The opinion of the court was delivered by: J. Frederick Motz United States District Judge
Randy Hardin and Vernon Blasingame (collectively "plaintiffs"), tomato and produce farmers in Arkansas, bring suit against the Administrator of the United States Environmental Protection Agency, challenging the registration of three pesticides containing the active ingredient quinclorac. Plaintiffs and EPA have filed cross-motions for summary judgment. Defendant-Intervenor BASF Corporation ("BASF"), the manufacturer of the challenged pesticides, has filed a motion to dismiss or, in the alternative, for summary judgment. The matter has been fully briefed and no hearing is necessary. For the reasons that follow, defendant-intervenor BASF's motion is treated as one to dismiss and granted as such. Defendant EPA's motion is construed in part as a motion to dismiss and granted as such.*fn2 Plaintiffs' motion for partial summary judgment is denied as moot, and EPA's motion for summary judgment is denied as moot to the extent that it is not based on statute of limitations grounds.*fn3
The sale, distribution, and use of pesticides in the United States is regulated by the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136-136y. The registration scheme in FIFRA requires that pesticides be licensed before they are sold or distributed. See id. § 136a(a), (c). Sale or distribution of unlicensed pesticides may subject the seller to civil or criminal penalties. Id. §§ 136a(a), 136l.
FIFRA authorizes EPA to provide unconditional registrations as well as conditional registrations. See id. § 136a(c)(5), (7). There are three forms of conditional registrations authorized by the statute. Section 3(c)(7)(A) authorizes EPA to register a pesticide where that pesticide and its proposed use are "identical or substantially similar to any currently registered pesticide," or "differ only in ways that would not significantly increase the risk of unreasonable adverse effects on the environment." Section 3(c)(7)(B) authorizes EPA to amend an existing pesticide registration to permit additional uses of the pesticide. Section 3(c)(7)(C) authorizes EPA to register a pesticide "containing an active ingredient not contained in any currently registered pesticide" pending the receipt of certain data, provided that EPA "determines that use of the pesticide [until the data is received] will not cause any unreasonable adverse effect on the environment, and that use of the pesticide is in the public interest." Once EPA has approved a pesticide registration, either unconditionally or conditionally, the registrant is entitled to sell the product as long as the registration remains in effect.
FIFRA and the implementing regulations set forth in detail the process for registering a pesticide, including application procedures and data submission requirements. See id. § 136a(c); 40 C.F.R. §§ 152, 158. EPA is to publish notice in the Federal Register when it receives an application for registration of a product that contains a new active ingredient or a new use. 40 C.F.R § 152.02; 7 U.S.C. § 136a(c)(4). Pursuant to FIFRA's regulations, EPA is to publish notice of issuance in the Federal Register after registration of a product. 40 C.F.R. § 152.102.
BASF holds registrations for three pesticides containing the active ingredient quinclorac: Facet 50 WP ("Facet 50"), Facet 75 DF ("Facet 75"), and Facet GR. On January 9, 1992, BASF applied for conditional registration of FACET 50 under Section 3(c)(7)(C). (Pls.' Ex. 262, at FACET50_000732.) On October 13, 1992, EPA sent notice to BASF that Facet 50 had been conditionally registered under Sections 3(c)(7)(A) and (B).*fn4 (Pls.' Ex. 44.) The notice was accompanied by the EPA-approved label that must appear on all containers of pesticide offered for sale or distribution. (Pls.' Ex. 177, at FACET50_000113 - _000125.) The label includes the EPA registration number. (Id.)
After EPA's registration of Facet 50, EPA did not publish a notice of issuance in the Federal Register, although such notice is required by the regulations.*fn5 As BASF notes, other notices related to Facet and quinclorac were published in the Federal Register. See Quinclorac Establishment of Temporary Tolerances, 56 Fed. Reg. 28153 (June 19, 1991); Receipt of Application for Emergency Exemption to use Quinclorac Solicitation of Public Comment, 57 Fed. Reg. 8660 (Mar. 11, 1992); 3,7-Dichloro-8-Quinoline Carboxylic Acid, 57 Fed. Reg. 47994 (Oct. 21, 1992).
EPA conditionally registered Facet 75 and Facet GR on September 7, 1994, and April 27, 1998, respectively. (Pls.' Exs. 267, 273.) These products were registered under Section 3(c)(7)(A) of FIFRA, as they were "identical or substantially similar" to a "currently registered" pesticide -- Facet 50. (Pls.' Exs. 267, 273.)
Beginning in the 1990s, plaintiffs filed various lawsuits related to the use of Facet and quinclorac. On June 26, 2000, plaintiffs filed suit against BASF in the Eastern District of Arkansas ("Arkansas action"). The Arkansas action was based on alleged damage to plaintiffs' tomato plants from off-target spray drift from Facet. During the pendency of the Arkansas action but before filing the instant action, plaintiffs filed an administrative petition with EPA to revoke or suspend and cancel EPA registrations for Facet herbicides. The petition was first filed on September 12, 2003, and was twice amended. This petition, as noted below, remains pending.
The instant action was filed on August 3, 2004, based on alleged failure by EPA to make the proper written determinations to support the Facet registrations and the failure to publish a Federal Register notice regarding Facet 50. On October 4, 2004, EPA moved to dismiss plaintiffs' complaint on statute of limitations grounds. This motion to dismiss was denied without prejudice because plaintiffs' pending EPA administrative petition, if granted, could render the instant case moot. A motion for summary judgment filed by plaintiffs was also denied without prejudice. The case was stayed pending the outcome of the EPA administrative action.
For the next two and one-half years, the parties provided status reports to the court. On October 10, 2007, November 1, 2007, and December 3, 2007, EPA advised the court that it anticipated final action would be taken on plaintiffs' administrative petition by December 31, 2007. (Dkt. Nos. 21, 22, 23). When EPA failed to render the anticipated final decision, the court returned the case to its calendar on January 15, 2008. While the parties were briefing cross-motions for summary judgment, BASF filed a motion to intervene, which was granted on March 3, 2009. See Hardin v. Jackson, 600 F. Supp. 2d 13 (D.D.C. 2009).
In ruling on a motion to dismiss, the factual allegations are presumed true, and the plaintiff is given every favorable inference that may be drawn from the allegations. West Va. Highlands Conservancy v. Johnson, 540 F. Supp. 2d 125, 133 (D.D.C. 2008). On a motion to dismiss under Rule 12(b)(1), the plaintiff bears the burden of showing that the court has jurisdiction. See Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006); see also Lipsman v. Sec'y of Army, 257 F. Supp. 2d 3, 6 (D.D.C. 2003) (noting that "a court resolving a motion to dismiss under Rule 12(b)(1) must give the complaint's factual allegations closer scrutiny than required for a motion to dismiss pursuant to Rule 12(b)(6) ...