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Ciba-Geigy Corp. v. EPA

Citation: 17 ELR 20072
No. No. 85-5793, 801 F.2d 430/24 ERC 1841/(D.C. Cir., 09/02/1986) Vacated & remanded

The court holds that a pesticide registrant's claim that the Environmental Protection Agency (EPA) unlawfully required it to change the labelling of its registered pesticide, simazine, without an adjudicatory hearing pursuant to §6 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is ripe for review. In the process of reregistering all pesticides pursuant to FIFRA, EPA changed the classification of simazine from general to restricted use and informed all simazine registrants that they would be required to modify the product's label or risk enforcement actions for misbranding. The court first holds that the issues in question are fit for judicial decision under the test for ripeness. Considering the issues' fitness for judicial decision, the first prong in the test for ripeness, the court initially notes that whether EPA may impose labelling changes on a registered pesticide without following the registration cancellation process in FIFRA §6(b) is a purely legal issue. The question involves statutory interpretation only, and does not depend at all on the facts of this particular case. The court next holds that EPA's statements to plaintiff that it was not required to follow §6(b)'s hearing procedures constitute final agency actions. The court disagrees with the district court's analysis which focused on the fact that EPA had not taken any enforcement action, observing that the proper focus is on what actions EPA has taken addressing plaintiff's asserted hearing right. In that respect, EPA unequivocally stated its position that registrants were not entitled to a cancellation hearing before labelling changes could be imposed. The evidence indicates that EPA did not intend to consider the issue further, and EPA emphasized that it expected plaintiff's immediate compliance. Turning to the other prong of the test for ripeness, the court holds that the hardship to plaintiff if judicial review is postponed will be severe. EPA's construction of §6(b) has a direct effect on plaintiff's production and sale of its legally registered pesticide. Plaintiff's prediction of a 50 percent drop in sales as a result of EPA's label warnings constitutes substantial economic hardship, and the company's only alternative to compliance with the labelling procedures is to risk serious civil and criminal penalties.

A dissent would hold that the district court correctly determined it did not have jurisdiction and disagrees with the majority's conclusion that EPA's actions were sufficiently final.

[The district court's opinion is published at 15 ELR 20797.]

Counsel for Appellant
Kenneth W. Weinstein, Peter M. Gillon
McKenna, Conner & Cuneo
1575 Eye St. NW, Washington DC 20005
(202) 789-7500

Counsel for Appellee
Laura E. Frossard, Edward J. Shawaker
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-5993

Before: STARR and SILBERMAN, Circuit Judges, and WRIGHT, Senior Circuit Judge.