Wiley Rein is at the forefront of law firms representing clients in addressing the legal, regulatory, and economic issues arising under pesticide and food safety laws. Our attorneys represent and counsel the major trade association of agricultural chemical manufacturers, task forces of manufacturers that are jointly responding to regulatory challenges, and individual manufacturers, distributors and retailers.
We routinely handle matters arising under the Federal Insecticide, Rodenticide, and Fungicide Act (FIFRA), the Toxic Substances Control Act (TSCA), the Food Quality Protection Act (FQPA), the Federal Food, Drug, and Cosmetic Act (FFDCA), hazard communication and right-to-know statutes (e.g., Emergency Planning and Community Right-to-Know Act (EPCRA) and California’s “Prop 65”), the Occupational Safety and Health Act (OSHA), hazardous materials transportation statutes, the Consumer Products Safety Act (CPSA), the Clean Air Act (CAA) (including Title VI, which regulates the production and use of ozone-depleting substances and their chemical substitutes), the Clean Water Act (CWA), and European requirements (Registration, Evaluation, Authorisation, and Restriction of Chemicals (REACH), Restriction of Hazardous Substances Directive (RoHS), and various EU directives). In addition, because of our Team’s broad experience, we are directly involved in challenges relating to regulation under these programs and their interactions with the Endangered Species Act (ESA) and related statutes.
Under FIFRA, for example, we assist clients with re-registration and registration review matters, import and export issues, data compensation disputes (representing both claimants and respondents), enforcement actions, and ESA challenges to U.S. Environmental Protection Agency (EPA) actions. We routinely document product and business line transfers and cost-sharing arrangements. We also counsel companies on product development strategies, compliance with EPA and U.S. Food and Drug Administration advertising regulations, and virtually all areas of law involving the manufacture, marketing, and use of commercial chemicals and toxic substances including product development, testing, approval, labeling, right-to-know obligations, transportation, maintenance, and defense. We work at the national, state, and international levels.
Our Team offers unrivaled experience on cutting-edge issues surrounding the interface between the various statutes under which challenges in these areas arise, along with copyright and patent law. For example, partner Tracy Heinzman is one of the nation’s leading authorities on the regulation of ozone depleting fumigants under the CAA, and partner David B. Weinberg has successfully handled (and is handling) a number of precedential suits challenging pesticide registrations under the ESA.
Representative Current Experience Related to Pesticides
- Representing the principal trade association of agricultural chemical manufacturers as intervenors in litigation in Washington and California challenging EPA’s compliance with the ESA, and supporting that association’s regulatory activities in related areas. Obtained in April 2013 a decision from U.S. District Court for the Northern District of California dismissing on jurisdictional grounds the “mega case” challenging EPA’s registration of over 300 pesticides in alleged violation of the ESA; in February 2013 a decision from the U.S. Court of Appeals for the Fourth Circuit vacating the first “biological opinion” prepared by the National Marine Fisheries Service evaluating the potential impacts of pesticide use on salmon in California and the Pacific Northwest as arbitrary and capricious in violation of both the ESA and the Administrative Procedure Act; and in 2010 a decision from the U.S. Court of Appeals for the Ninth Circuit limiting the basis which environmental activists may challenge pesticide registrations on health, safety, and environmental protection grounds.
- Obtained a decision from the U.S. Court of Appeals for the Fourth Circuit establishing jurisdiction for challenging “biological opinions” regarding pesticides issued under the ESA.
- Successfully defended on behalf of industry stakeholders EPA regulations allocating methyl bromide allowances under the CAA.
- Representing one of the world’s largest chemical manufacturers in litigation in U.S. District Court in California supporting EPA against ESA challenges to its pesticide regulatory program. In recent years, we have obtained dismissal of similar claims in several other pesticide ESA cases.
- In 2011, successfully represented a task force of pesticide registrants in a data compensation dispute with another company and counseled several companies about data compensation obligations. (Our Team has handled dozens of these disputes.)
- Currently serving as primary outside regulatory counsel to numerous pesticide and consumer products companies.
- Currently representing a consortium of manufacturers and distributors in negotiations with EPA on the re-registration of soil fumigants.
The firm regularly publishes a Product Stewardship & Sustainability Report. It deals with such cutting-edge concerns as product recycling mandates, proper handling of recalls, and chemical regulatory approvals.
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ISSUE: JULY 2014
IN THIS ISSUE
- A Framework Emerges for EPA FIFRA/ESA Compliance
- Vermont Leads the Way, Passes Primary Battery Recycling Legislation; Other States to Follow in 2015
- Supreme Court to Review Administrative Procedure Act’s Notice and Comment Requirements in Context of Interpretative Rules
- Industry Opposition to CPSC Voluntary Recalls Proposal Bolstered by Former Agency Chairman
- More Food Fights to Come: Supreme Court Opens the Door to Lanham Act Claims for False or Misleading Food Labels
The Return of Sweet Home in Texas Whooping Crane Case a Sign That ESA Issues Will Be Back Before the U.S. Supreme Court
By Steven Richardson, David B. Weinberg, Craig G. Fansler* and Andy Wang
August 15, 2014 | The Water Report, Issue #126
Appellate ESA Decisions May Prompt More Emphasis on Economic Considerations
By David B. Weinberg
May 23, 2014 | Bloomberg BNA's Daily Environment Report
Farm Bill Contains ESA Provision
By David B. Weinberg and Steven Richardson
February 4, 2014
RECENT NEWSNew Decision Clarifies Breadth of Potential “Take” Suits
July 2, 2014