USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 1 of 32
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`ORAL ARGUMENT NOT YET SCHEDULED
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA
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`
`
`
`
`FARMWORKER ASSOCIATION OF
`FLORIDA, et al.
`
` Petitioners,
`
`v.
`
`UNITED STATES
`ENVIRONMENTAL
`PROTECTION AGENCY,
`
` Respondent.
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`
`
`
`
`
`
` No. 21-1079
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`
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`PROPOSED OPPOSITION OF MOVANT-INTERVENOR AGLOGIC TO
`PETITIONERS’ MOTION FOR SUMMARY VACATUR AND STAY
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`
`
`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
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`

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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 2 of 32
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`CERTIFICATE AS TO PARTIES, RULINGS,
`AND RELATED CASES
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`A.
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`Parties and Amici
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`Except for the following, all parties, intervenors, and amici appearing in this
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`court are listed in the Petitioners’ Motion for Summary Vacatur; Motion for Stay
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`Pending Expedited Review:
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`1) AgLogic Chemical, LLC has moved to intervene.
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`B. Rulings Under Review
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`References to the rulings at issue appear in Petitioners’ motion.
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`C. Related Cases
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`There are no related cases within the meaning of Circuit Rule 28(a)(1)(C).
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`
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`DATED: April 19, 2021
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`
`
`s/ Elbert Lin
`Elbert Lin
`Counsel for AgLogic Chemical, LLC
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`
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`i
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 3 of 32
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES .................................................................................... iv
`
`INTRODUCTION ..................................................................................................... 1
`
`BACKGROUND ....................................................................................................... 2
`
`I.
`
`Citrus Greening Disease and Aldicarb ............................................................ 2
`
`II. History of Aldicarb .......................................................................................... 2
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`III. EPA’s Conditional Registration ...................................................................... 3
`
`IV. Florida Regulatory Approvals ......................................................................... 5
`
`ARGUMENT ............................................................................................................. 6
`
`I.
`
`Summary Vacatur is Not Warranted. .............................................................. 6
`
`A.
`
`B.
`
`This case does not meet the high standards for summary vacatur. ....... 6
`
`In all events, the Allied-Signal analysis favors remand without
`vacatur. .................................................................................................. 8
`
`1.
`
`As in Center for Biological Diversity, the Allied-Signal
`factors support remand without vacatur. ..................................... 9
`
`a)
`
`b)
`
`EPA can correct its ESA failure on remand. .................... 9
`
`The consequences of vacatur also support remand
`instead. ............................................................................ 11
`
`2.
`
`This Court could remand without vacatur. ............................... 13
`
`II.
`
`Petitioners’ Request for a Stay Should Be Denied. ....................................... 13
`
`A.
`
`B.
`
`Petitioners’ request is premature. ........................................................ 14
`
`Petitioners have not shown the need for a stay beginning on
`November 15. ...................................................................................... 16
`
`1.
`
`Petitioners have not made a clear showing of likelihood of
`success on the merits. ................................................................ 16
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`ii
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 4 of 32
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`a)
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`Petitioners are unlikely to obtain vacatur based on EPA’s
`ESA failure. .................................................................... 16
`
`b)
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`The conditional registration is lawful under FIFRA. ..... 16
`
`Petitioners will not suffer irreparable harm. ............................. 19
`
`The public interest and balance of equities do not favor a
`stay. ........................................................................................... 21
`
`2.
`
`3.
