Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 1 of 19
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`__________________________________________
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`Case No. 1:20-cv-03190 (RCL)
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`AMERICAN SOYBEAN ASSOCIATION
`
`and
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`PLAINS COTTON GROWERS, INC.,
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`Plaintiffs,
`
`v.
`
`MICHAEL REGAN,1 et al.,
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`Defendants,
`
`
`
`and
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`SYNGENTA CROP PROTECTION, LLC, et al., )
`)
`)
`Intervenor-Defendants.
`__________________________________________)
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`ANSWER OF INTERVENOR-DEFENDANT SYNGENTA CROP PROTECTION, LLC
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`Intervenor-Defendant Syngenta Crop Protection, LLC (“Syngenta”) files this Answer to
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`Plaintiffs’ Complaint for Declaratory and Injunctive Relief, filed November 4, 2020, ECF No. 1,
`
`pursuant to Federal Rule of Civil Procedure 12 and this Court’s Order of February 5, 2021, ECF
`
`No. 37. Any allegations not specifically admitted below are denied. Answering the numbered
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`paragraphs of the Complaint, Syngenta admits, denies, and avers as follows:
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`INTRODUCTION
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`1.
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`Paragraph 1 contains Plaintiffs’ characterization of this lawsuit, to which no
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`response is required.
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`
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`1 Administrator Regan is substituted automatically pursuant to Federal Rule of Civil Procedure
`25(d).
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`1
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`__________________________________________
`
`Case No. 1:20-cv-03190 (RCL)
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`AMERICAN SOYBEAN ASSOCIATION
`
`and
`
`PLAINS COTTON GROWERS, INC.,
`
`Plaintiffs,
`
`v.
`
`MICHAEL REGAN,1 et al.,
`
`Defendants,
`
`
`
`and
`
`SYNGENTA CROP PROTECTION, LLC, et al., )
`)
`)
`Intervenor-Defendants.
`__________________________________________)
`
`ANSWER OF INTERVENOR-DEFENDANT SYNGENTA CROP PROTECTION, LLC
`
`Intervenor-Defendant Syngenta Crop Protection, LLC (“Syngenta”) files this Answer to
`
`Plaintiffs’ Complaint for Declaratory and Injunctive Relief, filed November 4, 2020, ECF No. 1,
`
`pursuant to Federal Rule of Civil Procedure 12 and this Court’s Order of February 5, 2021, ECF
`
`No. 37. Any allegations not specifically admitted below are denied. Answering the numbered
`
`paragraphs of the Complaint, Syngenta admits, denies, and avers as follows:
`
`INTRODUCTION
`
`1.
`
`Paragraph 1 contains Plaintiffs’ characterization of this lawsuit, to which no
`
`response is required.
`
`
`
`1 Administrator Regan is substituted automatically pursuant to Federal Rule of Civil Procedure
`25(d).
`
`1
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`
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`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 2 of 19
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`2.
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`3.
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`4.
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`5.
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`Syngenta admits the allegations in Paragraph 2.
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`Syngenta admits the allegations in Paragraph 3.
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`Upon information and belief, Syngenta admits the allegations in Paragraph 4.
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`Syngenta admits the allegations in the first sentence of Paragraph 5. The second
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`sentence of Paragraph 5 characterizes EPA’s decision to register dicamba for use on dicamba-
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`tolerant soybeans and cotton, which speaks for itself and is the best evidence of its content.
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`6.
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`Syngenta admits that EPA’s registration of its dicamba product, Tavium, provided
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`growers with an essential weed-management tool. Syngenta lacks knowledge or information
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`sufficient to form a belief as to the truth of the remaining allegations in Paragraph 6.
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`7.
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`Paragraph 7 characterizes certain aspects of EPA’s registration decisions
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`concerning dicamba, which speak for themselves and are the best evidence of their content.
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`8.
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`Paragraph 8 contains Plaintiffs’ characterization of this action, to which no
`
`response is required.
