Monday, July 12, 2010
Jul 8: In the U.S. Court of Appeals, Second Circuit, Case No. 09-2021. The case is appealed from a judgment of the U.S. District Court for the Southern District of New York that held that Defendants-Appellees (USDA) complied with the National Environmental Policy Act (NEPA) and the Plant Protection Act (PPA) when they adopted new regulations for the importation of unmanufactured wood packaging material into the United States.
The Appeals Court said, "Because we conclude that Defendants-Appellees considered all reasonable alternatives to the proposed rule, and did not act arbitrarily or capriciously in adopting a rule providing for either heat treatment or fumigation with methyl bromide of the wood material prior to importation, we affirm the judgment of the district court."
The Appeals Court described the case saying it concerns "our national response to the significant environmental threat presented by plant pests and pathogens introduced into the United States through the importation of solid wood packaging material (SWPM) -- including pallets, crates, boxes, cases, and skidsused to support, protect, and carry commodities entering the country. Exotic wood-boring insects that accompany SWPM, such as the pine shoot beetle, the Asian longhorned beetle, and the emerald ash borer, undisputedly pose a threat to U.S. agriculture and ecotourism, and to natural, cultivated, and urban forests. While the environmental impact of these destructive insects is real, the United States cannot address this global threat alone, and the U.S. Department of Agriculture, through the Animal and Plant Health Inspection Service (APHIS), is required to balance environmental considerations, international guidelines, and global trade concerns in adopting a final rule for the importation of SWPM. . ."
In its final summation, the Appeals Court explained further, "We agree with the district court that the Defendants did not violate the PPA by failing to elevate environmental concerns over other legitimate factors when formulating the final SWPM rule. See Natural Res. Def. Council, Inc. v. U.S. Dep't of Agric., 2007 WL 1610420, at 4-5. The Secretary's decision to require either heat treatment or fumigation with methyl bromide was not an abuse of discretion given his dual responsibility to protect plants by reducing plant pest risk and to facilitate commerce by avoiding unduly burdensome trade restrictions. Because the record is clear that the Secretary considered the relevant environmental and commercial concerns when deciding on a final SWPM rule, the Secretary cannot be said to have abused his discretion in ultimately concluding that adopting the measures specified in the IPPC Guidelines best accomplished these dual objectives. Finally, Plaintiffs' argument that the Secretary's decision was arbitrary and capricious because he failed to adequately consider a phased-in substitute-materials-only requirement, and the magnitude of the impact on trade from such a requirement, echoes the argument advanced in Plaintiffs' NEPA challenge and it fails for the same reasons."
Access the complete opinion (click here).
Posted by JPMcJ at 4:07 PM