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, Fungicide, and Rodenticide 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, Authorization, 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, 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 (FDA) 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 Recent Experience
- 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 the 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; 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. Currently litigating in the U.S. Court of Appeals for the Ninth Circuit, on behalf of one of the world’s largest agrichemical companies, ESA-based challenges to EPA registration of novel pesticides to be employed on genetically-modified corn and soybean seed.
- 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.
- 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.
ISSUE: FEBRUARY 2015
IN THIS ISSUE
- New “Definition of Solid Waste” Rule Brings More Recycling Confusion
- Negotiations Continue on Tariff Reductions for Environmental Goods; Midterm Elections Should Benefit Trade Agenda
- EPA Fixes Its Own Error—Clarifies Pesticide Export Collateral Labeling Requirements
- New U.S. Postal Service Lithium Battery/Product Shipping Rules
- Will Republican Tide Sink Proposed Clean Water Act Jurisdiction Rule?
- FTC Report on Internet of Things Confirms Growing Interest in Privacy and Security for Innovators
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