ORDER GRANTING DOW AGROSCIENCES LLC `S MOTION TO INTERVENE AND PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF A COMPLETE ADMINISTRATIVE RECORD

JEREMY FOGEL, District JudgePage 2

I. BACKGROUND

The present action arises from the issuance of an Interim Reregistration Eligibility Decision ("IRED") for chlorpyrifos, an organophosphate insecticide, by the United States Environmental Protection Agency ("EPA") in September 2001. IREDS are the end product of a reregistration process that the EPA is required to undertake for all pesticides registered before November 1, 1984. See Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) § 4, 7 U.S.C. § 136a-1. Plaintiffs United Farm Workers et al. ("Plaintiffs") have asked the Court to declare that the EPA acted arbitrarily, capriciously, and contrary to law when it approved reregistration of chlorpyrifos for continued use in agricultural applications. Plaintiffs also seek injunctive relief ordering the EPA to make a new reregistration eligibility decision for chlorpyrifos. Dow Agrosciences LLC ("DAS") has filed an unopposed motion to intervene in the action.

Plaintiffs move to compel the EPA to produce an augmented administrative record that includes all materials that were before the agency at the time it made its decisions to re-register chlorpyrifos including drafts, internal communications, and other deliberative materials, unless the EPA can demonstrate that specific materials are privileged. The EPA asserts that it should not be required to submit "drafts and deliberative documents" because such evidence is "not properly part of the records for judicial review." Docket 25 at 4 ("Joint Case Management Statement").

Plaintiffs and the EPA have agreed on a case schedule under which the EPA were to submit an index and relevant excerpts of the administrative record by April 15, 2008. Docket 25 at 4 ("Joint Case Management Statement"). The EPA has stipulated to its position regarding the scope of the record so the Court may resolve this issue at the outset and the EPA may then proceed to file an administrative record that conforms to the Court's ruling in accordance with the agreed-upon schedule.

II. DISCUSSION

1. Motion to Intervene

In determining whether a motion is timely, district courts in this jurisdiction examine three factors: (1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay. United States v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004). In the instant case, DAS seeks to intervene at a very early stage of litigation. Plaintiffs have filed a motion to compel filing of a complete administrative record, which is currently pending. The record itself would not be filed until April 2008 and dispositive briefing would not occur until the summer of 2008. Thus, neither the Plaintiffs nor EPA will be prejudiced by the timing of DAS's motion to intervene.

A proposed intervenor claims a significantly protectable interest within the meaning of Rule 24(a)(2) if the interest asserted is protected by law and related to the plaintiff's claims. Alisal Water Corp., 370 F.3d at 919. An economic interest constitutes a significantly protectable interest if it is concrete and related to the underlying subject matter in the case. Id. DAS is the creator and predominant manufacturer of chlorpyrifos, and it holds several EPA registrations that allow it to distribute and sell chlorpyrifos. DAS thus has a significantly protectable interest.

In addition, the disposition of this case may affect that interest. DAS asserts that if Plaintiffs obtain the re-review of the chlorpyrifos IRED they seek, DAS's potential customers may switch to substitutes as a result of uncertainty about the future availability of chlorpyrifos products. DAS argues it will be forced to incur additional costs in defending the safety of chloropyrifos, and that the disposition of this action will impair or impede DAS's ability to protect its interests in chlorpyrifos.

The Ninth Circuit has explained:

In determining adequacy of representation, [courts] consider whether the interests of a present party is such that it will undoubtedly make all the intervenor's arguments; whether the present party is capable and willing to make such arguments; and whether the intervenor would offer necessary elements to the proceeding that other parties would neglect.

2. Motion to Compel

Plaintiffs' claims under FIFRA are reviewed pursuant to 5 U.S.C. § 706(2)(A) of the Administrative Procedure Act ("APA") which requires that the Court's review of agency decisions be based on the "whole record" before the EPA at the time of its decisions. This includes internal correspondence, memoranda and drafts that were part of the EPA's decision making process. The Ninth Circuit has emphasized that the "whole record" subject to review under the APA is not merely the record designated and submitted by the agency. Portland Audubon Society v. Endangered Species Committee, 984 F.2d 1534, 1548 (9th Cir. 1989). "The whole administrative record . . . consists of all documents and materials directly or indirectly considered by agency decision makers and includes evidence contrary to the agency's position." Thompson v. Dep't of Labor, 885 F.2d 551, 555 (9th Cir. 1989). See also, Pac. Coast Fed'n of Fishermen's Assocs. v. Nat'l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001) (reasoning that the central question in APA review is whether the agency considered the relevant factors and articulated a rational connection between the facts found and the choice made). The United States Department of Justice ("DOJ") has instructed federal agencies to include drafts and other deliberative materials in their records. Department of Justice, Guidance to Federal Agencies on Compiling the Administrative Record (January 1999). "The focal point for judicial review should be the administrative record already in existence, not some new record made in the reviewing court." Florida Power Light Co. v. Lorion, 470 U.S. 729, 743 (1985). The EPA asserts that "an agency's designation and certification of the administrative record is treated like other established administrative procedures, and thus entitled to a presumption of administrative regularity . . . absent clear evidence to the contrary." McCrary v. Gutierrez, 495 F. Supp. 2d 1038, 1041 (N.D. Cal. 2007), citing Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993), citing Wilson v. Hodel, 758 F.2d 1369, 1374 (10th Cir. 1985). This presumption is not relevant at this stage in the proceeding because the EPA is still compiling the administrative record. Defendant's Opposition To Plaintiffs' Motion To Compel Filing of A Complete Administrative Record at 14. Plaintiffs are simply asking that the administrative record include all evidence considered by the EPA when it made its re-registration decision. The Court agrees with Plaintiffs.

III. ORDER