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`CONCLUSION ........................................................................................................ 21
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`iii
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 5 of 32
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`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`
`*Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm’n,
`988 F.2d 146 (D.C. Cir. 1993) .....................................................................passim
`
`Amoco Prod. Co. v. Vill. of Gambell,
`480 U.S. 531 (1987) ...................................................................................... 22, 23
`
`Cascade Broad. Grp. Ltd. v. F.C.C.,
`822 F.2d 1172 (D.C. Cir. 1987) ............................................................................ 8
`
`Chaplaincy of Full Gospel Churches v. England,
`454 F.3d 290 (D.C. Cir. 2006) ...................................................................... 17, 21
`
`*Ctr. for Biological Diversity v. Env’t Prot. Agency,
`861 F.3d 174 (D.C. Cir. 2017) ............................................................................ 10
`
`Ctr. for Biological Diversity v. Env’t Prot. Agency,
`No. 11-CV-00293-JCS, 2013 WL 1729573 (N.D. Cal. Apr. 22,
`2013) ................................................................................................................... 13
`
`Cuomo v. U.S. Nuclear Regul. Comm’n,
`772 F.2d 972 (D.C. Cir. 1985) ............................................................................ 16
`
`Davis v. Pension Ben. Guar. Corp.,
`571 F.3d 1288 (D.C. Cir. 2009) .......................................................................... 17
`
`Heartland Reg’l Med. Ctr. v. Sebelius,
`566 F.3d 193 (D.C. Cir. 2009) ............................................................................ 11
`
`League of Women Voters of U.S. v. Newby,
`838 F.3d 1 (D.C. Cir. 2016) ................................................................................ 22
`
`Mexichem Specialty Resins, Inc. v. E.P.A.,
`787 F.3d 544 (D.C. Cir. 2015) ............................................................................ 22
`
`
`* Authorities on which we chiefly rely.
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`iv
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 6 of 32
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`Nat’l Fam. Farm Coal. v. U.S. Env’t Prot. Agency,
`960 F.3d 1120 (9th Cir. 2020) ............................................................................ 20
`
`Nat’l Wildlife Fed’n v. Burford,
`835 F.2d 305 (D.C. Cir. 1987) ............................................................................ 22
`
`Nken v. Holder,
`556 U.S. 418 (2009) ............................................................................................ 23
`
`Nollan v. California Coastal Comm’n,
`483 U.S. 825 (1987) ............................................................................................ 13
`
`NRDC v. EPA,
`735 F.3d 873 (9th Cir. 2013) .............................................................................. 19
`
`NRDC v. EPA,
`857 F.3d (9th Cir. 2017) ......................................................................... 12, 13, 19
`
`Olu-Cole v. E.L. Haynes Pub. Charter Sch.,
`930 F.3d 519 (D.C. Cir. 2019) ............................................................................ 17
`
`Ruckelshaus v. Monsanto Co.,
`467 U.S. 986 (1984) ............................................................................................ 13
`
`Sherley v. Sebelius,
`644 F.3d 388 (D.C. Cir. 2011) ............................................................................ 16
`
`Sills v. Bureau of Prisons,
`761 F.2d 792 (D.C. Cir. 1985) .............................................................................. 8
`
`United States v. Allen,
`408 F.2d 1287 (D.C. Cir. 1969) ............................................................................ 9
`
`Walker v. Washington,
`627 F.2d 541 (D.C. Cir. 1980) .......................................................................... 8, 9
`
`Winter v. Nat. Res. Def. Council, Inc.,
`555 U.S. 7 (2008) .................................................................................... 16, 18, 23
`
`Statutes
`
`7 U.S.C. § 136(bb) ................................................................................................... 18
`
`7 U.S.C. § 136a(c)(7)(B) .......................................................................................... 18
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`ii
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 7 of 32
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`7 U.S.C. § 136n(b) ................................................................................................... 19
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`Other Authorities
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`85 Fed. Reg. 78851 (Dec. 7, 2020) ............................................................................ 6
`
`Fla. Admin. Code Rule 5E-2.028 ............................................................................... 7
`
`Interim Registration Review Decisions and Case Closures for Several
`Pesticides, 83 Fed. Reg. 8472 (Feb. 27, 2018) ..................................................... 5
`
`U.S. Citrus Crop Forecast Takes a Tumble (Apr. 9, 2021),
`https://citrusindustry.net/2021/04/09/u-s-citrus-forecast-takes-a-
`tumble/ .................................................................................................................. 3
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`
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`iii
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 8 of 32
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`INTRODUCTION
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`
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`This case is not as simple or urgent as Petitioners’ suggest. To start, summary
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`disposition is for outcomes compelled by squarely applicable precedent. But the
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`only relevant precedent in this Circuit ordered remand without vacatur. As EPA
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`contends, that case justifies voluntary remand, if anything. At minimum, this Court
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`should not grant summary vacatur.
