Natural Resources Defense Council, Inc. v. U.S. Det of Agriculture, No. 09-2021 (2d Cir. 2010)

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09-2021-cv Natural Resources Defense Council, Inc. v. U.S. Dep t of Agriculture 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2009 (Argued: April 6, 2010 Decided: July 8, 2010) Docket No. 09-2021-cv -----------------------------------------------------x Natural Resources Defense Council, Inc., Plaintiff-Appellant, People of the State of California, Ex Rel, Attorney General Bill Lockyer, State of Connecticut, State of Illinois, Consolidated-Plaintiffs-Appellants, State of New York, Consolidated-Plaintiff, -- v. -United Thomas Smith, of the States Department of Agriculture, Secretary J. Vilsack, of Agriculture, Administrator Cindy of the Animal and Plant Health Inspection Service United States Department of Agriculture, Defendants-Appellees. -----------------------------------------------------x B e f o r e : JACOBS, Chief Judge, WINTER and WALKER, Circuit Judges. Appeal from a judgment of the United States District Court 36 for the Southern District of New York (Lawrence M. McKenna, 37 Judge) holding that Defendants-Appellees complied with the 38 National Environmental Policy Act and the Plant Protection Act 39 when they adopted new regulations for the importation of 1 1 unmanufactured wood packaging material into the United States. 2 Because we conclude that Defendants-Appellees considered all 3 reasonable alternatives to the proposed rule, and did not act 4 arbitrarily or capriciously in adopting a rule providing for 5 either heat treatment or fumigation with methyl bromide of the 6 wood material prior to importation, we AFFIRM the judgment of the 7 district court. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 BENJAMIN H. LONGSTRETH (David Doninger, Sarah Lipton-Lubet, on the brief), Natural Resources Defense Council, Washington, DC, for Plaintiff-Appellant. Ken Alex, Supervising Deputy Attorney General for the State of California, Oakland, CA, for Consolidated-Plaintiff-Appellant State of California. Kimberly P. Massicotte and Matthew Levine, Assistant Attorneys General for the State of Connecticut, Hartford, CT, for ConsolidatedPlaintiff-Appellant State of Connecticut. Rebecca A. Burlingham, Supervising Attorney, Office of the Attorney General for the State of Illinois, Chicago, IL, for ConsolidatedPlaintiff-Appellant State of Illinois. JOHN D. CLOPPER, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Defendants-Appellees. 2 1 2 JOHN M. WALKER, JR., Circuit Judge: This case concerns our national response to the significant 3 environmental threat presented by plant pests and pathogens 4 introduced into the United States through the importation of 5 solid wood packaging material ( SWPM ) including pallets, crates, 6 boxes, cases, and skids used to support, protect, and carry 7 commodities entering the country. 8 that accompany SWPM, such as the pine shoot beetle, the Asian 9 longhorned beetle, and the emerald ash borer, undisputedly pose a Exotic wood-boring insects 10 threat to U.S. agriculture and ecotourism, and to natural, 11 cultivated, and urban forests. 12 these destructive insects is real, the United States cannot 13 address this global threat alone, and the U.S. Department of 14 Agriculture, through the Animal and Plant Health Inspection 15 Service ( APHIS ), is required to balance environmental 16 considerations, international guidelines, and global trade 17 concerns in adopting a final rule for the importation of SWPM. 18 While the environmental impact of Plaintiffs-Appellants Natural Resources Defense Council, 19 Inc. ( NRDC ) and the States of California, Connecticut, and 20 Illinois (collectively, Plaintiffs ) appeal from a judgment and 21 order of the United States District Court for the Southern 22 District of New York (Lawrence M. McKenna, Judge) holding that 23 Defendants-Appellees ( Defendants ) complied with the National 24 Environmental Policy Act ( NEPA ), 42 U.S.C. § 4321 et seq., and 3 1 the Plant Protection Act ( PPA ), 7 U.S.C. § 7701 et seq., when 2 they adopted a final rule concerning the treatment of imported 3 SWPM.1 4 treated to a minimum wood core temperature of 56NC for a minimum 5 of 30 minutes or fumigated with methyl bromide prior to being 6 used in connection with the importation of goods into the United 7 States. 