The opinion of the court was delivered by: James Robertson, United States District Judge.
Section 6(a)(2) of the Federal Insecticide, Fungicide, and Rodenticide
Act (FIFRA), 7 U.S.C. § 136 et seq., requires that pesticide
registrants report to the Environmental Protection Agency (EPA) on an
ongoing basis "factual information regarding unreasonable adverse effects
on the environment of [a] pesticide." FIFRA § 6(a)(2),
7 U.S.C. § 136d(a)(2). EPA interprets that directive to cover
opinions regarding unreasonable adverse effects rendered by a registrant's
employees or agents, and it has issued a regulation to that effect.
40 C.F.R. § 159.158(a). In this suit, the American Crop Protection
Association and others challenge that regulation on two grounds: first,
that requiring opinions to be reported is beyond the authority Congress
gave the EPA to require the reporting of "factual information"; and,
second, that to the extent the regulation requires registrants to report
the opinions of non-testifying expert witnesses prepared in preparation
of litigation, or of lawyers, it "undermines the availability of the work
product doctrine and the attorney-client privilege to pesticide
registrants," Pl. Mem. at 2, and is thus an unreasonable interpretation
of the statute and contrary to law. I find, for the reasons set forth
below, that EPA did not exceed its authority and that its interpretation
of the statute is entitled to deference and reasonable. The order that
accompanies this opinion accordingly denies plaintiffs' motion for
summary judgment and grants the government's cross-motion except to the
extent that that motion seeks an advance blanket ruling on lawyer-client
privilege and attorney work product. No ruling is made on that issue,
because this record presents no concrete claim of privilege or of work
A pesticide must be registered before being placed on the market. It
will be registered only if EPA finds that it will "perform its intended
function without unreasonable adverse effects on the environment."
7 U.S.C. § 136a(c)(5)(C). Registration is not the end of the
regulatory process: a pesticide registration may be maintained only if it
does not "generally cause unreasonable adverse effects on the
environment." 7 U.S.C. § 136d(b). Congress gave the EPA authority to
call for additional data as needed for the ongoing evaluation of
pesticides. "If the Administrator determines that additional data are
required to maintain in effect an existing registration of a pesticide,
the Administrator shall notify existing registrants." The authority to
call for more data has teeth: if a registrant fails to provide
information requested about a pesticide, EPA must issue a notice of
intent to suspend the pesticide's registration.
7 U.S.C. § 136a(c)(2)(B). The statute also imposes upon registrants a
duty of self-reporting. If "at any time after the registration of a
pesticide the registrant has additional factual information regarding
unreasonable adverse effects on the environment of the pesticide, the
registrant shall submit such information to the Administrator." FIFRA
§ 6(a)(2), 7 U.S.C. § 136d(a)(2). It is that requirement which
gives rise to the dispute presented in this case.
The dispute between pesticide manufacturers and the EPA about reporting
has been going on for more than twenty-six years.*fn1 EPA's first
regulation under section 6(a)(2) required registrants to report any
information about adverse effects, 40 Fed. Reg. 28242, 28277 (July 3,
1975). EPA revoked that regulation in 1978, after concluding in response
to an industry challenge that it "inadequately expresse[d] the agency's
interpretation of the requirements imposed by FIFRA Section 6(a)(2)." 43
Fed. Reg. 37610 (Aug. 23, 1978). EPA then issued an "interpretive
memorandum" setting forth its view that the statute required registrants
to report opinions, including expert opinions, as to the risks or
benefits of registered pesticides. An industry challenge to that
memorandum was dismissed for lack of standing, upon a finding that the
memorandum had no legal effect, Chemical Specialties Mfrs. Ass'n v.
United States EPA, 484 F. Supp. 513, 519 (D.D.C. 1980) (Robinson, J.).
The judge nevertheless volunteered his view that a requirement to report
expert opinions would exceed EPA's authority: "If Congress had intended
to give § 6(a)(2) such broad scope, it would not have limited the
information required to facts." Id. at 518.
