                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA


Center for Biological
Diversity, Center for Food
Safety, and Defenders of
Wildlife,

      Plaintiffs,

           v.

United States Environmental                Civil Action No. 14-942(GK)
Protection Agency,

      Defendant,

and

E.I. du Pont de Nemours and
Company, Syngenta Crop
Protection LLC, and CropLife
America,

      Intervenor-Defendants


                             MEMORANDUM OPINION

      Plaintiffs Center for Biological Diversity, Center for Food

Safety, and Defenders of Wildlife ("Plaintiffs") bring this action

against Defendant United States Environmental Protection Agency

("Defendant,"      "the     Government,"    "the     Agency, "    or    "EPA") .

Intervenor-Defendants        E.I.   du   Pont   de   Nemours     and   Company,

Syngenta Crop Protection LLC, and CropLife America ("Intervenor-

Defendants") joined this action with the Court's permission.

      This matter is presently before the Court on the Government's

Motion to Dismiss         for Lack of    Jurisdiction    [Dkt.   No.   31]   and
Intervenor-Defendants' Motion for Judgment on the Pleadings [Dkt.

No. 41], which requests dismissal on similar grounds.

          On September 19, 2014, the Government filed its Motion [Dkt.

No. 31], and on October 15, 2014, Intervenor-Defendants filed their

Motion [Dkt. No. 41]. On November 17, 2014, Plaintiffs filed their

combined Opposition to both Motions [Dkt. No. 43]. On December 10,

2014,      the Government and Intervenor-Defendants both filed their

Replies         [Dkt. Nos. 44 & 45]. Upon consideration of the Motions,

Opposition,        Replies,   and the entire record herein,            and for the

reasons         stated   below,   Defendant's     Motion    to    Dismiss    shall    be

granted,         Intervenor-Defendants'         Motion     for    Judgment    on     the

Pleadings shall be denied as moot, and Plaintiffs' Complaint shall

be dismissed.

I .       BACKGROUND

          A.     Statutory Framework

                 1. Federal Insecticide,        Fungicide, and Rodenticide Act

          The    Federal   Insecticide,    Fungicide,       and    Rodenticide       Act

("FIFRA"),        7 U.S.C.    §   136-136y,     protects    the    environment     from

"unreasonable adverse effects" arising from the use of pesticides,

Id.   §    136a (a) . Under FIFRA,     "no person .               may distribute or

sell .          . any pesticide that is not registered [with EPA]." Id.

EPA will "register" a pesticide if



                                          -2-
          (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

          (D) when used in accordance with widespread and commonly
          recognized practice it will not generally cause unreasonable
          adverse effects on the environment. Id. § 136a(c) (5).

          Before registering a           pesticide containing         "any new active

ingredient[,]"            EPA must provide the public with notice and the

opportunity to comment on "each application for registration [.]"

Id.   §   136a(c) (4). EPA's registration of a pesticide constitutes an

Order      within     the    meaning      of    the    Administrative       Procedure    Act

("APA")      and FIFRA. See Env't Def. Fund,                Inc. v. Costle, 631 F.2d

922, 926 (D.C. Cir. 1980); United Farm Workers of Am., AFL-CIO v.

Adm'r,       E.P.A.   I     592   F.3d         1080,    1082-83   (9th       Cir.     2010).

Manufacturers         may    only    distribute         registered    pesticides        in   a

manner       consistent       with       the     registration     order's      packaging,

labeling, and composition requirements.                    7 U.S.C.     §   136j; 69 Fed.

Reg. 47732, 47733           (Aug. 5, 2004).

          FIFRA divides judicial review between the District Courts and

the Courts of Appeals.               The appropriate forum depends,                 in part,

upon whether EPA conducted a "public hearing" before issuing the

relevant order. 7 U.S.C.             §   136n(a)&(b). Generally, "the refusal of


                                                -3-
[EPA]     to    cancel    or   suspend     a    registration        or    to    change     a

classification not         following a         hearing and other final            actions

. . . not committed to the discretion of [EPA] by law are judicially

reviewable by the          [D] istrict    [C] ourts of the United States."                 7

U.S.C.    §    136n(a)   (emphasis added).

