a). Under FIFRA, a
pesticide may not be distributed or sold in the United States
unless it has first been “registered” by the EPA. Id. That is, the
“EPA issues a license, referred to as a ‘registration,’ for each
specific pesticide product allowed to be marketed; the
registration approves sale of a product with a specific
formulation, in a specific type of package, and with specific
labeling limiting application to specific uses.” 69 Fed. Reg.
47,732, 47,733 (Aug. 5, 2004). The EPA registers a pesticide
if the agency determines:
(A) its composition is such as to warrant the
proposed claims for it;
(B) its labeling and other material required to be
submitted comply with the requirements of this
subchapter;
(C) it will perform its intended function without
unreasonable adverse effects on the
environment; and
3
Under FIFRA, a “pesticide” is “any substance or mixture of
substances intended for preventing, destroying, repelling, or
mitigating any pest . . . .” 7 U.S.C. §136(u).
7
(D) when used in accordance with widespread
and commonly recognized practice it will not
generally cause unreasonable adverse effects
on the environment.
7 U.S.C. § 136a(c)(5).
Like the ESA, FIFRA contains a citizen-suit provision. See
id. § 136n. Unlike the ESA, however, judicial review of a
FIFRA order proceeds in one of two ways, depending on, inter
alia, whether the EPA conducts a “public hearing” before
issuing its order. Id. If a claim challenges “the refusal of the
[EPA] to cancel or suspend a registration or to change a
classification not following a hearing” the order is “judicially
reviewable by the district courts of the United States.” Id.
§ 136n(a) (emphasis added). Conversely:
[I]n the case of actual controversy as to the
validity of any order issued by the
Administrator following a public hearing, any
person who will be adversely affected by such
order and who had been a party to the
proceedings may obtain judicial review by
filing in the United States court of appeals for
the circuit wherein such person resides or has a
place of business, within 60 days after the entry
of such order, a petition praying that the order
be set aside in whole or in part . . . . Upon the
filing of such petition the court shall have
exclusive jurisdiction to affirm or set aside the
order complained of in whole or in part.
Id. § 136n(b) (emphases added).
8
B. Factual Background
The Conservation Groups are three organizations
dedicated to the protection and enjoyment of the environment
and the nation’s endangered species; their members assert
recreational and aesthetic interests in observing native species
in undisturbed, natural habitats. Pet’rs’ Br. iii. For example,
Jeffery Miller, a member of the Center for Biological Diversity
(“Center”), considers himself “an avid amateur naturalist and
birdwatcher [who] frequently visit[s] habitat for rare and
endangered birds and other wildlife throughout California.”
Miller Decl. ¶ 7. In particular, Miller claims “recreational,
scientific, aesthetic, educational, moral, spiritual and
conservation interests” in observing a particular insect—the
Valley Elderberry Longhorn Beetle4—in its natural habitat.
Miller Decl. ¶ 14. Likewise, John Buse, also a Center member,
frequently visits Michigan’s Van Buren State Park to observe
rare wildlife, fish and plants. See Buse Decl. ¶ 9-10. Buse
expresses an interest in “the Mitchell’s satyr butterfly and its
continued existence in the wild for its role as a native
pollinator, for its beauty, and for its status as an indicator
species for the health of the fens, bogs, and other wetlands.”
Buse Decl. ¶ 11. Buse “intend[s] to return to Van Buren County
. . . to look for Mitchell’s satyr butterflies.” Buse Decl. ¶ 12.
His interest in the butterfly is shared by Martha Crouch, a
member of the Center for Food Safety. Crouch plans to visit
Berrien County, Michigan and hopes to “observe the Mitchell’s
satyr butterfly . . . in [its] natural habitat.”5 Crouch Decl. ¶ 12.
Crouch asserts that “[if] the Mitchell’s satyr butterfly . . . is
harmed or caused to go extinct because of new and increased
4
The Valley Elderberry Longhorn Beetle is listed as a
threatened species under the ESA.
5
The Mitchell’s satyr butterfly is listed as an endangered
species under the ESA.
9
exposure to pesticides formulated with CTP, [her] enjoyment
of observing wildlife species would greatly suffer by never
having the opportunity to observe these butterflies in their
natural habitat.” Crouch Decl. ¶ 12.
CTP is a broad spectrum insecticide used to combat
pestilent threats to the citrus and blueberry industries. JA 459.
On February 29, 2012, the EPA announced that it had received
applications to register pesticide products containing CTP
under FIFRA. Pesticide Products; Registration Applications,
77 Fed. Reg. 12,295, 12,295-97 (Feb. 29, 2012). The EPA
created an online docket and invited public comment on the
applications until March 30, 2012. Id. at 12,295. Two months
later, on May 23, 2012, the EPA published a Notice of Filing
announcing its receipt of a related petition to establish CTP as
a “new tolerance[]” under the “regulations for residues of
pesticides in or on food commodities.” Receipt of Several
Pesticide Petitions Filed for Residues of Pesticide Chemicals
in or on Various Commodities, 77 Fed. Reg. 30,481, 30,482
(May 23, 2012). Once again, the EPA invited public comment
on CTP until June 22, 2012. Id. at 30,481.
A year-long review period followed, during which time the
EPA prepared an “Environmental Fate and Ecological Risk
Assessment for the Registration of the New Chemical
Cyantraniliprole.” JA 109. The ecological risk assessment
determined that CTP is “highly toxic or very highly toxic” to
multiple taxonomic groups, including terrestrial invertebrates
such as butterflies and beetles. JA 257. Moreover, the
assessment determined—using agricultural census data from
2007—that 1,377 endangered species’ habitats “overlap[ped]
at the county-level with areas where cyantraniliprole is
proposed to be used.” JA 259. Among the species with
overlapping habitats were the Valley Elderberry Longhorn
Beetle, JA 325, and the Mitchell’s satyr butterfly, JA 373.
