Natural Resources Defense Council v. United States Environmental Protection Agency

concurring in part and dissenting in part:

I concur in the judgment insofar as it grants the petition in part and remands to *888 the EPA. I agree that the NRDC has standing to challenge the EPA’s conditional registration of AGS-20 and join Part III of the majority opinion. I also agree that because the EPA inexplicably stated that all calculated MOEs are greater than the target MOE of 1,000, when in fact the calculated MOE for aggregate dermal and oral contact for toddlers exposed to AGS-20 treated textiles is equal to 1,000, the EPA’s order conditionally registering AGS-20 is not supported by substantial evidence. I dissent from the judgment insofar as it purports to deny the petition in part.

First, I think that under the majority’s reasoning in Part IV.B of its opinion, the petition must be granted in full. As the majority explains, the EPA’s conclusion that aggregate dermal and oral exposure to textiles surface-coated with AGS-20 poses no risk concern is not supported by substantial evidence. That being so, it follows that the EPA has failed to demonstrate that its determination that AGS-20 will not have an unreasonable adverse effect on the environment is supported by…

The Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) prohibits the sale of any pesticide that has not been “registered” with the Environmental Protection Agency (“EPA”). 7 U.S.C. § 136a(a). Through the registration requirement, EPA ensures that no pesticides that will cause “unreasonable adverse effects” on human health or the environment are sold in the United States. See id. This case involves EPA’s conditional registration of two pesticides, AGS-20 and AGS-20 U (collectively “AGS-20”), that applicant-intervenor HeiQ Materials AG seeks to apply to manufactured textiles such as clothing, -blankets, and carpet. AGS-20 uses nanosilver — that is, extremely small particles of silver — to suppress the growth of microbes that cause odors, stains, discoloration, and degradation. After receiving comments from the public, EPA conducted a risk assessment of AGS-20 that it published in its decision document, where it granted HeiQ’s application for conditional registration. Natural Resources Defense Council, Inc. (“NRDC”) petitions us to vacate EPA’s decision to conditionally register AGS-20. We have jurisdiction under 7 U.S.C. § 136n(b).

This case presents four…