`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`__________________________________________
`
`Case No. 1:20-cv-03190 (RCL)
`
`)
`
`))
`
`))
`
`))
`
`))
`
`)
`)
`
`))
`
`))
`
`))
`
`AMERICAN SOYBEAN ASSOCIATION
`
`and
`
`PLAINS COTTON GROWERS, INC.,
`
`Plaintiffs,
`
`v.
`
`MICHAEL S. REGAN, et al.,
`
`Defendants,
`
`
`
`and
`
`SYNGENTA CROP PROTECTION, LLC, et al., )
`)
`)
`Intervenor-Defendants.
`__________________________________________)
`
`ANSWER OF INTERVENOR-DEFENDANT SYNGENTA CROP PROTECTION, LLC
`TO AMENDED COMPLAINT
`
`Intervenor-Defendant Syngenta Crop Protection, LLC (“Syngenta”) files this Answer to
`
`Plaintiffs’ Amended Complaint for Declaratory and Injunctive Relief, filed April 27, 2021, ECF
`
`No. 50, pursuant to Federal Rule of Civil Procedure 12 and this Court’s Order of April 28, 2021,
`
`ECF No. 51. Any allegations not specifically admitted below are denied. Answering the
`
`numbered paragraphs of the Amended Complaint, Syngenta admits, denies, and avers as follows:
`
`INTRODUCTION
`
`1.
`
`Paragraph 1 contains Plaintiffs’ characterization of this lawsuit, to which no
`
`response is required.
`
`2.
`
`Syngenta admits the allegations in Paragraph 2.
`
`1
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 2 of 18
`
`3.
`
`4.
`
`5.
`
`Syngenta admits the allegations in Paragraph 3.
`
`Upon information and belief, Syngenta admits the allegations in Paragraph 4.
`
`Syngenta admits the allegations in the first sentence of Paragraph 5. The second
`
`sentence of Paragraph 5 characterizes EPA’s decision to register dicamba for use on dicamba-
`
`tolerant soybeans and cotton, which speaks for itself and is the best evidence of its content.
`
`6.
`
`Syngenta admits that EPA’s registration of its dicamba product, Tavium, provided
`
`growers with an essential weed-management tool. Syngenta lacks knowledge or information
`
`sufficient to form a belief as to the truth of the remaining allegations in Paragraph 6.
`
`7.
`
`Paragraph 7 characterizes certain aspects of EPA’s registration decisions
`
`concerning dicamba, which speak for themselves and are the best evidence of their content.
`
`8.
`
`Paragraph 8 contains Plaintiffs’ characterization of this action, to which no
`
`response is required.
`
`PARTIES
`
`9.
`
`10.
`
`Upon information and belief, Syngenta admits the allegations in Paragraph 9.
`
`Upon information and belief, Syngenta admits the allegations in the first sentence
`
`of Paragraph 10. Syngenta lacks knowledge or information sufficient to form a belief as to the
`
`truth of the remaining allegations in Paragraph 10.
`
`11.
`
`Syngenta lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations in Paragraph 11.
`
`12.
`
`Upon information and belief, Syngenta admits the allegations in the first sentence
`
`of Paragraph 12. Syngenta lacks knowledge or information sufficient to form a belief as to the
`
`truth of the remaining allegations in Paragraph 12.
`
`2
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 3 of 18
`
`13.
`
`Syngenta admits that the EPA Administrator is the federal official responsible for
`
`pesticide registrations, including the decisions challenged here, and that Michael S. Regan was
`
`the EPA Administrator at the time the Amended Complaint was filed and is sued in his official
`
`capacity.
`
`14.
`
`Syngenta admits that Defendant Marietta Echeverria was Acting Division
`
`Director of the EPA’s Office of Pesticide Programs, Registration Division at the time the
`
`Amended Complaint was filed, in which position she approved and administered FIFRA
`
`registrations and reported to the EPA Administrator. Upon information and belief, Syngenta
`
`admits the remaining allegations in Paragraph 14.