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`9.
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`The first sentence of Paragraph 9 contains Plaintiffs’ characterization of this
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`action, to which no response is required. Syngenta admits that, as of the time of the filing of the
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`Complaint, growers were already making planting and seed-selection decisions for the 2021
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`growing season, but denies the remaining allegations in the second sentence of Paragraph 9.
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`Syngenta admits that growers’ investments in dicamba, DT soybean and cotton seed, and related
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`products would be lost if the dicamba products at issue were no longer registered by EPA;
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`Syngenta lacks knowledge or information sufficient to form a belief as to the truth of the
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`remaining allegations in the third sentence of Paragraph 9.
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`PARTIES
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`10.
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`Upon information and belief, Syngenta admits the allegations in Paragraph 10.
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`2
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`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 3 of 19
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`11.
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`Upon information and belief, Syngenta admits the allegations in the first sentence
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`of Paragraph 11. Syngenta lacks knowledge or information sufficient to form a belief as to the
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`truth of the remaining allegations in Paragraph 11.
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`12.
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`Syngenta lacks knowledge or information sufficient to form a belief as to the truth
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`of the allegations in Paragraph 12.
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`13.
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`Upon information and belief, Syngenta admits the allegations in the first sentence
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`of Paragraph 13. Syngenta lacks knowledge or information sufficient to form a belief as to the
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`truth of the remaining allegations in Paragraph 13.
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`14.
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`Syngenta admits that the EPA Administrator is the federal official responsible for
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`pesticide registrations, including the decisions challenged here, and that Andrew R. Wheeler was
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`the EPA Administrator at the time the Complaint was filed and was sued in his official capacity.
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`15.
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`Syngenta admits that Defendant Marietta Echeverria was Acting Division
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`Director of the EPA’s Office of Pesticide Programs, Registration Division at the time the
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`Complaint was filed, in which position she approved and administered FIFRA registrations and
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`reported to the EPA Administrator. Upon information and belief, Syngenta admits the remaining
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`allegations in Paragraph 15.
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`16.
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`Syngenta admits the allegations in the first sentence of Paragraph 16. The
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`remainder of Paragraph 16 states conclusions of law, to which no response is required.
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`JURISDICTION AND VENUE
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`Admitted.
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`Paragraph 18 states conclusions of law, to which no response is required.
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`Admitted.
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`17.
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`18.
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`19.
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`3
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`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 4 of 19
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`20.
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`Syngenta admits that relevant events giving rise to Plaintiffs’ claims occurred in
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`this District. The remainder of Paragraph 20 states conclusions of law, to which no response is
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`required.
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`STATUTORY AND REGULATORY FRAMEWORK
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`A.
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`The Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”)
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`21.
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`The first sentence of Paragraph 21 characterizes FIFRA, which speaks for itself
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`and is the best evidence of its content. The second sentence of Paragraph 21 characterizes a
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`Congressional Research Service report concerning pesticides, which speaks for itself and is the
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`best evidence of its content.
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`22.
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`Paragraph 22 quotes from and characterizes FIFRA, which speaks for itself and is
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`the best evidence of its content.
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`23.
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`Paragraph 23 quotes from and characterizes FIFRA, which speaks for itself and is
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`the best evidence of its content.
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`24.
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`Paragraph 24 characterizes FIFRA, which speaks for itself and is the best
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`evidence of its content.
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`25.
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`Paragraph 25 characterizes FIFRA, which speaks for itself and is the best
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`evidence of its content.
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`B.
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`The Endangered Species Act (the “ESA”)
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`26.
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`Paragraph 26 quotes from and characterizes the ESA, which speaks for itself and
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`is the best evidence of its content.
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`27.
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`Paragraph 27 quotes from and characterizes the ESA, which speaks for itself and
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`is the best evidence of its content.
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`4
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`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 5 of 19
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`28.
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`Paragraph 28 quotes from and characterizes the ESA, which speaks for itself and
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`is the best evidence of its content.