8 reasonable alternatives, and the environmental impact of each, 9 and did not act arbitrarily or capriciously, in adopting the 10 The final rule required that all SWPM be either heat Because we conclude that Defendants considered all final rule, we affirm. 11 BACKGROUND 12 13 The facts of this case are largely undisputed and are set 14 forth only as they may be relevant to Plaintiffs challenge to 15 this instance of APHIS s rulemaking. 16 violated the NEPA and the PPA by failing to fully consider the 17 reasonable alternative of a phased-in substitute materials 18 requirement before adopting a final rule requiring that all SWPM 19 be either heat treated or fumigated with methyl bromide prior to 20 being used in the transport of goods into the United States. 21 1 2 3 4 5 Plaintiffs claim that APHIS With the growth of international trade and the corresponding 1 The State of New York was also a action. See Complaint, State of N.Y. No. 05-cv-8008(LMM) (S.D.N.Y. June 4, seek appellate review of the district judgment. 4 Plaintiff in the v. U.S. Dep t of 2007). However, court s March 9, underlying Agric., it did not 2009 1 increase in the amount of pest-ridden SWPM being imported into 2 the United States, on January 20, 1999, APHIS issued an advance 3 notice of proposed rulemaking ( ANPR ) that solicited public 4 comment on how to strengthen existing restrictions on the 5 importation of SWPM to control the introduction of exotic plant 6 pests into the United States. 7 Wood Articles; Solid Wood Packing Material, 64 Fed. Reg. 3049 8 (notice published Jan. 20, 2009). 9 to maximize protection of U.S. agriculture and forests against 10 exotic plant pests associated with SWPM without unduly affecting 11 international trade or the environment. 12 See Importation of Unmanufactured APHIS stated that its goal was Id. at 3051. The ANPR set forth several possible options for protecting 13 against SWPM wood-boring insects: for example, the continued use 14 of methyl bromide; the imposition of certain treatment 15 requirements or SWPM bans on a country-by-country basis; a 16 blanket requirement that all SWPM imported into the United States 17 be heat treated, fumigated, or treated with preservatives; and a 18 complete prohibition on the importation of any form of SWPM from 19 any country. 20 SWPM, the ANPR stated that the advantages of this option are 21 that it would provide the greatest protection against pest risk 22 and could eventually result in decreased use of methyl bromide 23 [an ozone-depleting chemical]. 24 could have an undesirable effect on international trade. As to a complete prohibition on the importation of A disadvantage . . . is that it 5 This 1 effect could be mitigated by a phase-in period to allow shippers 2 to adjust to the prohibition . . . . 3 specifically solicited public comment regarding the cost- 4 effectiveness and feasibility of, and the length of any necessary 5 phase-in period for, a prohibition on SWPM and a substitute- 6 materials-only requirement. Id. In its ANPR, APHIS 7 On May 20, 2003, APHIS proposed amending the existing 8 regulations for the importation of SWPM to adopt the recommended 9 guidelines approved in March 2002 by the Interim Commission on 10 Phytosanitary Measures of the International Plant Protection 11 Convention2 (the IPPC Guidelines ). 12 Wood Packing Material, 68 Fed. Reg. 27,480 (proposed May 20, 13 2003). 14 treated or fumigated with methyl bromide, and to be stamped with 15 an internationally recognized mark indicating treatment. 16 sought to adopt the IPPC Guidelines because of an increase in 17 plant pests found in non-treated SWPM being imported into the 18 United States from locations other than China and Hong Kong, both 19 of which were already subject to an interim treatment rule on the 20 basis of their identified plant pest risk, see Solid Wood Packing 21 Material from China, 63 Fed. Reg. 50,100 (Sept. 18, 1998) 1 2 3 4 See Importation of Solid The IPPC Guidelines called for SWPM to be either heat 2 APHIS The International Plant Protection Convention ( IPPC ) is an international agreement on plant health to which 173 governments, including the United States, are contracting parties. See http://www.ippc.int (last visited July 7, 2010). 