National Family Farm Coalition v. Usepa, 960 F.3d 1120

Background

Dicamba is a volatile, broadleaf‑killing herbicide that historically was used pre‑plant because it drifts and can volatilize, damaging non‑target plants.
Monsanto (later Bayer) developed dicamba‑tolerant (DT) soybean and cotton seeds and together with DuPont/Corteva and BASF reformulated dicamba products (XtendiMax, FeXapan, Engenia) claiming reduced volatility.
EPA granted two‑year conditional registrations (2016) to permit over‑the‑top (OTT) post‑emergent dicamba use on DT soybeans/cotton, then tightened label restrictions after large incident reports in 2017 and 2018, and extended conditional registrations on October 31, 2018.
Petitioners challenged the October 31, 2018 decision under FIFRA (and raised an ESA claim the court did not reach), arguing EPA lacked substantial evidence to authorize the amendments and failed to consider required risks/costs.
The Ninth Circuit held EPA’s 2018 registration decision unsupported by substantial evidence—EPA understated acknowledged risks (acreage, under‑reporting, actual damage) and failed to consider other statutory risks (likely noncompliance with onerous labels, economic anticompetitive effects, and social/community harms)—and vacated the registrations.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether registrants submitted “satisfactory data” under 7 U.S.C. § 136a(c)(7)(B)(i)	Registrant studies were flawed/limited and did not justify conditional amendment.	EPA/registrants argued submitted studies (plus other literature and incident reports) sufficed.	Court declined to rest decision on this prong and did not resolve it—instead found failures on the risk/prong.
Whether amendment "would not significantly increase the risk of any unreasonable adverse effect on the environment" under § 136a(c)(7)(B)(ii)	EPA substantially understated known risks and ignored other substantial risks (non‑compliance, economic coercion to DT seeds, social harm).	EPA contended label mitigations and restrictions reduced drift risk and benefits outweighed minimal residual risks.	Held for plaintiffs: EPA lacked substantial evidence—it understated acreage and damage, mischaracterized reporting, and failed to consider key risks; registrations vacated.
Scope & timeliness of review (jurisdiction; which products challenged)	Petition timely and challenged the EPA’s October 31, 2018 decision covering all three products.	Monsanto argued petition untimely and that only XtendiMax registration was at issue.	Court held petition timely, found EPA decision was an "order following a public hearing," and that all three registrations were subject to review.
Remedy: remand with or without vacatur	Petitioners sought vacatur of the 2018 decision and registrations.	EPA and Monsanto urged remand without vacatur to avoid disruption to growers relying on DT systems.	Court vacated the October 31, 2018 registration decision and the three conditional registrations as fundamentally flawed and unlikely to be sustained on remand.

Key Cases Cited

Pub. Utils. Comm’n v. FERC, 100 F.3d 1451 (9th Cir. 1996) (timeliness/capable‑of‑repetition principles applied to reviewability)
United Farm Workers of Am. v. EPA, 592 F.3d 1080 (9th Cir. 2010) (broad reading of "public hearing" requirement under FIFRA jurisdictional provision)
Pollinator Stewardship Council v. EPA, 806 F.3d 520 (9th Cir. 2015) (standard for remand without vacatur and review of EPA pesticide registrations)
Nat. Res. Def. Council v. EPA, 857 F.3d 1030 (9th Cir. 2017) (substantial‑evidence standard for EPA actions)
Nat. Res. Def. Council v. EPA, 735 F.3d 873 (9th Cir. 2013) (agency must be upheld on the basis articulated by the agency itself)
Aramark Facility Servs. v. Serv. Emps. Int’l Union, 530 F.3d 817 (9th Cir. 2008) (failure to adequately brief an argument may waive it)
Taylor AG Indus. v. Pure‑Gro, 54 F.3d 555 (9th Cir. 1995) (states have primary enforcement role for pesticide use under FIFRA)