Nat'l Family Farm Coal. v. U.S. Envtl. Prot. Agency

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation966 F.3d 893
Docket Number No. 17-70817,No. 17-70810,17-70810
Parties NATIONAL FAMILY FARM COALITION ; Family Farm Defenders; Beyond Pesticides; Center for Biological Diversity; Center for Food Safety; Pesticide Action Network North America, Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; Andrew R. Wheeler, in his official capacity as Administrator, Respondents, Dow Agrosciences LLC, Respondent-Intervenor. Natural Resources Defense Council, Petitioner, v. Andrew R. Wheeler, in his official capacity as Administrator of the United States Environmental Protection Agency; U.S. Environmental Protection Agency, Respondents, Dow Agrosciences LLC, Respondent-Intervenor.
Decision Date22 July 2020
OPINION

R. NELSON, Circuit Judge:

Petitioners challenge EPA's decisions to register Enlist Duo—a pesticide designed to kill weeds on corn, soybean, and cotton fields—in 2014, 2015, and 2017. According to Petitioners, EPA's decisions violate FIFRA and the ESA. We grant one petition in part as to FIFRA, deny the other petition as to both the ESA and FIFRA, and remand to the agency without vacatur.

I

Corn, soybeans, and cotton are three of the most important agricultural commodities in the United States. Corn is the primary feed grain in the United States and worldwide, soybeans are the world's largest source of protein feed for animals and the second largest source of vegetable oil, and cotton is one of the most important textile fibers in the world.

These crops provide vital value to the United States and the world. Domestically, these three crops together have a gross production value of approximately $103 billion per year. Internationally, the United States is the world's leading corn and soybean producer and exporter. The United States also provides, together with China and India, two-thirds of the world's cotton.

This important industry, however, is not immune from a plight that threatens every gardener: weeds. Since the 1970s, glyphosate dimetyhlammonium salt ("glyphosate") has been used on corn, soybeans, and cotton crops to reduce weeds. Over time, however, certain noxious weeds have grown resistant to glyphosate. That resistance in turn decreases crop yield, with severe economic consequences.

To help solve this problem, Dow Agrosciences LLC ("Dow") invented Enlist Duo. Enlist Duo combines two chemicals—2,4-dichlorophenoxyacetic acid ("2,4-D") choline salt and glyphosate. Both 2,4-D and glyphosate have been registered for certain uses as pesticides for decades. When combined, however, they represent a significant improvement over glyphosate and 2,4-D, used separately. Combining the two chemicals delays the development of the weeds’ resistance and allows pesticide use later in the growing season, thereby improving yields.

EPA issued a final order registering Enlist Duo under the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") in October 2014. In that registration decision, EPA did not perform a risk assessment for Enlist Duo's glyphosate component. Instead, it found that a new assessment was not needed because glyphosate was already being used in the same way in other pesticides to treat weeds. But the same was not true for 2,4-D. That component was being approved for use later into the growing season and on taller-growing crops for the first time. So EPA performed a full risk assessment for 2,4-D. That analysis assessed human health risks; ecological risks; and risks to endangered species, plants, and critical habitats posed by 2,4-D. It also considered whether 2,4-D would volatilize—that is, evaporate into a gas—and drift to non-target plants and animals.

EPA found, based on multiple studies, that the type of 2,4-D in Enlist Duo—a choline salt variety—is less volatile than other forms of 2,4-D. That meant there was no risk of harm off the treated field, so long as the label requirements—including the use of nozzles, buffers, and avoiding application aerially—were followed to avoid the risk of spray drift. This finding led EPA to limit the "action area" to treated fields, thereby reducing the number of species subject to an ESA analysis. EPA then concluded, based on its FIFRA risk assessments and conservative ESA analysis, that Enlist Duo's registration would "not generally cause unreasonable adverse effects on the environment" under FIFRA and would comply with the ESA, subject to certain use restrictions.

Based on this conclusion, EPA issued a registration of Enlist Duo under FIFRA, which allowed Enlist Duo to be used on corn and soybean crops in six states. EPA's decision, however, was ambiguous as to which FIFRA registration standard it was applying. The pesticide license approved an "unconditional" registration. So did the Proposed Decision Document. But the final registration document articulating EPA's reasoning cited FIFRA's "conditional" registration provision instead. EPA also referenced additional data requirements in the registration, even though outstanding data requirements are typically referenced in conditional registrations.

