UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WOODSTREAM CORPORATION,
Plaintiff,
v. Civil Action No. 11-cv-0867 (BJR)
LISA P. JACKSON, Administrator, United ORDER AND MEMORANDUM OPINION
States Environmental Protection Agency, ON MOTION FOR SUMMARY
and JUDGMENT
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Defendants.
This case concerns the extent to which the Environmental Protection Agency may place
conditions on registrations for rodenticide products under the Federal Insecticide, Fungicide, and
Rodenticide Act, and whether certain particular conditions were arbitrary and capricious.
Plaintiff is Woodstream Corporation (hereinafter “Woodstream”), a manufacturer of rodenticide;
defendants are Lisa P. Jackson, in her capacity as Administrator for the United States
Environmental Protection Agency (hereinafter “EPA” or “the EPA”), and the EPA itself. 1
This case was reassigned from Judge Boasberg on January 27, 2012. Before the court at
this time is plaintiff’s Motion for Summary Judgment [dkt. #11] (hereinafter “Pltf.’s Mot.”) and
defendants’ Motion for Judgment on the Pleadings or, in the Alternative, for Summary Judgment
[dkt. #13] (hereinafter “Def.’s Mot.”). Although styled in the alternative as a motion for
judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, EPA’s
motion plainly turns on the consideration of materials outside the scope of the pleadings, and
1
As defendant Jackson is sued in her capacity as Administrator of the EPA, defendants shall throughout be referred
to as “EPA” or “the EPA.”
1
both parties effectively treat the motion as one for summary judgment. Accordingly, the court
treats the motion as one for summary judgment. See Ebling v. U.S. Dep’t of Justice, 796 F.
Supp. 2d 52, 55 (D.D.C. 2011).
I. LEGAL STANDARD
The parties have cross-moved for summary judgment under Federal Rule of Civil
Procedure 56, which provides for entry of summary judgment if “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The facts in this case are undisputed, and the key issues are questions of law, so summary
judgment is appropriate.
II. STATUTORY BACKGROUND
A. Registration Provisions
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136y,
requires all pesticide products distributed or sold in the United States to be registered with the
EPA. 7 U.S.C. § 136a(a). The EPA is directed to approve the registration of a pesticide if, inter
alia, “(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.” 7 U.S.C. § 136a(c)(5). “A
FIFRA registration is a product-specific license describing the terms and conditions under which
the product can be legally distributed, sold, and used.” Reckitt Benckiser, Inc. v. EPA, 613 F.3d
1131, 1133 (D.C. Cir. 2010).
2
In 1978, FIFRA was amended to add Section 3(c)(7), which allows for registration of
products under special circumstances. Subsections (A) and (C) of Section 3(c)(7) were drawn
from the Senate version of the bill, S. 1678. H.R. Rep. No. 95-1560 at 34. The purpose of the
amendment was to address the backlog that existed in the registration process. S. Rep. No. 95-
334 at 3. One of the “serious impediment[s]” identified in the registration program at that time
was “EPA’s inability to issue registrations on a conditional basis.” Id. at 4. In particular, there
existed a “double standard” between producers with older registrations and those seeking new
registrations. As the EPA requirements for new registrants grew more stringent, new registrants
could find themselves held to higher standards than producers who held older registrations, even
if their respective products were nearly identical. Id. The “unforeseen and undesirable twists to
the law would be eliminated” by giving the EPA “authority to conditionally register pesticides.”
Id.
B. Administrative Review
The procedure for administrative review is set forth under Section 6 of FIFRA. 7 U.S.C.