        "In the case of actual controversy as to the validity of any

order issued by [EPA]          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 . . . in the United

States    [C] ourt of     [A] ppeals." Id. at       §   136n (b)    (emphasis added) .

A petition for review before the Court of Appeals must be filed

"within 60 days after the entry of such order [.]" Id.                          "Upon the

filing    of     such    petition   the    [C] ourt      [of   Appeals]        shall   have

exclusive jurisdiction to set aside the order complained of in

whole or in part." Id.

               2. Endangered Species Act

        The    Supreme    Court   has    called    the    Endangered       Species       Act

("ESA")       "the most comprehensive legislation for the preservation

of endangered species ever enacted by any nation." Babbit v. Sweet

Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687, 698 (1995)

(quoting Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180 (1978)).

The Act aims to conserve endangered and threatened species and the

ecosystems on which they depend.                 16 U.S.C.      §   1531(b).      Section
                                          -4-
7(a) (1) of the ESA obligates federal agencies 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 result in the destruction or adverse modification" of

designated critical habitats. 16 U.S.C.                           §    1536 (a) (2).

            In order to carry out this substantive obligation, when an

agency determines that an action "may affect" any species listed

as endangered or threatened                      ("listed species"),             or its habitat,

the agency must consult with experts in the United States Fish and

Wildlife Service ("FWS") or the National Marine Fisheries Service

    ( "NMF s" ) . i   16    u .s .c .   §    15 3 6 (a) ( 2 ) ;   5o     c .F . R.   §   4 O2 . 14 (a) .

"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.'"                      Defenders of

Wildlife v. Jackson, 791 F. Supp. 2d 96, 100 (D.D.C. 2011)                                  (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 603 (1992)                                 (Blackmun,

J. , dissenting) .

           Agencies        may    forgo     formal     consultation,           however,     if    they

determine -- with FWS or NMFS's written concurrence -- that the

proposed action is                 "not likely to adversely affect"                      any listed



1 The NMFS, located in the Department of Commerce, is responsible
for marine species, and the FWS, located in the Department of the
Interior, is responsible for terrestrial and inland fish species.
16 U.S.C. § 1532(15); 50 C.F.R. §§ 17.11, 402.0l(b).
                               -5-
species or critical habitat. 50 C.F.R.                    §§   402.13(a), 402.14(b) (1).

When the formal consultation requirement is triggered, FWS or NMFS

must prepare a "biological opinion" stating 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."      50    C.F.R.        §   402.14;      see    also   16   U.S.C.

§   1536 (a) (2).

        ESA's broad citizen-suit provision empowers "any person" to

"commence a         civil   suit on his          [or her]       own behalf"      to enjoin

violations of the Act's provisions, including an agency's failure

to consult.         16 U.S.C.     §§    1540 (g) (1) (A),       1536 (a) (2).   The United

States District Courts have subject matter jurisdiction to hear

challenges brought under               §    1540 (g) .   However,       would-be citizen-

plaintiffs      must     provide       an agency with written notice                 of   any

alleged      ESA      violation        60     days       before     filing      suit.     Id.

§   1540 (g) (2) (A) .