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`29.
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`Paragraph 29 quotes from and characterizes the ESA, which speaks for itself and
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`is the best evidence of its content.
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`30.
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`Paragraph 30 quotes from and characterizes the ESA, which speaks for itself and
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`is the best evidence of its content.
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`FACTUAL BACKGROUND
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`31.
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`Paragraph 31 contains Plaintiffs’ characterization of the lawsuit, to which no
`
`response is required. Paragraph 31 also characterizes and summarizes EPA’s Memorandum
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`Supporting Decision to Approve Registration for the Uses of Dicamba on Dicamba Tolerance
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`Cotton and Soybean (the “Dicamba Memorandum”), which speaks for itself and is the best
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`evidence of its content.
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`32.
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`Paragraph 32 characterizes and summarizes the Dicamba Memorandum and
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`supporting EPA analyses (referred to collectively as “the Dicamba Decision”), which speak for
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`themselves and are the best evidence of their content.
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`33.
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`The first sentence of Paragraph 33 contains Plaintiffs’ characterization of the U.S.
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`agricultural sector, to which no response is required. Syngenta admits that Tavium is an essential
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`weed-management tool. Syngenta lacks knowledge or information sufficient to form a belief as
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`to the truth of the remaining allegations in the second sentence of Paragraph 33.
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`34.
`
`Syngenta admits that EPA’s registration of Tavium provided growers with an
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`essential weed-management tool. Syngenta lacks knowledge or information sufficient to form a
`
`belief as to the truth of the remaining allegations in Paragraph 34.
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`5
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`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 6 of 19
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`35.
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`Paragraph 35 contains Plaintiffs’ characterization of the lawsuit, to which no
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`response is required.
`
`A.
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`U.S. Soybean
`
`36.
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`Syngenta admits that soybeans are an important agricultural product and have
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`numerous uses as an ingredient and as feed and fuel. Syngenta lacks knowledge or information
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`sufficient to form a belief as to the truth of the remaining allegations in Paragraph 36.
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`37.
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`Paragraph 37 characterizes a USDA environmental impact statement for dicamba-
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`resistant soybean and cotton varieties (“Soybean FEIS”) and a United Soybean Board issue brief,
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`which speak for themselves and are the best evidence of their content.
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`38.
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`The first sentence of Paragraph 38 contains Plaintiffs’ characterization of the U.S.
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`agricultural economy, to which no response is required. The second sentence of Paragraph 38
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`characterizes an ASA SoyStats document, which speaks for itself and is the best evidence of its
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`content.
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`39.
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`The first sentence of Paragraph 39 contains Plaintiffs’ characterization of the U.S.
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`farm economy, to which no response is required. The second sentence of Paragraph 39
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`characterizes a USDA Economic Research Service report, which speaks for itself and is the best
`
`evidence of its content.
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`40.
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`The first sentence of Paragraph 40 contains Plaintiffs’ characterization of the
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`global agricultural market, to which no response is required. The second and third sentences of
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`Paragraph 40 characterize a USDA Economic Research Service report and ASA SoyStats
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`document, which speak for themselves and are the best evidence of their content.
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`41.
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`Syngenta admits that soybeans are an important agricultural product but otherwise
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`lacks knowledge or information sufficient to form a belief as to the truth of the remaining
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`6
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`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 7 of 19
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`allegations in the first sentence in Paragraph 41. The remaining allegations in Paragraph 41
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`characterize a USAID Soybeans Commodity Fact Sheet, which speaks for itself and is the best
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`evidence of its content.
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`42.
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`The allegations in Paragraph 42 characterize a USAID Soybeans Commodity Fact
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`Sheet, which speaks for itself and is the best evidence of its content.
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`43.
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`The first sentence of Paragraph 43 contains Plaintiffs’ characterization of the
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`domestic and international food chain, to which no response is required. Syngenta lacks
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`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
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`in Paragraph 43.
