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USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 1 of 25
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`ORAL ARGUMENT NOT YET SCHEDULED
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA
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`FARMWORKER ASSOCIATION OF
`FLORIDA, et al.
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` Petitioners,
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`v.
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`UNITED STATES
`ENVIRONMENTAL
`PROTECTION AGENCY,
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` Respondent.
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` No. 21-1079
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`MOTION OF AGLOGIC FOR LEAVE TO INTERVENE
`IN SUPPORT OF RESPONDENT
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`Pursuant to Federal Rule of Appellate Procedure 15(d) and Circuit Rule 15(b),
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`AgLogic Chemical, LLC (“AgLogic”) moves for leave to intervene in Farmworker
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`Association of Florida v. United States Environmental Protection Agency, Case No.
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`21-1079, in support of respondent United States Environmental Protection Agency
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`(“EPA”). The petition for review challenges EPA’s decision to conditionally register
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`new uses of aldicarb as set forth in its “Registration Decision for the Uses on Oranges
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`and Grapefruit in Florida, Aldicarb” (Jan 12, 2021), amendments to the aldicarb
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`product labels for MEYMIK TECHNICAL (EPA Reg. No. 87895-2) and AGLOGIC
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`15GG (EPA reg. No. 87895-4), and registration of a new product, AgLogic 15GG-
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`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 2 of 25
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`OG (EPA Reg. No. 87895-7). Counsel for AgLogic sought the position of the parties
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`on this motion. Counsel for Petitioners stated that Petitioners do not oppose the
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`motion. Counsel for EPA had not provided a position as of the time of filing.
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`EPA’s decision conditionally registers a pesticide called aldicarb for use on
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`orange and grapefruit crops under section 3(c)(7)(B) of the Federal Insecticide,
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`Fungicide and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136a(c)(7)(B). AgLogic
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`applied to EPA for registration of aldicarb for such additional uses in 2019 in order
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`to be able to manufacture and sell aldicarb pesticide products. Aldicarb is a granular
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`pesticide administered directly into the soil that has been shown to provide good
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`control of the most significant pest for citrus crops. EPA’s registration decision
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`limits use of aldicarb to 100,000 acres in Florida and also requires a stewardship and
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`monitoring program that requires extensive training on application of aldicarb.
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`AgLogic meets the standards for intervention in support of EPA because: (1)
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`its request is timely; (2) it has a material interest in the Petition because it benefits
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`directly from the registration and product approval at issue in the litigation; (3) that
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`interest may as a practical matter be impaired or impeded if Petitioners are
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`successful; and (4) EPA cannot adequately represent AgLogic’s commercial
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`interests in the registration decision. The motion to intervene should be granted.
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`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 3 of 25
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`BACKGROUND
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`I.
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`Citrus Greening Disease and Aldicarb
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`The bacterial disease Huanglongbing (Candidatus Liberibacter asiaticus),
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`known as HLB or citrus greening disease, is spread by the Asian citrus psyllid (ACP)
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`and considered the most significant pest for citrus crops worldwide, with infection
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`leading to yield losses and tree death. Puech Decl. ¶ 3. An efficient insect vector, the
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`ACP transmits the causal agent of citrus greening disease, a bacteria that attacks a
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`citrus tree’s vascular system. Id. ¶ 3. Orange and grapefruit growers in Florida are
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`facing substantial pressure to mitigate the catastrophic effects of ACP on their crops.
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`Id.
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`Since citrus greening first appeared in Florida in 2005, orange and grapefruit
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`growers in Florida have faced a tremendous decline in productivity. Id. ¶¶ 3–5.
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`According to a recent University of Florida publication – The Economic Impacts of
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`Citrus Greening (HLB) in Florida – this disease and the resulting loss of production
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`has cost the citrus industry more than $7 billion in lost revenue. Id. This loss of
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`production translated to the loss of more than 8,000 jobs. Id. The industry reports
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`that since the onset of greening Florida went from producing 19 tons of oranges per
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`acre to currently about nine tons per acre, went from having 80 citrus packinghouses
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`to about 20, and reduced major juice processing plants from 12 to about six. Id.
