Migrant Clinicians Network v. U.S. Envtl. Prot. Agency
Docket Number | 21-70719 |
Decision Date | 13 December 2023 |
Citation | 88 F.4th 830 |
Parties | MIGRANT CLINICIANS NETWORK; Beyond Pesticides; Center for Biological Diversity; Environmental Confederation of Southwest Florida; Farmworker Association of Florida; Farmworker Justice; Natural Resources Defense Council; United States Public Interest Research Group, Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; Michael Regan, in his official capacity as Administrator of the United States Environmental Protection Agency, Respondents. |
Court | U.S. Court of Appeals — Ninth Circuit |
On Petition for Review of an Order of the Environmental Protection Agency
Margaret T. Hsieh (argued), Natural Resources Defense Council, San Francisco, California; Sarah V. Fort, Natural Resources Defense Council, Washington, D.C.; Francis W. Sturges, Jr., Natural Resources Defense Council, Chicago, Illinois; Hannah Connor, Center for Biological Diversity, Washington, D.C.; Carrie Apfel, Earthjustice, Washington, D.C.; Dominique Burkhardt, Earthjustice, Miami, Florida; for Petitioners.
Daniel R. Dertke (argued) and Robert M. Norway, Attorneys, Environmental Enforcement Section; Todd Kim, Assistant Attorney General, Environment and Natural Resources Division; United States Department of Justice, Washington, D.C.; Erin S. Koch, Assistant General Counsel; Jori Reilly-Diakun, Attorney-Advisor; United States Environmental Protection
Agency, Washington, D.C.; for Respondents.
Before: Ronald M. Gould, Johnnie B. Rawlinson, and Daniel A. Bress, Circuit Judges.
We consider a petition for review of the Environmental Protection Agency's amended pesticide registrations of streptomycin sulfate for use in combating citrus diseases. The EPA concedes that its amended registrations failed to comply with the Endangered Species Act (ESA). We also conclude that some aspects of the EPA's registration decision contravene the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). We grant the petition for review in part, vacate the EPA's amended registrations, and remand to the agency so that it can comply with its statutory obligations. Although we do not vacate EPA's amended registrations lightly, the EPA's statutory violations coupled with its own concessions make this the required course.
Before a pesticide can be distributed and sold in the United States, the EPA must satisfy the requirements of FIFRA and the ESA. See, e.g., Ctr. for Food Safety v. Regan, 56 F.4th 648, 652-53 (9th Cir. 2022).
FIFRA "is a comprehensive regulatory scheme" governing "the use, sale, and labeling of pesticides." Nathan Kimmel, Inc. v. DowElanco, 275 F.3d 1199, 1204 (9th Cir. 2002). Under this scheme, manufacturers are required to "register a pesticide with the EPA before introducing it into the market." Id. The registration, once granted, "functions as a license setting forth the conditions under which the pesticide may be sold, distributed, and used." Nat'l Res. Def. Council v. EPA, 38 F.4th 34, 40 (9th Cir. 2022); see also 7 U.S.C. § 136a(a).
Under FIFRA, the EPA may not register a pesticide (or, as here, amend an existing pesticide registration) unless the pesticide, "when used in accordance with widespread and commonly recognized practice," will perform its intended function without causing "unreasonable adverse effects on the environment." 7 U.S.C. § 136a(c)(5)(C), (D); 40 C.F.R. § 152.44. FIFRA defines "unreasonable adverse effects on the environment" to include "any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." Id. § 136(bb). When the EPA grants an unconditional registration, as it did here, it must "review[ ] all relevant data in [its] possession n" and "determine[ ] that no additional data are necessary to make the determinations required by FIFRA." 40 C.F.R. § 152.112(b)-(c); see also 7 U.S.C. § 136a(c)(5); Pollinator Stewardship Council v. EPA, 806 F.3d 520, 523 (9th Cir. 2015) ().
Once the EPA grants a pesticide registration, the pesticide must undergo a broader registration review at least every 15 years "to determine whether the pesticide continues to meet the statutory standard for registration under FIFRA section 3(c)(5)"—i.e., that it will not ''generally cause unreasonable adverse effects on the environment." Pesticides; Procedural Regulations for Registration Review, 65 Fed. Reg. 24586, 24587 (EPA 2000) ( ); see also 7 U.S.C. § 136a(g)(1)(A)(i). If the EPA determines upon review that the pesticide no longer satisfies this standard, it can cancel the registration or take other appropriate action. 7 U.S.C. § 136d(b).
