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Nader v. EPA

ELR Citation: 19 ELR 20246
Nos. No. 87-7103, 859 F.2d 747/(9th Cir., 10/14/1988)

The court holds that it lacks jurisdiction under the Federal Food, Drug, and Cosmetic Act (FDCA) to review the Environmental Protection Agency's (EPA's) denial of a citizen petition to revoke the tolerance level for the pesticide daminozide. The court first holds that it has no jurisdiction under FDCA §409(g) because petitioners failed to file timely objections to the Agency's order denying the petition. The court then holds that jurisdiction cannot be asserted under §408(i) because EPA's denial of the rulemaking petition did not constitute an order within the purview of §408(e). The denial, the court notes, also does not fit within the Administrative Procedure Act's definition of the term "order." The court further points out that granting review under §408(e) and (i) would subvert the goals of these statutory provisions, which include improving, simplifying, and speeding up the procedure for regulating pesticide residues. Moreover, Congress required citizens to file objections to a denial of their petition for rulemaking before seeking judicial review in order to ensure that a factual record is established by the Agency.

Counsel for Petitioners
Albert H. Meyerhoff
Natural Resources Defense Council, Inc.
1350 New York Ave. NW, Ste. 300, Washington DC 20005
(202) 783-7800

Counsel for Respondent
Beth S. Kinsberg
Environmental Defense Section, Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

Before Chambers and Schroeder, JJ.