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`These declines in production occurred, notwithstanding that there are approximately
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`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 4 of 25
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`30 active alternative pesticide ingredients registered for use on grapefruit and
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`oranges in Florida that purport to manage ACP. Id.
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`EPA granted AgLogic a FIFRA registration in 2011, which remains current,
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`for aldicarb use on cotton, dry beans, peanuts, soybeans, sugar beets, and sweet
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`potatoes. Id. ¶ 6. From the mid-1970s until 2010, it was also registered for use on
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`citrus crops and potatoes, but those uses were voluntarily relinquished by the former
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`registrant Bayer Crop Science. Id. The citrus industry in Florida is searching for tools
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`to help battle citrus greening, and has encouraged AgLogic to re-register the
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`pesticide aldicarb that was registered for use on citrus. Id.
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`AgLogic’s AgLogic 15 GG aldicarb pesticide is not a foliar spray. Id. ¶ 7. It
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`is a granular pesticide applied 3 or more inches deep in the soil using special
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`motorized ground application equipment. Id. AgLogic 15 GG aldicarb pesticide is a
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`proprietary specially formulated granular pesticide, for subsurface soil application
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`only. Id. The AgLogic formulation process dramatically reduces the acute oral
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`toxicity of AgLogic 15 GG aldicarb pesticide by about 29 fold less than that of pure
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`aldicarb. Id. And it dramatically reduces the dermal toxicity of AgLogic 15 GG
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`aldicarb pesticide by about 1,000 fold less than pure aldicarb. Id.
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`Aglogic 15 GG aldicarb pesticide is applied to orange and grapefruit early in
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`the growing season (from November 15 through April 30) to control certain insects,
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`mites, and nematodes, including the ACP. Id. ¶ 8. When aldicarb was previously
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`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 5 of 25
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`registered for use on oranges and grapefruit, it was recommended by the Florida
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`Citrus Pest Management Guide for control of ACP and was assigned the highest
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`possible rating—providing “good” control. Id. The machinery that administers the
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`aldicarb buries the granules simultaneously to a depth of 3 or more inches below the
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`soil surface. Id. This prevents any offsite movement during application, and non-
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`target contamination during application. Id. Given its long history in Florida, the
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`Florida Department of Agriculture and Consumer Services (FDACS) has a specific
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`state regulation “The Florida Aldicarb Rule” that it administers and enforces (Rule
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`5E-2.028, Florida Administrative Code). Id. That Rule allows use of aldicarb from
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`November 15 to April 30. Id. EPA issued its conditional registration for aldicarb
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`requiring compliance with a rigorous stewardship program coordinated by FDACS
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`and AgLogic. Id. The requirements include, among other things, drinking water
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`wells monitoring and specific protections to prevent contamination of drinking water
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`wells. Id. Aldicarb is a Restricted Use Pesticide (RUP) and may only be purchased
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`and only be applied by State Licensed Restricted Use Pesticide applicators or
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`persons under the supervision of a Restricted Use Pesticide license holder. Id.
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`Aldicarb provides significant benefits over other pesticides. It is released from
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`the granules by soil moisture, absorbed by the roots, and then precisely translocated
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`into the tree’s foliar leaf canopy. Id. ¶ 9. There, it provides rainfall wash off resistant,
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`systemic control for an average of 10 and 15 weeks for ACP nymphs and adults
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`5
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`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 6 of 25
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`respectively, which provides a significant benefit over foliar-applied sprays of
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`chemicals that provide at most four to eight weeks of ACP control. Id. The
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`registration of aldicarb at issue in this case makes it the only carbamate class product
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`that provides “good” control of ACP. Id.