In addition to FIFRA, the EPA's pesticide registration decisions must also comply with the ESA. See Ctr. for Food Safety, 56 F.4th at 657. The ESA requires federal agencies to ensure "that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species" or damage its habitat. 16 U.S.C. § 1536(a)(2). Thus, "at the earliest possible time," the EPA must determine whether its proposed pesticide registration decisions "may affect listed species or critical habitat." 50 C.F.R. § 402.14(a). This process is generally called an "effects determination." Ctr. for Food Safety, 56 F.4th at 657.
Should the EPA determine that a pesticide registration will have no effect, "further action is unnecessary." Id. (citing 50 C.F.R. § 402.14(b)(1)). But if the EPA determines that a pesticide registration "may affect" an endangered species or critical habitat, it then must consult the appropriate wildlife agency to analyze the potential impacts of the proposed action. 50 C.F.R. §§ 402.14(a), 402.40; see also Ctr. for Food Safety, 56 F.4th at 657; Ctr. for Biological Diversity v. EPA, 861 F.3d 174, 178 (D.C. Cir. 2017). The consulted agency must then provide a written statement setting forth its opinion. 16 U.S.C. § 1536(b)(3). "The threshold for triggering" this consultation requirement is "relatively low." California ex rel. Lockyer v. U.S. Dep't of Agric., 575 F.3d 999, 1018 (9th Cir. 2009).
Streptomycin sulfate (streptomycin) is an antibiotic that has been used in agriculture, animal husbandry, and human medicine for several decades. It has been used commercially to control bacterial plant diseases in the United States since the 1950s. Streptomycin has been approved for use on, among other things, apples, pears, beans, peppers, celery, and tomatoes, as well as in residential ornamental gardens.
Streptomycin is also considered "highly important" in human and veterinary medicine. The Food and Drug Administration (FDA) has approved streptomycin for use on humans and animals to treat various ailments, ranging from urinary tract infections to tuberculosis to plague. For several decades, streptomycin has been used as a human antibiotic drug "without significant incidents" raising concerns for human health. More recently, though, clinical use of streptomycin has diminished due to the development of resistance in many human pathogenic species and its higher toxicity relative to other antibiotics. For these reasons, streptomycin is typically prescribed as a "second line agent" in combination with other antibiotics.
In 2015, pesticide manufacturers proposed another use for streptomycin: the management of Huanglongbing disease and citrus canker in oranges and other citrus crops. Huanglongbing or "HLB," also known as "citrus greening," is an incurable and often fatal plant disease spread by the Asian citrus psyllid, an invasive insect. Since it was first detected in the United States in 2005, HLB has devastated domestic citrus production. In Florida, which contains most of the citrus crop in the United States, HLB affects over 90% of citrus acres, and the disease has led to a 42% reduction in citrus acreage in the state. Researchers have estimated that HLB cost Florida citrus growers $4.5 billion in lost revenues and led to the loss of 8,000 jobs. HLB has also affected citrus operations in Texas and California.
American citrus groves have also suffered from citrus canker disease. Citrus canker is caused by the bacterium Xanthomonus citri subsp. Citri (Xcc), and is spread by wind, rain, irrigation, and human contact. Despite citrus growers' considerable eradication efforts, the U.S. Department of Agriculture (USDA) determined in 2006 that citrus canker had spread in Florida citrus groves to such a degree that eradication was not possible. The consequences for growers have been severe. Between 2004 and 2016, it is claimed that citrus canker reduced citrus acreage in Florida by 30%. Together, citrus greening and citrus canker have seriously harmed citrus crops, affecting fruit size, health, and numbers, and leading to premature tree death.
Citrus growers historically struggled to find effective treatment methods for citrus greening and citrus canker. There is currently only one registered pesticide that targets the specific bacteria that causes HLB disease. And although there are other pesticides designed to manage infestations from the insects that spread HLB, they have not proven successful at preventing HLB transmission. Citrus canker, meanwhile, has been managed using copper-based pesticides, but these can be harmful to citrus fruits when applied frequently. As these two citrus diseases continued to spread, pesticide manufacturers and citrus farmers sought alternative treatment methods.
In November 2015, Geo Logic Corporation and AgroSource Inc. submitted applications to the EPA to amend the pesticide registrations of streptomycin for use on citrus crop group 10-10, which consists of lemons, limes, oranges, and grapefruits, as well as other less common citrus fruits, such as the...
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