`
`15.
`
`Syngenta admits the allegations in the first sentence of Paragraph 15. The
`
`remainder of Paragraph 15 states conclusions of law, to which no response is required.
`
`JURISDICTION AND VENUE
`
`Admitted.
`
`Paragraph 17 states conclusions of law, to which no response is required.
`
`Admitted.
`
`Syngenta admits that relevant events giving rise to Plaintiffs’ claims occurred in
`
`16.
`
`17.
`
`18.
`
`19.
`
`this District. The remainder of Paragraph 19 states conclusions of law, to which no response is
`
`required.
`
`STATUTORY AND REGULATORY FRAMEWORK
`
`A.
`
`The Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”)
`
`20.
`
`The first sentence of Paragraph 20 characterizes FIFRA, which speaks for itself
`
`and is the best evidence of its content. The second sentence of Paragraph 20 characterizes a
`
`3
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 4 of 18
`
`Congressional Research Service report concerning pesticides, which speaks for itself and is the
`
`best evidence of its content.
`
`21.
`
`Paragraph 21 quotes from and characterizes FIFRA, which speaks for itself and is
`
`the best evidence of its content.
`
`22.
`
`Paragraph 22 quotes from and characterizes FIFRA, which speaks for itself and is
`
`the best evidence of its content.
`
`23.
`
`Paragraph 23 characterizes FIFRA, which speaks for itself and is the best
`
`evidence of its content.
`
`24.
`
`Paragraph 24 characterizes FIFRA, which speaks for itself and is the best
`
`evidence of its content.
`
`B.
`
`The Endangered Species Act (the “ESA”)
`
`25.
`
`Paragraph 25 quotes from and characterizes the ESA, which speaks for itself and
`
`is the best evidence of its content.
`
`26.
`
`Paragraph 26 quotes from and characterizes the ESA, which speaks for itself and
`
`is the best evidence of its content.
`
`27.
`
`Paragraph 27 quotes from and characterizes the ESA, which speaks for itself and
`
`is the best evidence of its content.
`
`28.
`
`Paragraph 28 quotes from and characterizes the ESA, which speaks for itself and
`
`is the best evidence of its content.
`
`29.
`
`Paragraph 29 quotes from and characterizes the ESA, which speaks for itself and
`
`is the best evidence of its content.
`
`30.
`
`Paragraph 30 quotes from and characterizes the ESA, which speaks for itself and
`
`is the best evidence of its content.
`
`4
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 5 of 18
`
`31.
`
`Paragraph 31 quotes from and characterizes case law and the ESA, which speak
`
`for themselves and are the best evidence of their content.
`
`32.
`
`Paragraph 32 quotes from and characterizes case law and the ESA, which speak
`
`for themselves and are the best evidence of their content.
`
`C.
`
`The Administrative Procedure Act
`
`33.
`
`Paragraph 33 quotes from and characterizes the APA, which speaks for itself and
`
`is the best evidence of its content.
`
`34.
`
`Paragraph 34 quotes from and characterizes the APA, which speaks for itself and
`
`is the best evidence of its content.
`
`35.
`
`Paragraph 35 quotes from and characterizes the APA, which speaks for itself and
`
`is the best evidence of its content.
`
`36.
`
`Paragraph 36 quotes from and characterizes case law and the APA, which speak
`
`for themselves and are the best evidence of their content.
`
`FACTUAL BACKGROUND
`
`37.
`
`Paragraph 37 contains Plaintiffs’ characterization of the lawsuit, to which no
`
`response is required. Paragraph 37 also characterizes and summarizes EPA’s Memorandum
`
`Supporting Decision to Approve Registration for the Uses of Dicamba on Dicamba Tolerance
`
`Cotton and Soybean (the “Dicamba Memorandum”), which speaks for itself and is the best
`
`evidence of its content.
`
`38.