§ 136d. “A pesticide product remains registered until EPA or the registrant cancels it pursuant to
Section 6.” Woodstream Corp. v. Jackson, Case No. 11-cv-867, 2011 U.S. Dist. LEXIS 151994,
at *3-4 (D.D.C. June 3, 2011) (citation omitted). EPA may commence cancellation proceedings
if it appears that a pesticide does not comply with the provisions of FIFRA, or that it generally
causes unreasonable adverse effects on the environment. 7 U.S.C. § 136d(b). EPA may issue a
notice of intent either to cancel the registration or to hold a hearing to determine whether the
registration should be canceled. Id. If EPA chooses the first option, the registrant may demand a
hearing. 7 U.S.C. §§ 136d(b), (d); 40 C.F.R. § 164.20.
3
Cancellations of conditioned registrations fall under Section 6(e). While a hearing may
be requested, it has a slightly narrower scope than a hearing under Section 6(b). The only
matters for resolution at a Section 6(e) hearing are whether the registrant has satisfied the
condition (or initiated and pursued the appropriate action to comply with the condition) within
the time provided, and whether EPA’s determination with respect to the disposition of existing
stock is consistent with the subchapter. 7 U.S.C. § 136d(e)(2). Existing stocks of a pesticide
canceled under Section 6(e) may continue to be sold for as long as EPA specifies, as long as it
will not have unreasonable adverse effects on the environment. 7 U.S.C. § 136d(e)(1)(B).
III. FACTUAL BACKGROUND 2
A. RMD for Rodenticides
On May 28, 2008, the EPA issued a Risk Mitigation Decision for Ten Rodenticides
(“RMD”), which imposed “risk mitigation measures” for products containing certain
rodenticides, including bromethalin and difenacoum. The RMD set June 4, 2011 as the “Last
Day for ‘Release of Shipment’ of Product Not Complying with Risk Mitigation Decision,” and
stated that products released for shipment after that date which were not in compliance with the
RMD “would be considered mislabeled.” The RMD further stated that “should a registrant fail
to implement any of the risk mitigation measures identified in this document,” the EPA “may
take regulatory action to address the risk concerns from the use of the affected products,” which
may include “cancellation actions.” Plaintiff’s Statement of Undisputed Material Facts
(hereinafter “Pltf.’s SOF”) ¶¶ 9-11.
2
The facts below are compiled from the parties’ statements of undisputed material facts. While each party
submitted a statement of undisputed material facts, neither party controverted the facts in the other’s submission;
therefore, the facts asserted in the statements are deemed conceded. See LCvR 7(h).
4
The RMD required each affected registrant to submit a letter within ninety days stating
whether the registrant would agree to voluntarily cancel or amend its product registrations to
comply with the risk mitigation measures set forth in the RMD. Pltf.’s SOF ¶ 13.
B. Initial Registrations
Woodstream manufactures and distributes certain rodenticide products under the
VICTOR® brand name that are registered with the EPA pursuant to FIFRA. Pltf.’s SOF ¶ 1.
Five products produced by Woodstream are at issue in this case.
Two products containing the rodenticide bromethalin were registered in July 2006 and
April 2007 respectively. Woodstream’s bromethalin products were conditionally registered by
EPA pursuant to FIFRA Section 3(c)(7)(A), on the condition that Woodstream submit certain
test data within fifteen months of registration. There were no other conditions. Woodstream
timely submitted the test data to fulfill the condition. Id. ¶¶ 3-5.
Three products containing the rodenticide difenacoum were registered between
September 2007 and June 2008. Pltf.’s SOF ¶ 3. Woodstream’s difenacoum products were
conditionally registered by EPA pursuant to FIFRA Section 3(c)(7)(C), with two conditions:
Woodstream was required to submit certain test data within fifteen months of registration, which
it did, and Woodstream was required to “comply with EPA’s final Rodenticide Risk Mitigation”
decision “for similar rodenticides . . . on the same time schedule as those similar rodenticides.”
Id. ¶ 6.
On August 29, 2008, Woodstream submitted a letter to EPA indicating that it did not
intend to voluntarily comply with the requirements of the RMD. Pltf.’s SOF ¶ 14.