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`B.
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`U.S. Cotton
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`44.
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`Syngenta admits that cotton is an important cash crop. The remaining allegations
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`in the first sentence of Paragraph 44 contain Plaintiffs’ characterization of the domestic and
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`global textile trade, to which no response is required. The second sentence of Paragraph 44
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`characterizes a USDA Economic Research Service report, which speaks for itself and is the best
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`evidence of its content.
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`45.
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`The allegations in Paragraph 45 characterize a USDA Economic Research Service
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`Report and National Cotton Council (“NCC”) World of Cotton document, which speak for
`
`themselves and are the best evidence of their content.
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`46.
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`Syngenta admits that cotton is an important agricultural product in Texas but
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`lacks knowledge or information sufficient to form a belief as to the truth of the remaining
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`allegations in Paragraph 46.
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`7
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`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 8 of 19
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`47.
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`The allegations in Paragraph 47 characterize a NCC World of Cotton document
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`and 2018 NCC Report to Members Summary, which speak for themselves and are the best
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`evidence of their content.
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`48.
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`Syngenta admits that the United States is an important cotton producer and
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`exporter, but lacks knowledge or information sufficient to form a belief as to the truth of the
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`remaining allegations in the first sentence of Paragraph 48. The second sentence in Paragraph 48
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`characterizes a USAID Soybeans Commodity Sheet, which speaks for itself and is the best
`
`evidence of its content.
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`49.
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`The allegations in Paragraph 49 characterize USDA Economic Research Service
`
`reports, which speak for themselves and are the best evidence of their content.
`
`50.
`
`The allegations in Paragraph 50 characterize a USDA Economic Research Service
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`report, which speaks for itself and is the best evidence of its content.
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`51.
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`The allegations in Paragraph 51 characterize a USDA Economic Research Service
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`report, which speaks for itself and is the best evidence of its content.
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`52.
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`Syngenta admits that DT seed and dicamba are important tools for cotton farmers
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`but lacks knowledge or information sufficient to form a belief as to the truth of the remaining
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`allegations in Paragraph 52.
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`C.
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`The Rise of Herbicide-Resistant Weeds and Growers’ Answer: Dicamba
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`53.
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`The first sentence of Paragraph 53 contains Plaintiffs’ characterization of the
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`American farm economy, to which no response is required. The remaining allegations in
`
`Paragraph 53 characterize an ASA SoyStats document and USDA Foreign Agricultural Service
`
`report, which speak for themselves and are the best evidence of their content.
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`8
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`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 9 of 19
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`i.
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`Growers’ Fight Against Weeds
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`54.
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`Syngenta admits that soybean and cotton farmers face numerous threats during
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`the growing season, including each of the threats identified in Paragraph 54. Syngenta lacks
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`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
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`in Paragraph 54.
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`55.
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`Syngenta admits that weeds are among the threats soybean and cotton farmers
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`fact, but lacks knowledge or information sufficient to form a belief as to the truth of the
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`remaining allegations in the first sentence of Paragraph 55. The remaining allegations in
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`Paragraph 55 characterize the Soybean FEIS, which speaks for itself and is the best evidence of
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`its content.
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`56.
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`The allegations in Paragraph 56 characterize the Soybean FEIS and a Weed
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`Science Society of America report, which speak for themselves and are the best evidence of their
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`content.
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`57.
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`Syngenta admits that weeds pose a threat to cotton farmers, but lacks knowledge
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`or information sufficient to form a belief as to the truth of the remaining allegations in the first
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`sentence of Paragraph 57. The second sentence of Paragraph 57 characterizes an NCC letter to
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`EPA (“NCC Letter”), which speaks for itself and is the best evidence of its content.
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`ii.
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`The Emergence of Glyphosate-Resistant Weeds
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`58.
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`The allegations in the first sentence of Paragraph 58 contain Plaintiffs’
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`characterization of the impact of GT crops to which no response is required. Syngenta admits the
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`remaining allegations in Paragraph 58.
