Center for Food Safety v. Environmental Protection Agency

Background

The case challenges the Environmental Protection Agency’s denial of the plaintiffs’ April 26, 2017 citizen petition. The petition asked the agency to clarify that the Federal Insecticide, Fungicide, and Rodenticide Act’s Treated Article Exemption does not cover seeds coated with systemic pesticides intended to kill pests of the plant, rather than pests of the seed. It also asked the agency to enforce the statute’s registration and labeling requirements for each covered seed product.

The agency denied the petition on September 27, 2022, after the plaintiffs filed a lawsuit alleging undue delay. During the petition’s pendency, the Center for Food Safety submitted a Freedom of Information Act request for records concerning the agency’s treatment of seeds coated with several neonicotinoid chemicals, including records about the exemption, agency determinations, environmental effects, communications with pesticide-related entities, and investigations of incidents involving treated seeds.

The agency filed a certified administrative record, meaning the materials it identified as having been before it when making the challenged decision. The plaintiffs contended that the record omitted supporting documents that accompanied the hand-delivered petition and documents obtained through the Freedom of Information Act request. The agency responded that it had no evidence it received the petition documents and did not directly or indirectly consider either category of documents.

Legal standard

Under Section 706 of the Administrative Procedure Act, a court reviewing agency action generally reviews the whole record—the materials before the agency that pertain to the merits of its decision. An agency’s designation of the record receives a presumption of regularity, meaning the court initially presumes that the agency properly identified the record. Plaintiffs can rebut that presumption by identifying reasonable, non-speculative grounds to believe that the agency considered documents that were omitted.

The court distinguished completing the record from supplementing it. Completing the record adds materials that were before the agency and were considered, directly or indirectly, during its decision-making process. Supplementing the record expands the record in limited circumstances, such as when needed to determine whether the agency considered all relevant factors, when the agency relied on materials not included in the record, when technical explanation is needed, or when the agency acted in bad faith.

Discussion

For the documents allegedly hand-delivered to the agency, the agency submitted a declaration stating that its personnel could not locate the petition or the identified attachments. The plaintiffs submitted a declaration and supporting exhibits stating that they hand-delivered the petition and 36 supporting documents to the agency, including a copy of the petition bearing a handwritten acknowledgment of delivery and an email confirming delivery.

The court stated that it could not resolve what happened to the documents after they were allegedly hand-delivered. It nevertheless held that the plaintiffs rebutted the presumption of regularity by presenting reasonable, non-speculative grounds for believing that the documents were considered. The court also stated that materials provided to an agency during a decision-making process and related to the decision’s subject matter logically fit within the category of materials “indirectly considered.”

For the Freedom of Information Act documents, the agency argued that the request was broader than the petition and that the agency’s possession of records did not establish that it considered them in deciding the petition. The plaintiffs argued that the records concerned the petition’s subject matter, included communications referring to the treated-seed petition, came from the agency office handling the petition, and dated from the period when the petition was pending.

The court found that the plaintiffs rebutted the presumption of completeness because the Freedom of Information Act documents were at least indirectly considered during the petition decision-making process. The court relied on the documents’ connection to the petition’s subject matter, references in some documents to the treated-seed petition, and the fact that the documents came from the period when the petition was pending.

Disposition

The court granted the plaintiffs’ motion to complete the administrative record with respect to both the specified petition documents and the Freedom of Information Act documents. The documents identified at Docket Nos. 52 and 53, Exhibits 1 through 60, will be considered part of the administrative record. Because the court granted the motion to complete the record, it did not decide whether the record should alternatively be supplemented.