C. Woodstream’s Amendments to Registrations
5
On July 8, 2008, Woodstream filed an application to amend its registrations for the five
products by including additional package sizes and net contents. In a letter dated November 19,
2008, EPA approved the amendments, subject to the following condition:
This registration is not consistent with the Agency’s May 28, 2008,
“Risk Mitigation Decision for Ten Rodenticides.” EPA anticipates
cancellation of those existing products that are not consistent with
the Risk Mitigation Decision to occur no later than June 4, 2011.
In the meantime, EPA is approving new registrations and
amendments to existing registrations of rodenticide bait products,
on a time limited basis, so long as the registrations do not present
greater risks of unreasonable adverse effects than existing
products. Accordingly, this registration is approved only subject to
the condition that the registration shall expire on June 4, 2011.
This condition of registration may be amended in conjunction with
amendments to conform to the Risk Mitigation Decision. Absent
such amendments, product release for shipment by the registrant
after June 4, 2011 would be in violation of FIFRA.
Pltf.’s SOF ¶¶ 16-17; Complaint [dkt. #1], Exh. 3 at 2.
On February 17, 2009, Woodstream applied for additional amendments to its difenacoum
registrations to create three sub-labels for consumer use, agricultural building use, and
professional use. In a letter dated May 28, 2009, EPA approved the amendments subject to the
above conditions. Complaint, Exh. 4 at 2. 3
D. Procedural History
On February 18, 2011, and April 28, 2011, Woodstream wrote letters to the EPA
requesting that its registrations be amended to remove the June 4, 2011 expiration dates imposed
under the November 19, 2008 and May 28, 2009 letters. EPA did not formally respond to either
letter, and took no action to remove the June 4, 2011 expiration date. Pltf.’s SOF ¶ 25-28.
3
On May 27, 2011, EPA removed the conditions as applicable to the difenacoum products labeled for agricultural
building use and professional use, as those products do not violate the risk mitigation measures of the RMD. Pltf.’s
SOF ¶¶ 18-20.
6
On May 9, 2011, Woodstream filed this suit, seeking declaratory and injunctive relief
prohibiting EPA from enforcing the conditions on its registrations. Pltf.’s SOF ¶ 29. On the
same day, Woodstream filed a Motion for Preliminary Injunction [dkt. #3]. On June 3, 2011,
Judge Boasberg denied Woodstream’s request for a preliminary injunction, having determined
that Woodstream failed to carry its burden on the four preliminary injunction factors, including
likelihood of success on the merits. Woodstream, 2011 U.S. Dist. LEXIS 151994, at *28.
IV. DISCUSSION
A. The matter is not moot
EPA argues that, because the expiration date upon which the registrations were
conditioned has passed, the issue is now moot and the court lacks subject matter jurisdiction.
Def.’s Mot. at 1-2. EPA claims that the registrations “no longer exist” because the June 4, 2011
expiration date passed. Woodstream argues that EPA’s interpretation of the mootness doctrine
would curtail judicial review of federal agency actions dramatically.
“Under Article III of the Constitution,” a court “may only adjudicate actual, ongoing
controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). “[A] case is moot when the issues
presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”
Powell v. McCormack, 395 U.S. 486, 496 (1969). However, if a court has the power to
effectuate a partial remedy for a plaintiff, even if a full and satisfactory remedy is unavailable, a
case is not moot. Church of Scientology v. United States, 506 U.S. 9, 13 (1992).
This court agrees with plaintiff that the matter before it is not moot. The cases cited by
defendants for the proposition that a case may be moot because a period or deadline has passed
are not applicable here. See, e.g., Fund for Animals, Inc. v. U.S. Bureau of Lang Mgmt., 460
F.3d 13, 18 (D.C. Cir. 2006) (plaintiff challenged policies in a memorandum which had expired,
7
so the claim was moot). At issue in this case is the right to impose an expiration date itself, and
whether EPA may terminate a registration through the imposition of an expiration date condition.
