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.

Speaking of which, importers need to know these rules. Imports that are not compliance with the standards may result in liquidated damages, seizures, and redelivery notices. None of which is going to make you happy.

1 comment:

Amy B said...

This is such an interesting topic to me because I had dealt directly with this issue since I worked with a forwarder for lumber exporters and a daughter of a forester. A phyto certificate had to be presented with all export documentation, particularly with countries requiring this. Seeing that lumber is something more regulated here, it may not be the same across the globe. So phasing out the use of lumber globally for dunage or whatever shipping purpose overseas, will be a very slow process. If this is an environmental issue of globally going "green" and banning the use of wood in all shipping, then there has be some global consensus of it.

Also, I have worked with Ag on the import side, for inspections and fumigations of flowers being imported. There is no telling what kind of chemicals being used in these fumigations or even in the treatment of the lumber if we are speaking about the environmental impact. (I am not an expert in this area, so anyone can chime in).

Seeing that lumber will always be a product that is in demand, I don't know how else Ag is expected to think of this issue. Foresters here in America have to deal with domestic pests on trees, causing millions of dollars in losses to lumber companies. Why would any other country be different?