Case 1:20-cv-10642-LJL Document 18 Filed 01/08/21 Page 1 of 3
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`January 7, 2021
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`The Honorable Lewis J. Liman
`United States District Court
`Southern District of New York
`500 Pearl Street, Room 701
`New York, NY 10007
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`RE: Re: State of New York et al. v. EPA et al.; Rural & Migrant Ministry et al. v. EPA
`et al. 20 Civ. 10642 (LJL) (consolidated)
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`Dear Judge Liman:
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`Plaintiffs in the above-captioned case write in response to the letter submitted earlier this evening
`by counsel for defendants the U.S. Environmental Protection Agency and Andrew Wheeler,
`named in his capacity as Administrator of the U.S. Environmental Protection Agency (together,
`“EPA”) [Dkt. No. 17]. Plaintiffs consent to an extension of the TRO preventing implementation
`of Pesticides—Agricultural Worker Protection Standard: Revision of the Application Exclusion
`Zone Requirements, 85 Fed. Reg. 68,760 (Oct. 30, 2020) (“Final Rule”). However, if the Court
`grants such an extension, Plaintiffs ask that the Court also extend the stay of the effective date of
`the Final Rule issued under 5 U.S.C. § 705. In addition, Plaintiffs request that if the TRO and
`stay are extended for the reasons provided by EPA, the extensions should be for the full fourteen
`days permitted for TROs under Federal Rule of Civil Procedure 65, which is until January 26,
`2021. (Plaintiffs note that there is no restriction on the length of the stay the Court may enter.)
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`Further, Plaintiffs consent to a continuance of the hearing set for January 8, 2021. However,
`plaintiffs request the opportunity to respond in writing to any new information provided by EPA
`in connection with its determination regarding the effect of the factual inaccuracy in the text of
`the Final Rule. Accordingly, we request that if the hearing is continued, it be rescheduled with
`sufficient time for EPA to report on its determination and then for Plaintiffs to respond in writing
`both to EPA’s determination and to any supplemental record material EPA provides to Plaintiffs,
`as indicated in its letter. Thus, if the Court grants EPA’s request for an adjournment of the
`January 8 hearing, Plaintiffs respectfully request that the hearing be rescheduled for no earlier
`than January 21, 2021.
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`In the alternative, Plaintiffs respectfully request that the Court proceed without a hearing to grant
`Plaintiffs’ motion for a preliminary injunction pursuant to Fed. R. Civ. P. 65 and/or a stay
`pursuant to 5 U.S.C. § 705, based on the briefing and declarations before the Court. The issue
`raised by EPA in its January 7 letter calls into question the basis on which EPA has tried to
`justify the change in position between the 2015 adoption of the Application Exclusion Zone and
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`N O R T H E A S T 4 8 W A L L S T R E E T , 15 T H F L O O R N E W Y O R K , N Y 1 0 0 0 5
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`T : 2 1 2 . 8 4 5 . 7 3 7 6 F : 2 1 2 . 9 1 8 . 1 5 5 6 N E O F F I C E @ E A R T H J U S T I C E . O R G W W W . E A R T H J U S T I C E . O R G
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`Case 1:20-cv-10642-LJL Document 18 Filed 01/08/21 Page 2 of 3
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`the 2020 partial rollback of this provision, i.e., the assertion that “enhanced training” in addition
`to the Do No Contact provision are sufficient to protect against pesticide exposure through drift.
`See, e.g., EPA Supp. Br. 15-17, 24 [Dkt. No. 55] (Case No. 10645). Indeed, the Agency told this
`Court at the December 23, 2020 hearing that additional training was the “most important”
`change from the 2015 Rule to address the issue of drift. Hr’g Tr. 25:17–26:4 (“THE COURT:
`Mr. Dolinger, it would help me if you could isolate for me what you think of as the most
`important changes from the 2015 rule that address issues of drift . . . . MR. DOLINGER: Sure.
`So I would say that the one, to my understanding, that’s most important here is additional
`training.”).
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`The revelation that “some trainings approved by EPA since 2018 have not included” information
`from “EPA’s 2016 guidance on how to apply pesticides near establishment borders and provide
`information on various measures applicators or handlers can take to prevent individuals from
`being contacted by spray or through drift,” see Dkt. No. 17, only serves to weaken EPA’s
`position that the Final Rule is based on a reasoned explanation or rational basis, and strengthens
`Plaintiffs’ showings of irreparable harm and likelihood of success on the merits. “Suffice it to
`say, it is arbitrary and capricious for an agency to base its decision on a factual premise that the
`record plainly showed to be wrong.” NRDC v. Rauch, 244 F. Supp. 3d 66, 96 (D.D.C. 2017)
`(citing Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
`(1983)); see New York v. U.S. Dep’t of Health & Human Servs., 414 F. Supp. 3d 475, 541-46
`(S.D.N.Y. 2019) (invalidating agency rule on arbitrary and capricious grounds where the
`agency’s “central factual claim . . . is flatly untrue”); see also Plaintiffs’ Supp. Br. 7-11 [Dkt. 51]
`(in Case No. 10645) (noting that EPA’s training does not compensate for the weakening of the
`AEZ); id. at 17-18 (noting that EPA’s reliance on “enhanced training requirements” to justify its
`change in position was arbitrary and capricious).
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`If the Court decides to issue a preliminary injunction and further stay the effective date, the
`Court can consider the effect of the newly-revealed inaccuracy in the Final Rule when
`adjudicating the parties’ motions for summary judgment.
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`Respectfully submitted,
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`/s/ Carrie Apfel
`Carrie Apfel
`Earthjustice
`1001 G Street, NW, Suite 1000
`Washington, DC 20001
`capfel@earthjustice.org
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`Case 1:20-cv-10642-LJL Document 18 Filed 01/08/21 Page 3 of 3
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`Eve Gartner
`Surbhi Sarang
`Kara Goad (Pro Hac Vice motion to be submitted)
`Earthjustice
`48 Wall Street, 19th Floor
`New York, NY 10005
`egartner@earthjustice.org
`ssarang@earthjustice.org
`kgoad@earthjustice.org
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`Iris Figueroa
`Trent Taylor (Pro Hac Vice motion submitted)
`Farmworker Justice
`1126 16th St., NW, Suite LL-101
`Washington, DC 20036
`ifigueroa@farmworkerjustice.org
`ttaylor@farmworkerjustice.org
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`cc: Counsel of Record (via email to Chambers and ECF)
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`Counsel for Plaintiffs
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