10
On June 6, 2013, the EPA announced its proposal to
register CTP as a pesticide under FIFRA. Again, the EPA
accepted public comment on the proposed action until July 14,
2013.6 On January 24, 2014, the EPA registered CTP as a
pesticide under FIFRA and approved fourteen end-use
products containing CTP. JA 420-46. Importantly, however,
the EPA registered CTP without having made an effects
determination or consulting with the FWS and/or the NMFS as
required by 50 C.F.R. § 402.13-14 and ESA section 7(a)(2).
C. Procedural History
The Conservation Groups challenged the EPA’s
registration of CTP in two fora, alleging in both that the EPA
violated section 7(a)(2) of the ESA by failing to consult before
registering CTP. On March 21, 2014, the Conservation Groups
provided the EPA a sixty-day notice letter of their intent to
challenge the registration of CTP in district court under the
ESA’s citizen suit provision. See 16 U.S.C. § 1540(g)(1). Three
days later, the Conservation Groups filed a separate
“protective” petition for review in our Court. See 7 U.S.C.
§ 136n(b). The Conservation Groups’ petition expressly
acknowledged, however, that they did “not believe the EPA’s
violations of the Endangered Species Act by failing to consult
. . . is reviewed pursuant to 7 U.S.C. § 136n(b) [but] in light of
the sixty-day time limit for appellate court jurisdiction and the
lack of clarity from judicial decisions regarding § 16 of FIFRA,
[their] petition [was] submitted as an appropriate protective
measure to preserve [their] claims.” JA 3. On June 3, 2014,
after the conclusion of the sixty-day notice period, the
Conservation Groups filed their ESA complaint in district
court. On the joint request of the EPA and the Conservation
6
In total, the EPA received twenty-three comments, including
from the Conservation Groups, regarding CTP registration and
responded to each. JA 48-49, 464-509.
11
Groups, we stayed the Conservation Groups’ petition to our
Court to prevent duplicative litigation. Order, Docket No. 14-
1036 (D.C. Cir. June 13, 2014).
On September 19, 2014, the EPA moved to dismiss the
Conservation Groups’ complaint in district court. On May 14,
2015, the district court granted the motion, explaining “[o]n its
face, [the Conservation Groups’] Complaint gives rise to an
‘actual controversy as to the validity’ of the FIFRA
Registration Order and is therefore governed by that Act’s
jurisdictional grant.” JA 80. In concluding that FIFRA vested
exclusive jurisdiction over the Conservation Groups’ claims in
the courts of appeals, the district court relied on the principle
that, if “a special statutory review procedure [exists], it is
ordinarily supposed that Congress intended that procedure to
be the exclusive means of obtaining judicial review in those
cases to which it applies.” JA 80 (quoting Media Access
Project v. FCC, 883 F.2d 1063, 1067 (D.C. Cir. 1989)).
The Conservation Groups filed a timely notice of appeal
and subsequently moved to consolidate their appeal of the
district court judgment with their then-stayed petition for
review. We granted the Conservation Groups’ motion on
December 7, 2015.
II. ANALYSIS
A. Jurisdiction
We begin, as we must, with the jurisdictional issues.
Bender v. Williamsport Area School Dist., 475 U.S. 534, 541
(1986) (“[E]very federal appellate court has a special
obligation to satisfy itself not only of its own jurisdiction, but
also that of the lower courts in a cause under review . . . .”
(internal quotation marks omitted)). There are two questions
we must resolve: first, whether the Conservation Groups have
12
standing to challenge the EPA’s registration of CTP; and
second, whether the district court has jurisdiction—under the
ESA, FIFRA or both—to hear their challenge. Because we can
approach jurisdictional issues in the order we see fit, see
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999)
(declining to “dictate a sequencing of jurisdictional issues”),
we begin with standing.
Standing
“Federal courts are not courts of general jurisdiction; they
have only the power that is authorized by Article III of the
Constitution and the statutes enacted by Congress pursuant
thereto.” Bender, 475 U.S. at 541. “The Constitution limits our
‘judicial Power’ to ‘Cases’ and ‘Controversies,’” West v.
Lynch, 845 F.3d 1228, 1230 (D.C. Cir. 2017) (citing U.S.
CONST. art. III, § 2, cl. 1), and “there is no justiciable case or
controversy unless the plaintiff has standing,” id. (quoting Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998)).
Article III’s “irreducible constitutional minimum of
standing” requires a plaintiff to meet three requirements. Lujan,
504 U.S. at 560. “First, the plaintiff must have suffered an
injury in fact—an invasion of a legally protected interest which
is (a) concrete and particularized, and (b) actual or imminent,
not conjectural or hypothetical.” Id. (citations and internal
quotation marks omitted). Second, the plaintiff must
demonstrate “a causal connection between the injury and the
conduct complained of” such that the “injury in fact” is fairly
traceable “to the challenged action of the defendant,” and not
the result of “the independent action of some third party not
before the court.” Id. (internal quotation marks omitted).
Finally, a favorable decision must be “likely” to redress the
alleged injury; “[w]hen conjecture is necessary, redressability
is lacking.” West, 845 F.3d at 1237.
13
“An association ‘has standing to sue under Article III of
the Constitution of the United States only if (1) at least one of
its members would have standing to sue in his own right; (2)
the interest it seeks to protect is germane to its purpose; and (3)
neither the claim asserted nor the relief requested requires the
member to participate in the lawsuit.’” Am. Trucking Ass’ns v.
Fed. Motor Carrier Safety Admin., 724 F.3d 243, 247 (D.C.
Cir. 2013) (quoting Rainbow/PUSH Coal. v. FCC, 330 F.3d
539, 542 (D.C. Cir. 2003)). When more than one association
brings suit, “we need only find one party with standing” to
satisfy the requirement. Ams. for Safe Access v. DEA, 706 F.3d
438, 443 (D.C. Cir. 2013); accord Tozzi v. HHS, 271 F.3d 301,
310 (D.C. Cir. 2001).
We have no difficulty finding that the Center meets the
latter two elements of associational standing. See Am. Trucking
Ass’ns, 724 F.3d at 247. The Center, an organization
“dedicated to the protection and enjoyment of the
environment,” Pet’rs’ Br. iii, has an “obvious interest in
challenging” the EPA’s failure to engage in consultation, Am.