The event that defendants contend renders the action moot is the very agency action challenged
in the lawsuit. 4
B. The EPA may place conditions on registrations unrelated to test data
Woodstream argues that the conditions placed on its registrations are ultra vires, because,
as Woodstream reads the plain language of FIFRA Section 3(c)(7), EPA is authorized to
condition the approval of a registration or amended registration only on the subsequent
submission of test data that are required for that registration—nothing more. Pltf.’s Mot. at 14-
15. Woodstream claims that Congress clearly intended to limit EPA’s authority, and that to read
any “open-ended additional exceptions to the general requirement for unconditional registration
under FIFRA § 3(c)(5) would violate the basic tenet of statutory construction, expressio unius est
exclusion alterius (“the explicit mention of one is the exclusion of the other”).” Id. at 17. The
court disagrees.
EPA argues that plaintiff’s reading of the statute is incorrect, and that it has the authority
to place conditions on pesticide registrations other than those specified in Section 3(c)(7), i.e.,
test data. According to EPA, plaintiff is reading into the statute an exclusivity clause that is not
there. Rather, EPA points out that FIFRA is silent as to whether EPA may or may not place
conditions on registrations other than conditions specified in Section 3(c)(7). EPA has
interpreted its registration authority to “establish, on a case-by-case basis, other conditions
4
Furthermore, contrary to EPA’s claims, plaintiff has available remedies. If the court were to determine that EPA
may not place conditions on registrations unrelated to test data, and that the registrations containing conditions other
than test data requirements were not valid, Woodstream would still have partial remedy available. Woodstream’s
initial registrations for its two bromethalin products had conditions related only to the submission of test data. If the
amendments had not been granted, those initial registrations would continue until EPA initiated cancellation
proceedings under Section 6(b). See Reckitt Benckiser, 613 F.3d at 1134. Therefore, at least some partial remedy is
available.
8
applicable to registrations to be issued under FIFRA sec. 3(c)(7).” 40 C.F.R. § 152.115. Given
that the statute is silent, EPA argues, its interpretation of FIFRA as allowing EPA to include
conditions in pesticide registrations other than those specified in Section 3(c)(7) must prevail
because is reasonable and consistent with the purposes of FIFRA. Def.’s Mot. at 17-26.
Defendant is correct.
When reviewing an agency’s interpretation of a law it administers, the court must apply
the principles of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). Under Chevron, the first step begins with the statute. The court must examine the
statute to determine whether Congress has spoken directly to the precise question at issue.
Natural Res. Def. Council v. Envtl. Prot. Agency, 643 F.3d 311, 322 (D.C. Cir. 2011). If it has,
that is the end of the analysis, “for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43. On the other hand,
if the statute is “silent or ambiguous with respect to the specific issue,” then the court must
determine whether the agency’s response to the question at issue is based on a permissible
construction of the statute. Id. at 843. The court must use “the traditional tools of statutory
interpretation—text, structure, purpose, and legislative history” to determine whether Congress
has spoken to the precise question at issue. Consumer Elecs. Ass’n v. Fed. Commc’ns Comm’n,
347 F.3d 291, 297 (D.C. Cir. 2003) (quoting Pharm. Research & Mfs. of Am. v. Thompson, 251
F.3d 219, 224 (D.C. Cir. 2001)).
As noted by Judge Boasberg in his opinion on the preliminary injunction, there is no
dispute that, under Section 3(c)(7), FIFRA explicitly allows for a conditional registration when
test data is unavailable. Woodstream, 2011 U.S. Dist. LEXIS, at *12-13. The statute is silent,
however, as to whether other conditions may be placed on a registration.
9
The plain language of the statute does not restrict EPA’s authority as to the type of
conditions that may be placed on registrations. It merely requires that, as with all registrations,
the product not have “unreasonable adverse effects on the environment.” 7 U.S.C. § 136(a)(c)(7).
