56 F.4th 648
9th Cir.2022Background
- Sulfoxaflor (Dow/Corteva) sought EPA registration beginning in 2010; initial notice and comment occurred but EPA identified bee risks and requested more data.
- In 2013 EPA moved from a proposed conditional registration to an unconditional registration despite missing Tier 2 data; this Court vacated that registration in Pollinator I (806 F.3d 520) and EPA cancelled sales.
- Dow amended its application and EPA re-registered sulfoxaflor for limited uses in 2016 with restrictions intended to reduce pollinator exposure.
- In July 2019 EPA amended the registration again to add previously vacated "indeterminate blooming" crops and remove some 2016 restrictions, relying on new Dow studies but without making an ESA "effects" determination and without fresh notice-and-comment on the new uses.
- Petitioners challenged the 2019 registration under the Endangered Species Act (failure to make effects determination/consult) and FIFRA (failure to provide notice and comment); EPA conceded the ESA omission but defended keeping the registration; the Ninth Circuit held EPA violated both statutes but remanded without vacatur and ordered further agency action within 180 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ESA effects determination & consultation | EPA must make an "effects" determination and consult before registering expanded uses | EPA had resource constraints and could prioritize other pesticides; filing now suffices | EPA violated ESA by failing to make an effects determination or consult; resource limits do not excuse noncompliance |
| FIFRA notice & comment for "new uses" | Adding indeterminate-blooming crops and removing restrictions are "new uses" triggering §136a(c)(4) notice/comment | EPA relies on the prior (2010) application and past notices to avoid fresh notice/comment | Court held those 2019 amendments constituted new uses and required new notice and comment |
| Reliance on remanded/vacated registration/application | Petitioners: vacatur of the 2013 registration eliminated reliance; 2019 changes required fresh application process | EPA: the original application remained sufficient; no new application meant no new notice requirement | The Court held the 2010 application could not be treated as controlling; EPA could not rely on the old application to avoid notice/comment |
| Remedy: vacatur vs. remand without vacatur | Petitioners requested vacatur of the 2019 registration | EPA and Corteva urged remand (voluntary or court-ordered) without vacatur, citing environmental and agricultural disruption | Court remanded for EPA to complete ESA effects determination/consultation, provide required notice/comment, and analyze beekeeper economic impacts — but declined to vacate the registration, ordering action within 180 days; Judge Miller dissented as to vacatur (would vacate) |
Key Cases Cited
- Pollinator Stewardship Council v. EPA, 806 F.3d 520 (9th Cir. 2015) (vacating EPA's 2013 sulfoxaflor registration for insufficient bee data)
- Center for Biological Diversity v. EPA, 861 F.3d 174 (D.C. Cir. 2017) (rejecting EPA's resource-priority excuse for avoiding ESA consultation)
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) (underscoring the mandatory language and breadth of §7 ESA obligations)
- Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146 (D.C. Cir. 1993) (articulating the vacatur/remand balancing test)
- Nat'l Family Farm Coalition v. EPA, 966 F.3d 893 (9th Cir. 2020) (substantial-compliance and vacatur analysis under FIFRA)
- Wash. Toxics Coalition v. EPA, 413 F.3d 1024 (9th Cir. 2005) (discussing EPA's obligation to ensure no unreasonable environmental risk)
- Util. Air Regul. Grp. v. EPA, 573 U.S. 302 (2014) (agency may change conduct given resource constraints but cannot ignore statutory commands)