Northwest Coalition for Alternatives to Pesticides v. United States Environmental Protection Agency

Before HARRY PREGERSON and SANDRA S. IKUTA, Circuit Judges, and BARRY T. MOSKOWITZ, [*] District Judge.

Opinion by Judge PREGERSON; Partial Concurrence and Partial Dissent by Judge IKUTA.

PREGERSON, Circuit Judge:

Petitioners are two environmental groups challenging the Environmental Protection Agency's ("EPA") establishment of tolerances for seven pesticides used mostly on fruit and vegetable crops. We grant the petition in part, deny it in part, and remand to the EPA.

The EPA regulates pesticides under two statutes: the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 -136y, and the Federal Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 346a.

Under FIFRA, pesticides sold in the United States must be registered by the EPA. 7 U.S.C. § 136a. The EPA may not register a pesticide unless the pesticide will perform its intended function without causing "any unreasonable adverse effects on the environment." 7 U.S.C. § 136a(c)(5)(C).

The FDCA authorizes the EPA to set "tolerances" for pesticide residues in food. 21 U.S.C. § 346a(b). "A tolerance is the maximum allowable amount of pesticide that may remain in or on a commodity." Nader v. EPA, 859…

Opinion by Judge PREGERSON; Partial Concurrence and Partial Dissent by Judge IKUTA.

Petitioners are two environmental groups challenging the Environmental Protection Agency’s (“EPA”) establishment of tolerances for seven pesticides used mostly on fruit and vegetable crops. We grant the petition in part, deny it in part, and remand to the EPA.

BACKGROUND

I.

The EPA regulates pesticides under two statutes: the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 -136y, and the Federal Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 346a.

Under FIFRA, pesticides sold in the United States must be registered by the EPA. 7 U.S.C. § 136a. The EPA may not register a pesticide unless the pesticide will perform its intended function without causing “any unreasonable adverse effects on the environment.” 7 U.S.C. § 136a(e)(5)(C).

The FDCA authorizes the EPA to set “tolerances” for pesticide residues in food. *1046 21 U.S.C. § 346a(b). “A tolerance is the maximum allowable amount of pesticide that may remain in or on a commodity.” Nader v. EPA, 859 F.2d 747 , 748 (9th Cir.1988). The EPA may “establish or leave in effect a tolerance for a pesticide chemical…

concurring in part and dissenting in part:

I agree with the majority’s conclusion that “the computer modeling used by the EPA to calculate the safety of drinking water was neither contrary to law nor arbitrary and capricious.” Maj. Op. at 1050; see also The Lands Council v. McNair, 537 F.3d 981, 989-94 (9th Cir.2008) (en banc). I also agree with the majority’s holding that National Ass’n of Home Builders v. Defenders of Wildlife, — U.S. -, 127 S.Ct. 2518, 2529-30 , 168 L.Ed.2d 467 (2007), forecloses petitioners’ argument “that the EPA acted arbitrarily and capriciously by establishing the pesticide tolerances for acetamiprid, mepiquat, and pymetrozine before receiving ... DNT studies.” Maj. Op. at 1051.

I disagree, however, with the majority’s conclusion that the tolerance regulations for acetamiprid, mepiquat, and pymetro-zine must be remanded to the EPA because “it is entirely unclear why the EPA chose safety factors of 3x for pymetrozine and acetamiprid, and lx for mepiquat,” and therefore “the Final Order [did] not provide enough information to demonstrate a rational connection between the factors the EPA examined and the eonclu- *1054 sions it reached.” Maj. Op. at 1052.…