Trucking Ass’ns, Inc., 724 F.3d at 247. As noted, consultation
is “designed as an integral check on federal agency action,
ensuring that such action does not go forward without full
consideration of its effects on listed species.” Lujan, 504 U.S.
at 603 (Blackmun, J., dissenting). Moreover, neither the claim
asserted (EPA’s alleged violation of ESA’s consultation
requirement) nor the relief requested (order requiring “EPA to
complete consultation and to report back to this Court every six
months until consultation is complete”) requires any Center
member to participate as a named plaintiff in the lawsuit.
The remaining question, then, is whether at least one
Center member would have standing to sue in his own right.
See Am. Trucking Ass’ns, 724 F.3d at 247. The claim that the
EPA failed to meet its statutory consultation obligation—that
is, the EPA failed to “insure” that its actions were “not likely
14
to jeopardize the continued existence of any endangered
species or threatened species,” 16 U.S.C. § 1536(a)(2)—
describes an “archetypal procedural injury.” See WildEarth
Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013)
(internal quotation marks omitted) (quoting Nat’l Parks
Conservation Ass’n v. Manson, 414 F.3d 1, 5 (D.C. Cir. 2005))
(agency’s failure to prepare environmental impact statement
before taking action with adverse environmental consequences
constitutes “archetypal procedural injury”). In a case alleging a
procedural injury, we “relax the redressability and imminence
requirements” of standing. Id.; accord Fla. Audubon Soc. v.
Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (en banc) (“[I]n
cases in which a party ‘has been accorded a procedural right to
protect his concrete interests,’ the primary focus of the standing
inquiry is not the imminence or redressability of the injury to
the plaintiff, but whether a plaintiff who has suffered personal
and particularized injury has sued a defendant who has caused
that injury” (quoting Lujan, 504 U.S. at 572 n.7)). Nonetheless,
the injury in fact requirement is a hard floor of Article III
jurisdiction that cannot be altered by statute. Summers v. Earth
Island Inst., 555 U.S. 488, 497 (2009). Likewise, the Supreme
Court “has never freed a plaintiff alleging a procedural
violation from showing a causal connection between the
government action that supposedly required the disregarded
procedure and some reasonably increased risk of injury to its
particularized interest.” Fla. Audubon Soc., 94 F.3d at 664;
Summers, 555 U.S. at 496 (“[A] procedural right in vacuo . . .
is insufficient to create Article III standing.”).
The EPA’s procedural omissions—its failure to make an
effects determination and to consult—are necessary, but not
sufficient, requirements for a procedural-rights plaintiff like the
Center to establish standing. Fla. Audubon Soc., 94 F.3d at
664-65. The Center must also show that the failure to make an
effects determination or to consult affects its members’
15
concrete aesthetic and recreational interests, WildEarth
Guardians, 738 F.3d at 305; that its failures caused the EPA
“to overlook the creation of a demonstrable risk not previously
measurable (or the demonstrable increase of an existing risk)
of serious environmental impacts that imperil [the members’]
particularized interest[s].” Fla. Audubon Soc., 94 F.3d at 666.
We believe the Center has done just that. Center member John
Miller has expressed “recreational, scientific, aesthetic,
educational, moral, spiritual and conservation interests,” Miller
Decl. ¶ 14, in observing the Valley Elderberry Longhorn Beetle
in its natural California habitat, a habitat that Miller “regularly
visit[s] . . . three-to-four times a year.” Miller Decl. ¶ 13; see
Fla. Audubon Soc., 94 F.3d at 667. Miller’s interest in the
beetle has yielded tangible results as he has “found Longhorn
Beetle drill holes in elderberry trees.” Miller Decl. ¶ 12. He
plans to continue his trips in the “hope” that he will “see Valley
Elderberry Longhorn Beetles in the wild.” Miller Decl. ¶ 19.
Likewise, member John Buse, a frequent visitor to Michigan’s
Van Buren State Park, “intend[s] to return to Van Buren
County . . . to look for Mitchell’s satyr butterflies.” Buse Decl.
¶ 12. “[T]he desire to use or observe an animal species, even
for purely esthetic purposes, is undeniably a cognizable interest
for purpose of standing.” Lujan, 504 U.S. at 562-63. The EPA’s
registration of CTP without an effects determination or the
requisite consultation, however, creates a “demonstrable risk”
to the Valley Elderberry Longhorn Beetle in California and the
Mitchell’s satyr butterfly in Michigan, Fla. Audubon Soc., 94
F.3d at 666, in that, as the EPA’s ecological assessment itself
notes, CTP is “highly to very highly toxic” to terrestrial
insects,7 JA 113, and there exists a “geographical nexus,”
7
On appeal, the EPA argues that its ecological risk assessment
does not address CTP’s toxicity to individual species. Resp’t’s Br.
50-52. That is, its ecological assessment considers CTP’s effects at
the “taxa” level only (i.e., the level at which multiple species are
grouped together based on shared or similar traits—for example,
16
Florida Audubon Soc., 94 F.3d at 667, between areas of
potential CTP use and the respective habitats of the Valley
Elderberry Longhorn Beetle8 and the Mitchell’s satyr butterfly,
JA 325, 373.
“Mammals,” “Birds” and “Reptiles,” JA 257) but does not include
species-specific analysis that the Center could use to show risk of
harm to the Valley Elderberry Longhorn Beetle or the Mitchell’s
satyr butterfly. Resp’t’s Br. 50-52. But the EPA demands too great a
showing from the Center; we believe its ecological assessment
sufficiently demonstrates the “creation of a demonstrable risk” to the
Valley Elderberry Longhorn Beetle and the Mitchell’s satyr
butterfly. Florida Audubon Soc., 94 F.3d at 666 (emphasis added).
Importantly, the assessment’s findings are not uniform. The EPA
determined that CTP is “practically non-toxic to mammals and birds
on an acute exposure basis,” is only “slightly toxic to
estuarine/marine fish” and is “slightly to very highly toxic to
freshwater vertebrates.” JA 113. In contrast, the EPA determined that
CTP is “highly to very highly toxic to terrestrial insects.” Id.