`
`Paragraph 38 characterizes and summarizes the Dicamba Memorandum and
`
`supporting EPA analyses (referred to collectively as “the Dicamba Decision”), which speak for
`
`themselves and are the best evidence of their content.
`
`5
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 6 of 18
`
`39.
`
`The first sentence of Paragraph 39 contains Plaintiffs’ characterization of the U.S.
`
`agricultural sector, to which no response is required. Syngenta admits that Tavium is an essential
`
`weed-management tool. Syngenta lacks knowledge or information sufficient to form a belief as
`
`to the truth of the remaining allegations in the second sentence of Paragraph 39.
`
`40.
`
`Syngenta admits that EPA’s registration of Tavium provided growers with an
`
`essential weed-management tool. Syngenta lacks knowledge or information sufficient to form a
`
`belief as to the truth of the remaining allegations in Paragraph 40.
`
`41.
`
`Paragraph 41 contains Plaintiffs’ characterization of the lawsuit, to which no
`
`response is required.
`
`A.
`
`U.S. Soybean
`
`42.
`
`Syngenta admits that soybeans are an important agricultural product and have
`
`numerous uses as an ingredient and as feed and fuel. Syngenta lacks knowledge or information
`
`sufficient to form a belief as to the truth of the remaining allegations in Paragraph 42.
`
`43.
`
`Paragraph 43 characterizes a USDA environmental impact statement for dicamba-
`
`resistant soybean and cotton varieties (“Soybean FEIS”) and a United Soybean Board issue brief,
`
`which speak for themselves and are the best evidence of their content.
`
`44.
`
`The first sentence of Paragraph 44 contains Plaintiffs’ characterization of the U.S.
`
`agricultural economy, to which no response is required. The second sentence of Paragraph 44
`
`characterizes an ASA SoyStats document, which speaks for itself and is the best evidence of its
`
`content.
`
`45.
`
`The first sentence of Paragraph 45 contains Plaintiffs’ characterization of the U.S.
`
`farm economy, to which no response is required. The second sentence of Paragraph 45
`
`6
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 7 of 18
`
`characterizes a USDA Economic Research Service report, which speaks for itself and is the best
`
`evidence of its content.
`
`46.
`
`The first sentence of Paragraph 46 contains Plaintiffs’ characterization of the
`
`global agricultural market, to which no response is required. The second and third sentences of
`
`Paragraph 46 characterize a USDA Economic Research Service report and ASA SoyStats
`
`document, which speak for themselves and are the best evidence of their content.
`
`47.
`
`Syngenta admits that soybeans are an important agricultural product but otherwise
`
`lacks knowledge or information sufficient to form a belief as to the truth of the remaining
`
`allegations in the first sentence in Paragraph 47. The remaining allegations in Paragraph 47
`
`characterize a USAID Soybeans Commodity Fact Sheet, which speaks for itself and is the best
`
`evidence of its content.
`
`48.
`
`The allegations in Paragraph 48 characterize a USAID Soybeans Commodity Fact
`
`Sheet, which speaks for itself and is the best evidence of its content.
`
`49.
`
`The first sentence of Paragraph 49 contains Plaintiffs’ characterization of the
`
`domestic and international food chain, to which no response is required. Syngenta lacks
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`in Paragraph 49.
`
`B.
`
`U.S. Cotton
`
`50.
`
`Syngenta admits that cotton is an important cash crop. The remaining allegations
`
`in the first sentence of Paragraph 50 contain Plaintiffs’ characterization of the domestic and
`
`global textile trade, to which no response is required. The second sentence of Paragraph 50
`
`characterizes a USDA Economic Research Service report, which speaks for itself and is the best
`
`evidence of its content.
`
`7
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 8 of 18
`
`51.
`
`The allegations in Paragraph 51 characterize a USDA Economic Research Service
`
`Report and National Cotton Council (“NCC”) World of Cotton document, which speak for
`
`themselves and are the best evidence of their content.