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`There are approximately 30 active alternative pesticide ingredients registered
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`for use on grapefruit and oranges in Florida that purport to manage ACP. Id. ¶ 3. But
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`the continued decline of grapefruit and oranges in Florida shows that ACP and HLB
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`still present a significant problem and that current controls do not sufficiently
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`manage ACP. Id. ¶ 5.
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`There is one other carbamate, carbaryl, registered in Florida for control of
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`ACP, but aldicarb would provide significantly longer lasting protection. Id. ¶ 12.
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`Carbaryl provides only “short term” control of ACP—an average of only two days
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`of control of ACP nymphs and 16 days of control for ACP adults. Id. The 2020-2021
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`Florida Citrus Protection Guide does not list carbaryl as a recommended chemical
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`for the control of ACP and the literature shows that it is not considered an effective
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`management tool for ACP. Id. In contrast, Aldicarb is rated as providing “good”
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`control of ACP and lasts for an average of 10 and 15 weeks for ACP nymphs and
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`adults respectively. Id. ¶ 9.
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`Aldicarb is also superior to other similar pesticides because in addition to
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`protecting against ACP, it provides control of other pests as well. Specifically, it
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`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 7 of 25
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`provides “good” control of two important groups of plant-feeding mite pests: citrus
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`rust and citrus red spider mites. Id. ¶ 10. The only other chemicals that provide good
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`control of such pests are selective pesticides, meaning they only kill mites. Id.
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`Aldicarb’s effectiveness against mites is particularly important because spider mites
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`are prone to become resistant to miticides. Id. In addition, aldicarb provides
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`suppression of citrus nematodes below the soil. Id. This triple action of aldicarb
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`controlling insects, mites and nematodes, is believed to be unique compared to any
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`other pesticides currently registered on oranges and grapefruit. Id.
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`Another important benefit of aldicarb is that, as compared to other insecticides
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`and miticides in use in Florida, it has a lower impact on predatory and parasitic
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`insects such as lady bird beetles and lacewings, than other insecticide and miticides
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`sprays in use in Florida. Id. ¶ 11. Minimizing a pesticide’s negative effect on natural
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`enemies allows these predators to provide natural biological control of pests that
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`feed on the plants. Id.
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`For all these reasons, there is significant demand from citrus growers in
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`Florida for a return of aldicarb to the market. Id. ¶¶ 13–17.
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`II. EPA Conditionally Registers Aldicarb Again for Use on Oranges and
`Grapefruit in Florida.
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`In April 2019, AgLogic applied to EPA seeking registration of new uses of
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`aldicarb on oranges and grapefruit in Florida and Texas. Id. ¶ 18. On December 7,
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`2020, EPA published notice of the application in the Federal Register and opened a
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`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 8 of 25
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`thirty-day public comment period. 85 Fed. Reg. 78851. Id. While EPA was
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`reviewing
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`the application AgLogic amended its request
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`to accommodate
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`recommendations made by EPA staff. Id. Specifically, AgLogic amended its request
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`to limit the use of aldicarb to 2,500,000 lbs. of product on a maximum of 100,000
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`acres of oranges and grapefruit in Florida. Id.
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`Under section 3(c)(7)(B) of FIFRA, 7 U.S.C. § 136a(c)(7)(B), the EPA
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`“Administrator may conditionally amend the registration of a pesticide to permit
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`additional uses of such pesticide.” To do so, the Administrator must “determine[]
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`that (i) the applicant has submitted satisfactory data pertaining to the proposed
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`additional use, and (ii) amending the registration in the manner proposed by the
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`applicant would not significantly increase the risk of any unreasonable adverse effect
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`on the environment.” 7 U.S.C. § 136a(c)(7)(B). The Administrator may not amend
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`the pesticide registration to permit additional uses, however, if “the Administrator
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`has issued a notice stating that such pesticide, or any ingredient thereof, meets or
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`exceeds risk criteria” for “human dietary exposure” and the additional use “involves
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`a major food or feed crop” or a minor food or feed crop and “there is available an
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`effective alternative pesticide that does not meet or exceed such risk criteria.” Id.
