National Family Farm Coalition v. Environmental Protection Agency, No. 17-70810 (9th Cir. 2020)Annotate this Case
Petitioners filed suit alleging that the EPA's decisions to register Enlist Duo—a pesticide designed to kill weeds on corn, soybean, and cotton fields—in 2014, 2015, and 2017, violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA).
After determining that the petitions for review were timely and that petitioners have Article III standing, the Ninth Circuit held that NRDC waived any argument that EPA applied the incorrect standard when it registered Enlist Duo in 2014. Even absent waiver, the panel held that the NRDC's argument that the EPA applied the wrong standard is not persuasive. The panel also held that, although the EPA concedes that it cited the wrong standard, any error is harmless because the standard for unconditional registration is higher, not lower, than the standard for conditional registration. Furthermore, the panel held that substantial evidence supports the EPA's factual findings for its 2014, 2015, and 2017 registration decisions. In regard to the ESA claims, the panel held that the EPA's "no effect" findings, decision about the scope of the "action area," and "critical habitat" determinations survive deferential review. Accordingly, the court denied NFFC's petition for review; granted in part and denied in part NRDC's petition for review; and remanded without vacatur.
Court Description: Environmental Protection Agency. The panel granted one petition for review, denied another petition for review, and remanded without vacatur to the Environmental Protection Agency (“EPA”) in actions challenging the EPA’s decisions to register Enlist Duo – a pesticide designed to kill weeds on corn, soybean, and cotton fields – in 2014, 2015, and 2017. Enlist Duo combines two chemicals – 2,4- dichlorophenoxyacetic acid (“2,4-D”) choline salt and glyphosate. The panel held that the petitions for review were timely. A petition for review challenging a pesticide registration order in a court of appeal must be filed within 60 days after entry of such order. Here, the 2017 Notice of Registration was signed on January 12, 2017. The panel held that because the “date of entry” was not “explicitly” provided in the Notice of Registration, the “date of entry” was “two weeks after … [the Notice of Registration was] signed” – January 26, 2017. 40 C.F.R. § 23.6. The petitions filed 54 days later were therefore timely. 7 U.S.C. § 136n(b). The panel next addressed petitioners’ Article III standing. First, concerning the claims under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), alleging that EPA misapplied FIFRA’s procedural 4 NAT’L FAMILY FARM COALITION V. USEPA requirements and lacked substantial evidence in support of its decision that Enlist Duo’s registration complied with those requirements, the panel held that petitioners National Resource Defense Council (“NRDC”) and Center for Food Safety (“CFS”), based on their members’ standing, both had associational standing to bring FIFRA claims. Because one petitioner from each petition had associational standing, the panel did not need to decide whether the other National Family Farm Coalition (“NFFC”) petitioners had associational standing. Second, concerning the claims under the Endangered Species Act (“ESA”), alleging that EPA violated the ESA’s consultation procedures in registering Enlist Duo, the panel held that because one of CFS’s members had Article III standing, the organization also had associational standing to bring the ESA claims. In addition, the Article III standing of one NFFC petitioner made the ESA claims asserted by NFFC petitioners justiciable. Turning to the merits, the panel considered petitioners’ FIFRA claims. FIFRA is a regulatory scheme aimed at controlling the use, sale, and labeling of pesticides; and the mechanism used to further this aim is a process called “registration.” Registration can be unconditional or conditional, and both types often involve “pesticide products.” The panel rejected NRDC’s claim that the EPA incorrectly applied what NRDC believed to be the more lenient “conditional” registration standard rather than the more stringent “unconditional” standard when it registered Enlist Duo in 2014. First, the panel held that NRDC waived the argument. Second, even absent waiver, the panel held that NRDC’s argument was not persuasive. The registration NAT’L FAMILY FARM COALITION V. USEPA 5 documents supported the conclusion that EPA was applying the unconditional standard. NFFC petitioners argued that EPA incorrectly applied FIFRA’s “cause any unreasonable adverse effects” unconditional registration standard in its 2017 registration decision. EPA conceded that it cited the wrong standard, but the panel held that any error was harmless because the standard for unconditional registration was higher, not lower, than the standard for conditional registration. The panel held that the error did not show that EPA lacked substantial evidence to support its conclusions. Petitioners argued that EPA lacked substantial evidence for its 2014, 2015, and 2017 registration decisions for four reasons. First, the panel agreed with petitioners that EPA failed to properly assess harm to monarch butterflies from increased 2,4-D use on milkweed in target fields. The panel held that given the record evidence suggesting monarch butterflies may be adversely affected by 2,4-D on target fields, EPA was required, under FIFRA, to determine whether any effect was “adverse” before determining whether any effect on the environment was, on the whole, “unreasonable.” The panel concluded that EPA’s failure to do so meant that its decision was lacking in substantial evidence on the issue. Second, the panel rejected the argument that EPA failed to consider that Enlist Duo would increase the use of glyphosate over time. The panel held that substantial evidence supported EPA’s conclusion that neither the initial 2014 registration of Enlist Duo – nor the subsequent approvals for new use – will increase the overall use of glyphosate. Third, the panel rejected petitioners’ contention that EPA failed to properly consider 2,4-D’s volatility – i.e., its tendency to evaporate into a gas and drift to non-target plants. The panel held that EPA reasonably 6 NAT’L FAMILY FARM COALITION V. USEPA relied on studies to support its conclusion that the volatility of 2,4-D choline salt will not cause on unreasonable adverse effects on the environment. Accordingly, substantial evidence supported EPA’s findings. Fourth, the panel rejected NFFS petitioners’ contention that EPA should have accounted for the potential synergistic effect of mixing Enlist Duo with a different chemical called glufosinate. The panel held that this concern was speculative. In conclusion, as to FIFRA, the panel granted NRDC’s petition for review in part, and denied it in part. The panel next addressed, and rejected, the petitioners’ ESA claims. The ESA and its implementing regulations delineate a process – known as Section 7 consultation – for determining the biological impacts of a proposed action. The process starts with a determination whether the proposed action will have “no effect” or if it “may effect” listed species or critical habitat. If an action will have no effect, no consultation with the expert agencies is needed. First, the panel rejected NFFC petitioners’ challenge to EPA’s “no effect” findings for plants and animals. The panel held that the EPA did what the ESA required it to do: assess risks to determine whether the exposure of protected species and critical habitat to potentially harmful chemicals would have any possible effect. The panel concluded that EPA’s ultimate “no effect” findings, and adoption of mitigation measures, were not arbitrary, capricious, or contrary to law. Second, the panel rejected NFFC petitioners’ argument that EPA’s rationale for limiting the “action area” to the treated field was not sound. The panel accorded deference to the EPA in the way it chose to define the action area. Third, the panel rejected NFFC petitioners’ argument that EPA violated its duty to insure no “adverse modification” of “critical habitat” by relying on its 2016 risk assessment. NAT’L FAMILY FARM COALITION V. USEPA 7 Finally, the panel addressed the remedy for EPA’s error in its registration decisions under FIFRA. The panel held that remand without vacatur was warranted. EPA’s error in failing to consider harm to monarch butterflies caused by killing target milkweed was not “serious.” The panel remanded so that EPA can address the evidence concerning harm to monarch butterflies and whether the registration of Enlist Duo will lead to an unreasonable adverse effect on the environment.