6 1 (codified at 7 C.F.R. Pts. 319 & 354); Solid Wood Packing 2 Material from China, 63 Fed. Reg. 69,539 (amended Dec. 17, 1998) 3 (codified at 7 C.F.R. Pt. 319) ( China Interim Rule ). 4 asserted that by adopting the IPPC Guidelines, the United States 5 would be reducing pest risk while furthering its obligations 6 under Article 3 of the World Trade Organization s Agreement on 7 the Application of Sanitary and Phytosanitary Measures ( SPS 8 Agreement ), which urges Member States to base their 9 phytosanitary measures on international standards, guidelines, or APHIS 10 recommendations, where they exist, thereby harmonizing plant 11 protection standards on as wide a global basis as possible, see 12 SPS Agreement, available at 13 http://www.wto.org/english/docs_e/legal_e/15sps_01_e.htm; see 14 also 19 U.S.C. § 3511(d)(3). 15 the IPPC Guidelines would standardize trade requirements, because 16 China, Canada, the European Union, and many other U.S. trading 17 partners were also planning to implement the IPPC Guidelines as 18 their phytosanitary measure for the importation of SWPM. 19 In announcing the proposed rule, APHIS outlined the Finally, APHIS stated that adopting 20 environmental hazards presented by wood-boring insects, discussed 21 the efficacy of the heat and methyl bromide fumigation treatments 22 in the IPPC Guidelines, and indicated APHIS s intention to adopt 23 the IPPC Guidelines as its final rule. 24 the proposed rule would not completely eradicate all plant pest 7 APHIS acknowledged that 1 risk, and a corresponding draft environmental impact statement 2 ( Draft EIS ) listed reasonable alternatives to the proposed 3 rule, including, inter alia, taking no additional protective 4 action; extending the China Interim Rule to all countries; 5 instituting a comprehensive risk reduction program that would 6 employ various phytosanitary measures based upon a particular 7 country s risk of introducing pests to the United States; and 8 prohibiting all importation of SWPM and requiring the use of 9 substitute packing materials only. See APHIS, U.S. Dep t of 10 Agric., Importation of Solid Wood Packing Material, Draft 11 Environmental Impact Statement 7, 9-12 (2002). 12 The Draft EIS also noted four non-environmental factors that 13 APHIS would consider before adopting an alternative: 14 foremost, the efficacy of the alternative in mitigating risk; (2) 15 the relative costs of the alternatives/methods; (3) the differing 16 capabilities of exporting nations to comply with quarantine 17 requirements; and (4) the need for harmonization of regulatory 18 efforts among trading partner nations. 19 the environmental effects of each of the identified alternatives, 20 the Draft EIS noted that the IPPC Guidelines would result in 21 substantial reduction in risk of introduction of pests and 22 pathogens from SWPM but would result in the [second] greatest 23 level of anticipated adverse environmental consequences from 24 component methods because (1) it would require treatments of SWPM 8 Id. at 2. (1) In discussing 1 from all countries, (2) it would result in substantial use of 2 methyl bromide, and (3) it would continue to increase the demand 3 for forest products. 4 Id. at 10-11. With respect to a prohibition on SWPM and the use of 5 substitute packing materials, the Draft EIS stated that this 6 alternative would achieve the greatest possible reduction in 7 risk from the introduction of pests and pathogens associated with 8 SWPM, would achieve the greatest reduction of adverse 9 environmental consequences from the use of control methods 10 (chemical and/or physical), and would result in diminished use 11 of wood resources, but could result in increased use of other 12 resources (e.g., ores for metal production and petroleum for 13 plastics) and energy for manufacturing processes. 