Although the EPA did not analyze CTP’s toxicity to individual
species, neither did it indicate that CTP could be only “slightly toxic”
or “practically non-toxic” to certain species within the terrestrial
insects taxon in the way it did for other taxa. (CTP is, after all, an
insecticide.) We believe the Center’s assertion that CTP creates a
“demonstrable risk” to the Valley Elderberry Longhorn Beetle and
the Mitchell’s satyr butterfly requires no great speculative leap. Cf.
Florida Audubon Soc., 94 F.3d at 667-68 (allegation that “tax credit
will create a general risk of serious environmental harm by
encouraging farmers throughout the United States, and thus, by
implication, farmers near the wildlife areas appellants visit, to
increase production in a manner that will increase agricultural
pollution that, in turn, will damage the wildlife areas” too speculative
to support injury).
8
Indeed, 97.5% of the Valley Elderberry Longhorn Beetle’s
critical habitat is within 1000 feet of areas of potential CTP use. See
Bradley Decl. ¶ 10.
17
Establishing causation in the context of a procedural injury
requires a showing of two causal links: “one connecting the
omitted [procedural step] to some substantive government
decision that may have been wrongly decided because of the
lack of [that procedural requirement] and one connecting that
substantive decision to the plaintiff’s particularized injury.”
See Fla. Audubon Soc’y, 94 F.at 668. Importantly, with respect
to the first link, the party seeking to establish standing need not
show that but for the alleged procedural deficiency the agency
would have reached a different substantive result. WildEarth
Guardians, 738 F.3d at 306 (citing City of Dania Beach v. FAA,
485 F.3d 1181, 1186 (D.C. Cir. 2007)); Nat’l Parks
Conservation Ass’n, 414 F.3d at 5. “All that is necessary is to
show that the procedural step was connected to the substantive
result.” Sugar Cane Growers Coop. of Fla. v. Veneman, 289
F.3d 89, 94-95 (D.C. Cir. 2002). Here, the EPA’s failure to
make an effects determination or to consult is plainly
“connected to” its registration of CTP as it approved the
pesticide without considering CTP’s effects, if any, on the
threatened Valley Elderberry Longhorn Beetle or the
endangered Mitchell’s satyr butterfly species and without
obtaining expert input from the FWS and/or the NMFS
regarding CTP’s ecological impact; these omitted steps
unquestionably connect to the EPA’s decision to register CTP.
Indeed, FIFRA requires the EPA to consider whether a
pesticide “will perform its intended function without
unreasonable adverse effects on the environment” before
registering it. 7 U.S.C. § 136a(c)(5)(C). Regarding the second
link, a plaintiff “must still demonstrate a causal connection
between the agency action and the alleged injury.” City of
Dania Beach, 485 F.3d at 1186. That is not to say that the
Center need establish the merits of its case, i.e., that harm to a
Center member has in fact resulted from the EPA’s procedural
failures; instead, it must demonstrate that there is a “substantial
probability” that local conditions will be adversely affected and
18
thus harm a Center member. Am. Petroleum Inst. v. EPA, 216
F.3d 50, 63 (D.C. Cir. 2000) (per curiam); Sierra Club v. EPA,
755 F.3d 968, 973 (D.C. Cir. 2014) (“[T]he petitioner need
demonstrate only a substantial probability that local conditions
will be adversely affected, and thus will harm members of the
petitioner organization.” (internal quotation marks omitted)).
We are convinced that the Center has met the second
requirement. The EPA believes that CTP is an “essential tool”
that is “vitally important” and “uniquely effective” to combat
certain pests and that CTP “is expected to provide significant
benefits to growers.” Resp’t’s Br. 10-11, 60. CTP’s
“significance,” however, also produces another, less salutary
effect, to wit: it makes it likely—that is, gives rise to a
“substantial probability,” Am. Petroleum Inst., 216 F.3d at63—that the EPA’s registration of the pesticide will in fact
create a “demonstrable risk” to the Center members’ interests
given CTP’s importance to citrus and blueberry growers
especially, its toxicity to terrestrial insects and the geographical
overlap between the habitats of the Valley Elderberry
Longhorn Beetle and acreage where CTP will most likely be
used.
Finally, we believe that the “relaxed redressability
requirement” is also met. WildEarth Guardians, 738 F.3d at
306. A procedural-rights plaintiff need not show that “court-
ordered compliance with the procedure would alter the final
[agency decision.]” Nat’l Parks Conservation Ass’n, 414 F.3d
at 5. Instead, as the plaintiffs did in WildEarth Guardians v.
Jewell, all the Center need show is that a revisitation of the
registration order that includes an effects determination and
any required consultation would redress Center members’
injury because the EPA could reach a different conclusion. 738
F.3d at 306. We believe the Center has made that showing:
notwithstanding the EPA’s assertion that a “serious possibility”
exists that the CTP registration order would remain unchanged
19
following any effects determination and consultation, Resp’t’s
Br. 61-62, there remains at least the possibility that it could
reach a different conclusion—say, by modifying the
registration order.
ESA’s & FIFRA’s Jurisdictional Provisions
We next turn to the dueling jurisdictional provisions of the
ESA and of FIFRA. The ESA’s citizen-suit provision
authorizes broad challenges to violations of the ESA and its
implementing regulations. See 16 U.S.C. § 1540(g)(1) (citizen
may “commence a civil suit on his own behalf . . . to enjoin any
person” in violation of “any provision” of ESA). Indeed, the
United States Supreme Court has noted that the ESA’s citizen-
suit provision creates “an authorization of remarkable breadth
when compared with the language Congress ordinarily uses.”
Bennett v. Spear, 520 U.S. 154, 164-65 (1997). “The district
courts . . . have jurisdiction” to hear the wide range of claims
cognizable under the ESA. 16 U.S.C. § 1540(g)(1) (“The
district courts shall have jurisdiction, without regard to the
amount in controversy or the citizenship of the parties, to
enforce any such provision or regulation . . . .”). In contrast, the
Congress used a more tailored review structure for claims
arising under FIFRA’s citizen-suit provision. 7 U.S.C. § 136n.