       B.     Factual Background 2

              1.      Cyantraniliprole Registration

       The present controversy follows EPA's decision to permit the

use of the chemical compound cyantraniliprole ("CTP") as an active


2 Since the Motions at issue contend                 that this Court lacks subject
matter jurisdiction, the Court may                   look beyond the pleadings to
determine whether it has subject                      matter jurisdiction. Jerome
Stevens Pharm., Inc. v. Food & Drug
~~~~~~~~~~~~~~~~~~~~=--~~~-
                                                      Admin., 402 F.3d 1249, 1253-
                                -6-
ingredient in pesticides. On February 29, 2012, EPA announced in

the Federal Register that it had received applications to register

pesticide products containing CTP pursuant to FIFRA. 77 Fed. Reg.

12295-97. Since no previously registered pesticides had included

CTP as an active ingredient,              EPA invited public comment on the

applications       until    March   30,        2012.   Id.    To     facilitate   public

comment,       EPA created a     public online docket               for CTP.   See EPA,

Cyantraniliprole -         Initial Registration, proposed uses on crops,

turf,    ornamentals,       buildings,     Docket EPA-HQ-OPP-2011-0668             (last

visited               on                  March                    25,            2015)   f




http://www.regulations.gov/#!docketDetail;D=EPA-HQ-OPP-2011-

0668.

        On May 23, 2012, EPA published a Notice of Filing of pesticide

petitions to establish tolerances for CTP in the Federal Register

with another opportunity to comment on or before June 22, 2012. 77

Fed.    Reg.    30481-85;     "Notice     of    Filing:      Cyantraniliprole,      Many

Crops, from DuPont," AR at 13-16.

        On June 6, 2013, EPA placed on the public docket its proposal

to register CTP as a new active ingredient and again invited public



54 (D.C. Cir. 2005). Because this case involves a challenge to an
administrative action, there is a significant administrative
record in addition to the pleadings. Accordingly, the facts that
follow are drawn both from Plaintiffs' Complaint [Dkt. No. 1] and
the parties' Joint Appendix, which contains excerpts from the
Administrative Record [Dkt. Nos. 46 & 47].
                               -7-
comment. See "Public Participation for Cyantraniliprole as a New

Active Ingredient,      Insecticide Formulated as a Technical Product

and Fourteen End Use Products," AR at 1 7-19; "Proposed Registration

of the New Active Ingredient Cyantraniliprole," AR at 888-901.

Following a    one-week deadline extension,                  EPA accepted comments

until July 14, 2013.       See "Extension of Public Comment Period to

July 14, 2013," AR at 906.

       In total, EPA received twenty-three comments before the July

14, 2013 deadline. See Compl.             ~   38; "Cyantraniliprole - Response

to Public Comments on EPA' s          'Proposed Registration of the New

Active   Ingredient Cyantraniliprole                         , "'   AR at    1996-2041;

"Registration of the New Active Ingredient Cyantraniliprole," AR

at 1978-95, 1990.

       EPA responded to each of the comments it received before the

deadline,   and   on    January     24,       2014,    the     agency   approved     the

registration of CTP and fourteen end-use products containing the

compound.   AR at      1978-1995.    EPA        subsequently        issued   individual

orders   specifically registering             the     active    ingredient     CTP   and

fourteen end-use products and approving the labels for each. Compl.

~   39. All of EPA's orders relating to the registration of CTP and

fourteen end-use products are collectively referred to herein as

the "CTP Registration Order" or "CTP Registration."



                                          -8-
         On March 21,                    2014,    Plaintiffs provided EPA with notice of

their belief that the agency had violated Section 7 of the ESA by

failing to consult with the FWS and the NMFS before registering

CTP. Compl.               ~    10.

                 2.             Procedural History

        On March 22,                     2014,    Plaintiffs filed a      Petition for Review

with our Court of Appeals,                           challenging EPA's alleged failure to

consult with FWS and NMFS. Petition, Ctr. for Biological Diversity,