14 The Draft EIS further stated, however, that use of substitute 15 packing materials might be limited due to a lack of current 16 industry capability, increased expense associated with the 17 materials, and the need for a phase-in period to allow the 18 industry and developing nations to adapt to a complete 19 prohibition on SWPM. 20 prohibiting SWPM was likely the most effective means of 21 eliminating pest risk associated with the importation of goods, 22 such a restriction might violate the SPS Agreement s stipulation 23 that any phytosanitary measures implemented by contracting 24 nations shall be no more trade-restrictive than necessary to Id. at 12. The Draft EIS emphasized that while 9 1 2 achieve the requisite level of plant protection. Subsequent to the announcement of the proposed rule, 3 additional public comment, and three public hearings, APHIS 4 released a final environmental impact statement ( Final EIS ) in 5 August 2003, see APHIS, U.S. Dep t of Agric., Importation of 6 Solid Wood Packing Material, Final Environmental Impact Statement 7 (2003), and a final regulatory impact analysis ( Final RIA ) in 8 September 2004, see APHIS, U.S. Dep t of Agric., Regulatory 9 Impact Analysis of the Final Rule to Adopt the International 10 Standard on Wood Packing Material in International Trade (2004). 11 In the Final EIS, APHIS again emphasized the effectiveness of the 12 IPPC Guidelines in thwarting the introduction of plant pests into 13 the United States and the IPPC Guidelines role in harmonizing 14 international phytosanitary regulations. 15 that the greatest level of plant protection would result from a 16 complete prohibition on SWPM, but explained that adopting such a 17 measure presented feasibility issues, economic hurdles, and the 18 potential that the United States would be held in violation of 19 its obligations under international trade agreements. 20 EIS also noted that while the ANPR had specifically sought 21 comments regarding the amount of time the industry would need to 22 adapt to a substitute-materials-only requirement, no substantive 23 information was provided to APHIS that could contribute to 24 establishing a specific phase-out period for SWPM. 10 APHIS also recognized The Final As to this 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 issue of phase-out timing, APHIS stated as follows: No program decision has been made as to what constitutes an acceptable time period for implementation for a regulatory rule of this magnitude. . . . It is difficult for APHIS to specify a time period when the present ability of substitute packing manufacturers to supply the market indicates a need for extended growth of the industry. The compliance time is particularly difficult to project when the new regulations are specifically directed to address packing materials from foreign countries whose industries may be less able to adjust readily to proposed changes. Also, any decisions made by APHIS to improve phytosanitary measures against pests in packing materials require international negotiations with other countries to ensure their ability and concurrence with the measures being considered. Final EIS at A-5. 19 As for the capability of substitute materials to meet market 20 demands, APHIS stated that current projections indicate that the 21 increase in use of substitute packing materials could constitute 22 no more than 10 to 15 percent of the total market in the next 23 several years. 24 that substitute packing materials constituted no more than five 25 percent of the packing market and presented certain logistical 26 and economic limitations that made their widespread acceptance 27 unlikely. 28 Id. at 89. In the Final RIA, APHIS estimated See Final RIA at 18, 20-21. On September 16, 2004, APHIS issued a final rule adopting 29 the IPPC Guidelines and mandating either heat treatment or 30 fumigation with methyl bromide for all SWPM used in connection 31 with the importation of goods into the United States, effective 32 September 16, 2005. See Importation of Solid Wood Packaging 11 1 Material, 69 Fed. Reg. 55,719 (Sept. 16, 2004) (codified at 7 2 C.F.R. pt. 319). 3 represent the current international standard determined . . . to 4 be necessary and effective for controlling pests in SWPM, and 5 because adopting them would simplify and standardize trade 6 requirements. 7 public comment on the rule, APHIS noted that some commenters 8 urged APHIS to phase out SWPM in favor of substitute packing 9 materials on the basis that this alternative was the least APHIS chose the IPPC Guidelines because they Id. at 55,719. In summarizing its response to 10 harmful to the environment. 11 to work with IPPC members to develop alternative treatments to 12 using ozone-depleting methyl bromide, but that the chosen 13 treatments were currently the most technically and economically 14 feasible methods of responding to the plant pest problem. 