FIFRA authorizes the district court to review the EPA’s
“refusal . . . to cancel or suspend a registration or to change a
classification not following a hearing.” Id. § 136n(a). But, if an
“actual controversy” arises “as to the validity of any [FIFRA]
order issued . . . following a public hearing,” an affected
individual “may obtain judicial review by filing in the United
States court of appeals” and “the court shall have exclusive
jurisdiction to affirm or set aside the order complained of in
whole or in part.” Id. § 136n(b). That is, FIFRA vests the courts
of appeals with exclusive jurisdiction over controversies
arising from an EPA pesticide registration, so long as, inter
alia, registration follows a public hearing. See id.
20
We have previously held that where “a special statutory
review procedure [exists], it is ordinarily supposed that
Congress intended that procedure to be the exclusive means of
obtaining judicial review in those cases to which it applies.”
Media Access Project, 883 F.2d at 1067 (quoting City of
Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979)); accord
Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 77
(D.C. Cir. 1984) (“[A] statute which vests jurisdiction in a
particular court cuts off original jurisdiction in other courts in
all cases covered by that statute.”); cf. D. Ginsberg & Sons v.
Popkin, 285 U.S. 204, 208 (1932) (“Specific terms prevail over
the general in the same or another statute which otherwise
might be controlling.”). In the past, our Court and our sister
circuits have required an environmental challenge to be
brought in accordance with a specific judicial review statute
rather than under a broad citizen-suit provision.
In Environmental Defense Fund v. EPA, for example, we
considered whether a challenge to a FIFRA registration order
based on alleged violations of the National Environmental
Policy Act (NEPA) (per curiam), 42 U.S.C. §§ 4321 et seq.,
could proceed in district court simultaneously with a FIFRA
petition for review pending in our Court. 485 F.2d 780, 783
(D.C. Cir. 1973). Although, in vacuo, NEPA appeared to
authorize the district court proceeding, we noted that “[w]hen
the Congress required that courts of appeals exercise exclusive
jurisdiction over petitions to review a FIFRA order, it was to
insure speedy resolution of the validity of EPA
determinations.” Id. Because that “policy would be defeated if
we were to allow the [case] to be litigated in several
proceedings,” we ordered the parties to seek dismissal of the
district court NEPA suit. Id.; see also City of Rochester, 603
F.2d at 931 (“If . . . there exists a special statutory review
procedure, it is ordinarily supposed that Congress intended that
21
procedure to be the exclusive means of obtaining judicial
review in those cases to which it applies.”).
In a recent holding, the Ninth Circuit considered the
question at issue here—whether a plaintiff may bring a suit in
district court alleging that the EPA violated section 7(a)(2) of
the ESA by failing to consult before issuing a FIFRA order.
Ctr. for Biological Diversity v. EPA, 847 F.3d 1075, 1088 (9th
Cir. 2017). The Ninth Circuit noted that “when two
jurisdictional statutes draw different routes of appeal, the well-
established rule is to apply only the more specific legislation.”
Id. at 1089 (internal quotation marks omitted) (quoting Am.
Bird Conservancy v. FCC, 545 F.3d 1190, 1194 (9th Cir.
2008)). Finding FIFRA’s judicial review provision more
specific than the ESA’s citizen-suit provision, the Ninth Circuit
held “that for the purposes of FIFRA, a Section 7 [ESA] claim
raised after the EPA undertakes public notice and comment
must comply with FIFRA’s jurisdictional provisions.”9 Id.9
Center for Biological Diversity, in large part, draws on the
holding in American Bird Conservancy v. FCC. There, the Ninth
Circuit considered section 402(a) of the Communications Act of
1934, which gives exclusive jurisdiction to courts of appeals to
review certain FCC orders, and its interaction with the ESA’s citizen-
suit provision. 545 F.3d 1190, 1192 (9th Cir. 2008). The plaintiffs
sued the Federal Communications Commission in district court,
alleging that it had failed to meet the ESA section 7(a)(2)
consultation requirement before licensing seven radio
communication towers. Id. The Ninth Circuit rejected the plaintiffs’
attempt to circumvent the Communications Act’s specific review
structure, noting that they did “not object to the agency’s failure to
consult in the abstract” but instead their challenge to the FCC’s
failure to consult was “inextricably intertwined” with the tower
registrations. Id. at 1193.
22
Because FIFRA’s grant of exclusive jurisdiction to the
court of appeals to review registration orders is more specific
than the ESA’s citizen-suit provision, see supra 19-20, we
believe the Conservation Groups must bring their ESA section
7(a)(2) challenge to us if 7 U.S.C. § 136n(b) is satisfied. And
the Conservation Groups do satisfy the requirements of 7
U.S.C. § 136n(b): they are adversely affected by the
registration of CTP; they challenge the validity of the CTP
registration order based on the EPA’s failure to make an effects
determination and to consult; and their challenge comes after a
“public hearing” by way of three notice and comment periods.
See 7 U.S.C. § 136n(b). We therefore have “exclusive
jurisdiction” to review their claim under FIFRA and the district
court correctly dismissed their ESA citizen suit.
The Conservation Groups’ arguments to the contrary are
unavailing. They argue that the district court is the proper
forum because the EPA’s decision to register CTP did not
follow a “public hearing” as required by 7 U.S.C. § 136n(b).
They interpret “public hearing” to refer to “an adjudicative
process, not notice and comment” and emphasize that no
adjudicative process occurred here. Pet’rs’ Br. 27. Circuit
precedent, however, forecloses their argument. In
Environmental Defense Fund, Inc. v. Costle, 631 F.2d 922(D.C. Cir. 1980), we gave a broad interpretation to “public
hearing.” We concluded that, because “‘Congress designed
[the] review provisions with the jurisdictional touchstone of the
reviewable record in mind,’ the crucial inquiry is whether such
a record is available.” Humane Soc’y of U.S. v. EPA, 790 F.2d
106, 111 (D.C. Cir. 1986) (alteration in original) (quoting
Costle, 631 F.2d at 930-32). Here, as noted, the EPA opened
the CTP registration issue to public notice and comment three
separate times. The Conservation Groups themselves took
advantage of these opportunities to be heard and “provided
significant input.” JA 87-88. The EPA amassed an
23
administrative record totaling more than 113,000 pages. Id. As
in Costle, we believe this administrative record “is wholly
adequate for judicial review” and we therefore deem “the
proceedings antecedent to the [EPA’s CTP registration] order .