et al. v. U.S. EPA, 14-1036 (D.C. Cir.)                           [Dkt. No. 31-2]. Plaintiffs

submitted their Petition "pursuant to                             §   16(b) of FIFRA [7 U.S.C.

§    136n (b)]   I   II   which provides for review of "any [FIFRA] order issued

by the [EPA] Administrator following a public hearing" in the Court

of    Appeals.                Id.    ~    3.     However,   the   Petition makes     clear   that

Plaintiffs filed in the Court of Appeals only to preserve their

claim in light of FIFRA's 60-day statute of limitations. Petition

at ~ 4.

        On April 28, 2014,                       Plaintiffs asked our Court of Appeals to

stay consideration of their Petition to allow litigation before

this Court to proceed. Pet' rs' Mot. to Stay at 3 [Dkt. No. 31-3].

On June 13,               the Court of Appeals granted Plaintiffs'                    Motion to

Stay.

        On June 3, 2014, Plaintiffs filed their Complaint before this

Court, alleging that EPA violated the ESA, 16 U.S.C.                             §   1536(a) (2),
                                                        -9-
and the APA, 5 U.S.C.             §§    701-706, by registering CTP and fourteen

end-use products without consulting FWS and NMFS.                        Compl.         ~~   44-

49. The Complaint asks this Court to declare EPA in violation of

ESA   §   7 (a) (2)   and        to    "[e] njoin,    vacate,    and   set   aside       EPA' s

authorization of any use of CTP that does·not include protections

necessary to avoid harm to listed species, until such time as EPA

has put in place adequate permanent measures that ensure against

jeopardy     to   listed         species      or     adverse    modification       of    their

critical habitat [.]        11
                                 Id. p. 22. The Complaint asserts three grounds

for this Court's subject matter jurisdiction: the federal question

statute, 28 U.S.C.      §        1331; ESA's citizen-suit provision, 16 U.S.C.

§   1540 (g) (1); and in the alternative, FIFRA, 7 U.S.C.                      §   136n(a).

Id. ~~ 9-10.

      On September 19,                2014,   the Government filed its Motion to

Dismiss for Lack of Jurisdiction. On October 15, 2014, Intervenor-

Defendants filed their Motion for Judgment on the Pleadings. 3 On

November 17, 2014, Plaintiffs filed their combined Opposition. On

December 10, 2014, the Government and Intervenor-Defendants filed

their Replies.




3 Under Fed. R. Civ. P. 24(c), parties seeking to intervene must
answer the complaint with "the claim or defense for which
intervention is sought. 11 Thus, a motion under Fed. R. Ci v. P. 12 (b)
was unavailable to Intervenors. See Yates v. Dist. Of Columbia,
324 F.3d 724, 725 (D.C. Cir. 2003).
                                 -10-
II.   STANDARD OF REVIEW

      As courts of      limited jurisdiction,         federal        courts possess

only those powers specifically granted to them directly in the

U.S. Constitution or by Congress. Kokkonen v. Guardian Life Ins.

Co. of Am., 511 U.S. 375, 377 (1994). Hence, under Fed. R. Civ. P.

12(b) (1), Plaintiffs bear the burden of showing by a preponderance

of the evidence that this Court has subject matter jurisdiction.

Carney Hosp. Transitional Care Unit v. Leavitt,                     549 F. Supp. 2d

93, 95 (D.D.C. 2008)     (citing McNutt v. Gen. Motors Acceptance Corp.

of Ind., 298 U.S. 178, 189 (1936)). In deciding whether to grant

a   motion to dismiss     for     lack of    jurisdiction,           the    Court must

"accept all of the factual allegations in                   [the]        [C] omplaint as

true [.]"    Jerome   Stevens    Pharmaceuticals,        Inc.       v.    Food    &    Drug

Admin.,     402 F.3d 1249,      1253-54   (D.C.   Cir.      2005)        (citing United

States v. Gaubert, 499 U.S. 315, 327              (1991))     (internal quotation

marks omitted). However, the Court may look beyond the Complaint's

factual     allegations to determine whether it has subject matter

jurisdiction. Id.

III. ANALYSIS

      The only question presently before the Court is whether it

has   subject matter jurisdiction to hear Plaintiffs'                        challenge.

Section 16 (b)    of FIFRA,      codified at      7 U.S. C.     §    136n (b) ,       vests

"exclusive jurisdiction" in the United States Courts of Appeals to
                                      -11-
hear challenges        "to the validity" of FIFRA registration orders