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`On January 12, 2021, EPA conditionally registered the use of aldicarb for
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`oranges and grapefruit in the state of Florida under FIFRA section 3(c)(7)(B). Id.
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`¶ 19. In making this decision, EPA provided an extensive assessment of the human
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`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 9 of 25
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`health risk, environmental and ecological risks, and the benefits and alternatives to
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`registration of aldicarb and found the statutory criteria met. Id. ¶ 20. EPA also placed
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`certain conditions on the registration, including a limit on use of aldicarb to 100,000
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`acres (or 2,500,000 lbs. of product) in Florida and requiring a stewardship and
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`monitoring program, involving significant training and monitoring to ensure that
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`aldicarb is applied safely. Pet. Attachment A at 5–17. EPA determined that use of
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`aldicarb under these conditions would not meet or exceed the risk tolerances for
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`human exposure. Id. at 5–9. As part of its decision, EPA approved amendments to
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`the aldicarb product labels for MEYMIK Technical (EPA Reg. No. 87895-2) and
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`AGLOGIC 15GG (EPA Reg. No. 87895-4), and registration of a new product,
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`AgLogic 15GG-OG (EPA Reg. No. 87895-7).
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`Petitioners filed a petition for review of those decisions in this Court on March
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`3, 2021.
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`III. AgLogic’s Interest
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`
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`AgLogic has a direct and significant interest in this litigation. AgLogic is a
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`company that manufactures and sells aldicarb pesticide products, and it is the
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`applicant that sought the registration of aldicarb being challenged in this litigation.
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`If this Court set aside those registrations as Petitioners request, AgLogic would be
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`unable to manufacture and sell aldicarb to its citrus grower customers. AgLogic has
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`also invested significant time and money in the application for the registration as
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`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 10 of 25
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`well as in obtaining the necessary authorizations for application of aldicarb from the
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`State of Florida.
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`AgLogic easily meets the standards for intervention. Rule 15(d) of the Federal
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`ARGUMENT
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`Rules of Appellate Procedure provides that a party may move for leave to intervene
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`in a case seeking review of an agency decision “within 30 days after the petition for
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`review is filed.” In assessing a motion to intervene under Rule 15(d), this Court
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`draws on the standards for intervention under Rule 24 of the Federal Rules of Civil
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`Procedure. Amalgamated Transit Union Int’l v. Donovan, 771 F.2d 1551, 1553 n.3
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`(D.C. Cir. 1985) (per curiam); see also Int’l Union, United Auto., Aerospace &
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`Agric. Implement Workers of Am. v. Scofield, 382 U.S. 205, 217 n.10 (1965). Rule
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`24 sets forth criteria for two different types of intervention—intervention as of right
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`and permissive intervention. Fed. R. Civ. P. 24. For the reasons that follow, AgLogic
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`satisfies the criteria for both intervention as of right and permissive intervention as
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`well as the requirements of Article III standing.
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`I.
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`AgLogic Has Standing to Intervene.
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`AgLogic has Article III standing to intervene in support of EPA. This Court
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`has held that “[t]he standing inquiry for an intervening-defendant is the same as for
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`a plaintiff: the intervenor must show injury in fact, causation, and redressability.”
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`Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312, 316 (D.C. Cir.
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`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 11 of 25
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`2015).1 As a manufacturer of aldicarb and the applicant that sought the challenged
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`registration, AgLogic satisfies each of these elements.