Petitioners National Family Farm Coalition, Family Farm Defenders, Beyond Pesticides, Center for Biological Diversity ("CBD"), Center for Food Safety ("CFS"), and Pesticide Action Network North America ("PANNA") (collectively, the "NFFC Petitioners") and Petitioner National Resource Defense Council ("NRDC") challenged EPA's 2014 registration decision in this Court. NRDC v. EPA , No. 14-73353 (9th Cir. Oct. 30, 2014); Ctr. for Food Safety v. EPA , No. 14-73359 (9th Cir. Oct. 30, 2014). While that litigation was pending, EPA issued a final order amending the 2014 registration to allow the use of Enlist Duo on corn and soybean crops in an additional nine states. That 2015 registration decision was supported by an ecological risk assessment for the protected species in the new states. The decision also relied on critical habitat modification determinations for the new uses of 2,4-D.

Petitioners challenged the 2015 registration decision as well, NRDC v. EPA , No. 15-71213 (9th Cir. Apr. 20, 2015); Ctr. for Food Safety v. EPA , No. 15-71207 (9th Cir. Apr. 20, 2015), and the challenges to the 2014 and 2015 registration decisions were consolidated in one proceeding. But briefing was never completed. Instead, EPA moved to remand and vacate the 2014 and 2015 registrations. EPA did so after discovering that Dow had filed a patent application with the U.S. Patent and Trademark office claiming "synergism"—that is, two chemicals working together to produce a greater combined effect than they would separately—between glyphosate and 2,4-D. This Court granted the request to remand the case, but denied the request for vacatur, leaving the 2014 and 2015 registration decisions in place.

Shortly thereafter, on January 12, 2017, EPA issued another registration decision regarding Enlist Duo. In that decision, EPA relied on new data on synergy to conclude that no concern lay with synergy between the glyphosate and 2,4-D in Enlist Duo. EPA did not, however, address evidence that destruction of milkweed on target fields would harm the monarch butterfly population. The decision also contained three main conclusions. First, it reaffirmed EPA's 2014 and 2015 registration decisions. Second, it authorized the use of Enlist Duo on corn and soybean crops in 19 additional states, bringing the total number of permitted-use states to 34. Third, it authorized a new use of Enlist Duo on cotton crops in all 34 states.

To support these decisions, EPA relied in part on its prior analysis of glyphosate and 2,4-D. But EPA did perform some new analysis. For example, EPA relied on an updated ecological risk assessment for 531 ESA-listed species in the 34 states where Enlist Duo was approved. The updated risk assessment, like the prior ones, used an iterative approach, through which species were ruled out and given "no effect" findings if their exposure to 2,4-D did not exceed a set "level of concern" after screening-level and, in some cases, species-specific assessments. Using this methodology, EPA made "no effect" findings as to all plants and animals off the treated field, after imposing similar mitigation measures as it had in 2014. This same methodology supported EPA's "no effect" findings for 19 of 23 species on the treated field. EPA therefore did not contact the consultation agencies as to these species. As to the remaining four species, EPA imposed location-based label restrictions to avoid harm to three of them. EPA then consulted the Fish and Wildlife Service ("FWS") as to the Eskimo curlew—after which FWS concurred with EPA's conclusion that the Eskimo curlew would not be adversely affected by Enlist Duo. The 2017 decision, relying on new critical habitat analysis, also concluded that no critical habitats would be affected because the eight species that occurred on corn, cotton, and soybean fields did not have physical or biological features essential to the species in agricultural fields.

Despite this new data and analysis, there were, for the first time, data gaps relating to 2,4-D that were not present during the prior registrations. These gaps—which related to 2,4-D generally—meant that EPA could not register Enlist Duo unconditionally. Instead, EPA registered the entire Enlist Duo product on a "conditional" basis under FIFRA. In doing so, however, EPA cited FIFRA's unconditional "cause unreasonable adverse effects" standard rather than FIFRA's conditional "significantly increase the risk of unreasonable adverse effects" standard.

Petitioners challenged EPA's 2017 decision on March 21, 2017. In the resulting briefing, the parties disagreed about whether EPA's 2014 and 2015 registration decisions could also be reviewed. We held, after oral argument, that all three decisions were subject to review. We then ordered the parties to submit supplemental briefing addressing any challenges to the 2014 a...

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