Ctr. for Food Safety v. Regan

• Decision Date: 21 December 2022
• Docket Number: 19-72109, No. 19-72280
• Parties: CENTER FOR FOOD SAFETY; Center for Biological Diversity, Petitioners, v. Michael S. REGAN, in his official capacity as Administrator ; U.S. Environmental Protection Agency, Respondents, Corteva Agriscience LLC, Respondent-Intervenor. Pollinator Stewardship Council; American Beekeeping Federation; Jeffery S. Anderson, Petitioners, v. Michael S. Regan, in his official capacity as Administrator ; U.S. Environmental Protection Agency, Respondents, Corteva Agriscience LLC, Respondent-Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

56 F.4th 648

CENTER FOR FOOD SAFETY; Center for Biological Diversity, Petitioners,

v.Michael S. REGAN, in his official capacity as Administrator ; U.S. Environmental Protection Agency, Respondents,Corteva Agriscience LLC, Respondent-Intervenor.

Pollinator Stewardship Council; American Beekeeping Federation; Jeffery S. Anderson, Petitioners,

v.Michael S. Regan, in his official capacity as Administrator ; U.S. Environmental Protection Agency, Respondents,Corteva Agriscience LLC, Respondent-Intervenor.

No. 19-72109

No. 19-72280

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 19, 2022 Honolulu, Hawaii

Filed December 21, 2022

George A. Kimbrell (argued), Sylvia Shih-Yau Wu, and Amy L. van Saun, Center for Food Safety, Portland, Oregon; Gregory C. Loarie (argued) and Gregory D. Muren, Earthjustice, San Francisco, California; Stephanie M. Parent, Center for Biological Diversity, Portland, Oregon; Surbhi Sarang, Earthjustice, New York, New York; for Petitioners.

Meghan E. Greenfield (argued), Senior Counsel for Appellate Matters; Briena L. Strippoli and Sheila Baynes, Trial Attorneys; Bruce Gelber and Todd Kim, Deputy Assistant Attorney Generals; Jean E. Williams, Acting Assistant Attorney General, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C.; Erin S. Koch and Amber Aranda, of Counsel, United States Environmental Protection Agency, Washington, D.C.; for Respondents.

Amanda S. Berman (argued), David Y. Chung, Amy Symonds, and Kristen L. Nathanson, Crowell & Moring LLP, Washington, D.C.; for Respondent-Intervenor.

Robert D. Swanson, Deputy Attorney General; Christie Vosburg, Supervising Deputy Attorney General; Edward H. Ochoa, Senior Assistant Attorney General; Xavier Becerra, Attorney General of California; California Department of Justice, Sacramento, California; for Amicus Curiae the States of California, Hawaii, Maryland, Minnesota, New Jersey, New York, New Mexico, Oregon, Vermont, and Washington.

Sarah Gunn, Bradley Arant Boult Cummings LLP, Birmingham, Alabama; Bartholomew J. Kempf and Edmund S. Sauer, Bradley Arant Boult Cummings LLP, Nashville, Tennessee; for Amici Curiae National Cotton Council, American Soy Bean Association, National Sorghum Producers, American Famr Nureau Federation, National Corn Growers Association, National Alfalfa & Forage Alliance, American Sugarbeet Growers Association, Florida Citrus Mutual, Florida Fruit & Vegetable Association, and National Potato Council.

Karen Ellis Carr, Stanley H. Abramson, Donald C. McLean, and Kathleen R. Heilman, Arent Fox LLP, Washington, D.C., for Amicus Curiae CropLife America.

David A. Bricklin and Zachary K. Griefen, Bricklin & Newman LLP, Seattle, Washington; Mina S. Markarious and Annie E. Lee, Anderson & Kreiger LLP, Boston, Massachusetts; Phelps T. Turner, Sara V. Dewey, and Colin Antaya, Conservation Law Foundation, Boston, Massachusetts, Beverly Grossman Palmer and Caroline Chiappetti, Stumwasser & Woocher LLP, Los Angeles, California; for Amicus Curiae Conservation Law Foundation et al.

Before: Diarmuid F. O'Scannlain, Eric D. Miller, and Kenneth K. Lee, Circuit Judges.

Opinion by Judge Lee ;

Partial Concurrence and Partial Dissent by Judge Miller

LEE, Circuit Judge:

It's déjà vu all over again. The U.S. Environmental Protection Agency (EPA) comes before this court once more because of its failure to abide by the law.

Before a company can introduce a pesticide to the market, it must obtain approval from EPA. 7 U.S.C. § 136a(a). And EPA, in turn, must comply with the Endangered Species Act (ESA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) before it can provide its stamp of approval for the pesticide. Broadly, these two statutes require the agency to consider the impact on the environment and threatened species.

Seven years ago, this court vacated EPA's approval of sulfoxaflor, a new pesticide created by Dow Agrosciences LLC. We held that EPA erred because Dow had not provided sufficient scientific evidence that this pesticide would not harm honeybees. After Dow agreed to limit the type and scope of usage for sulfoxaflor, EPA in 2016 greenlit it for "limited uses" even without additional studies. Then in 2019, EPA made a surprise announcement that it had reviewed additional studies provided by Dow and had given "unconditional approval" for sulfoxaflor on various usages that it had earlier canceled. This 2019 amended registration of sulfoxaflor led to the challenge before us.