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`This Court has “generally found a sufficient injury in fact where a party
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`benefits from agency action, the action is then challenged in court, and an
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`unfavorable decision would remove the party’s benefit.” Crossroads, 788 F.3d at
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`317. For example, this Court found the Chemical Manufacturers Association had
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`standing to intervene in a challenge to regulations excluding spent or fired military
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`munitions from hazardous waste regulations because its members that produced
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`military munitions would suffer concrete injury if the rule were set aside. Mil. Toxics
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`Project v. E.P.A., 146 F.3d 948, 954 (D.C. Cir. 1998). Similarly, this Court
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`concluded that a nonprofit corporation had standing to intervene in litigation
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`challenging the FEC’s denial of an administrative complaint that declared the
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`corporation was not a political action committee required to register with the FEC.
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`Crossroads, 788 F.3d at 318. The Court explained that the threatened loss of the
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`favorable decision, which shielded the corporation from enforcement proceedings
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`1 This Court has required intervenor-respondents to demonstrate standing.
`NRDC v. EPA, 896 F.3d 459, 462–63 (D.C. Cir. 2018). In 2019, the Supreme Court
`clarified that an intervenor who is not invoking the Court’s jurisdiction need not
`demonstrate standing. Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945,
`1950–51 (2019). The Court need not address that issue here because AgLogic has
`standing.
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`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 12 of 25
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`and civil liability via private lawsuit, constituted “concrete and imminent injury” for
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`purposes of standing. Id.
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` Here, AgLogic similarly has a “concrete and particularized” interest in the
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`registration for which it applied and the harm to that interest is “actual or imminent”
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`should Petitioners succeed on their claims. See Lujan v. Defenders of Wildlife, 504
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`U.S. 555, 560 (1992). AgLogic benefits from EPA’s registration of aldicarb because
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`the registration provides necessary authorizations for AgLogic to undertake
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`manufacture of aldicarb. Puech Decl. ¶ 24. A decision in favor of Petitioners would
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`impair AgLogic’s ability to proceed with its manufacture and sale of aldicarb to
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`authorized applicators and impair its ability to meet the demand of citrus growers
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`for a product that effectively controls ACP and other pests. Id. ¶ 26. This suit also
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`threatens the loss of AgLogic’s investment of substantial time and money in
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`applying for registration. Id. ¶¶ 24, 27.
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`There is also no question that AgLogic can establish causation and
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`redressability. Petitioners’ challenge in this case is what threatens AgLogic’s injury,
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`and defeating that challenge would prevent its injury. See Crossroads, 788 F.3d at
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`316.
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`II. AgLogic Satisfies the Standards for Intervention as of Right.
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`To intervene as of right under Federal Rule of Civil Procedure 24(a), a party
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`must: (1) file a timely motion; (2) claim an interest relating to the subject of the
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`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 13 of 25
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`action; (3) show that disposition of the action may as a practical matter impede its
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`ability to protect that interest; and (3) show that existing parties may not adequately
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`represent its interest. Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir.
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`2003). AgLogic satisfies this standard.
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`The Motion to Intervene is Timely.
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`A.
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`The motion is timely. It was filed within the April 5, 2021, deadline set by this
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`Court for filing procedural motions, Doc. 1888444. AgLogic is seeking to intervene
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`at the earliest possible stage of these proceedings, before Petitioner’s initial
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`submissions are due and before the Court has set the briefing schedule.
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`B. AgLogic Has an Interest Relating to the Subject of the Proceeding
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`AgLogic has a direct and substantial interest in the outcome of this litigation.
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`This Court has concluded that a showing of constitutional standing is “alone
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`sufficient to establish . . . [the movant’s] interest in the property or transaction which
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`is the subject of the action.” Fund For Animals, Inc. v. Norton, 322 F.3d 728, 735
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`(D.C. Cir. 2003); see also Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1076 (D.C.
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`Cir. 1998) (a movant “need not show anything more than that it has standing to sue
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`in order to demonstrate the existence of a legally protected interest for purposes of
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`Rule 24(a)”). AgLogic has Article III standing, as discussed above, and thus a
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`sufficient interest for purposes of intervention. See infra Part I.
