Ctr. for Food Safety v. Regan, 19-72109

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: LEE, CIRCUIT JUDGE.
• 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.
• Docket Number: 19-72109,19-72280
• Decision Date: 21 December 2022

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.

Nos. 19-72109, 19-72280

United States Court of Appeals, Ninth Circuit

December 21, 2022

Argued and Submitted January 19, 2022 Honolulu, Hawaii

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On Petition for Review of an Order of the Environmental Protection Agency, EPA Nos. 62719-625, 62719-623, 62719-631

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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

SUMMARY^[*]

Pesticide/Environmental Protection Agency

The panel granted in part and denied in part petitions for review brought by Center for Food Safety and Pollinator Stewardship Council challenging the 2019 amended registration of the pesticide sulfoxaflor, which was created by Dow Agrosciences LLC.

A company seeking to register a pesticide must obtain approval from the Environmental Protection Agency (EPA), which in turn must comply with the Endangered Species Act (ESA), and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). In 2010, Dow submitted an application for sulfoxaflor. In January 2013, EPA announced and invited public comment for a proposed conditional registration at lower application rates with some mitigating measures. Less than seven months later, EPA decided to unconditionally register sulfoxaflor. In Pollinator Stewardship Council v. EPA (Pollinator I), 806 F.3d 520 (9th Cir. 2015), this court vacated the sulfoxaflor registration because of Dow's flawed and limited data for

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honeybees. In 2016, EPA registered sulfoxaflor for limited use without the additional court-ordered studies. In 2019, in a surprise announcement, EPA unconditionally registered sulfoxaflor.

The panel held that EPA violated the 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. Although EPA admitted it did not comply with the ESA, EPA alleged it lacked the resources to do so. The panel held that EPA cannot flout the will of Congress just because it contends it is too busy or understaffed. The panel further held that EPA's repeated violations of the ESA undermined the political structure.

The panel held that EPA failed to meet FIFRA's notice and comment requirement because it did not allow the public to comment on Dow's requested amendments to the 2016 registration to reinstate expanded usage of sulfoxaflor. EPA cannot rely upon Dow's original application for sulfoxaflor to support the registration amendments. Because Dow requested, and EPA approved, "new uses" for sulfoxaflor, EPA should have solicited public comments.

The panel, however, did not vacate the agency's decision because a vacatur might end up harming the environment more and disrupting the agricultural industry. The panel instead remanded it to EPA for further proceedings. The panel directed EPA to act immediately address the deficiencies and complete the ESA "effects determination and consultation" requirements, as well as the FIFRA notice and comment obligation, within 180 days of the mandate being issued in the case.

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Judge Miller concurred in part and dissented in part. He agreed with the majority's holding that the EPA acted unlawfully by failing to engage in consultation or provide public notice and an opportunity to comment before it approved the expanded use of sulfoxaflor. He dissented from the majority's decision to leave the EPA's action in place, and he would instead vacate the order under review.

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OPINION

LEE, CIRCUIT JUDGE.

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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

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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).

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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...