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`Nor should this Court stay this case, were it not to remand as EPA requests.
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`The regulatory process to obtain the necessary state authorizations remains pending.
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`And growers are prohibited in all events from using aldicarb on citrus between April
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`30 and November 15. Movant-Intervenor AgLogic has thus accepted as fact that no
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`aldicarb will be permitted to be applied to citrus in Florida until November 15, 2021,
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`at the earliest. A stay is premature at best.
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`
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`To justify both extraordinary requests, Petitioners spin a tale of a reckless EPA
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`rushing through an unacceptably dangerous and unbeneficial pesticide. But the truth
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`is quite different. AgLogic submitted its application in 2019 at the urging of a citrus
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`industry ravaged by pest-borne disease with no effective alternatives. Two years
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`later, EPA fashioned with AgLogic a conditional registration of aldicarb with a
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`dramatically limited scope and duration of potential use designed to maintain an
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`extremely high level of dietary protection. Petitioners’ overstated claims elide the
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`facts that aldicarb has been used in this country for over 50 years, is currently
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`1
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 9 of 32
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`registered for several other crops, and is applied with less environmental impact than
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`other pesticides, as it is mechanically injected as granules into the ground rather than
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`sprayed over leaves. EPA’s grant of the conditional registration was narrowly
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`tailored and incremental. It should remain effective while either this Court or EPA
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`considers it further.
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`BACKGROUND
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`I.
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`Citrus Greening Disease and Aldicarb
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`The Florida citrus industry is being destroyed by a bacterial disease,
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`Huanglongbing (“HLB”), a.k.a., citrus greening disease. Puech Decl. ¶ 3. The
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`bacteria is spread by the feeding of an insect, the Asian citrus psyllid (ACP), on
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`citrus foliage. Thereafter, the bacteria attacks the vascular system and roots of trees,
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`resulting in yield losses and tree death. Id. Since appearing in Florida in 2005, citrus
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`greening has led to a precipitous decline in productivity among orange and grapefruit
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`growers. Id. A University of Florida study found the citrus industry has suffered
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`over seven billion in lost revenue and lost over 8,000 jobs. Id. ¶ 4. These impacts
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`are felt on farms, at citrus packinghouses, and by juice processors. See id. ¶ 3.
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`Though some pesticide ingredients registered for use on Florida oranges and
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`grapefruit purport to manage the ACP, id., the industry continues to decline
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`catastrophically. Orange and grapefruit yields dropped 70 and 89 percent,
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`respectively, between the 2003-2004 growing season and the 2018-2019 one. Id. ¶
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`2
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 10 of 32
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`5. The most recent USDA forecast showed a further 12% drop in Florida’s orange
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`crop projection and 7% drop in grapefruit projection.
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`1 Needing other ways to combat the existential threat of citrus greening, the
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`industry encouraged AgLogic to re-register aldicarb, a tool that was used safely for
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`decades on Florida oranges and grapefruit until 2010, id. ¶ 6.
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`Aldicarb is better in many ways than other pesticides claimed to fight the
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`ACP. Id. ¶¶ 13-17. Aglogic 15 GG aldicarb pesticide is applied to orange and
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`grapefruit early in the growing season (from November 15 through April 30) to
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`control certain insects, mites, and nematodes, including the ACP. Id. ¶ 8. Unlike
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`many other pesticides marketed to fight the ACP, AgLogic 15 GG is not a foliar
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`spray, but a specially formulated, proprietary granular pesticide applied in
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`subsurface soil, at least three inches deep, using special, motorized ground
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`application equipment. Id. ¶ 7. The granules release aldicarb via soil moisture,
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`which is absorbed by tree roots and then precisely translocated into the tree’s foliar
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`leaf canopy, providing systemic control, resistant to rainfall wash-off, for an average
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`of 10 and 15 weeks for ACP nymphs and adults respectively. Id. ¶ 7. That systemic
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`aldicarb presence provides substantially greater protection than foliar-applied
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`pesticide sprays, which drip or wash off the leaves, and provide four to eight weeks
`
`
`1 U.S. Citrus Crop Forecast Takes a Tumble (Apr. 9, 2021),
`https://citrusindustry.net/2021/04/09/u-s-citrus-forecast-takes-a-tumble/.