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`59.
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`The allegations in Paragraph 59 contain Plaintiffs’ characterization of the impact
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`of GT crops to which no response is required.
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`9
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`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 10 of 19
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`60.
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`The allegations in Paragraph 60 contain Plaintiffs’ characterization of the impact
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`of GT crops to which no response is required.
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`61.
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`The allegations in the first two sentences of Paragraph 61 characterize the NCC
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`Letter and the Soybean FEIS, which speak for themselves and are the best evidence of their
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`content. The remaining allegations in Paragraph 61 contain Plaintiffs’ characterization of the
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`impact of GT crops to which no response is required.
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`62.
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`The allegations in the first sentence of Paragraph 62 contain Plaintiffs’
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`characterization of the impact of GT crops to which no response is required. The allegations in
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`the second and third sentences of Paragraph 62 characterize a Keystone Alliance for Sustainable
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`Agriculture report, which speaks for itself and is the best evidence of its content.
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`63.
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`The allegations in the first sentence of Paragraph 63 contain Plaintiffs’
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`characterization of investment in GT crops to which no response is required. The second
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`sentence of Paragraph 63 characterizes a USDA Economic Research Service report, which
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`speaks for itself and is the best evidence of its content.
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`iii.
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`The Emergence of Glyphosate-Resistant Weeds
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`Syngenta admits the allegations in Paragraph 64.
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`Syngenta admits that glyphosate-resistant weeds are increasingly widespread.
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`64.
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`65.
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`The remaining allegations in Paragraph 65 characterize the Soybean FEIS, which speaks for
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`itself and is the best evidence of its content.
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`66.
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`The allegations in the first sentence of Paragraph 66 contain Plaintiffs’
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`characterization of the impacts of glyphosate-resistant weeds to which no response is required.
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`The remaining allegations in Paragraph 66 characterize CropLife reports, which speak for
`
`themselves and are the best evidence of their content.
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`10
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`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 11 of 19
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`67.
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`Syngenta admits that glyphosate-resistant weeds can impose significant costs on
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`growers. The remaining allegations in Paragraph 67 characterize the Soybean FEIS, which
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`speaks for itself and is the best evidence of its content.
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`68.
`
`The allegations in Paragraph 68 characterize the Soybean FEIS, which speaks for
`
`itself and is the best evidence of its content.
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`iv.
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`Dicamba: Growers’ Answer to Glyphosate-Resistant Weeds
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`69.
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`Syngenta admits that Tavium was developed to address glyphosate-resistant
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`weeds. Syngenta lacks knowledge or information sufficient to form a belief as to the truth of the
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`remaining allegations in Paragraph 69.
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`70.
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`Paragraph 70 contains Plaintiffs’ characterization of this action, to which no
`
`response is required.
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`71.
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`The allegations in Paragraph 71 contain Plaintiffs’ characterization of Tavium and
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`the other Dicamba Products’ use and efficacy to which no response is required.
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`72.
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`The allegations in Paragraph 72 contain Plaintiffs’ characterization of Tavium and
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`the other Dicamba Products’ use, efficacy, and benefits to which no response is required.
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`73.
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`The allegations in the first and third sentence of Paragraph 73 contain Plaintiffs’
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`characterization of the Dicamba Products to which no response is required. The remaining
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`allegations in Paragraph 73 characterize the Soybean FEIS, which speaks for itself and is the best
`
`evidence of its content.
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`74.
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`Syngenta lacks knowledge or information sufficient to form a belief as to the truth
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`of the allegations in the first sentence of Paragraph 74.
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`75.
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`76.
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`Syngenta admits the allegations in Paragraph 75.
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`Upon information and belief, Syngenta admits the allegations in Paragraph 76.
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`11
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`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 12 of 19
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`77.
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`78.
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`79.
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`Upon information and belief, Syngenta admits the allegations in Paragraph 77.
