Thursday, July 15, 2010
APHIS Wins One
Sometimes, interesting court decisions come from someplace other than the Court of International Trade or Federal Circuit. In this case, it is the Second Circuit.
In Natural Resources Defense Council v. Department of Agriculture, the NRDC, California, Connecticut, and my state of Illinois sued the Department of Ag over its implementation of regulations regarding imported solid wood packing materials.
If you are event tangentially involved in international logistics, you know that wood packing materials have been identified as a vector for plant pests entering the United States. Emerald ash borers and Asian longhorn beetles have destroyed trees throughout the U.S. and in my neighborhood. Given the danger posed by these and other pests, the Animal and Plant Health Inspection Service decided to regulate the importation of SWPM. The issue in this case is whether APHIS properly considered the alternatives, including the possibility of a phased-in complete ban on SWPM.
The legal basis for this challenge is two fold. First, the National Environmental Policy Act requires that a federal agency prepare an environmental impact statement prior to taking any major action affecting the quality of the environment. The plaintiff's alleged that APHIS' EIS was inadequate in that it failed to give full consideration is a phased-in ban on SWPM. The second basis for the case is the Plant Protection Act, which requires Ag to facilitate trade while also working to reduce the risk f the dissemination of plant pests.
Like most administrative law cases, this one does not turn on whether APHIS' decision is correct or even the best alternative. Rather, the sole issue before the Court was whether APHIS had properly followed its mandate to consider the environment and trade. It appears the main complaint was that APHIS did not give enough thought to and discussion about the notion of a phased-in ban. The details that I am skipping over relate to the availability of substitute materials, the fact that the fumigating chemicals used on SWPM are ozone-depleting, and the relative level of development of our trading partners.
The Court held that APHIS provided sufficient consideration to the relevant factors and adequately explained them in its various Federal Register notices. Consequently, the Court affirmed the decision of the district court and upheld the current regulatory standards.