USCA Case #21-1079 Document #1898307 Filed: 05/12/2021 Page 1 of 8
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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 CIRCUIT
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`FARMWORKER ASSOCIATION OF
`FLORIDA, ENVIRONMENTAL
`WORKING GROUP, and CENTER FOR
`BIOLOGICAL DIVERSITY,
` Petitioners,
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` v.
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`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY,
` Respondent.
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`No. 21-1079
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`[PROPOSED] SUR-REPLY TO
`RESPONDENT EPA’S REPLY IN SUPPORT OF
`MOTION FOR REMAND WITHOUT VACATUR
`________________________________________________
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`
`
`JONATHAN EVANS
`CENTER FOR BIOLOGICAL DIVERSITY
`1212 Broadway, Suite 800
`Oakland, CA 94612
`Tel: (510) 844-7100 x318
`Fax: (510) 844-7150
`jevans@biologicaldiversity.org
`
`STEPHANIE M. PARENT
`CENTER FOR BIOLOGICAL DIVERSITY
`P.O. Box 11374
`Portland, OR 97211
`Tel: (971) 717-6404
`Fax: (503) 283-5528
`sparent@biologicaldiversity.org
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`Attorneys for Petitioners Farmworker Association of Florida,
`Environmental Working Group, and Center for Biological Diversity
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`ORAL ARGUMENT NOT YET SCHEDULED
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`FARMWORKER ASSOCIATION OF
`FLORIDA, ENVIRONMENTAL
`WORKING GROUP, and CENTER FOR
`BIOLOGICAL DIVERSITY,
` Petitioners,
`
` v.
`
`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY,
` Respondent.
`
`)
`)
`)
`)
`)
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`)
`)
`)
`)
`)
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`
`
`No. 21-1079
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`
`
`
`
`
`
`
`[PROPOSED] SUR-REPLY TO
`RESPONDENT EPA’S REPLY IN SUPPORT OF
`MOTION FOR REMAND WITHOUT VACATUR
`________________________________________________
`
`
`
`JONATHAN EVANS
`CENTER FOR BIOLOGICAL DIVERSITY
`1212 Broadway, Suite 800
`Oakland, CA 94612
`Tel: (510) 844-7100 x318
`Fax: (510) 844-7150
`jevans@biologicaldiversity.org
`
`STEPHANIE M. PARENT
`CENTER FOR BIOLOGICAL DIVERSITY
`P.O. Box 11374
`Portland, OR 97211
`Tel: (971) 717-6404
`Fax: (503) 283-5528
`sparent@biologicaldiversity.org
`
`Attorneys for Petitioners Farmworker Association of Florida,
`Environmental Working Group, and Center for Biological Diversity
`
`
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`USCA Case #21-1079 Document #1898307 Filed: 05/12/2021 Page 2 of 8
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`Respondent U.S. Environmental Protection Agency (EPA) raised two new
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`matters in its Reply in Support of Motion for Remand Without Vacatur. Doc.
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`#1897611 (May 6, 2021). First, it is disingenuous for EPA to suggest that this case
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`is prudentially moot when it has not ceased its own admittedly illegal activity, and
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`it recognizes that Florida’s decision is not the final word because AgLogic intends
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`to challenge it. If the Court were to dismiss on prudential mootness, Petitioners
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`would be without a remedy should Intervenor AgLogic prevail in its challenge to
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`Florida’s decision. Second, recognizing this, EPA asks this court in the alternative
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`to hold the case in abeyance until Florida decides. However, the moment Florida
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`reverses its denial, without Petitioners’ requested stay in place, sales of aldicarb for
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`use in Florida on citrus can proceed. Lifting the abeyance at that time will be too
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`late to render a decision to prevent harm to Petitioners, especially because EPA
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`finally acknowledges in its reply that it has the discretion to allow the continued
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`use of existing stocks that have been sold, even if a court later vacate its
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`registrations.
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`Deciding whether a case is “prudentially moot” is based on “common sense
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`or equitable considerations” requiring a “case-by-case judgment regarding the
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`feasibility or futility of effective relief should a litigant prevail.” In re Aov Indus.,
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`792 F.2d 1140, 1147-48 (1986) (reaching the merits of two claims, while agreeing
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`others were moot, because implementation of a bankruptcy plan was not
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`1
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`USCA Case #21-1079 Document #1898307 Filed: 05/12/2021 Page 3 of 8
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`synonymous with consummation). Prudential mootness is only appropriate when a
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`controversy is “so attenuated” or “it is so unlikely” that a court’s grant of remedy
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`would not actually relieve the injury. Chamber of Commerce v. U.S. Dep’t of
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`Energy, 627 F.2d 289, 291 (D.C. Cir. 2009); Penthouse Int’l, Ltd. v. Meese, 39
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`F.2d 1011, 1019 (D.C. Cir. 1991), cert. denied, 503 U.S. 950 (1992).
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`First, this case is not moot because EPA has not ceased its admittedly, illegal
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`conduct. Indeed, EPA asks this Court for remand without vacatur so that the illegal
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`conduct may continue. Prudential mootness considerations usually arise when
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`defendant has “ceased its allegedly illegal conduct and is reconsidering or has
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`reconsidered the policy that created the harm in the first place.” Conservation Law
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`Found. v. Pritzker, 37 F. Supp. 3d 254, 264 (D.D.C. 2014) (explaining that the
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`Service had not ceased its allegedly unlawful conduct, and ruling the issue was not
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`moot because vacatur could halt the injury of excessive fishing). Courts are not
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`obliged to “step aside” even if the case might become moot shortly by virtue of
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`agency ceasing illegal action. Crawford v. FCC, 417 F.3d 1289, 1294-95, 368 U.S.