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`Syngenta admits the allegations in Paragraph 78.
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`Syngenta admits the allegations in Paragraph 79.
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`D.
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`The Dicamba Decision and its Application Restrictions
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`80.
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`Syngenta admits that EPA registered the Dicamba Products on October 27, 2020,
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`through the Dicamba Decision, but lacks knowledge or information sufficient to form a belief as
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`to the truth of the remaining allegations in the first sentence of Paragraph 80. The remaining
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`allegations in Paragraph 80 characterize the Dicamba Memorandum, which is the best evidence
`
`of its content.
`
`i.
`
`EPA’s Latest Dicamba Registration
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`81.
`
`The allegations in Paragraph 81 characterize the Dicamba Memorandum and past
`
`dicamba registration decisions, which speak for themselves and are the best evidence of their
`
`content.
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`82.
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`Syngenta admits that the Dicamba Decision is comprised of the Dicamba
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`Memorandum and supporting documents. The remaining allegations in Paragraph 82
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`characterize the Dicamba Memorandum, which speaks for itself and is the best evidence of its
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`content.
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`83.
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`The allegations in Paragraph 83 characterize additional dicamba registration
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`decision documents, which speak for themselves and are the best evidence of their content.
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`84.
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`85.
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`86.
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`Syngenta admits the allegations in Paragraph 84.
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`Syngenta admits the allegations in Paragraph 85.
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`Upon information and belief, Syngenta admits the allegations in Paragraph 86.
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`12
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`87.
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`The allegations in Paragraph 87 characterize and quote from various EPA
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`assessments supporting the Dicamba Decision, which speak for themselves and are the best
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`evidence of their content.
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`88.
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`Syngenta admits that the Dicamba Decision imposed conditions on growers,
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`including date-dependent application restrictions (the “Application Restrictions”), ESA-based
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`application buffers (the “ESA Buffers”), and FIFRA-based application buffers (the “FIFRA
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`Buffers”). Syngenta lacks knowledge or information sufficient to form a belief as to the truth of
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`the remaining allegations in Paragraph 88.
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`89.
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`The allegations in Paragraph 89 characterize letters Plaintiffs submitted to EPA,
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`which speak for themselves and are the best evidence of their contents.
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`90.
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`The allegations in Paragraph 90 characterize EPA’s Dicamba Decision and past
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`dicamba registrations, which speak for themselves and are the best evidence of their content.
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`ii.
`
`The Application Restrictions
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`91.
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`The allegations in Paragraph 91 characterize EPA’s Dicamba Decision, which
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`speaks for itself and is the best evidence of its contents. Syngenta admits that EPA’s registration
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`of dicamba contains new and additional restrictions that may result in some use limitations and
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`costs in certain circumstances, but lacks knowledge or information sufficient to form a belief as
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`to the truth of the remaining allegations in Paragraph 91.
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`92.
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`The first sentence of Paragraph 92 contains Plaintiffs’ characterization of certain
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`dicamba label restrictions, to which no response is required. Syngenta admits that EPA’s
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`registration of dicamba may, in certain circumstances, impact farm management flexibility, but
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`lacks knowledge or information sufficient to form a belief as to the truth of the remaining
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`allegations in Paragraph 92.
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`13
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`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 14 of 19
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`93.
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`The first sentence of Paragraph 93 contains Plaintiffs’ characterization of the
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`impacts of certain dicamba label restrictions, to which no response is required. Syngenta admits
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`that cotton typically begins flowering 55-60 days after planting and that weed control during
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`cultivation is important to cotton growers.
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`94.
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`Paragraph 94 contains Plaintiffs’ characterization of the impacts of certain
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`dicamba label restrictions, to which no response is required.
`
`95.
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`The first sentence of Paragraph 95 contains Plaintiffs’ characterization of the
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`impacts of certain dicamba label restrictions, to which no response is required. Syngenta lacks
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`knowledge or information sufficient to form a belief as to the truth of the allegations in
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`Paragraph 95.