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`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 14 of 25
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`AgLogic’s interest in the challenged registration also fits comfortably within
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`the type of interests that this Court and other courts have found sufficient for
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`purposes of intervention as of right. Specifically, it is well established that permit
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`holders have a right to intervene in litigation seeking to vacate or set aside the permit
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`they hold. That is because “‘[a]n intervenor’s interest is obvious when [it] asserts a
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`claim to property that is the subject matter of the suit.’” Fund for Animals, Inc. v.
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`Norton, 322 F.3d 728, 735 (D.C. Cir. 2003) (quoting Foster v. Gueory, 655 F.2d
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`1319, 1324 (D.C. Cir. 1981)). A number of cases recognize the right of holders of
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`various federal permits to intervene in litigation challenging the permit. See, e.g.,
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`Sierra Club v. U.S. EPA, 995 F.2d 1478 (9th Cir. 1993) (city’s interest as the holder
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`of a CWA Section 404 permit sufficient to support intervention of right in suit
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`against EPA challenging permit terms), overruled in part on other grounds by
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`Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011); Order, Nat’l
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`Parks Conservation Ass’n v. Semonite, No. 1:17-cv-01361 (D.D.C. Aug. 14, 2017)
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`(granting power company intervention as of right in challenge to its CWA Section
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`404 permit); Order, Sierra Club v. U.S. Army Corps of Eng’rs, No. 10-cv-4017
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`(W.D. Ark. Mar. 15, 2010) (granting utility company intervention as a matter of right
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`to protect its interests in a Corps CWA Section 404 permit); Ohio Valley Envtl. Coal.
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`v. U.S. Army Corps of Eng’rs, 243 F.R.D. 253 (S.D.W.Va. 2007) (mining companies
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`holding CWA Section 404 Corps permits entitled to intervene).
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`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 15 of 25
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`As the FIFRA registrant, AgLogic has an interest in the registration decision
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`that is equally direct and concrete as a permit holder’s interest in its permit. AgLogic
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`applied to EPA for the registration for aldicarb, that registration provides the
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`necessary authorization for AgLogic to produce aldicarb pesticide, and setting aside
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`such registration would significantly impair AgLogic’s interest in manufacturing the
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`pesticide. Puech Decl. ¶ 26.
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`AgLogic also has a direct financial interest in this litigation that entitles it to
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`intervention. Economic or financial interests are typically sufficient bases for
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`intervention. Dimond v. Dist. of Columbia, 792 F.2d 179, 193 (D.C. Cir. 1986)
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`(recognizing prospective intervenor’s “financial interest” in the litigation); see also
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`Utahns for Better Transp., 295 F.3d 1111, 1115 (10th Cir. 2002) (“The threat of
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`economic injury from the outcome of litigation undoubtedly gives a petitioner the
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`requisite interest.”). AgLogic’s investment of time and money in applying for
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`registration would be lost as would its future financial benefits if the registration
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`were set aside. Puech Decl. ¶ 27.
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`C. AgLogic’s Interest May as a Practical Matter Be Impaired by the
`Outcome of the Petition.
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`A decision from this Court in favor of Petitioners would directly impair
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`AgLogic’s interest in the registration of aldicarb. Rule 24(a) requires a proposed
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`intervenor to demonstrate that the outcome of the litigation threatens to impair or
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`impede its interest. In evaluating this factor, a court is to look at “the ‘practical
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`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 16 of 25
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`consequences’ of denying intervention.” Fund for Animals, 322 F.3d at 735 (citing
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`Natural Res. Def. Council v. Costle, 561 F.2d 904, 909 (D.C. Cir. 1977) (“NRDC”).
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`If Petitioners succeed in setting aside the authorizations, AgLogic would be
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`prohibited from producing aldicarb and unable to meet the demand of its citrus
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`grower customers for aldicarb as an effective tool for controlling the pest that causes
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`citrus greening disease and other pests.
