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Reckitt Benckiser, Inc. v. Jackson

October 30, 2009

RECKITT BENCKISER, INC. PLAINTIFF,
v.
LISA P. JACKSON, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Reckitt Benckiser, Inc. ("Reckitt"), a manufacturer of consumer-use rodenticides, brings this action against the United States Environmental Protection Agency ("EPA") and Lisa P. Jackson, the EPA's Administrator, to challenge the EPA's failure to initiate cancellations proceedings against certain Reckitt products under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq. Reckitt alleges that the EPA should have commenced such proceedings once the EPA determined, under Section 4 of FIFRA, 7 U.S.C. § 136a-1, that those products would not be eligible for reregistration. Reckitt seeks an order directing the EPA to commence such proceedings and enjoining the EPA from taking any enforcement action against Reckitt prior to their completion. Defendants have moved to dismiss for lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), and for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). For the reasons stated herein, the Court will grant the motion to dismiss.

BACKGROUND

I. FIFRA'S STATUTORY FRAMEWORK

A. Registration (7 U.S.C. § 136a)

FIFRA requires that all pesticide products sold or distributed in the United States be registered with the EPA. 7 U.S.C. § 136a(1). The EPA is directed to approve the registration of a pesticide if "(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).

B. Cancellation of Registered Pesticides (7 U.S.C. § 136d)

FIFRA also provides for the "cancellation" or "change in classification" of registered pesticides under certain circumstances. 7 U.S.C. § 136d. Specifically, it provides that:

If it appears to the Administrator that a pesticide or its labeling or other material required to be submitted does not comply with the provisions of this subchapter or, when used in accordance with widespread and commonly recognized practice, generally causes unreasonable adverse effects on the environment, the Administrator may issue a notice of the Administrator's intent either--

(1) to cancel its registration or to change its classification together with the reasons (including the factual basis) for the Administrator's action, or

(2) to hold a hearing to determine whether or not its registration should be canceled or its classification changed.

Such notice shall be sent to the registrant and made public. . . . The proposed action shall become final and effective at the end of 30 days from receipt by the registrant, or publication, of a notice issued under paragraph (1), whichever occurs later, unless within that time either (i) the registrant makes the necessary corrections, if possible, or (ii) a request for a hearing is made by a person adversely affected by the notice. In the event a hearing is held pursuant to such a request or to the Administrator's determination under paragraph (2), a decision pertaining to registration or classification issued after completion of such hearing shall be final. In taking any final action under this subsection, the Administrator shall consider restricting a pesticide's use or uses as an alternative to cancellation and shall fully explain the reasons for these restrictions, and shall include among those factors to be taken into account the impact of such final action on production and prices of agricultural commodities, retail food prices, and otherwise on the agricultural economy, and the Administrator shall publish in the Federal Register an analysis of such impact.

7 U.S.C. § 136d.

C. Reregistration Review Process (7 U.S.C. § 136a-1)

FIFRA also requires the EPA to determine whether a registered pesticide will be eligible for reregistration. See 7 U.S.C. § 136a-1. Section 136a-1 establishes a five-phase process for reregistration of a registered pesticide. 7 U.S.C. § 136a-1(b)-(g). The fifth phase, subsection (g),*fn1 "includes the review by the Administrator . . . of data submitted for reregistration and appropriate regulatory action by the Administrator." Id. § 136a-1(b). If the pesticide continues to meet the requirements of 7 U.S.C. § 136a(c)(5) (the requirements for registration), then the pesticide is eligible to be reregistered, and the EPA is directed to reregister it. Id. § 136a-1(g)(2)(C). If the EPA determines that a pesticide is not eligible for reregistration, subsection (g) provides that "the Administrator shall take appropriate regulatory action . . . as expeditiously as possible." 7 U.S.C. § 136a-1(g)(2)(D).

II. FACTUAL BACKGROUND

A. EPA's Risk Mitigation Decision for Ten ...


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