. . a ‘public hearing’ granting this court jurisdiction to review
the challenged order.” Costle, 631 F.2d at 932; accord Ctr. for
Biological Diversity, 847 F.3d at 1089 (“[F]or the purposes of
FIFRA, a Section 7 [ESA] claim raised after the EPA
undertakes public notice and comment must comply with
FIFRA’s jurisdictional provisions.” (emphasis added)).
The Conservation Groups also insist that their ESA
challenge is not “inextricably intertwined” with FIFRA
because the ESA sets forth an “independent, procedural duty to
consult under Section 7(a)(2)” wholly separate from any
FIFRA-based attack on the validity of the CTP registration
order. Pet’rs’ Br. 22. But the Conservation Groups did not
object to the EPA’s failure to consult in vacuo, see Am. Bird
Conservancy, 545 F.3d at 1193; rather, their failure to consult
claim was a means to a broader end—a challenge to the validity
of the CTP registration order itself. Ctr. for Biological
Diversity, 847 F.3d at 1089 (ESA section 7(a)(2) claim
“inherently challenge[s] the validity” of FIFRA registration
order).
In sum, we conclude that the Conservation Groups possess
standing to press their ESA section 7(a)(2) challenge but that
they must petition for our review pursuant to 7 U.S.C.
§ 136n(b). We therefore affirm the district court’s dismissal of
their ESA citizen suit and proceed to the merits of their FIFRA
petition for review.
24
B. The Merits
As noted, the ESA requires the EPA to “insure that any
action authorized, funded, or carried out by such agency . . . is
not likely to jeopardize the continued existence of any
endangered species or threatened species or result in the
destruction or adverse modification” of “designated critical
habitat” through consultation. 16 U.S.C. § 1536(a)(2). The
EPA “does not contest that it has not made an ‘effects’
determination or initiated consultation regarding its
registration order for [CTP] consistent with the ESA and its
implementing regulations.” Resp’t’s Br. 57. The EPA has
therefore violated section 7(a)(2) of the ESA by registering
CTP before making an effects determination or consulting with
the FWS or the NMFS.10 50 C.F.R. § 402.14(a) (“Each Federal
agency shall review its actions at the earliest possible time to
determine whether any action may affect listed species or
10
The intervenors, E.I. du Pont De Nemours and Company, et
al. (“Intervenors”), spill much ink asserting that the EPA’s failure to
consult is excusable because it fulfilled the “purpose” of the ESA by
“devis[ing] a rational solution to prioritize its resources and avoid
delaying the availability of reduced risk CTP.” See Intervenors’ Br.
26-27. We have accorded each of Intervenors’ arguments “full
consideration after careful examination of the record” but find them
without merit. Bartko v. SEC, 845 F.3d 1217, 1219 (D.C. Cir. 2017).
In no uncertain terms, the ESA mandates that every federal agency
“shall” engage in consultation before taking “any action” that could
“jeopardize the continued existence of any endangered species or
threatened species.” 16 U.S.C. § 1536(a)(2). Absent a formal
exemption under 16 U.S.C. § 1536(h), an agency may not duck its
consultation requirement, whether based on limited resources,
agency priorities or otherwise. Id.; see also Tenn. Valley Auth. v. Hill,
437 U.S. 153, 173 (1978) (pre-ESA section 7(h) enactment, section
7(a)(2) “admit[ted] of no exception”).
25
critical habitat. If such a determination is made, formal
consultation is required . . . .”).
Our only task, then, is to determine the appropriate
remedy. Alongside its grant of exclusive jurisdiction, FIFRA
vests the Court with the authority “to affirm or set aside the
order complained of in whole or in part.” 7 U.S.C. § 136n(b).
“[T]he decision whether to vacate depends on the seriousness
of the order’s deficiencies (and thus the extent of doubt whether
the agency chose correctly) and the disruptive consequences of
an interim change that may itself be changed.” Sugar Cane
Growers Co-op. of Fl., 289 F.3d at 98 (D.C. Cir. 2002) (internal
quotation marks omitted) (quoting Allied-Signal, Inc. v. NRC,
988 F.2d 146, 150-51 (D.C. Cir. 1993)). Our Court has
previously remanded without vacatur, however, if vacating
“would at least temporarily defeat . . . the enhanced protection
of the environmental values covered by [the EPA rule at
issue].” North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir.
2008) (per curiam) (alterations in original) (quoting Envtl. Def.
Fund, Inc. v. EPA, 898 F.2d 183, 190 (D.C. Cir. 1990)). And
we believe that remand without vacatur is appropriate here.
Notwithstanding the EPA’s failure to make an effects
determination and to engage in any required consultation, it did
not register CTP in total disregard of the pesticide’s potential
deleterious effects; indeed, the Conservation Groups
themselves rely heavily on the EPA’s “Ecological Risk
Assessment for the Registration of the New Chemical
Cyantraniliprole.” See JA 109. Following the risk assessment,
the EPA classified CTP as a “Reduced Risk” pesticide because
26
“it is generally less toxic towards mammals, birds and fish than
the leading alternatives, and also honey bees.”11 JA 459.
“Registration of [CTP] . . . provide[s] the growers with an
effective tool that has . . . a more favorable toxicological profile
compared to currently registered alternatives.” JA 459. We are
persuaded that allowing the EPA’s CTP registration order to
remain in effect until it is replaced by an order consistent with
our opinion will maintain “enhanced protection of the
environmental values covered by [the CTP registration
order].”12 North Carolina, 550 F.3d at 1178.
11
Notwithstanding our dissenting colleague’s stance, see
Dissent Op. 2-4, the fact that CTP is a “Reduced Risk” pesticide that
offers net environmental benefits does not conflict with our standing
analysis. See supra 12-19. Despite CTP’s non-toxicity to some taxa,
it is highly toxic to the Valley Elderberry Longhorn Beetle and the
Mitchell’s satyr butterfly, in both of which Center members have an
interest. JA 113. Nothing in the record suggests that CTP is more
environmentally friendly than other pesticides to these insects, even
if it is more environmentally friendly in general. JA 113, 459.