While the submission of test data is the only condition mentioned explicitly, the language does
not expressly bar other language. Furthermore, the D.C. Circuit has held that the expressio unius
canon “has little force in the context of challenges to an agency’s interpretation of a statute,
where we defer to an agency’s interpretation unless Congress has directly spoken to the precise
question at issue.” St. Marks Place Hous. Co. v. U.S. Dep’t of Hous. & Urban Dev., 610 F.3d 75,
82-83 (D.C. Cir. 2010) (internal citation omitted).
The purpose of FIFRA, together with the statute’s legislative history, further undermines
Woodstream’s argument. As both parties note, Section 3(c)(7) was adopted by Congress to
address the inequity created by the then-existing statutory scheme between existing registrants
and new applicants. While Woodstream highlights the use of the word “data” in the Senate
Report pertaining to the 1978 FIFRA Amendments, the overall approach in the legislative history
shows that Congress was concerned with the “lack of middle ground” in the registration process
between totally denying registration and granting it—that middle ground being conditional
registration. S. Rep. No. 95-334 at 4. The Senate Report to the 1978 FIFRA Amendments also
states that, while the EPA must review pesticide applications to avoid any unreasonable adverse
effect on the environment, “[a]n overriding concern of FIFRA is that pesticides should be
available to meet pest control needs.” S. Rep. No. 95-334 at 3. In short, “[s]ince registration is
critical, this program must be made to work.” Id. There is nothing to suggest that Congress
intended to limit conditions on registrations to test data.
10
The second step of Chevron acknowledges the necessity of an agency being able to
formulate policy and make rules to “fill any gap left, implicitly or explicitly, by Congress.”
Chevron, 467 U.S. at 843 (citation omitted). The court must determine whether the agency’s
interpretation of the statute is reasonable. If the legislative delegation to an agency is implicit, as
it is in this case, “a court may not substitute its own construction of a statutory provision for a
reasonable interpretation made by the administrator of an agency.” Id. at 844.
The agency’s view governs if it is a reasonable interpretation of the statute—“not
necessarily the only possible interpretation, nor even the interpretation deemed most reasonable
by the courts.” Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498, 1505 (2009) (emphasis in
original). EPA argues that crafting registration conditions rather than simply denying an
application gives the agency the flexibility it needs to balance risks and benefits of a product,
thus maximizing the availability of pesticides to the public while being consistent with FIFRA’s
prohibition on unreasonable adverse effects. Reading FIFRA in a way that would preclude EPA
from placing conditions on registration beyond test data would eliminate that flexibility.
Woodstream’s argument that it is unreasonable for EPA to impose any conditions other
than those concerned with test data suffers not only in light of FIFRA’s legislative history, as
discussed above, but in light of other conditions routinely imposed by EPA beyond those at issue
in this case. EPA routinely places a variety of conditions on registrations. Judge Boasberg noted
that three of the registrations in question had additional conditions requiring registrants to submit
amended labels, and observed, “Surely FIFRA does not prevent EPA from requiring such a
ministerial condition be satisfied for registration.” Woodstream, 2011 U.S. Dist. LEXIS, at *16.
Were the court to read FIFRA as Woodstream suggests, EPA would be forced to deny many
11
regulations that could otherwise be registered with simple conditions. Such a needlessly
restrictive approach would work only to stymie the registration process.
Furthermore, as EPA notes, there is persuasive precedent recognizing agency authority to
issue licenses or registrations subject to conditions. In Connecticut Fund for the Environment,
Inc. v. EPA, the court stated that “[c]onditional approval offers administrative agencies a
measured course that may be more precisely tailored to particular circumstances than the all-or-
nothing choice of outright approval or disapproval.” Connecticut Fund for the Env’t, Inc. v. EPA,
672 F.2d 998, 1006 (2d Cir. 1982). In McManus v. Civil Aeronautics Board, the Second Circuit
again noted that an agency’s power to condition approval is “necessary for flexible
administrative action and is inherent in the power to approve or disapprove,” and that to hold
otherwise would be “sacrificing substance to form.” McManus v. Civil Aeronautics Bd., 286 F.2d
414, 419 (2d Cir. 1961).
