Appellate Court Upholds APHIS regulations over SWPM
On July 8, 2010, the Second Circuit Court of Appeals ruled that new regulations for the importation of unmanufactured wood packaging material into the United States complied with the National Environmental Policy Act and the Plant Protection Act. The final rule required that all solid wood packaging material (“SWPM”) be either heat treated to a minimum wood core temperature of 56°C for a minimum of 30 minutes or fumigated with methyl bromide prior to being used in connection with the importation of goods into the United States.
The Natural Resources Defense Council, Inc. (NRDC") and the States of California, Connecticut, and Illinois had argued that the new rule did not comply with the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., or the Plant Protection Act (PPA"), 7 U.S.C. § 7701 et seq.
Plaintiffs claimed that U.S. Department of Agriculture, through the Animal and Plant Health Inspection Service (“APHIS”) violated the NEPA and the PPA by failing to fully consider the reasonable alternative of a phased-in substitute materials requirement before adopting a final rule requiring that all SWPM be either heat treated or fumigated with methyl bromide prior to being used in the transport of goods into the United States.
The Court took note
of the significant environmental threat presented by plant pests and pathogens introduced into the United States through the importation of solid wood packaging material, including pallets, crates, boxes, cases, and skids-used to support, protect, and carry commodities entering the country. Exotic wood-boring insects that accompany SWPM, such as the pine shoot beetle, the Asian long horned 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"), was required to balance environmental considerations, international guidelines, and global trade concerns in adopting a final rule for the importation of SWPM.
The Court concluded that the Government 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. Accordingly, it affirmed the District Court’s decision upholding the regulations.
[Natural Resources Defense Council, Inc. v. U.S. Dep't of Agriculture 09-2021-cv]