12
As we did with the petitioner’s request in North Carolina v.
EPA, we deny the Conservations Groups’ request to establish a
deadline for the EPA to conduct its ESA consultation and to require
the EPA to report its progress to this Court every six months until
consultation is complete. 550 F.3d at 1178. “[T]he function of the
reviewing court ends when an error of law is laid bare. At that point
the matter once more goes to the [agency] for reconsideration.” Fed.
Power Comm’n v. Idaho Power Co., 344 U.S. 17, 20 (1952).
27
For the foregoing reasons, we grant the petition for review
and remand without vacatur to the EPA for proceedings
consistent with this opinion.13
So ordered.
13
The Conservation Groups’ brief asks us to conclude that the
“EPA’s registration of [CTP] is an agency action that triggers the
duty to consult” and to remand the case to the EPA, not to conduct
an initial effects determination, but to engage immediately in formal
consultation under 50 C.F.R. § 402.14(a). Pet’rs’ Br. 37, 49. The
pertinent regulation, however, first requires that the EPA determine
if CTP registration “may affect listed species or critical habitat.” 50
C.F.R. § 402.14(a). If it determines that registration may do so,
formal consultation must follow. See id. § 402.14(a)-(b). On the other
hand, if the EPA determines, with the FWS and/or the NMFS
concurring, that CTP registration “is not likely to adversely affect
listed species or critical habitat, the consultation process is
terminated, and no further action is necessary.” Id. § 402.13(a).
RANDOLPH, Senior Circuit Judge, dissenting:
I disagree that petitioners – the Conservation Groups – have
standing under Article III of the Constitution to proceed with
their petition for review.1
The case is about the Environmental Protection Agency’s
approval of a new insecticide. The Conservation Groups claim
that their members will suffer injuries because EPA allegedly
neglected to follow proper procedures in approving the
insecticide. The “deprivation of a procedural right without some
concrete interest that is affected by the deprivation – a
procedural right in vacuo – is insufficient to create Article III
standing.” Summers v. Earth Island Institute, 555 U.S. 488, 496
(2009); see Maj. Op. 14. The Conservation Groups must
therefore demonstrate, among other things, that at least one of
their members will suffer a concrete injury from EPA’s
disregard of procedural requirements. See WildEarth Guardians
v. Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013); Florida Audubon
Soc. v. Bentsen, 94 F.3d 658, 667, 669 (D.C. Cir. 1996) (en
banc). See also Maj. Op. 13, 14.
For the Conservation Groups to do so is “substantially more
difficult” here because their members are not objects of the
challenged agency action. Lujan v. Defenders of Wildlife, 504
U.S. 555, 562 (1992) (citation omitted). That their standing
depends only on a future injury – they have claimed no past
injury – makes the difficulty even more acute. See Swanson
Grp. Mfg. LLC v. Jewell, 790 F.3d 235, 240 (D.C. Cir. 2015).
The Conservation Groups thus must show a “substantial
probability” that the challenged agency action will injure their
1
I would affirm the district court’s dismissal of the
Conservation Groups’ complaint. See Ctr. for Biological
Diversity v. United States Envtl. Prot. Agency, 106 F. Supp. 3d
95, 96 (D.D.C. 2015).
2
members. Id. (alterations omitted). See also Cty. of Delaware,
Pa. v. Dep’t of Transp., 554 F.3d 143, 147-48 (D.C. Cir. 2009).
There are two major obstacles to standing, neither of which
these petitioners are able to overcome. First, the Conservation
Groups have failed to show that the insecticide –
“cyantraniliprole” – will harm their members relative to the
status quo ante. Without that showing, the pesticide’s
registration inflicts no harm. See Food & Water Watch, Inc. v.
Vilsack, 808 F.3d 905, 915-18 (D.C. Cir. 2015). In other words,
as the majority points out, the Conservation Groups must show
an “increased risk of injury.” Maj. Op. 14 (citation omitted).
Cyantraniliprole is what the Environmental Protection
Agency calls a “Reduced Risk” insecticide. That designation
permits expedited registration of pesticides that provide
environmental benefits relative to the status quo. See 7 U.S.C.
§ 136a(c)(10)(B). See also EPA Pesticide Registration Manual:
Chapter 2 - Registering a Pesticide Product (last accessed June
2017). In this case, after “review and consideration of all of the
data provided by the 800+ studies, the determinations made by
the multiple scientists involved in the project, and the outcome
of the human health and ecological risk assessments,” EPA
concluded that cyantraniliprole satisfied the reduced-risk
criteria. See Registration of the New Active Ingredient
Cyantraniliprole at 2, Docket EPA-HQ-OPP-2011-0668-0057
(Jan. 24, 2014). EPA found that the “mammalian toxicity and
ecotoxicity risk profiles for cyantraniliprole” – the risks to
mammals and the ecosystem – “are favorable compared to
registered alternatives.” Id.
The Conservation Groups do not contest these EPA
findings. They argue instead that the environmental benefits
depend on cyantraniliprole replacing rather than supplementing
the more harmful pesticides, and that this court should not
3
“assume” that users of cyantraniliprole will do so. Petitioner
Reply Brief 23-24. Yet this court need not assume anything.
EPA found that cyantraniliprole “is expected to be an alternative
to a number of insecticide classes . . ..” Registration of
Cyantraniliprole at 14. That is so not only because
cyantraniliprole is “one of the least toxic alternatives that would
be available for citrus growers,” but also because the pesticide
is “considered to be more efficacious than current registrations
of more toxic compounds” for control of many pests. Id. at 13-
14. Users can thus apply cyantraniliprole once and “replace
multiple or repeated applications of” more harmful pesticides.