issued     "following        a     public        hearing."            The     Government     and

Intervenor-Defendants contend that, although Plaintiffs' Complaint

exclusively       alleges        ESA   violations,               it   also    challenges     the

validity of EPA's Registration of CTP under FIFRA. Thus, according

to the Government and Intervenor-Defendants, this case falls under

FIFRA's grant of exclusive jurisdiction to the Courts of Appeals.

      Plaintiffs argue that their action is governed by the ESA's

citizen-suit provision,            16 U.S. C.         §       1540 (g) ( 1) (A) , which places

subject     matter    jurisdiction          in     the          District      Courts.   In    the

alternative, Plaintiffs contend that EPA's Registration of CTP did

not   "follow[]      a public hearing"            and is therefore outside of                   §

136n(b) 's exclusive grant of jurisdiction to the Courts of Appeals.

             A.      FIFRA's Grant of Jurisdiction Governs Plaintiff's
                     Action.

      Plaintiffs' Complaint discusses at length the environmental

effects of CTP and criticizes aspects of the CTP Registration

Order,    including,     among         other     things,          the   label     restrictions

imposed by EPA. See e.g. , Compl.                 ~       1    ("EPA' s failure to consult

      . allows this pesticide to harm listed species."); id.                                 ~ 36

(alleging     that     EPA       conducted        insufficient               "species-specific

analysis" and failed to include appropriate use restrictions for

mixtures of CTP and another insecticide called thiamethoxam); id.


                                            -12-
~   41 (alleging inadequacy of use restrictions placed on pesticide

labels under CTP Registration Order) . As relief,                        the Complaint

asks     this    Court    to   "[e]njoin,        vacate,    and    set     aside   EPA's

authorization of any use of CTP."                 Compl.    p.    22.    In short,   the

Complaint        describes     how    CTP's      Registration       will    result    in

"unreasonable adverse effects on the environment [,]" 7 U.S. C.                        §

136a(a), and asks the Court to overturn the agency's Order.

       On its face,       Plaintiffs' 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.                          7

U.S.C.    § 136n(b); see also Humane Soc'y of U.S. v.                      E.P.A.,   790

F.2d 106, 110 (D.C. Cir. 1986).

       Plaintiffs        attempt     to   escape     FIFRA's       review    procedure

codified at 7 U.S.C. §136n, arguing that "[t]his case presents a

single claim:                  that EPA violated its procedural duty to

consult under Section 7(a) (2) before finalizing the Registration

of CTP.      [Plaintiffs have]       brought no claims under FIFRA or any

other statute." Pls. '         Opp' n at 10.       Hence,    in Plaintiffs'        view,

this Court has subject matter jurisdiction under the ESA' s citizen-

suit provision, 16 U.S.C. § 1540 (g) (1) (A).

       However,     "[i] f            a special statutory review procedure

[exists] ,      it is ordinarily supposed that Congress intended that

procedure to be the exclusive means of obtaining judicial review
                                          -13-
in those cases to which it applies." Media Access Project v. FCC,

883 F.2d. 1063, 1067 (D.C. Cir. 1989). For that reason, P+aintiffs

"may not escape an exclusive avenue of                        judicial review through

artful pleading."            Sandwich Isels Commc'nc,             Inc.    v.     Nat'l Exch.

Carrier Ass'n,         799 F.    Supp.     2d 44,     51   (D.D.C.      2011)    (citing Am.

Bird Conservancy v.             FCC,    545   F.3d 1190,        1194     (9th Cir.          2008))

(internal      quotation marks           omitted);     accord Ctr.         for    Biological

Diversity v.         EPA,    2013 WL 1729573,         at *18      ("Although Plaintiffs

only     challenge      the    EPA' s    failure      to     consult     under        ESA    §   7,

Plaintiffs'       'core objections'           are to the pesticide registrations

themselves,          which    are      governed      under      FIFRA's    administrative

framework."          (internal        citation       omitted));        City      of     Tacoma,

Washington v. Nat'l Marine Fisheries Serv., 383 F. Supp. 2d 89, 93