`
`52.
`
`Syngenta admits that cotton is an important agricultural product in Texas but
`
`lacks knowledge or information sufficient to form a belief as to the truth of the remaining
`
`allegations in Paragraph 52.
`
`53.
`
`The allegations in Paragraph 53 characterize a NCC World of Cotton document
`
`and 2018 NCC Report to Members Summary, which speak for themselves and are the best
`
`evidence of their content.
`
`54.
`
`Syngenta admits that the United States is an important cotton producer and
`
`exporter, but lacks knowledge or information sufficient to form a belief as to the truth of the
`
`remaining allegations in the first sentence of Paragraph 54. The second sentence in Paragraph 54
`
`characterizes a USAID Soybeans Commodity Sheet, which speaks for itself and is the best
`
`evidence of its content.
`
`55.
`
`The allegations in Paragraph 55 characterize USDA Economic Research Service
`
`reports, which speak for themselves and are the best evidence of their content.
`
`56.
`
`The allegations in Paragraph 56 characterize a USDA Economic Research Service
`
`report, which speaks for itself and is the best evidence of its content.
`
`57.
`
`The allegations in Paragraph 57 characterize a USDA Economic Research Service
`
`report, which speaks for itself and is the best evidence of its content.
`
`58.
`
`Syngenta admits that DT seed and dicamba are important tools for cotton farmers
`
`but lacks knowledge or information sufficient to form a belief as to the truth of the remaining
`
`allegations in Paragraph 58.
`
`8
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 9 of 18
`
`C.
`
`The Rise of Herbicide-Resistant Weeds and Growers’ Answer: Dicamba
`
`59.
`
`The first sentence of Paragraph 59 contains Plaintiffs’ characterization of the
`
`American farm economy, to which no response is required. The remaining allegations in
`
`Paragraph 59 characterize an ASA SoyStats document and USDA Foreign Agricultural Service
`
`report, which speak for themselves and are the best evidence of their content.
`
`i.
`
`Growers’ Fight Against Weeds
`
`60.
`
`Syngenta admits that soybean and cotton farmers face numerous threats during
`
`the growing season, including each of the threats identified in Paragraph 60. Syngenta lacks
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`in Paragraph 60.
`
`61.
`
`Syngenta admits that weeds are among the threats soybean and cotton farmers
`
`face, but lacks knowledge or information sufficient to form a belief as to the truth of the
`
`remaining allegations in the first sentence of Paragraph 61. The remaining allegations in
`
`Paragraph 61 characterize the Soybean FEIS, which speaks for itself and is the best evidence of
`
`its content.
`
`62.
`
`The allegations in Paragraph 62 characterize the Soybean FEIS and a Weed
`
`Science Society of America report, which speak for themselves and are the best evidence of their
`
`content.
`
`63.
`
`Syngenta admits that weeds pose a threat to cotton farmers, but lacks knowledge
`
`or information sufficient to form a belief as to the truth of the remaining allegations in the first
`
`sentence of Paragraph 63. The second sentence of Paragraph 63 characterizes an NCC letter to
`
`EPA (“NCC Letter”), which speaks for itself and is the best evidence of its content.
`
`9
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 10 of 18
`
`ii.
`
`The Emergence of Glyphosate-Resistant Weeds
`
`64.
`
`The allegations in the first sentence of Paragraph 64 contain Plaintiffs’
`
`characterization of the impact of GT crops to which no response is required. Syngenta admits the
`
`remaining allegations in Paragraph 64.
`
`65.
`
`The allegations in Paragraph 65 contain Plaintiffs’ characterization of the impact
`
`of GT crops to which no response is required.
`
`66.
`
`The allegations in Paragraph 66 contain Plaintiffs’ characterization of the impact
`
`of GT crops to which no response is required.
`
`67.