Id. at 14. Cyantraniliprole, EPA determined, would therefore
reduce the “degree of risk to listed species” by substituting a
less-harmful insecticide for “what EPA believes to be more
toxic compounds, that, among other things, pose greater risk, to
endangered species than does cyantraniliprole.” Response to
Public Comments on EPA’s “Proposed Registration of the New
Active Ingredient Cyantraniliprole” at 40-41, Docket EPA-HQ-
OPP-2011- 0668-0058 (Feb. 5, 2014). It is therefore no surprise
that the Conservation Groups have provided not a single
example of a listed species actually harmed by cyantraniliprole
since its registration in early 2014.
Even if one were to assume that the insecticide would prove
a net detriment to listed species, the Conservation Groups
encounter a second obstacle to standing. They fail to show that
an injury to those listed species would harm their members.2
We apply “even more exacting scrutiny” when the challenged
government action is based on the “independent acts of third
parties” and where the effect of the action would not be “located
at a particular site.” Florida Audubon, 94 F.3d at 667, 670
2
Section 1533 of Title 16 delineates the process under
which species are listed as “endangered” or “threatened.” The
list appears at 50 C.F.R. § 17.11.
4
(citation omitted). In this case, the pesticide registration
authorizes cyantraniliprole for multiple sites throughout the
country, but the Conservation Groups have provided no
evidence of the application of cyantraniliprole to any particular
site.3 Even if the Conservation Groups could point to some
harm to a listed species near a cyantraniliprole-eligible crop, one
could only speculate, without more, whether cyantraniliprole or
a more toxic pesticide caused that harm. The Conservation
Groups also cannot establish that going forward, their members
will visit locations where cyantraniliprole has been applied.
This lack of geographic specificity dooms the Conservation
Groups’ standing allegations. See id. at 668. See also Earth
Island Institute, 555 U.S. at 495-96.
The majority ignores these problems. It acknowledges that
the Conservation Groups must show an increased risk to their
members’ interests, Maj. Op. 14, but then fails to consider the
effect of cyantraniliprole relative to the status quo ante. The
majority comes closest when it says that the pesticide “offers net
environmental benefits” and “provides the growers with an
effective tool that has a more favorable toxicological profile
compared to currently registered alternatives.” Maj. Op. 26, 26
n.11 (citation and alterations omitted). But those facts, of
course, support this dissent. The Conservation Groups’ second
problem – the lack of geographic specificity in its submissions
– is scarcely mentioned in the majority opinion. The opinion
merely notes a “geographical nexus” or “overlap” between
potential cyantraniliprole crop areas and listed species, and it
then shifts to other issues. Maj. Op. 15, 18 (citation omitted).
The majority offers no analysis of how any harm to the listed
species would harm the Conservation Groups’ members.
3
The intervenors filed documents under seal showing
cyantraniliprole’s use in certain states, but the filing does not
identify particular sites.
5
The member declarations suggest that any harm is
exceedingly unlikely. Consider, for instance, the species
identified in the declarations. The declarants refer to 27 species
of concern. Of those 27, only 20 are actually endangered or
threatened. Eleven of those 20 are either mammals or birds, for
which cyantraniliprole is classified as “practically nontoxic.”
Registration of Cyantraniliprole at 10. The remaining 9 consist
of 1 freshwater fish, 5 butterflies, 2 beetles, and 1 dragonfly.
Yet of those 9 species, only one declarant can confirm seeing
one species. For the other 8 species – which include the two
species mentioned in the majority opinion, Maj. Op. 8 – the
declarants’ claim that they will lose the ability to view the
species is far too speculative. See Defenders of Wildlife, 504
U.S. at 565. No evidence suggests they ever had the ability.4
After eliminating those unseen fish and insects, and
unharmed mammals and birds, we have left one butterfly – the
Bay Checkerspot. To assess the potential harm to that butterfly
from cyantraniliprole, the Conservation Groups and the
intervening pesticide-registrants submitted expert declarations.
The competing experts both attempted to compare the extent to
which the Bay Checkerspot Butterfly overlapped with those
areas that contained cyantraniliprole-eligible crops sometime
between 2010 and 2014 – called “labeled crop” areas. See
Bradley Decl. ¶ 7; Fairbrother Decl. ¶ 24 n.24. That these
“labeled crop” areas need only have had cyantraniliprole-
eligible crops over a five-year period renders this measurement
over-inclusive, but both experts used it. The intervenor’s expert
considered the critical habitat of the Bay Checkerspot and,
4
The majority notes that one declarant has seen “Longhorn
Beetle drill holes.” Maj. Op. 15 (citation omitted). But not all
Longhorn Beetles are threatened, and the declarant does not
know whether the threatened variety created the holes. See
Miller Decl. ¶ 12.
6
despite the over-inclusivity of the measure, found only a 0.06
percent overlap with the labeled crops. Kern Decl. ¶ 25. The
Conservation Groups’ expert, on the other hand, employed data
for both the “elemental occurrence” of the Bay Checkerspot –
those areas where the butterfly has been observed – and its
critical habitat, and the expert initially found approximately a 15
percent overlap on both measures. Bradley Decl. ¶ 10. Because
elemental occurrence records “can be of varying accuracy,”
however, the Conservation Groups’ expert “further refined” his
analysis to include “just high quality records.” Bradley Decl.
¶ 11. When he did so, he found “no data” on the overlap
between the Checkerspot and the labeled crops. Bradley Decl.
¶ 12.
Remember, too, that even if the Conservation Groups had
demonstrated an overlap between the insecticide and the
butterfly, standing would still depend on the two showings
discussed above – that cyantraniliprole harms the butterfly
relative to alternatives and that some member would witness it
having done so. It requires, in other words, the following chain
of events: (1) that third parties not before the court use
cyantraniliprole on their crops; (2) that those unidentified crops
overlap with the listed species; (3) that cyantraniliprole, against
the available evidence, proves harmful to those species; and (4)
that the Conservation Groups’ members are somehow adversely
affected. This “lengthy chain of conjecture” renders the
Conservation Groups’ standing assertions thoroughly
unconvincing. Florida Audubon, 94 F.3d at 666.
Because I would dismiss the petition for review, there is no
need to separately address the majority’s flawed remedy of
remanding without vacating. See Natural Resources Defense
Council v. E.P.A., 489 F.3d 1250, 1262-64 (D.C. Cir. 2007)
(Randolph, J., concurring).