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`3
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 11 of 32
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`of ACP control at most. Id. Indeed, when aldicarb was previously registered for use
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`on oranges and grapefruit, the Florida Citrus Pest Management Guide recommended
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`it as “good” control against ACP. Id. ¶ 8.
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`Aldicarb provides benefits beyond its ACP control. It is believed to be unique
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`among pesticides registered for use on oranges and grapefruit in controlling multiple
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`pests. Id. ¶ 10. Aldicarb also has a documented lower impact on beneficial predatory
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`and parasitic insects than insecticide and miticide sprays used in Florida, Id. ¶ 11.
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`Moreover, AgLogic 15 GG in particular has reduced negative effects to applicators,
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`compared with pure aldicarb, as it is specially formulated to reduce the acute toxicity
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`for both oral and dermal exposures by 29 and 1,000 times, respectively. Id. ¶ 7.
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`II. History of Aldicarb
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`Aldicarb is not new. It has been registered for use in agricultural pest control
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`in the United States for decades. Id. ¶ 6. Beginning in the 1970s, aldicarb was
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`registered for use on various food crops, including citrus. Id.
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`In 2010, the prior registrant, Bayer CropScience, voluntarily canceled its
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`registrations of all aldicarb uses. Id. Contrary to Petitioners’ insinuation, no
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`evidence shows that Bayer did so because of a “dire assessment of risk to children
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`and infants.” Pet. Mot. at 4. The Memorandum of Agreement between EPA and
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`Bayer does not specify a rationale. A001423-A001469. Moreover, shortly before
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`2
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 12 of 32
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`the agreement, Bayer submitted an exhaustive acute dietary risk analysis for aldicarb
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`concluding that its then-registered uses met EPA’s safety standard. Ex. 1.
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`The period in which aldicarb was not registered for any use in the United
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`States was brief. In December 2011, EPA granted AgLogic registration of aldicarb
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`uses on cotton, dry beans, peanuts, soybeans, sugar beets, and sweet potatoes, which
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`all remain in effect. Puech Decl. ¶ 6. AgLogic did not request registration of citrus
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`uses. Since then, EPA further studied aldicarb for several years and re-registered it
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`for 15 years. EPA, Interim Registration Review Decisions and Case Closures for
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`Several Pesticides, 83 Fed. Reg. 8472 (Feb. 27, 2018).
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`At the urging of Florida citrus growers, Puech Decl. ¶ 13, AgLogic applied to
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`register aldicarb for citrus in 2018, but was denied on procedural grounds because it
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`applied directly to the Florida Department of Agriculture and Consumer Services
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`(FDACS) under FIFRA section 24(c), applicable to continuing old uses. Ex. 3. EPA
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`invited AgLogic to reapply under FIFRA’s new use authority, Section 3(c), and
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`submit additional information to support a safety finding for the dietary assessment
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`of use on oranges. Id. at 3.
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`III. EPA’s Conditional Registration
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`The process leading to the conditional registration at issue began in 2019.
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`After the FDACS procedural denial in August 2018, AgLogic reapplied in early
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`2019 as EPA directed and sought registration of new uses of aldicarb on oranges and
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`3
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 13 of 32
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`grapefruit in Florida and Texas. Puech Decl. ¶ 18. EPA published notice of the
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`application in the Federal Register to initiate a thirty-day public comment period on
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`December 7, 2020. 85 Fed. Reg. 78851 (Dec. 7, 2020). AgLogic subsequently
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`amended its application, at the recommendation of EPA staff, to a conditional
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`registration limited to 2,500,000 lbs. of product for use on a maximum of 100,000
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`acres of oranges and grapefruit only in Florida. Puech Decl. ¶ 18.
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`EPA granted AgLogic’s conditional registration on January 12, 2021.