Given EPA’s history of placing conditions on registration, together with case law
illustrating that placing conditions on registrations and licenses is a frequent and important
adjunct to an agency’s power to grant registrations and licenses at all, it is clear that EPA has the
authority to impose conditions other than test data requirements when granting registrations or
amendments to registrations.
C. The conditions are not arbitrary or capricious
Woodstream argues that, even if EPA may place conditions on registrations that do not
concern test data, the conditions at issue are arbitrary and capricious, and amount to an abuse of
the EPA’s discretion.
Under the Administrative Procedure Act (APA), a reviewing court shall “hold unlawful
and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse
12
of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A), (C). “The scope
of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute
its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983).
The conditions imposed by EPA on Woodstream’s products set forth essentially three
requirements: (1) Woodstream must bring its products into line with the requirements of the
2008 RMD; (2) Woodstream must comply with the requirements of the RMD by June 4, 2011
(in the case of the earlier difenacoum registrations, “on the same time schedule” as similar
products—i.e., by June 4, 2011); (3) if Woodstream does not bring its products into line with the
requirements of the RMD by June 4, 2011, it will lose the registrations upon which the
conditions are placed. Woodstream makes a barrage of arguments as to why EPA’s conditions
on its registrations are arbitrary and capricious.
First, Woodstream claims that EPA abused its discretion by conditioning its registrations
on complying with the RMD or facing the expiration of its registrations on June 4, 2011, because
the conditions allow EPA to “bypass” the cancellation procedures under Section 6, “without
affording Woodstream the important procedural protections . . . provided by FIFRA § 6(b).”
Pltf.’s Mot. at 25. However, what Woodstream fails to recognize it that there were other avenues
available to it by which it may have received an administrative hearing. For example,
Woodstream could have accepted the conditions, but immediately filed a new request for an
amended registration removing the conditions. If the EPA denied the request, as it presumably
would, Woodstream would be entitled to the same remedies available under Section 6 in the case
of a cancellation, including an opportunity for a full administrative hearing. 7 U.S.C. § 136a(6).
13
As to the difenacoum registrations that issued prior to the RMD, Woodstream argues that
it was arbitrary and capricious to require compliance with the RMD eight months prior to its
final publication. Pltf.’s Mot. at 25. The court will address Woodstream’s objections to this
condition, although the amendments to the difenacoum registrations would seem to render this
issue no longer germane. Woodstream argues that, as the RMD did not yet exist, EPA could
determine that the products would have an adverse environmental effect at some indefinite point
in the future, at which point Woodstream would lose its registration without the benefit of a
Section 6(b) cancellation proceeding. Pltf.’s Mot. at 26. This argument is without merit. The
requirement to comply with the forthcoming risk management decision did not emerge from thin
air. As EPA notes, the RMD was far from purely speculative at the time Woodstream’s first
difenacoum registration was issued in September 2007. EPA was under a remand order, and had
already published a Proposed Risk Mitigation decision for public comment in January 2007.
Def.’s Mot. at 32. Once the RMD was issued, Woodstream had three full years to comply with
the conditions, which gave ample time for Woodstream either to change its product or contest the
conditions.
Woodstream next argues that the placement of conditions on its amended registrations in
2008 and 2009 “was wholly dependent on the happenstance of Woodstream’s application for an
amendment to the Registrations,” making EPA’s placement of the conditions “inherently
opportunistic and not even-handed.” Pltf.’s Mot. at 27. Woodstream claims that it could not
decline to amend its registrations, because it needed those amendments to remain competitive in
the marketplace. Id. The fact that Woodstream, in the case of the bromethalin registrations, was
forced to make a business choice between accepting amended registrations with conditions and
14
retaining unconditioned registrations does not render EPA’s use of the conditions unlawful or
arbitrary. See Woodstream, 2011 U.S. Dist. LEXIS 151994, at *18.