`
`96.
`
`Paragraph 96 contains Plaintiffs’ characterization of the impacts of certain
`
`dicamba label restrictions, to which no response is required.
`
`97.
`
`Paragraph 97 contains Plaintiffs’ characterization of the impacts of certain
`
`dicamba label restrictions, to which no response is required.
`
`98.
`
`Paragraph 98 contains Plaintiffs’ characterization of the impacts of certain
`
`dicamba label restrictions, to which no response is required.
`
`99.
`
`Paragraph 99 contains Plaintiffs’ characterization of the impacts of certain
`
`dicamba label restrictions, to which no response is required.
`
`100.
`
`Paragraph 100 contains Plaintiffs’ characterization of the impacts of certain
`
`dicamba label restrictions, to which no response is required.
`
`101.
`
`The second sentence of Paragraph 101 characterizes and quotes from the Dicamba
`
`Memorandum, which speaks for itself and is the best evidence of its content. The remainder of
`
`14
`
`
`
`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 15 of 19
`
`Paragraph 101 contains Plaintiffs’ characterization of the impacts of certain dicamba label
`
`restrictions, to which no response is required.
`
`iii.
`
`The ESA and FIFRA Buffers
`
`Syngenta admits the allegations in Paragraph 102.
`
`Paragraph 103 characterizes the Dicamba Memorandum, which speaks for itself
`
`102.
`
`103.
`
`and is the best evidence of its content.
`
`104.
`
`Syngenta lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations in Paragraph 104.
`
`105.
`
`Syngenta lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations in Paragraph 105.
`
`106.
`
`Syngenta lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations in Paragraph 106.
`
`107.
`
`The second sentence of Paragraph 107 characterizes an EPA Incidents and
`
`Impacts Report, which speaks for itself and is the best evidence of its content. Syngenta lacks
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`in Paragraph 107.
`
`108.
`
`The first two sentences of Paragraph 108 characterize the Dicamba Memorandum,
`
`which speaks for itself and is the best evidence of its content. Syngenta lacks knowledge or
`
`information sufficient to form a belief as to the truth of the remaining allegations in Paragraph
`
`108.
`
`109.
`
`Paragraph 109 characterizes the Dicamba Memorandum and an EPA Incidents
`
`and Impacts Report, which speak for themselves and are the best evidence of their content.
`
`15
`
`
`
`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 16 of 19
`
`110.
`
`The second sentence of Paragraph 110 characterizes and quotes from an EPA
`
`Incidents and Impacts Report, which speaks for itself and is the best evidence of its content.
`
`Syngenta lacks knowledge or information sufficient to form a belief as to the truth of the
`
`remaining allegations in Paragraph 110.
`
`COUNT ONE
`Application Restrictions
`
`111. No response to Paragraph 111 is necessary.
`
`112. Admitted.
`
`113. Admitted.
`
`114.
`
`115.
`
`116.
`
`117.
`
`Syngenta denies the allegations in Paragraph 114.
`
`Syngenta denies the allegations in Paragraph 115.
`
`Paragraph 116 contains a legal conclusion to which no response is required.
`
`Paragraph 117 specifies the relief Plaintiffs’ seek, which requires no response.
`
`COUNT TWO
`ESA Buffers
`
`118. No response to Paragraph 118 is necessary.
`
`119. Admitted.
`
`120. Admitted.
`
`121.
`
`122.
`
`123.
`
`124.
`
`Syngenta denies the allegations in Paragraph 121.
`
`Syngenta denies the allegations in Paragraph 122.
`
`Paragraph 123 contains a legal conclusion to which no response is required.
`
`Paragraph 124 specifies the relief Plaintiffs’ seek, which requires no response.
`
`COUNT THREE
`FIFRA Buffers
`
`125. No response to Paragraph 125 is necessary.