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`D.
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`Existing Parties Do Not Adequately Represent AgLogic’s
`Interests.
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`The existing parties do not adequately represent AgLogic’s interests. Under
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`Rule 24(a)(2), only a “minimal” showing is required to establish this element.
`
`Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972); see also Fund For
`
`Animals, Inc. v. Norton, 322 F.3d 728, 735 (D.C. Cir. 2003) (describing the
`
`inadequacy of representation requirement as “not onerous.” (quoting Dimond v.
`
`District of Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986))). The movant-intervenor
`
`“ordinarily should be allowed to intervene unless it is clear that the party will provide
`
`adequate representation for the absentee.” United States v. Am. Tel. & Tel. Co., 642
`
`F.2d 1285, 1293 (D.C. Cir. 1980). AgLogic meets this standard.
`
`This Court has recognized that the federal government does not adequately
`
`represent the interests of a private party merely because both support a given
`
`government action. Government entities are charged with representing the public
`
`interest of the citizens rather than the more narrow interest of a private party. See
`
`
`
`16
`
`

`

`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 17 of 25
`
`
`Fund for Animals, 322 F.3d at 737. For that reason, this Court has “often concluded
`
`that governmental entities do not adequately represent the interests of aspiring
`
`intervenors.” Id. at 736. For example, this Court found rubber and chemical
`
`companies entitled to intervene in a case concerning EPA’s obligations to regulate
`
`toxic discharges because of the “differing scope of EPA and [intervenors’] interests.”
`
`Nat. Res. Def. Council v. Costle, 561 F.2d 904, 912 (D.C. Cir. 1977).
`
`Courts in other circuits have taken the same approach to motions to intervene
`
`in support of federal defendants. See, e.g., South Dakota v. Ubbelohde, 330 F.3d
`
`1014, 1025–26 (8th Cir. 2003) (in suit challenging Corps policy to lower reservoir
`
`water level, Corps could not adequately represent interests of proposed
`
`intervenors—downstream users—because Corps was required to balance the
`
`interests of the upstream and downstream users); Georgia v. U.S. Army Corps of
`
`Eng’rs, 302 F.3d 1242, 1259 (11th Cir. 2002) (“a federal defendant with a primary
`
`interest in the management of a resource” does not have an “interest[] identical to
`
`those of an entity with an economic interest[] in the use of that resource”) (citation
`
`omitted); Conservation Law Found. of New England, Inc. v. Mosbacher, 966 F.2d
`
`39, 44–45 (1st Cir. 1992) (“[A] governmental entity charged by law with
`
`representing the public interest of its citizens might shirk its duty were it to advance
`
`the narrower interest of a private entity . . . .”).
`
`
`
`17
`
`

`

`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 18 of 25
`
`
`As in those cases, AgLogic and EPA’s interests diverge because of their
`
`different roles and interests in the FIFRA registration process. FIFRA grants EPA
`
`authority to conditionally amend the registration of a pesticide to permit additional
`
`uses provided that the applicant has submitted sufficient data and the registration
`
`would not “significantly increase the risk of any unreasonable adverse effect on the
`
`environment” and the registration satisfies the human health risk requirements. 7
`
`U.S.C.A. § 136a(c)(7)(B). EPA has a responsibility to ensure that the registration
`
`complies with the FIFRA criteria for impact on the environment and human health
`
`that precludes it from fully “advanc[ing] the narrower interests of a private entity,”
`
`such as AgLogic. National Parks Conservation Ass’n, 759 F.3d at 977. EPA has an
`
`interest in defending its registration decision and its policies and procedures, but it
`
`does not have any particular interest in protecting AgLogic’s ability to manufacture
`
`and sell alidcarb. Nor does EPA share AgLogic’s financial interest in the
`
`registration. In short, AgLogic’s interest in the registration is “narrower and not
`
`subsumed by the general interest of the United States. . . .” United States v. Union
`
`Elec. Co., 64 F.3d 1152, 1170 (8th Cir. 1995). As a result, EPA will not be able to
`
`adequately protect AgLogic’s particular interest in the registration decision and
`
`accompanying authorizations for AgLogic’s aldicarb’s products. AgLogic also has
`
`a direct and substantial interest, different and apart from EPA’s interests, in any
`
`settlement negotiations that may result from this litigation.