`
`The allegations in the first two sentences of Paragraph 67 characterize the NCC
`
`Letter and the Soybean FEIS, which speak for themselves and are the best evidence of their
`
`content. The remaining allegations in Paragraph 67 contain Plaintiffs’ characterization of the
`
`impact of GT crops to which no response is required.
`
`68.
`
`The allegations in the first sentence of Paragraph 68 contain Plaintiffs’
`
`characterization of the impact of GT crops to which no response is required. The allegations in
`
`the second and third sentences of Paragraph 68 characterize a Keystone Alliance for Sustainable
`
`Agriculture report, which speaks for itself and is the best evidence of its content.
`
`69.
`
`The allegations in the first sentence of Paragraph 69 contain Plaintiffs’
`
`characterization of investment in GT crops to which no response is required. The second
`
`sentence of Paragraph 69 characterizes a USDA Economic Research Service report, which
`
`speaks for itself and is the best evidence of its content.
`
`iii.
`
`The Emergence of Glyphosate-Resistant Weeds
`
`70.
`
`Syngenta admits the allegations in Paragraph 70.
`
`10
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 11 of 18
`
`71.
`
`Syngenta admits that glyphosate-resistant weeds are increasingly widespread.
`
`The remaining allegations in Paragraph 71 characterize the Soybean FEIS, which speaks for
`
`itself and is the best evidence of its content.
`
`72.
`
`The allegations in the first sentence of Paragraph 72 contain Plaintiffs’
`
`characterization of the impacts of glyphosate-resistant weeds to which no response is required.
`
`The remaining allegations in Paragraph 72 characterize CropLife reports, which speak for
`
`themselves and are the best evidence of their content.
`
`73.
`
`Syngenta admits that glyphosate-resistant weeds can impose significant costs on
`
`growers. The remaining allegations in Paragraph 73 characterize the Soybean FEIS, which
`
`speaks for itself and is the best evidence of its content.
`
`74.
`
`The allegations in Paragraph 74 characterize the Soybean FEIS, which speaks for
`
`itself and is the best evidence of its content.
`
`iv.
`
`Dicamba: Growers’ Answer to Glyphosate-Resistant Weeds
`
`75.
`
`Syngenta admits that Tavium was developed to address glyphosate-resistant
`
`weeds. Syngenta lacks knowledge or information sufficient to form a belief as to the truth of the
`
`remaining allegations in Paragraph 75.
`
`76.
`
`Paragraph 76 contains Plaintiffs’ characterization of this action, to which no
`
`response is required.
`
`77.
`
`The allegations in Paragraph 77 contain Plaintiffs’ characterization of Tavium and
`
`the other Dicamba Products’ use and efficacy, to which no response is required.
`
`78.
`
`The allegations in Paragraph 78 contain Plaintiffs’ characterization of Tavium and
`
`the other Dicamba Products’ use, efficacy, and benefits to which no response is required.
`
`11
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 12 of 18
`
`79.
`
`The allegations in the first and third sentence of Paragraph 79 contain Plaintiffs’
`
`characterization of the Dicamba Products to which no response is required. The remaining
`
`allegations in Paragraph 79 characterize the Soybean FEIS, which speaks for itself and is the best
`
`evidence of its content.
`
`80.
`
`Syngenta lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations in the first sentence of Paragraph 80.
`
`81.
`
`82.
`
`83.
`
`84.
`
`85.
`
`Syngenta admits the allegations in Paragraph 81.
`
`Upon information and belief, Syngenta admits the allegations in Paragraph 82.
`
`Upon information and belief, Syngenta admits the allegations in Paragraph 83.
`
`Syngenta admits the allegations in Paragraph 84.
`
`Syngenta admits the allegations in Paragraph 85.
`
`D.
`
`The Dicamba Decision, the Application Restrictions, and the Spray Buffers
`
`86.
`
`Syngenta admits that EPA registered the Dicamba Products on October 27, 2020,
`
`through the Dicamba Decision, but lacks knowledge or information sufficient to form a belief as
`
`to the truth of the remaining allegations in the first sentence of Paragraph 86. The remaining
`
`allegations in Paragraph 86 characterize the Dicamba Memorandum, which is the best evidence
`
`of its content.