`
`16
`
`
`
`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 17 of 19
`
`126. Admitted.
`
`127. Admitted.
`
`128.
`
`129.
`
`130.
`
`131.
`
`Syngenta denies the allegations in Paragraph 128.
`
`Syngenta denies the allegations in Paragraph 129.
`
`Paragraph 130 contains a legal conclusion to which no response is required.
`
`Paragraph 131 specifies the relief Plaintiffs’ seek, which requires no response.
`
`COUNT FOUR
`ESA Determinations
`
`132. No response to Paragraph 132 is necessary.
`
`133.
`
`Paragraph 133 characterizes and quotes from the Dicamba Decision and ESA
`
`Assessment, which speak for themselves and are the best evidence of their content.
`
`134.
`
`Paragraph 134 characterizes and quotes from the Dicamba Decision and ESA
`
`Assessment, which speak for themselves and are the best evidence of their content.
`
`135.
`
`136.
`
`137.
`
`138.
`
`Paragraph 135 contains a legal conclusion to which no response is required.
`
`Paragraph 136 contains a legal conclusion to which no response is required.
`
`Paragraph 137 contains a legal conclusion to which no response is required.
`
`Syngenta lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations in Paragraph 138 and therefore denies them.
`
`139.
`
`Paragraph 139 specifies the relief Plaintiffs’ seek, which requires no response.
`
`PRAYER FOR RELIEF
`
`Paragraphs A–F consist of Plaintiffs’ Prayer for Relief, to which no response is required.
`
`AFFIRMATIVE DEFENSES
`
`1.
`
`The Court lacks subject matter jurisdiction over some or all of Plaintiffs’ claims.
`
`17
`
`
`
`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 18 of 19
`
`2.
`
`Some or all of Plaintiffs lack standing to raise some or all of the claims in the
`
`Complaint.
`
`3.
`
`4.
`
`5.
`
`Some or all of Plaintiffs’ claims are barred by the applicable statute of limitations.
`
`Plaintiffs have failed to state a claim upon which relief can be granted.
`
`Some or all of Plaintiffs’ claims are barred because EPA complied with all
`
`pertinent statutes and regulations in issuing its Dicamba Decision.
`
`6.
`
`7.
`
`8.
`
`remedies.
`
`9.
`
`10.
`
`U.S.C. § 706.
`
`11.
`
`12.
`
`Some or all of Plaintiffs’ claims are not ripe for review.
`
`Some or all of Plaintiffs’ claims are not reviewable for lack of final agency action.
`
`Some or all of Plaintiffs’ claims are barred for failure to exhaust administrative
`
`Some or all of Plaintiffs’ claims are barred by the doctrine of waiver.
`
`Some or all of Plaintiffs’ claims are barred by the doctrine of harmless error. 5
`
`Some or all of Plaintiffs’ claims are barred by the doctrine of laches.
`
`Some or all of Plaintiffs’ claims are barred by the doctrine of prudential standing.
`
`RESERVATION
`
`Syngenta reserves the right to add any additional affirmative defenses as may be
`
`developed during litigation.
`
`18
`
`
`
`Case 1:20-cv-03190-RCL Document 42 Filed 04/06/21 Page 19 of 19
`
`DATED: April 6, 2021
`
`Respectfully submitted,
`
`/s/ Karen Ellis Carr
`Karen Ellis Carr (DC Bar # 975480)
`Donald C. McLean (DC Bar # 412268)
`Katie Heilman (DC Bar # 1007980)
`Laura Zell (DC Bar # 1044336)
`
`ARENT FOX LLP
`1717 K Street, NW
`Washington, DC 20006-5344
`karen.carr@arentfox.com
`donald.mclean@arentfox.com
`katie.heilman@arentfox.com
`laura.zell@arentfox.com
`(T) (202) 857-6000
`(F) (202) 857-6395
`
`Counsel for Intervenor-Defendant
`Syngenta Crop Protection, LLC
`
`19
`
`
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