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Natural Resources Defense Council v. United States Environmental Protection Agency

February 8, 2010

NATURAL RESOURCES DEFENSE COUNCIL AND THE XERCES SOCIETY, PLAINTIFFS,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANT, BAYER CROPSCIENCE LP, DEFENDANT-INTERVENOR.



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION & ORDER

Between June 30 and December 16, 2008, the Environmental Protection Agency ("EPA") conditionally approved applications for registrations by Bayer Cropscience LP ("Bayer") for use of the pesticide spirotetramat on hundreds of crops. In doing so, the EPA violated the federal statutory notice and comment requirements. In an Opinion of December 23, 2009, this Court vacated those registrations and remanded the matter to the EPA for further proceedings ("the December 23 Opinion"). Two weeks ago, the EPA gave public notice that it intends (pending consideration of any comments received by February 8), to treat the vacatur as equivalent to a cancellation and to issue an order by February 16, 2010 -- the day the district court's stay expires -- which may allow use and sale of existing stocks of spirotetramat. Further, this month, the EPA will publish a notice for comment in the Federal Register, initiating anew the registration process for spirotetramat.

Bayer seeks a stay pending appeal of the December 23 Opinion beyond February 16. In addressing this application, familiarity with the December 23 Opinion is presumed. See Natural Resources Defense Council v. U.S. E.P.A., No. 09 Civ. 4317 (DLC), 2009 WL 5033959 (S.D.N.Y. Dec. 23, 2009) (hereinafter "NRDC, 2009 WL 5033959"). For the following reasons, Bayer's request for a stay beyond February 16, 2010 is denied.

BACKGROUND

The following procedural history puts Bayer's request for an extension of the stay in context. The EPA conditionally approved between June and December 2008 five of Bayer's applications for registration of the pesticide spirotetramat. It has conceded that in doing so it did not follow the procedural requirements of the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq. Specifically, it failed to publish a notice of each application, solicit public comments on the applications, or publish a notice of issuance with accompanying information supporting the application and the agency's conclusions within thirty days of approval.

Plaintiffs filed their lawsuit on May 4, 2009. In an amended complaint on August 21, plaintiffs claimed that defendants violated FIFRA and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., by failing to (1) provide notice and opportunity for comment on Bayer's applications; (2) provide notices of issuance for each 2008 registration decision;*fn1 (3) take into account the economic, social, and environmental costs and benefits of the use of spirotetramat; and (4) make the required safety finding and conduct the complete scientific review necessary to support that safety finding. On October 21, the plaintiffs moved for summary judgment on all four claims. On November 13, the EPA conceded the procedural violations on the first two claims, and requested a remand to the agency for further proceedings, but argued against vacatur of the registrations. Simultaneously, it cross-moved for partial summary judgment on the plaintiffs' third and fourth claims.

More than six months after suit was filed and almost a month after the summary judgment motion was filed, Bayer moved to intervene as a defendant. Over the plaintiffs' objection, Bayer's November 17 motion to intervene was granted in part on November 25. Bayer was permitted to submit its own briefing on the parties' cross-motions for summary judgment to the extent it wished to address subject matter jurisdiction, what relief would be most appropriate given the EPA's concession of liability on the first two claims, and the merits of claims three and four.*fn2

The motions for summary judgment were fully submitted on December 18. The December 23 Opinion granted plaintiffs' motion for summary judgment only as to the first two claims in their complaint, which arose from the procedural failures of the EPA. It vacated the registrations of spirotetramat and remanded the matter to the EPA.*fn3

By its terms, the December 23 Opinion was stayed until January 15, 2010. Pursuant to the EPA's request on January 8, the stay was extended until February 16. On January 20, the EPA informed the Court of how it intended to respond to the December 23 Opinion.

The EPA explained that it planned to treat Bayer's earlier- filed applications for registration of spirotetramat as now pending and to publish a new notice for comment in the Federal Register "in the next few weeks." As for the existing stocks of spirotetramat, the EPA decided that the Court's action in vacating the spirotetramat registrations is best viewed under FIFRA as a cancellation of those registrations under [7 U.S.C. § 136a] (because the vacatur is based upon the Agency's failure to comply with the requirements of [§ 136a]). The Agency therefore intends to issue a cancellation order under FIFRA section 6(a)(1) [7 U.S.C. § 136d(a)(1)] that will establish provisions governing the disposition of existing stocks of previously-registered spirotetramat pesticide product.

On January 25, the EPA issued a "Notice of Cancellation Order; Opportunity for Public Comment" on its website ("Notice") that requested comments by February 8 regarding a cancellation order that it intends to issue by February 16. In the event the agency finds "no significant risk concerns associated" with spirotetramat, the EPA advised that it may "allow unlimited use of existing stocks, and unlimited sale by persons other than the registrant. A registrant will generally be allowed to continue to sell existing stocks for 1 year after the date cancellation is requested." In the event that there are significant risk concerns associated with the pesticide, the EPA will make a "case-by-case determination as to whether to allow the continued sale or use of existing stocks of the pesticide . . . focus[ing] on the social, economic, and environmental risks and benefits associated with such sale and use." The EPA has not requested an extension of the stay beyond February 16.*fn4

Bayer filed a notice of appeal on January 20, and two days later filed this motion for a stay pending appeal. Its motion papers include five declarations from research scientists, pest control advisors, and Bayer's Product Manager for spirotetramat. None of these declarations were submitted with its summary judgment papers. In response, the NRDC has submitted five declarations from an organic farmer, beekeepers, the Director of the Science Center at NRDC, and plaintiffs' counsel. The last declaration addresses the presence or absence of financial ties between Bayer and its affiants. Bayer's motion for a stay was fully submitted on February 2, 2010.

DISCUSSION

"A stay is not a matter of right, even if irreparable injury might otherwise result. It is instead an exercise of judicial discretion, and the propriety of its issue is dependent upon the circumstances of the particular case." Nken v. Holder, 129 S.Ct. 1749, 1760 (2009) (citation omitted). "The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that ...


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