(D.D.C.      2005)     ("Styling its complaint as an independent action

against the NMFS does not enable the City of Tacoma to evade the

clear jurisdictional provision of the [Federal Power Act.]").

       Specifically with respect               to    FIFRA registration,               the D.C.

Circuit has held that plaintiffs must bring all challenges to an

Order's validity before the Courts of Appeals, even when a separate

statutory        scheme      grants     jurisdiction       to    the    District        Courts.

Envtl.    Def.    Fund,      Inc. v.    Envtl.      Prat. Agency        ("EDF"),       485 F.2d

780,   783    (D.C.    Cir.    1973).     In EDF,      the D.C.        Circuit considered

whether a challenge to a FIFRA registration order, which alleged
                                              -14-
violations of the National Environmental Policy Act              ("NEPA"), 42

U.S. C.    §   4321 et seq.,   could proceed in a U.S.       District Court

parallel to litigation before the Court of Appeals.              Id.   at 783.

Ordering the parties to seek dismissal of their District Court

suit, the Court said, "[w]hen the Congress required that [C]ourts

of     [A] ppeals exercise exclusive     jurisdiction over petitions to

review a FIFRA order,      it was to insure speedy resolution of the

validity of EPA determinations." Id. (internal citations omitted).

When further factual development is unnecessary, litigation before

a District Court would cause needless delay. Id.

         The logic of EDF applies beyond the two statutory schemes the

Court considered in that case. In City of 'Tacoma, 383 F. Supp. 2d

at 92,     the District Court held that an ESA claim challenging an

order by the Federal Energy Regulatory Commission was subject to

the exclusive jurisdiction of the Court of Appeals. Although ESA's

text grants subject matter jurisdiction to the District Courts,

"[i] t    is well-established that when two jurisdictional statutes

provide different avenues for judicial review,             courts apply the

more     specific legislation."    Id.   at   92.   Similarly,   in Am.   Bird

Conservancy,      545 F.3d at 1193-94,     the Court of Appeals for the

Ninth Circuit held that plaintiffs could not avoid the Hobbs Act's

exclusive grant of jurisdiction to the Courts of Appeals to review

certain FCC orders by limiting their pleadings to ESA claims.
                                    -15-
          In a well-reasoned and thorough opinion, a magistrate judge

in     the     Northern District          of     California      addressed        exactly     the

question presented here,             finding that EPA' s alleged "failure to

consult [is] inextricably intertwined with agency actions governed

by    a    regulatory      framework."          Ctr.   for     Biological        Diversity v.

E.P.A., 2013 WL 1729573, at *21 (N.D. Cal. Apr. 22, 2013)                                (citing

Am.    Bird Conservancy,          545 F.3d at 1193.). Relying on the Ninth

Circuit's ample FIFRA and ESA precedent, the Court held that the

plaintiff's ESA claim was, in fact,                     subsumed by FIFRA's grant of

exclusive jurisdiction to the Courts of Appeals. Id. at *14; see

also Council for Endangered Species Act Reliability v. Jackson,

2011      WL    5882192,    at    *5-6     (D.    Ariz.       Nov.     23,     2011)    (similar

reasoning and same result) . Plaintiffs have failed to show how the

facts of this case or the law of this circuit compel a different

outcome.

          Instead,      Plaintiffs       contend       that    application         of   FIFRA's

exclusive         jurisdictional      grant       would       create     an    irreconcilable

conflict between FIFRA's 60-day statute of limitations and ESA's

60-day         notice   requirement.           However,       such   a       conflict   "is    an

illusion[.]" Am. Bird Conservancy, 545 F.3d at 1195 (holding that

ESA's        citizen-suit        notice    provision           did     not     conflict     with

Communications Act's 60-day statute of limitations).



                                               -16-
     In order      to     protect    Plaintiffs'              procedural   position,   the

Government concedes that if Plaintiffs do not rely on the ESA's

citizen-suit provision for subject matter jurisdiction, they need

not provide the Government with ESA notice before filing suit.

Gov't's Reply at 3. Where parties rely on another statutory grant