15 APHIS stated that it would continue On September 15, 2005, the NRDC and the Plaintiff-States 16 sued APHIS in separate actions, each asserting violations of 17 section 102 of the NEPA, 42 U.S.C. § 4332, and section 412 of the 18 PPA, 7 U.S.C. § 7712, and seeking judicial relief in accordance 19 with section 10(e) of the Administrative Procedure Act ( APA ), 5 20 U.S.C. § 706(2)(A), (C), & (D). 21 consolidated the cases, the parties filed cross-motions for 22 summary judgment, and on June 4, 2007, the district court granted 23 in part and denied in part both Plaintiffs and Defendants After the district court 12 1 motions.3 2 as the failure of APHIS to properly consider and weigh an 3 unadopted alternative to heat treatment or fumigation with methyl 4 bromide: a phased transition away from raw wood pallets and 5 crates, replacing them with packing materials made of substitute 6 materials, such as processed wood, fiberboard, plywood, and 7 plastics, that are impervious to the insect pests. 8 Def. Council, Inc. v. U.S. Dep t of Agric., Nos. 05 Civ. 8005 & 9 05 Civ. 8008, 2007 WL 1610420, at *1 (S.D.N.Y. June 4, 2007) The district court characterized Plaintiffs challenge Natural Res. 10 (internal quotation marks omitted). 11 that Plaintiffs did not seek to have the final rule overturned; 12 rather, they sought to have the district court order APHIS to 13 reconsider its environmental impact analysis in light of its 14 obvious defects and then to revise the rule as appropriate based 15 on any supplemental findings. 16 omitted). 17 under the NEPA, concluding that APHIS adequately considered the 18 environmental impact of the proposed rule and four alternatives, 19 including a phased-in substitute-materials-only alternative. 20 at *6. 21 that Defendants violated the PPA by failing to adopt the 1 2 3 4 5 The district court noted Id. (internal quotation marks The district court rejected Plaintiffs challenge Id. The district court also rejected Plaintiffs challenge 3 The district court granted Plaintiffs motion only with respect to their challenge that the final EIS underestimated the amount of ozone-depleting methyl bromide that would be released into the atmosphere under the rule. That issue, now resolved, is not a part of this appeal. 13 1 alternative that would most effectively reduce the introduction 2 of plant pests into the United States. 3 Id. at *4-5. This appeal followed. 4 DISCUSSION 5 6 We review the district court s ruling on cross-motions for 7 summary judgment de novo, in each case construing the evidence in 8 the light most favorable to the non-moving party. 9 Animals v. Kempthorne, 538 F.3d 124, 131 (2d Cir. 2008). See Fund for Our 10 review under the APA is limited, however, and we may disturb 11 agency action if, inter alia, it was arbitrary, capricious, an 12 abuse of discretion, or otherwise not in accordance with the 13 law, in excess of the agency s statutory jurisdiction or 14 authority, or without observance of procedure required by law. 15 5 U.S.C. § 706(2)(A), (C), & (D). 16 rationale for adopting a particular rule, we must be satisfied 17 that the agency examined the relevant data and established a 18 rational connection between the facts found and the choice 19 made. Fund for Animals, 538 F.3d at 132 (quoting Motor Vehicle 20 Mfrs. Ass n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 21 (1983)). 22 relied on factors which Congress has not intended it to consider, 23 entirely failed to consider an important aspect of the problem, 24 offered an explanation for its decision that runs counter to the In reviewing an agency s The agency s action should only be set aside if it 14 1 evidence before the agency, or is so implausible that it could 2 not be ascribed to a difference in view or the products of 3 expertise. 4 F.3d 82, 90 (2d Cir. 2000) (internal quotation marks and 5 alteration omitted)). 6 I. Id. (quoting Cellular Phone Taskforce v. FCC, 205 National Environmental Policy Act 7 A. Overview 8 The NEPA establishes a national policy [to] encourage 9 productive and enjoyable harmony between man and his 10 environment, and was intended to reduce or eliminate 11 environmental damage and to promote the understanding of the 12 ecological systems and natural resources important to the United 13 States. 14 (2004) (quoting 42 U.S.C. § 4321). 15 federal agency to prepare an EIS before taking any major action 16 significantly affecting the quality of the human environment. 