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`A000002. The record reflects an extensive assessment of aldicarb and the human
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`health, environmental, and ecological risks associated with its use, as well the
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`benefits and alternatives to its registration. Puech Decl. ¶ 20. EPA determined the
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`risks for listed species are largely similar to those found in prior risk assessments for
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`aldicarb in 2005 and 2015, and this registration is conditional and far narrower than
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`previous registrations. A000010. (Eligibility Decision, USEPA 2006 and
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`Registration Review Risk Assessment, USEPA 2015); A000637. Based on that
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`review, together with stewardship and application conditions, EPA determined the
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`FIFRA criteria were met, as the new uses would not significantly increase the risk
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`of unreasonable effects on the environment. A000014.
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`The conditions on the registration include limiting aldicarb use to 100,000
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`acres (or 2,500,000 lbs. of product) in Florida and requiring a rigorous stewardship,
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`oversight, and monitoring program, coordinated by FDACS and AgLogic, with
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`4
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 14 of 32
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`significant training and monitoring components to ensure safe application.
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`A000006–A000018. Further, EPA incorporated Florida’s unique set of regulations
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`governing the use, sale, and application of aldicarb for citrus—“The Florida
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`Aldicarb Rule,” Fla. Admin. Code Rule 5E-2.028—which had developed over the
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`long history of aldicarb use in Florida. Among other things, citrus application may
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`occur only between November 15 and April 30, to avoid the rainy season;
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`application setback requirements protect drinking water wells; aldicarb may only be
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`applied to certain types of soils; and groundwater-monitoring requirements confirm
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`that drinking water wells are not contaminated. EPA determined that use of aldicarb
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`under these conditions would not meet or exceed the dietary risk tolerances for
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`human exposure. A000006–A000010
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`IV. Florida Regulatory Approvals
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`Despite EPA’s approval, aldicarb has not been and cannot now be applied to
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`citrus in Florida due to the state’s regulatory requirements. Indeed, three critical
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`hurdles make it a certainty that aldicarb will not be permitted to be applied until
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`November 15, 2021, at the earliest. First, FDACS must register and approve aldicarb
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`use for oranges and grapefruit. It has not done so yet. Second, FDACS must then
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`approve state licensed pesticide applicators, as aldicarb may only be purchased or
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`applied by state licensed applicators or persons under the supervision of one. Id. at
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`5E-2.028(k)(2)(a). Also the precise location of each grove, soil type, and drinking
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`5
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 15 of 32
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`water well must be approved before application. No applicator permits have been
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`sought or approved at this time. Third, as discussed above, the Florida Aldicarb
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`Rule allows application of aldicarb on citrus only from November 15 through April
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`30. Id. at 5E-2.028(i).
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`Given that April 30 is rapidly approaching, AgLogic has accepted as fact that
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`no aldicarb will be permitted to be applied to citrus in Florida until November 15,
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`2021, at the earliest.
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`ARGUMENT
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`I.
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`Summary Vacatur is Not Warranted.
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`A. This case does not meet the high standards for summary vacatur.
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`Summary disposition is extraordinary, usually reserved for resolution in favor
`
`of respondents or appellees. “[A] party bears a heavy burden of showing that
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`summary disposition is appropriate.” Sills v. Bureau of Prisons, 761 F.2d 792, 793
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`(D.C. Cir. 1985). The outcome must be “so clear [that] plenary briefing, oral
`
`argument, and the traditional collegiality of the decisional process would not affect
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`[the Court’s] decision.” Id. at 793–94; Cascade Broad. Grp. Ltd. v. F.C.C., 822 F.2d
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`1172, 1174 (D.C. Cir. 1987) (same standard for review of agency action).
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`Accordingly, summary disposition ordinarily is granted where frivolous appeals
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`warrant summary affirmance. See, e.g., Walker v. Washington, 627 F.2d 541, 546
`
`(D.C. Cir. 1980) (claims were “clearly frivolous”).
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`6
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 16 of 32
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`Petitioners or appellants seeking summary disposition, as here, face an even
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`higher bar because they must address both merits and remedy. Though “[s]ummary
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`affirmance is appropriate where the merits are so clear as to justify summary action,”
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`D.C. Cir., Handbook of Practice and Internal Procedures (2021) at 36, “[a] party
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`seeking summary reversal by motion has the heavy burden of demonstrating both
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`that his remedy is proper and that the merits of his claim so clearly warrant relief as
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`to justify expedited action,” United States v. Allen, 408 F.2d 1287, 1288 (D.C. Cir.
