Appeals Court Upholds Solid Wood Packing Material Rule
On July 8, 2010, the U.S. Court of Appeals for the Second Circuit in New York affirmed the decision of the U.S. District Court for the Southern District of New York in National Resources Defense Council, Inc. et al., v. U.S. Department of Agriculture et al., upholding a 2004 Department of Agriculture regulation requiring that imports of unmanufactured solid wood packing material (SWPM) be either heat treated or fumigated with methyl bromide prior to importation.
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In September 2004, the USDA, through the Animal and Plant Health Inspection Service issued a final rule adopting the International Plant Protection Convention Guidelines and mandating either heat treatment or fumigation with methyl bromide of all SWPM used in connection with the importation of goods into the U.S. This action was undertaken as a response to the environmental threat presented by plant pests in SWPM, including pallets, crates, boxes, cases, and skids, used to support, protect, and carry commodities into the U.S.
The National Resources Defense Council and other plaintiffs asserted that APHIS violated the National Environmental Policy Act and the Plant Protection Act by failing to fully consider the alternative of phased-in substitutable materials such as processed wood, fiberboard, plywood or plastics that are impervious to the insect pests.
The Court noted that APHIS considered a phased-in, substitute-materials-only requirement that would provide maximum plant protection with minimal adverse environmental consequences, but reasonably concluded that it was not workable. APHIS noted that adopting such a rule could disrupt international trade and might result in a violation of U.S. obligations under the World Trade Organization’s Agreement on Sanitary and Phytosanitary Measures. In addition, they noted that this procedure would require time-consuming negotiations whose outcome would depend upon a variety of factors, including the capabilities of developing countries.
The Court determined that the USDA had not violated the PPA and had considered the relevant environmental and commercial concerns prior to establishing either heat treatment or fumigation with methyl bromide on imported wood packing. The Court further determined that USDA had considered a phased-in substitute-materials-only requirement, but explained the reasons it would not be workable; accordingly, it had not acted arbitrarily or capriciously.
(See ITT’s Online Archives or 09/23/04 news [Ref 04092320], for BP summary of APHIS final rule on Treatment of SWPM. (Note that this material is now called Wood Packaging Material (WPM).)
National Resources Defense Council, Inc. v. U.S. Dep’t of Agriculture Docket No. 09-2021-cv] decided July 8, 2010