17 Coal. on W. Valley Nuclear Wastes v. Chu, 592 F.3d 306, 310 (2d 18 Cir. 2009) (internal quotation marks omitted); see 42 U.S.C. 19 § 4332(2)(C). 20 discussion of significant environmental impacts and to inform 21 decisionmakers and the public of the reasonable alternatives 22 which would avoid or minimize adverse impacts or enhance the 23 quality of the human environment. Natural Res. Def. Council, 24 Inc. v. FAA, 564 F.3d 549, 556 (2d Cir. 2009) (internal quotation Dep t of Transp. v. Public Citizen, 541 U.S. 752, 756 As such, the NEPA requires a The purpose of an EIS is to provide full and fair 15 1 marks and alteration omitted); see also 42 U.S.C. § 4332(2)(C). 2 Thus, the NEPA does not mandate particular results; it imposes 3 only procedural requirements on federal agencies with a 4 particular focus on requiring agencies to undertake analyses of 5 the environmental impact of their proposals and actions. 6 Citizen, 541 U.S. at 756-57 (citing Robertson v. Methow Valley 7 Citizens Council, 490 U.S. 332, 349-50 (1989)). 8 9 Public Our only role in reviewing agency action for compliance with the NEPA is to insure that the agency has taken a hard look at 10 environmental consequences. 11 592 F.3d at 310 (internal quotation marks omitted). 12 interject [ourselves] within the area of discretion of the 13 executive as to the choice of the action to be taken, and we 14 cannot rule an EIS inadequate if the agency has made an adequate 15 compilation of relevant information, has analyzed it reasonably, 16 has not ignored pertinent data, and has made disclosures to the 17 public. 18 Significantly, if the adverse environmental effects of the 19 proposed action are adequately identified and evaluated, the 20 agency is not constrained by NEPA from deciding that other values 21 outweigh the environmental costs. 22 Inc. v. FAA, 564 F.3d at 556 (quoting Robertson, 490 U.S. at 23 350). 24 B. Coal. on W. Valley Nuclear Wastes, We cannot Id. (internal quotation marks omitted). Discussion 16 Natural Res. Def. Council, 1 Plaintiffs assert that APHIS adopted the final rule in 2 violation of the NEPA because APHIS failed to adequately consider 3 the reasonable alternative of a phased-in substitute-materials- 4 only requirement. 5 APHIS considered only an immediate, and not a phased-in, 6 prohibition on SWPM; and (2) that APHIS unreasonably failed to 7 assess the long-term feasibility of a substitute-materials-only 8 requirement, and more specifically, how the cost of substitute 9 materials could come down, or how quickly the market share of 10 substitute materials could expand, in response to a regulation 11 requiring a transition to such materials over a reasonable time 12 period. 13 reasons set forth below. 14 Plaintiffs challenge is two-fold: (1) that Appellants Br. at 18-19. Both challenges fail for the The administrative record with respect to the importation of 15 SWPM reflects several statements that make clear that any 16 substitute-materials-only requirement would perforce be phased in 17 rather than implemented immediately. 18 Council, Inc. v. U.S. Dep t of Agric., 2007 WL 1610420, at *6 19 (noting phase-in language in the ANPR, Draft EIS, and Final EIS). 20 Furthermore, while the Final EIS discusses substitute packing 21 materials as a component of a broader comprehensive risk 22 reduction program as well as a stand-alone alternative to SWPM, 23 it is clear that, under either scenario, APHIS recognized that a 24 phase-in period would be required: 17 See Natural Res. Def. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 The capability of industry to tool up to manufacture and switch to substitute packing materials for such a shipping volume may limit the feasibility or implementation of a switch over. Substitute packing materials are more expensive than SWPM. Although some substitute packing materials show great promise . . ., other materials have limitations on their use. Substitute packing materials would require a phase-in period to allow the industry of the regulated countries to adapt these materials to the shipping processes. Compliance with international agreements is expected to increase the costs associated with the use of SWPM and this change may make substitute packing materials more competitive in the packing market and indirectly promote use of these other materials. Final EIS at 41. 