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`1969). Thus, “[s]ummary reversal is rarely granted.” D.C. Cir. Handbook at 36.
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`The issue of remedy is precisely why Petitioners’ request should be refused.
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`As Petitioners admit, remedy must be assessed under Allied-Signal, Inc. v. U.S.
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`Nuclear Regul. Comm’n, 988 F.2d 146, 148 (D.C. Cir. 1993). Given the fact-
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`intensive and case-by-case nature of the Allied-Signal test, it is doubtful that
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`summary vacatur would be appropriate for many cases subject to that analysis.
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`Indeed, Movant-Intervenor is aware of no published precedent granting summary
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`vacatur of agency action since this Court’s decision in Allied-Signal. Nor apparently
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`are Petitioners. The only case concerning agency action that Petitioners cite—
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`Walker v. Washington, 627 F.2d 541, 546 (D.C. Cir. 1980)—was decided 13 years
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`before Allied-Signal and summarily affirmed the agency.
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`To the extent summary vacatur of an agency decision might be appropriate, it
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`should be compelled by factually similar precedent that reached the identical result.
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`7
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 17 of 32
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`But that does not exist here. To the contrary, the only case in this Circuit involving
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`these same issues—a FIFRA pesticide registration issued without an Endangered
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`Species Act (ESA) “effects” determination or consultation—ordered remand
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`without vacatur. Ctr. for Biological Diversity v. Env’t Prot. Agency, 861 F.3d 174,
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`189 (D.C. Cir. 2017).
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`For these reasons, this Court should deny summary vacatur. The absence of
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`any on-point Circuit precedent is alone fatal to Petitioners’ extraordinary request.
`
`B.
`
`In all events, the Allied-Signal analysis favors remand without
`vacatur.
`
`Independently, this Court should deny summary vacatur because the Allied-
`
`Signal analysis favors remand without vacatur. Whether to vacate under Allied-
`
`Signal depends on (1) “the seriousness of the order’s deficiencies (and thus the extent
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`of doubt whether the agency chose correctly);” and (2) “the disruptive consequences
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`of an interim change that may itself be changed.” 988 F.2d at 150–51. Just as in
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`Center for Biological Diversity—noted above and discussed further below—those
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`factors support remand without vacatur in this case. Indeed, as EPA requests in its
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`motion, the decision to remand in Center for Biological Diversity justifies voluntary
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`remand here.
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`8
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 18 of 32
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`1.
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`As in Center for Biological Diversity, the Allied-Signal
`factors support remand without vacatur.
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`In Center for Biological Diversity, this Court held that EPA had registered a
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`pesticide in violation of the ESA but nevertheless remanded without vacatur. 861
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`F.3d at 188–89. Specifically, the Court noted that EPA had considered the
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`pesticide’s potential effects and found it less toxic toward wildlife than alternatives,
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`and that EPA found the pesticide provided an effective tool. Id. at 189. For those
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`reasons, remand would maintain “the enhanced protection of the environmental
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`values covered by” the registration at issue until EPA “replaced” the registration
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`with “an order consistent with [the Court’s] opinion.” Id. at 188 (cleaned up).
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`The same result is warranted here. As in Center for Biological Diversity, EPA
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`can “replace” the conditional registration with an order that satisfies the ESA’s
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`requirements. Id. Meanwhile, a remand without vacatur would maintain use of a
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`desperately needed tool that is superior to currently used alternatives in efficacy and
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`environmental benefit.
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`a)
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`EPA can correct its ESA failure on remand.
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`EPA’s ESA failure does not require vacatur because the agency can correct
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`its decision on remand. “When an agency may be able readily to cure a defect in its
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`explanation of a decision, the first factor in Allied-Signal counsels remand without
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`vacatur.” Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009).
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`That is the case here.
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 19 of 32
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`As in Center for Biological Diversity, EPA considered the pesticide’s effects
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`and found it superior to alternatives with respect to wildlife. EPA conducted an
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`extensive risk assessment that consisted of comprehensive and peer-reviewed
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`analysis of extensive environmental fate and ecological effects data. A000636. EPA
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`determined the risks for listed species are largely similar to those found in prior risk
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`assessments for aldicarb in 2005 and 2015, and this registration is conditional and
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`far narrower than previous registrations. A000010; A000637.