EPA tried again in 1985. This time it issued a proposed interpretive
rule and statement of policy that required the reporting of expert
opinions. The preamble to this rule stated that "EPA and the Department of
Justice believe that EPA is free to take the position that expert opinion
evidence . . . [is] covered by Section 6(a)(2) despite the dicta in
CSMA, and EPA continues to take this position." 50 Fed. Reg. 38115, 38116
(Sept. 20, 1985). After receiving comments, however, the agency decided
not to make the rule effective after all, stating that "clarification of
the rule was appropriate." 57 Fed. Reg. 44290-91 (Sept. 24, 1992).
Finally, EPA resorted to formal notice and comment rulemaking. The
present rules implementing FIFRA section 6(a)(2) are the result of that
process. 40 C.F.R. Part 159, 62 Fed. Reg. 49370 (Sept. 19, 1997). Since
their effective date in August 1998, they have required that a registrant
report information, possessed or received, that is "relevant to the
assessment of the risks or benefits" of pesticide registrations, if the
information falls within any of seven enumerated categories,
40 C.F.R. § 159.158(a),*fn2 or if the registrant "knows or
reasonably should know" that the information might raise "concerns" with
the EPA about the continued registration of the product.
40 C.F.R. § 159.195.
The information that must be reported includes "conclusion(s) or
opinion(s) rendered by a person who meets any of the following: (1) Who
was employed or retained (directly or indirectly) by the registrant, and
was likely to receive such information. (2) From whom the registrant
requested the opinion(s) or conclusion(s) in question. (3) Who is a
qualified expert as described in § 159.153(b)."*fn3
40 C.F.R. § 159.158(a) A registrant need not submit clearly erroneous
information, previously submitted information, publications available to
the agency, and information about eliminated inert compounds.
After plaintiffs instituted this action, EPA let it be known that it
would not consider attorneys' legal theories to be information relevant
to the assessment of risks and benefits, Pesticide Registration Notice
2000-8. EPA insists nevertheless that it "has no intention to broadly
exempt information covered by the attorney work-product doctrine," 62
Fed. Reg. 49377, and that "[a]ttorneys' opinions are reportable . . .
when they are developed in the ordinary course of business and are based
on otherwise reportable information," Def.'s Mem. at 25 n. 16. EPA offers
registrants the opportunity to request a waiver, which it says it will
evaluate giving consideration to claims of privilege or of substantial
prejudice to the registrant and the value of the information to EPA in
performing its risk/benefit analysis. 62 Fed. Reg. 49377. No registrant
has ever availed itself of that opportunity.
In this case, the first Chevron step is a short one, for the statutory
words "factual information" are not unambiguous. The line between facts
and opinions is fuzzy, and the distinction, "at best, one of degree."
Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167 (1988); see also United
States v. Pierson, 503 F.2d 173, 176 (D.C. Cir. 1974); Wigmore, Evidence
§ 1919, at 14-15 ("[N]o such distinction is scientifically possible.
. . . Nearly everything which we choose to call `fact' either is or may
be only `opinion' or inference."). Expert witness reports typically
contain both data and conclusions. The existence of an opinion may be
said to be a fact. As the EPA stated in its original interpretive
notice, at least "[o]ne dictionary defines `factual' as `of or containing
facts'" and information as "something told; news; intelligence, word." 43
Fed. Reg. 37611, 67613 (Aug. 14, 1978); see also American Heritage
Dictionary (3d Ed. 2000) (defining "factual" as "of or containing
facts"). It is clearly true, as EPA states in its preamble to the
regulations, that "a conclusion as to whether a particular growth seen in
a sacrificed test animal is a benign or malignant growth is not a matter
of uncontestable fact, but rather, is the expression of an informed
judgment by a trained professional." 62 Fed. Reg. at 49378. Information
to the effect that a pathologist has seen lesions on slides and thinks
they are malignant is surely "factual information." Information that a
toxicologist thinks the malignant lesions were caused by exposure to a
pesticide is surely "factual information."
Chevron's second question is "whether the agency's [interpretation] is
based on a permissible construction of the statute." Chevron, 467 U.S. at
843. The agency's interpretation is entitled to ordinary deference,*fn4
and will be given "controlling weight unless [it is] ...