18 cannot fairly be said that APHIS considered only an immediate ban 19 on SWPM and not a phased-in substitute-materials-only 20 requirement. 21 Plaintiffs assertions notwithstanding, it Plaintiffs second challenge concerns the depth of APHIS s 22 consideration of the substitute-materials-only alternative. As 23 to this argument, we conclude that APHIS adequately evaluated the 24 substitute-materials-only alternative and reasonably explained 25 its decision not to adopt it as the final rule at the present 26 time. 27 to the proposed action, 42 U.S.C. § 4332(2)(C)(iii), forms the 28 heart of the environmental impact statement, 40 C.F.R. 29 § 1502.14. 30 557. 31 it [r]igorously explore[s] and objectively evaluate[s] all 32 reasonable alternatives, and for alternatives which were Under [the] NEPA, an agency s discussion of alternatives Natural Res. Def. Council, Inc. v. FAA, 564 F.3d at However, an agency satisfies its duty under the NEPA where 18 1 eliminated from detailed study, briefly discuss[es] the reasons 2 for their having been eliminated. 3 also Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 4 195 (D.C. Cir. 1991) ( If . . . the consideration of alternatives 5 is to inform both the public and the agency decisionmaker, the 6 discussion must be moored to some notion of feasibility. 7 (internal quotation marks and footnote omitted)). 8 40 C.F.R. § 1502.14(a); see Under the facts of this case, APHIS reasonably concluded 9 that while a phased-in substitute-materials-only requirement 10 would provide maximum plant protection with minimal adverse 11 environmental consequences, it is not currently a workable 12 alternative to an urgent problem in need of an immediate 13 response. 14 rule would require international negotiations to expand the level 15 of plant protection beyond that afforded by the IPPC Guidelines. 16 In the absence of an international consensus, adoption of such a 17 rule by the United States could disrupt international trade and 18 result in a potential violation of U.S. obligations under the SPS 19 Agreement. 20 and their outcome would depend upon a variety of factors, 21 including developing nations technical capacities and 22 anticipated economic growth. APHIS reached this conclusion because adopting such a Moreover, the negotiations would be time-consuming, 23 While Plaintiffs would have liked for APHIS to have more 24 fully examined the likely effects of adopting Plaintiffs desired 19 1 alternative on the global market for substitute materials, the 2 Final EIS complied with the NEPA. 3 information for the agency and public to take into account the 4 environmental impact of each of the alternatives presented and 5 for APHIS to make a reasoned decision as to how best to proceed 6 with plant protection in light of the competing considerations of 7 pest control and environmental concerns, on the one hand, and, on 8 the other, the harmonization and facilitation of global trade. 9 It provided sufficient That numerous forecasts and predictions related to the 10 adoption of a substitute-materials-only requirement were not 11 included in the Final EIS was explained by APHIS at the outset: 12 The necessity for extensive negotiations with other countries 13 precludes the ability to establish meaningful timetables for any 14 anticipated changes in regulations of packing materials 15 worldwide. 16 [t]he wide differences in perspective among respondents on the 17 draft EIS as to the ability of the packing industry to switch to 18 packing materials other than SWPM provide no clear consensus on 19 the relative ability to implement such an alternative. 20 A-4. 21 a specific time for completion of actions [will be] made by the 22 decisionmaker after review of an economic assessment, the 23 logistics of implementation of a specific course of action, the 24 potential international negotiations involved, and any trade Final EIS at 6. The Final EIS also noted that Id. at Importantly, APHIS stated that [a]ny decision to designate 20 1 implications for the United States and other countries. 2 A-5. 