`
`
`
`18
`
`

`

`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 19 of 25
`
`
`III. Alternatively, AgLogic Should be Granted Permissive Intervention.
`
`
`AgLogic also meets the requirements for permissive intervention. A party
`
`qualifies for permissive intervention when it shows that its claim or defense has a
`
`question of law or fact in common with the main action. EEOC v. Nat’l Children’s
`
`Center, Inc., 146 F.3d 1042, 1045 (D.C. Cir. 1998); Mass. School of Law v. United
`
`States, 118 F.3d 776, 782 (D.C. Cir. 1997). In determining whether to permit such a
`
`party to intervene, the “principal consideration” is whether the proposed intervention
`
`would “unduly delay or prejudice the adjudication of the . . . rights” of the original
`
`parties. Arizona v. California, 460 U.S. 605, 614 (1983).
`
`Permissive intervention is warranted here for at least four reasons. First,
`
`AgLogic’s motion to intervene is timely, and granting intervention would not delay
`
`or prejudice the proceedings because the court has not yet set the briefing schedule.
`
`Second, AgLogic’s defense of EPA’s decision presents questions of law and fact in
`
`common with the underlying suit that would respond directly to Petitioners’ claims.
`
`Third, allowing AgLogic to intervene would also promote judicial economy by
`
`reducing the risk of further litigation over any EPA action arising from the resolution
`
`of this case without AgLogic’s participation. See Nuesse v. Camp, 385 F.2d 694, 700
`
`(D.C. Cir. 1967) (intervention is a tool of judicial efficiency—“a practical [way of]
`
`disposing of lawsuits by involving as many apparently concerned persons as is
`
`compatible with efficiency and due process”). Finally, AgLogic’s unique
`
`
`
`19
`
`

`

`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 20 of 25
`
`
`perspective as the FIFRA registrant will aid this Court’s understanding of the
`
`underlying legal and factual issues involved and assist in the efficient resolution of
`
`this case.
`
`CONCLUSION
`
`The motion for leave to intervene should be granted.
`
`DATED: April 2, 2021
`
`
`
`
`Respectfully submitted,
`
`s/ Elbert Lin
`Elbert Lin
`HUNTON ANDREWS KURTH LLP
`951 East Byrd Street, East Tower
`Richmond, Virginia 23219
`elin@HuntonAK.com
`(804) 788-8200
`
`Erica N. Peterson
`HUNTON ANDREWS KURTH LLP
`2200 Pennsylvania Avenue, N.W.
`Washington, DC 20037-1701
`epeterson@huntonAK.com
` (202) 955-1500
`
`Counsel for AgLogic Chemical, LLC
`
`
`
`20
`
`
`
`
`
`
`
`
`

`

`USCA Case #21-1079 Document #1892997 Filed: 04/02/2021 Page 21 of 25
`
`
`ORAL ARGUMENT NOT YET SCHEDULED
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA
`
`
`
`
`
`FARMWORKER ASSOCIATION OF
`FLORIDA, et al.
`
` Petitioners,
`
`v.
`
`UNITED STATES
`ENVIRONMENTAL
`PROTECTION AGENCY,
`
` Respondent.
`
`
`
`
`
`
`
` No. 21-1079
`
`
`
`
`
`
`
`
`CORPORATE DISCLOSURE STATEMENT OF AGLOGIC
`
`Pursuant to Rule 26.1 of the Fede

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