`
`i.
`
`EPA’s Latest Dicamba Registration
`
`87.
`
`The allegations in Paragraph 87 characterize the Dicamba Memorandum and past
`
`dicamba registration decisions, which speak for themselves and are the best evidence of their
`
`content.
`
`88.
`
`Syngenta admits that the Dicamba Decision is comprised of the Dicamba
`
`Memorandum and supporting documents. The remaining allegations in Paragraph 88
`
`12
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 13 of 18
`
`characterize the Dicamba Memorandum, which speaks for itself and is the best evidence of its
`
`content.
`
`89.
`
`The allegations in Paragraph 89 characterize additional dicamba registration
`
`decision documents, which speak for themselves and are the best evidence of their content.
`
`90.
`
`91.
`
`92.
`
`93.
`
`Syngenta admits the allegations in Paragraph 90.
`
`Syngenta admits the allegations in Paragraph 91.
`
`Upon information and belief, Syngenta admits the allegations in Paragraph 92.
`
`The allegations in Paragraph 93 characterize and quote from various EPA
`
`assessments supporting the Dicamba Decision, which speak for themselves and are the best
`
`evidence of their content.
`
`94.
`
`Syngenta admits that the Dicamba Decision imposed conditions on growers,
`
`including date-dependent application restrictions (the “Application Restrictions”), and a suite of
`
`three application buffers (the “Spray Buffers”). Syngenta lacks knowledge or information
`
`sufficient to form a belief as to the truth of the remaining allegations in Paragraph 94.
`
`95.
`
`The allegations in Paragraph 95 characterize letters Plaintiffs submitted to EPA,
`
`which speak for themselves and are the best evidence of their content.
`
`96.
`
`The allegations in Paragraph 96 characterize EPA’s Dicamba Decision and past
`
`EPA decisions, which speaks for themselves and are the best evidence of their content.
`
`ii.
`
`The Application Restrictions
`
`97.
`
`The allegations in Paragraph 97 characterize EPA’s Dicamba Decision, which
`
`speaks for itself and is the best evidence of its content. Syngenta admits that EPA’s registration
`
`of dicamba contains new and additional restrictions that may result in some use limitations and
`
`13
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 14 of 18
`
`costs in certain circumstances, but lacks knowledge or information sufficient to form a belief as
`
`to the truth of the remaining allegations in Paragraph 97.
`
`98.
`
`The first sentence of Paragraph 98 contains Plaintiffs’ characterization of certain
`
`dicamba label restrictions, to which no response is required. Syngenta admits that EPA’s
`
`registration of dicamba may, in certain circumstances, impact farm management flexibility, but
`
`lacks knowledge or information sufficient to form a belief as to the truth of the remaining
`
`allegations in Paragraph 98.
`
`99.
`
`The first sentence of Paragraph 99 contains Plaintiffs’ characterization of the
`
`impacts of certain dicamba label restrictions, to which no response is required. Syngenta admits
`
`that cotton typically begins flowering 55-60 days after planting and that weed control during
`
`cultivation is important to cotton growers.
`
`100.
`
`Paragraph 100 contains Plaintiffs’ characterization of the impacts of certain
`
`dicamba label restrictions, to which no response is required.
`
`101.
`
`The first sentence of Paragraph 101 contains Plaintiffs’ characterization of the
`
`impacts of certain dicamba label restrictions, to which no response is required. Syngenta lacks
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`in Paragraph 101.
`
`102.
`
`Paragraph 102 contains Plaintiffs’ characterization of the impacts of certain
`
`dicamba label restrictions, to which no response is required.
`
`103.
`
`Paragraph 103 contains Plaintiffs’ characterization of the impacts of certain
`
`dicamba label restrictions, to which no response is required.
`
`104.