3 Id. at While Plaintiffs fault APHIS for not forecasting how the 4 international market for substitute packing materials might 5 expand over time if a phased-in substitute-materials-only 6 requirement were promulgated by the United States, such forecasts 7 were not necessary for APHIS s completion of a comprehensive EIS 8 or its compliance with the NEPA. 9 Inc. v. Callaway, 524 F.2d 79, 90 (2d Cir. 1975) ( [The agency] See Natural Res. Def. Council, 10 is not required to study and report on the effect of . . . a 11 relationship as yet not understood. 12 other projects so far removed in time or distance from its own 13 that the interrelationship, if any, between them is unknown or 14 speculative. ). 15 the environmental risks and benefits of numerous reasonable 16 alternatives to APHIS s proposed action of adopting the IPPC 17 Guidelines and explains the agency s decision not to pursue 18 further a substitute-materials-only alternative because of 19 current global trade considerations; it was not required to 20 speculate on the potential changes to the global cost and 21 availability of substitute materials in the event that APHIS were 22 to adopt a phased-in substitute-materials-only requirement. 23 Fund for Animals, 538 F.3d at 137 ( Where there is uncertainty 24 regarding the potential effects of an agency action, speculation Nor does it need to consider The Final EIS in this case adequately sets forth 21 See 1 in an EIS is not precluded, but the agency is not obliged to 2 engage in endless hypothesizing as to remote possibilities. 3 (internal quotation marks and alterations omitted)). 4 Accordingly, we conclude that the Final EIS complied with the 5 NEPA. 6 II. Plant Protection Act 7 A. 8 The PPA was enacted to detect, eradicate, suppress, and 9 Overview prevent the spread of plant pests and noxious weeds. See 7 10 U.S.C. § 7701(1). Under the PPA, it is the responsibility of 11 the Secretary [of Agriculture] to facilitate exports, imports, 12 and interstate commerce in agricultural products and other 13 commodities that pose a risk of harboring plant pests . . . in 14 ways that will reduce, to the extent practicable, as determined 15 by the Secretary, the risk of dissemination of plant pests 16 . . . . 17 the Secretary with authority to issue regulations to prevent the 18 introduction of plant pests into the United States, id. 19 § 7711(a), and to prohibit or restrict the importation . . . of 20 any . . . plant product, . . . article, or means of conveyance, 21 if the Secretary determines that the prohibition or restriction 22 is necessary to prevent the introduction [of a plant pest] into 23 the United States, id. § 7712(a); see also id. § 7754. 24 Secretary shall ensure that phytosanitary issues involving Id. § 7701(3); see also id. § 7702(16). 22 The PPA vests The 1 imports and exports are addressed based on sound science and 2 consistent with applicable international agreements. 3 § 7751(e). 4 PPA to APHIS. 5 475, slip op. at 2 (U.S. June 21, 2010) (citing applicable 6 regulations). 7 B. 8 We agree with the district court that the Defendants did not 9 violate the PPA by failing to elevate environmental concerns over Id. The Secretary has delegated his authority under the See Monsanto Co. v. Geertson Seed Farms, No. 09- Discussion 10 other legitimate factors when formulating the final SWPM rule. 11 See Natural Res. Def. Council, Inc. v. U.S. Dep t of Agric., 2007 12 WL 1610420, at *4-5. 13 heat treatment or fumigation with methyl bromide was not an abuse 14 of discretion given his dual responsibility to protect plants by 15 reducing plant pest risk and to facilitate commerce by avoiding 16 unduly burdensome trade restrictions. 17 clear that the Secretary considered the relevant environmental 18 and commercial concerns when deciding on a final SWPM rule, the 19 Secretary cannot be said to have abused his discretion in 20 ultimately concluding that adopting the measures specified in the 21 IPPC Guidelines best accomplished these dual objectives. 22 Finally, Plaintiffs argument that the Secretary s decision was 23 arbitrary and capricious because he failed to adequately consider 24 a phased-in substitute-materials-only requirement, and the The Secretary s decision to require either 23 Because the record is 1 magnitude of the impact on trade from such a requirement, echoes 2 the argument advanced in Plaintiffs NEPA challenge and it fails 3 for the same reasons. 4 5 6 7 CONCLUSION Accordingly, we AFFIRM the district court s March 9, 2009 judgment and June 4, 2007 memorandum and order. 24

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