Woodstream also claims that the application of the conditions to its registrations placed it
in a disadvantageous position in relation to earlier registrants of similar products who did not
apply for amendment, and who were not subject to the conditions. Woodstream alleges that it is
arbitrary and capricious for EPA to create “winners and losers” amongst “similarly situated”
registrants through the imposition of the conditions on its registrations. Id.
Woodstream’s argument is based on a false equivalence. Woodstream was not similarly
situated to those earlier registrants who were targeted by the RMD, whose registrations must be
cancelled through Section 6(b) cancellation procedures. The registrations subject to the
conditions related to the RMD were new registrations that issued when the RMD was near its
final publication and registrations that issued or were amended after its publication. EPA has
placed similar conditions on registrations by other producers who applied for new registrations
or for amendments to registrations during the same time period. Def.’s Mot. at 35. Woodstream
is situated similarly to those producers, and was treated similarly. 5
Woodstream also objects that the June 4, 2011 deadline for compliance with the RMD
was unreasonable. Pursuant to its statutory mandate, EPA balanced the potential for
5
Woodstream’s argument arises from a its claim that this case is like another recent case in this district court,
Reckitt Benckiser, Inc. v. Jackson, 762 F. Supp. 2d 34 (D.D.C. 2011). Contrary to Woodstream’s claim, the
circumstances of that case are entirely distinguishable. Reckitt Benckiser, Inc. (hereinafter “Reckitt”) had an
existing, unconditioned registration. EPA notified Reckitt that, following the expiration date, Reckitt’s registration
would be subject to a misbranding procedure rather than Section 6 cancellation. Misbranding actions lack the
opportunity for hearing and due process provided in Section 6 cancellation proceedings. On March 5, 2009, Reckitt
filed suit against the EPA seeking declaratory and injunctive relief preventing EPA from initiating misbranding or
other enforcement action against Reckitt’s rodenticide products for violation of the RMD until the cancellation
procedures of FIFRA Section 6 had been initiated and completed. Reckitt Benckiser, 762 F. Supp. 2d at 39-40. On
January 28, 2011, the district court granted summary judgment in favor of Reckitt, holding that “Congress clearly
did not intend to give EPA the authority it asserted in the RMD to bring a misbranding action in lieu of a
cancellation proceeding against a product that failed to comply with the RMD.” Reckitt Benckiser, 762 F. Supp. 2d
at 43.
15
unreasonable adverse effects on the environment with the impact of refusing registration and/or
amendments to registrations for a number of rodenticides, which could impact consumer pest
control needs. Had EPA not granted the conditional registrations and amended registrations on
Woodstream’s products, its only other option would have been to deny those registrations
outright. It selected a deadline that was far enough in the future for producers to distribute and
sell existing products, but not so far that unreasonable adverse effects on the environment would
result. Def.’s Mot. at 34. EPA’s condition allowed Woodstream three unrestricted years in a
market it would not have been able to enter otherwise, while Woodstream could also use that
time to come into compliance with the RMD. EPA’s decision is entitled to deference, and was
not arbitrary or capricious. Mead, 537 U.S. at 227-31.
NOW, THEREFORE, for the reasons stated herein, it is, hereby,
ORDERED that Plaintiff’s Motion for Summary Judgment is DENIED. It is further,
hereby,
ORDERED that EPA’s Motion for Summary Judgment is DENIED as to mootness.
Finally, it is, hereby,
ORDERED that EPA’s Motion for Summary Judgment is GRANTED as to the
remainder of the motion.
SO ORDERED.
February 28, 2012
BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE
16
Woodstream Corporation v. Jackson
Court: District Court, District of Columbia
Date filed: 2012-02-28
Citations: 845 F. Supp. 2d 174
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