`
`Paragraph 104 contains Plaintiffs’ characterization of the impacts of certain
`
`dicamba label restrictions, to which no response is required.
`
`14
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 15 of 18
`
`105.
`
`Paragraph 105 contains Plaintiffs’ characterization of the impacts of certain
`
`dicamba label restrictions, to which no response is required.
`
`106.
`
`Paragraph 106 contains Plaintiffs’ characterization of the impacts of certain
`
`dicamba label restrictions, to which no response is required.
`
`107.
`
`The second sentence of Paragraph 107 characterizes and quotes from the Dicamba
`
`Memorandum, which speaks for itself and is the best evidence of its content. The remainder of
`
`Paragraph 107 contains Plaintiffs’ characterization of the impacts of certain dicamba label
`
`restrictions, to which no response is required.
`
`iii.
`
`The Spray Buffers
`
`108.
`
`109.
`
`Syngenta admits the allegations in Paragraph 108.
`
`Paragraph 109 characterizes the Dicamba Memorandum, which speaks for itself
`
`and is the best evidence of its content.
`
`110.
`
`Syngenta lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations in Paragraph 110.
`
`111.
`
`Syngenta lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations in Paragraph 111.
`
`112.
`
`Syngenta lacks knowledge or information sufficient to form a belief as to the truth
`
`of the allegations in Paragraph 112.
`
`113.
`
`The second sentence of Paragraph 113 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 113.
`
`15
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 16 of 18
`
`114.
`
`The first two sentences of Paragraph 114 characterize the Dicamba Memorandum
`
`and past EPA decisions, which speak for themselves and are the best evidence of their content.
`
`Syngenta lacks knowledge or information sufficient to form a belief as to the truth of the
`
`remaining allegations in Paragraph 114.
`
`115.
`
`Paragraph 115 characterizes the Dicamba Memorandum and an EPA Incidents and
`
`Impacts Report, which speak for themselves and are the best evidence of their content.
`
`116.
`
`The second sentence of Paragraph 116 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 116.
`
`COUNT ONE
`Application Restrictions
`
`117. No response to Paragraph 117 is necessary.
`
`118. Admitted.
`
`119. Admitted.
`
`120.
`
`Syngenta denies that the Application Restrictions exceed Defendants’ authority
`
`under FIFRA. Syngenta lacks knowledge or information sufficient to form a belief as to the
`
`truth of the remaining allegations in Paragraph 120.
`
`121.
`
`122.
`
`123.
`
`Syngenta denies the allegations in Paragraph 121.
`
`Paragraph 122 contains a legal conclusion to which no response is required.
`
`Paragraph 123 specifies the relief Plaintiffs seek, which requires no response.
`
`COUNT TWO
`Spray Buffers
`
`124. No response to Paragraph 124 is necessary.
`
`16
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 17 of 18
`
`125. Admitted.
`
`126. Admitted.
`
`127.
`
`Syngenta denies that the Spray Buffers exceed Defendants’ authority under
`
`FIFRA. Syngenta lacks knowledge or information sufficient to form a belief as to the truth of
`
`the remaining allegations in Paragraph 120.
`
`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.
`
`PRAYER FOR RELIEF
`
`Paragraphs A–E consist of Plaintiffs’ Prayer for Relief, to which no response is required.
`
`AFFIRMATIVE DEFENSES
`
`1.
`
`2.
`
`The Court lacks subject matter jurisdiction over some or all of Plaintiffs’ claims.
`
`Some or all of Plaintiffs lack standing to raise some or all of the claims in the
`
`Amended 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.
`
`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
`
`6.
`
`7.
`
`8.
`
`remedies.
`
`17
`
`
`
`Case 1:20-cv-03190-RCL Document 56 Filed 05/11/21 Page 18 of 18
`
`9.
`
`10.
`
`U.S.C. § 706.
`
`11.
`
`12.
`
`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.
`
`DATED: May 11, 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
`
`18
`
`