We hold that EPA violated ESA's mandate that it determine whether the pesticide may affect endangered or threatened species or their habitat, and (if so) consult other wildlife agencies to consider its impact on endangered species. EPA admits it did not comply with the ESA but defends itself by claiming that it lacks the resources to do so. EPA cannot flout the will of Congress—and of the people—just because it thinks it is too busy or understaffed.

EPA also failed to meet FIFRA's notice and comment requirement because it did not allow the public to comment on Dow's request to reinstate expanded usage of sulfoxaflor. Because Dow requested and EPA approved "new uses" for sulfoxaflor, EPA should have solicited public comments. We, however, do not vacate the agency's decision because a vacatur may end up harming the environment more and disrupting the agricultural industry. We instead remand it to EPA for further proceedings.

BACKGROUND

I. A company seeking to register a pesticide must obtain approval from EPA, which in turn must comply with ESA and FIFRA.

To understand this case, we need briefly to recap the regulatory framework for approving pesticides. Under FIFRA, a company must first file a statement and submit data supporting the pesticide registration to EPA. 7 U.S.C. § 136a(c). The statement must include "a complete copy of the labeling of the pesticide, a statement of all claims to be made for it, and any directions for its use;" "the complete formula of the pesticide;" and "a full description of the tests made and the results thereof upon which the claims are based" or, alternatively, citations to public literature or previously submitted data. 7 U.S.C. § 136a(c)(1)–(2).

FIFRA then requires EPA to "promptly" publish in the Federal Register "a notice of each application for any pesticide if it contains any new active ingredient or if it would entail a changed use pattern." 7 U.S.C. § 136a(c)(4). The agency must provide for a 30-day comment period, id. , and "respond to comments received on the notice of application" when it notifies the public of the registration, 40 C.F.R. § 152.102.

Before it can register a pesticide, EPA must conduct a "cost-benefit analysis to ensure that there is no unreasonable risk created for people or the environment from a pesticide." Wash. Toxics Coal. v. EPA , 413 F.3d 1024, 1032 (9th Cir. 2005), abrogated on other grounds as recognized in Cottonwood Env't L. Ctr. v. U.S. Forest Serv. , 789 F.3d 1075, 1089 (9th Cir. 2015). EPA may deny an application to prevent "unreasonable adverse effects," which means "any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of [the] pesticide." 7 U.S.C. §§ 136a(a), 136(bb).

Finally, EPA must comply with the ESA, which requires EPA first to make an "effects" determination on whether the pesticide "may affect [a] listed species or critical habitat." 50 C.F.R. § 402.14(a). If yes, EPA must then consult another agency to see if the pesticide is "[l]ikely to jeopardize" the species or critical habitat. Id. § 402.14(h)(1)(iv)(A).

II. Dow submits an application for sulfoxaflor, but EPA asks Dow to submit more data before suddenly registering it for unconditional use anyway.

In 2010, Dow Agrosciences LLC sought to register three insecticides containing the chemical sulfoxaflor, a new and highly effective "active ingredient" for killing insects that are difficult to control. Sulfoxaflor is unique compared to other registered insecticides. It kills the insects by interfering with their central nervous system, causing tremors, paralysis, and death. But unlike other insecticides in its class, sulfoxaflor has a distinct mechanism for acting on insects, which makes it effective while other insecticides are not. To apply it, growers spray the product onto plants, and the plants absorb it into the tissues, pollen, and nectar. Insects die by either touching the insecticide or ingesting a plant that has absorbed it. Pollinator Stewardship Council v. EPA (Pollinator I ), 806 F.3d 520, 523 (9th Cir. 2015). As part of its application, Dow submitted several scientific studies supporting the registration of sulfoxaflor.

EPA noticed the public and invited comment on Dow's sulfoxaflor application on December 22, 2010, as required by FIFRA. Pesticide Products; Registration Applications, 75 Fed. Reg. 80,490 (Dec. 22, 2010). EPA's notice disclosed that Dow sought to register its sulfoxaflor products for use on diverse crops, including citrus, cotton, cucurbits (e.g. , squash and cucumbers), berries, and soybeans. 75 Fed. Reg. at 80,491 –92. And the agency gave the public 30 days to submit comments. Id. at 80,490.

EPA then analyzed the studies submitted by Dow "using a new framework it had recently developed to better analyze the risks to bees" due to "growing concerns about the rapid decline in bee populations." Pollinator I , 806 F.3d at 524. The framework involves a three-tiered analysis. At Tier 1, EPA identifies whether there is a potential risk to bees. Id. at 524–25. If the agency identifies a risk, then Tier 2 and Tier 3 define the risks and their magnitude, respectively. Id. "[W]hereas the Tier 1 analysis focuses on the effects of the insecticide on individual bees, Tier 2 and Tier 3 analyses attempt to measure the effect on the colony as a whole." Id. at 525.

In EPA's analysis of sulfoxaflor studies, it identified a "potential for risk to honey bees" under Tier 1....