The opinion of the court was delivered by: McKENNA, D.J.
The Plant Protection Act ("PPA") (2000) provides (with an exception not relevant here) that no person shall import, enter, export, or move in interstate commerce any plant pest, unless the importation, entry, exportation, or movement is authorized under general or specific permit and is in accordance with such regulations as the Secretary [of Agriculture] may issue to prevent the introduction of plant pests into the United States or the dissemination of plant pests within the United States.
On September 16, 2004, the Animal and Plant Health Inspection Service ("APHIS") of the United States Department of Agriculture*fn1 amended, effective September 16, 2005, the regulations for the importation into the United States of unmanufactured wood articles used as packaging for cargo. 69 Fed. Reg. 55719-55733 (Sept. 16, 2004) (codified in 7 CFR, Pt. 319, § 319.40 (2006)).*fn2
In explaining the amended regulations, APHIS noted that "[i]ntroductions into the United States of exotic plant pests such as the pineshoot beetle . . . and the Asian longhorned beetle . . . have been linked to the importation of [what the previous regulations called 'solid wood packing material' or 'SWPM']," and that "[t]hese and other plant pests that are carried by some imported SWPM pose a serious threat to U.S. agriculture and to natural, cultivated and urban forests." 69 Fed. Reg. 55719. The amended "regulations restrict the importation of many types of wood articles, including wooden packaging material such as pallets, crates, boxes, and pieces of wood used to support or brace cargo." Id. The standard embodied in the amended regulations "calls for wood packaging material to be either heat treated or fumigated with methyl bromide, in accordance with the [Guidelines for Regulating Wood Packaging Material in International Trade, approved by the Interim Commission on Phytosanitary Measures of the International Plant Protection Convention on March 15, 2002], and marked with an approved international mark certifying treatment." Id. The regulations "will affect all persons using wood packaging material in connection with importing goods into the United States." Id.
APHIS also noted that "Methyl bromide as a class I ozone-depleting substance has been found to cause or contribute significantly to harmful effects on the stratospheric ozone layer. . . ." 69 Fed. Reg. 55721.
Plaintiffs*fn3 -- the Natural Resources Defense Council, Inc., and the states of New York, California, Connecticut and Illinois -- do not challenge specifics of the amended regulations, but, rather, in essence, the failure of APHIS to properly consider and weigh an unadopted alternative to heat treatment or fumigation with methyl bromide: "a phased transition away from raw wood pallets and crates, replacing them with packing materials made of substitute materials, such as processed wood, fiberboard, plywood, and plastics, that are impervious to the insect pests." (Pl. Mem. at 1.) That alternative, they urge, would at the same time afford the greatest protection against insect pests and also minimize the destructive consequences to the ozone layer of fumigation with methyl bromide. Plaintiffs "do not seek to overturn the rule." (Pl. Responsive Mem. at 3.) Rather, they "ask the Court to order APHIS to reconsider its environmental impact analysis in light of its obvious defects and then to revise the rule as appropriate based on any supplemental findings." (Id.)
APHIS, plaintiffs contend, has violated both the National Environmental Protection Act ("NEPA") and the PPA in failing to consider the alternative they advocate.
Plaintiffs, jointly, move for summary judgment pursuant to Fed. R. Civ. P. 56, while defendants cross-move for dismissal pursuant to id. 12(b)(6) or, alternatively, summary judgment pursuant to id. 56. Whatever the form of the motions, in a case seeking review of agency action:
"[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." The task of the reviewing court is to apply the appropriate [Administrative Procedure Act ("APA")] standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court.
The parties are in agreement that this Court's review of the challenged action is governed by the APA. (Pl. Mem. at 23; Def. Mem. at 26.)
It is settled law that under the APA a reviewing court may set aside an agency's decision only if it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." A court may not substitute its judgment for that of the agency, and, when a particular controversy requires an agency's reconciliation of conflicting and overlapping congressional policies, a court "should hesitate to disturb the administrative determination."
A successful challenge to an agency's decision under the arbitrary and capricious standard must clearly demonstrate that the agency "relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem [or] offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." A reviewing court may neither weigh alternatives available to the agency and then determine which is the more reasonable, nor resolve conflicts in the testimony "unless on its face it is hopelessly incredible."
Soler v. G. & U., Inc., 833 F.2d 1104, 1107 (2d Cir. 1987), cert. denied, 488 U.S. 832 (1988) (quoting 5 U.S.C. § 706(2)(A), Hudson Transit Lines, Inc. v. United States, 765 F.2d 329, 336 (2d Cir. 1985), Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983), and NLRB v. Warrensburg Board & Paper Corp., 340 F.2d 920, 922 (2d Cir. 1965)) (other citations omitted). See also Environmental Defense v. United States Environmental Protection Agency, 369 F.3d 193, 201 (2d Cir. 2004).
The parties, in substance, agree that both the introduction into the United States of destructive insect pests such as the Asian longhorned beetle and the release into the air of methyl bromide are seriously negative environmental events. Plaintiffs urge that the best way to deal with both is the option that would phase in a requirement that substitute or alternative packing materials replace the wood materials the new rule as promulgated will only regulate.
However, plaintiffs contend, even though APHIS acknowledged the reasonableness of the option that plaintiffs advocate*fn5 and indicated in its Advance notice of rulemaking that that option was to be considered (64 Fed. Reg. 3049, 3051 (Jan. 20, 1999)), and received substantial commentary on, and favoring, that option, it nevertheless did not really consider the option, and so failed to comply with NEPA's mandate that an agency "[r]igorously explore and objectively evaluate all reasonable alternatives." 40 CFR § 1502.14(a). See also Natural Res. Def. Council, Inc. v. Callaway, 524 F.2d 79, 93 (2d Cir. 1975). All APHIS considered, as described by plaintiffs, "was the ...