to provide subject matter jurisdiction,                         such as FIFRA' s   review

provision,     7 U.S. C.    §   13 6n (b) ,    ESA' s     notice requirement simply

does not apply. Cf. Washington v. Daley, 173 F.3d 1158, 1170 n.16

(9th Cir. 1999)        ("Because [plaintiff's] claims were brought under

the Magnuson Act, the Endangered Species Act's notice requirement

need not be met.").

     For       these      reasons,      the       Court          holds     that    FIFRA's

jurisdictional provision,            7 U.S. C.       §    13 6n,   governs Plaintiffs'

claim.

     B.      EPA's Registration Order Followed a "Public Hearing."

     Plaintiffs        contend      that      even       if     FIFRA's    jurisdictional

statute governs        this dispute,          EPA failed to conduct a              "public

hearing" before issuing the CTP Registration Order, and therefore,

7 U.S.C.   §    136n(a)    does provide this Court with subject matter

jurisdiction. Section 136n divides subject matter jurisdiction to

hear FIFRA challenges between the District Courts and the Courts

of Appeals. Judicial review of EPA's "refusal .                            . to cancel or

suspend a registration or to change a classification not following
                                           -17-
a   hearing and other final              actions            not committed to the

discretion of the           [agency]" is allocated to the District Courts.

Id.    §    136n(a)    (emphasis added). Whereas, a "controversy as to the

validity of any order issued by [EPA] following a public hearing"

must be brought before one of the Courts of Appeals. Id.                     §   136n(b)

(emphasis added) . Thus, whether Plaintiffs' challenge is properly

before this Court or the Court of Appeals depends on whether the

CTP Registration Order "follow[ed] a public hearing." Id.

           Plaintiffs argue that "public hearing," as used in                    §   136n,

calls for more than "mere notice and an opportunity for written

comment."        Pls.'    Opp' n at     25.   Relying primarily on Black's Law

Dictionary (9th Ed. 2009) and a dissenting opinion from the Ninth

Circuit Court of Appeals, United Farm Workers, 592 F.3d at 1084-

1087       (Pregerson, J. dissenting),           Plaintiffs contend that "public

hearing" is properly read to require a "quasi-judicial proceeding

overseen by a hearing examiner[.]" Pls.' Opp'n at 23, 29.

       However,        Plaintiffs'      position is      directly contradicted by

binding precedent, which holds that the adequacy of the record

not the formality of the proceedings -- governs the question of

whether there has been a "public hearing." E.g., Humane Soc'y, 790

F.2d       at   111.     This   circuit's      seminal   case   concerning       "public

hearings"        under     FIFRA   is   Environmental      Defense   Fund,       Inc.   v.

Castle, 631 F.2d 922, 926-32 (D.C. Cir. 1980). In Castle, our Court
                                              -18-
of Appeals declined to take a          "literal approach"         to the words

"public hearing"        and 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, 790 F.2d at 110-11 (discussing,

construing,     and reaffirming Cost le,       631 F. 2d at     925)     (internal

quotation marks omitted) . Accordingly, despite "the lack of public

notice, the absence of public participation, and the lack of any

type of oral presentation by the parties[,]" the Costle Court held

that "[b] ecause the record before          [it]   [was] wholly adequate for

judicial review,            the proceedings[] antecedent to the [EPA] 's

order were a      'public hearing'     granting      [the Court of Appeals]

jurisdiction to review the challenged order." Castle, 631 F.2d at

927, 932.

        Our Court of Appeals has repeatedly acknowledged Cost le' s

continuing vitality. E.g., Humane Soc'y,             790 F.2d at 111; Nat'l

Grain Sorghum Producers Ass'n,         Inc. v.     E.P.A.,    84 F.3d 1452,     *3

(D.C.    Cir.   1996)    (holding   that    agency   had     satisfied    "public

hearing" requirement despite lack of formal hearing because it had

created an "adequate record for review in a court of appeals") .

Moreover, relying in part on Costle, the Ninth Circuit has directly

addressed the issue Plaintiffs raise, holding that notice and the

opportunity to comment constitute a "public hearing" for purposes
