CENTER FOR FOOD SAFETY, ET AL V. MICHAEL REGAN, ET AL, No. 19-72109 (9th Cir. 2022)
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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.
The Ninth Circuit 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 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.
Court Description: 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 4 CENTER FOR FOOD SAFETY V. REGAN 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. CENTER FOR FOOD SAFETY V. REGAN 5 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.
The court issued a subsequent related opinion or order on December 5, 2023.
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