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`EPA is thus likely able to make the required determination on remand. FIFRA
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`risk assessment is not a replacement for ESA compliance. But as this Court
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`recognized in Center for Biological Diversity, EPA can draw on its FIFRA
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`ecological risk assessment to make an ESA effects determination, which
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`demonstrates “there is at least a serious possibility that [EPA] will be able to
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`substantiate its decision on remand.” Allied-Signal, 988 F.2d at 151.
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`Petitioners assert that “EPA’s violation of the ESA was serious, and it cannot
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`substantiate its decision on remand.” Petr. Mot. at 15. But Petitioners provide no
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`basis for that assertion. Nor do they distinguish this Court’s remand in Center for
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`Biological Diversity. Petitioners cite NRDC v. EPA, 857 F.3d at 1040 (9th Cir.
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`2017), but that case concerned an entirely different legal error—the public-interest
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`determination under FIFRA. Id. at 1042.
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 20 of 32
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`b)
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`The consequences of vacatur also support remand
`instead.
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`Vacatur would needlessly deprive the declining Florida citrus industry of a
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`unique and critical tool in its existential fight against citrus greening disease. Other
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`registered pesticides have proven ineffective in stemming the decline, which will
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`indisputably continue while EPA corrects the conditional registration. Remand
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`rather than vacatur will substantially affect the industry’s future.
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`As compared with other pesticides in use, aldicarb also provides
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`environmental benefits that vacatur would eliminate. Aldicarb provides superior
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`control of rust and spider mites and thus reduces the need to apply chemicals
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`multiple times or tank-mix multiple chemicals. A000013. And aldicarb has lower
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`impact on beneficial natural enemy insects and spiders. Id.; Puech Decl. ¶ 11.
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`Furthermore, vacating a pesticide registration is far weightier than vacating
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`most other agency actions. The Supreme Court has recognized a property interest
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`in the data submitted in a FIFRA application, Ruckelshaus v. Monsanto Co., 467
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`U.S. 986, 1003 (1984), and described the registration itself as “[a] valuable
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`Government benefit,” Nollan v. California Coastal Comm’n, 483 U.S. 825, 833 n.2
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`(1987). At least one court has described the registrant as having property and
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`financial interest in a pesticide registration. Ctr. for Biological Diversity v. Env't
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`Prot. Agency, No. 11-CV-00293-JCS, 2013 WL 1729573, at *7 (N.D. Cal. Apr. 22,
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`2013). Consistent with those holdings, AgLogic has invested significant time and
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`USCA Case #21-1079 Document #1895173 Filed: 04/19/2021 Page 21 of 32
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`money in obtaining the conditional registration. Puech Decl. ¶¶ 24, 27. Those
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`resources will be largely wasted if this Court vacates.
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`Petitioners argue vacatur is necessary because the registration poses acute
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`and chronic risks to wildlife. But EPA determined the risks are largely similar to
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`those found in prior risk assessments for aldicarb, and this registration for aldicarb
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`is conditional and far narrower than previous registrations. A000363. The
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`conditions on registration are designed to avoid spray drift and exposure to wildlife.
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`A000246–A000247; A000004; A000637. And where EPA recognized insufficient
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`data—for honey bees—it performed a conservative risk assessment and imposed as
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`a condition the completion of a study to gather needed data for assessment before
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`future registrations. Vacatur would eliminate not only the requirement, but the
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`ability, to conduct that useful study.
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`Petitioners also argue that EPA cancelled the previous registration in 2010
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`due to toxicity of aldicarb. But no evidence speaks specifically to why EPA accepted
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`Bayer’s voluntary cancellation. What is more, EPA approved shortly thereafter
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`AgLogic’s then-pending registration for application of aldicarb to a number of crops.
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`Puech Decl. ¶ 6.
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`Finally, Petitioners rely on EPA’s August 2010 revised risk assessment model
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`as evidence of toxicity to humans. But that assessment is questionable, as it did not
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`consider Bayer’s comprehensive risk assessment, which was submitted around that
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`USCA Case #21-107