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of     §   136n(b).    United Farm Workers,             592     F.3d at 1083.          Finally,

another District Court in this Circuit has noted that "[c]ourts

have generally interpreted [§ 136n(b) 's jurisdictional grant]                                 to

include        [a] gency orders      following         public       notice    and     comment."

Defenders of Wildlife v.                 Jackson,      791 F.       Supp.    2d 96,    102 n. 3

    (D.D.C. 2011)     (citing Humane Soc'y, 790 F.2d at 112; United Farm

Workers, 592 F.3d at 1082-83) . 4

           Before issuing the CTP Registration Order, EPA developed the

Administrative         Record by providing notice                    and    opportunity       for

public comment on several occasions.                     On February 29,            2012,    EPA

provided notice in the Federal Register that it had received CTP

registration          applications.        77   Fed.    Reg.        12295-97.    The     Agency

provided       the    public      with    the   opportunity           to    comment     on    the

Registration          at   that    initial      phase,        and    provided       additional

opportunity to comment on March 23,                     2012 and June 5,            2013.    Id.;

Fed. Reg. 30481-85; AR 888-901.




4 Plaintiffs argue that other sections of FIFRA, not here at issue,
should guide this Court's analysis, noting that § 6(d) of FIFRA
sets forth elaborate requirements for a "public hearing, including
for notice, evidence, testimony, subpoenas,        . deadlines for
decisions, and the standard of review." Pls. Opp'n at 24 (citing
7 U.S.C. § 136d(d)). However, as Plaintiffs acknowledge elsewhere
in their brief, Pls.' Opp'n at 25, our Court of Appeals has
previously rejected the argument that "public hearing" as used in
§ 136n(b) includes the elaborate procedures described in FIFRA's
§ 6(d). Costle, 631 F.2d at 928.
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        This process resulted in an Administrative Record totaling

more     than       113,000       pages.      Plaintiffs        responded           to     these

opportunities        to be heard and provided significant                          input.     See

Compl.    ~   38. The contents of the Record vary widely and include

legal    arguments,         the    results       of    scientific      studies,          general

comments, and the registration applications themselves.

        Nowhere     in    their    Opposition         do    Plaintiffs       point       to   any

particular inadequacy in the Record.                       Instead,     Plaintiffs argue

that    notice      and   the     opportunity         to   comment    are        categorically

insufficient to produce an adequate record. As the discussion of

our Court of Appeals' precedent above makes plain, this argument

is without merit.

        Finally, Plaintiffs contend that it makes no sense to treat

adequacy of the record as the jurisdictional lynchpin.                               In their

view, that rule requires the Court to look into the administrative

record prematurely -- before establishing its power to hear the

case          and   forces      plaintiffs       to    guess    where       to    file          an

especially problematic             feature       given     FIFRA' s    brief       statute of

limitations.        While     Plaintiffs'        concerns      are    not    trivial,         this

Court does not write with a free hand, and must, of course, follow

controlling case law from the Court of Appeals.                              For all these

reasons,      the Court       concludes that EPA held a                 "public hearing"

within the meaning of 7 U.S.C.               §   136n(b) prior to issuing the CTP
                                             -21-
Registration Order, and therefore, this Court lacks subject matter

jurisdiction to hear Plaintiffs' challenge.

IV.     CONCLUSION

        For       the   foregoing   reasons,   Defendant's    Motion to Dismiss

shall be granted,           Intervenor-Defendants'        Motion for Judgment on

the Pleadings shall be denied as moot, and Plaintiff's Complaint

shall        be   dismissed.   An   Order    shall    accompany   this   Memorandum

Opinion.




May   Jif,    2 0 15
                                                   United States District Judge


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