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`App. D.C. 40 (D.C. Cir. 2005) (deciding case was not prudentially moot where
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`FCC action had effectively mooted claim, but FCC's mooting decision had not
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`technically become final); see also Defenders of Wildlife v. Jackson, 791 F. Supp.
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`2d 96, 110 (D.D.C. 2011) (claim not moot where “effective remedy is possible and
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`appropriate” because agency action at issue was still in force) (internal quotation
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`2
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`USCA Case #21-1079 Document #1898307 Filed: 05/12/2021 Page 4 of 8
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`marks omitted)). In this case, the Service admits that it has not complied with the
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`ESA, yet it only provides a nonbinding statement that it intends to revisit the
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`decision at some undefined date, and has no schedule to do so. EPA Mot. for
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`Remand Without Vacatur at 9-10, Doc. #1895080; id. at Att. 1, A11-13
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`(Declaration of Jan Matuszko ¶¶ 18-20). EPA’s nonbinding statement is
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`meaningless because EPA has not ceased the illegal activity, continuing to allow
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`its admittedly unlawful registrations to stand now and into the future by virtue of
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`asking for remand without vacatur.
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`EPA’s reliance on Chamber of Commerce and Penthouse is misplaced
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`because in both cases the alleged unlawful government activity had ceased. The
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`Chamber of Commerce challenged an agency decision to provide funds to a
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`consumer organization to participate in an administrative hearing, but the hearing
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`had been completed and there was no likely continuing injury; therefore, the claims
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`were moot. Chamber of Commerce, at 290-92. In Penthouse, the government had
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`retracted a letter labelling Penthouse as pornography. 939 F.2d at 1018-19. Further,
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`Penthouse could not identify any alleged injury that remained after retraction of the
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`letter. Id. at 1019-20. Then, in dicta, the Court noted that even assuming some
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`trace of continuing injury, it would not exercise its discretion to grant declaratory
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`relief because it would avoid premature adjudication of a constitutional issue. Id. at
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`1020. Here, it is undisputed that EPA’s admittedly unlawful registrations of
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`3
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`USCA Case #21-1079 Document #1898307 Filed: 05/12/2021 Page 5 of 8
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`aldicarb for use on citrus in Florida are still in place and present an ongoing
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`controversy.
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`Instead of ceasing its own, admittedly illegal conduct, EPA rests its
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`prudential mootness argument on the Florida Department of Agriculture and
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`Consumer Service’s notice of denial of registration of aldicarb for use on citrus in
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`Florida, arguing there is no risk of aldicarb use “at present.” EPA Reply at 3. As it
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`must, EPA acknowledges that AgLogic has stated to this Court that it intends to
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`appeal the State of Florida’s decision. Id. at 4. Harm is not too attenuated or
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`speculative in this situation. Should AgLogic prevail in its challenge to Florida’s
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`decision, AgLogic could immediately sell its aldicarb products for use on citrus in
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`Florida. These sales are not “hypothetical future sales,” EPA Reply at 8; selling its
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`products is the reason AgLogic sought registration in the first instance and is the
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`reason it is challenging Florida’s decision. If this Court were to dismiss on
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`prudential mootness grounds at this time, EPA’s unlawful decisions would still be
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`in place, and Petitioners would be without any recourse to remedy their harms.
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`Second, EPA now seeks different relief—an abeyance of the case—which is
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`a different pathway to the same result because it recognizes that AgLogic could
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`prevail, putting Petitioners at risk of harm without recourse to prevent it. EPA at 4.
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`If the case is held in abeyance, without Petitioners’ requested stay of EPA’s orders
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`in place, again, once AgLogic prevails, it could immediately sell its aldicarb
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`4
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`USCA Case #21-1079 Document #1898307 Filed: 05/12/2021 Page 6 of 8
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`products. Restarting the case at that point would be too late to prevent use of
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`aldicarb on citrus in Florida. As EPA finally admits in its Reply, once sold, EPA
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`asserts it has the discretion to allow for continued sale and use of cancelled, i.e.,
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`vacated, products. EPA Reply at 8.
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`While EPA could decide not to allow for continued sale and use, it is highly
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`likely that EPA will allow continued use, even if this Court were to vacate EPA’s
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`registrations for two reasons. First, EPA seeks remand without vacatur in this case
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`because it will allow the continued sale and use of aldicarb on citrus in Florida
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`while EPA purportedly addresses its admitted ESA violations without any
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`timeframe to do so, as discussed above.1 Second, EPA allowed continued use of
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`dicamba even though the Ninth Circuit vacated EPA’s registration. See Petrs’
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`Reply to Int’r Resp’s Opp. to Motion for Summ. Vacatur at 5-6, Doc. #1896065.
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`Petitioners’ harm is only hypothetical and highly speculative if EPA ceased
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`its unlawful action. It is not speculative that AgLogic could prevail in its challenge
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`to Florida’s initial denial. Therefore, this case is not prudentially moot and
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`abeyance is inappropriate because it will not prevent harm to Petitioners.
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`Respectfully submitted on May 11, 2021,
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`/s/ Stephanie M. Parent
`STEPHANIE M. PARENT (DC Bar 56357)
`Center for Biological Diversity
`
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`1 A remand without vacatur would also allow EPA to escape judicial review of its
`violations of the Federal Insecticide, Fungicide, and Rodenticide Act.
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`5
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`USCA Case #21-1079 Document #1898307 Filed: 05/12/2021 Page 7 of 8
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`P.O. Box 11374
`Portland, OR 97211
`Tel: (971) 717-6404
`Fax: (503) 283-5528
`sparent@biologicaldiversity.org
`
`JONATHAN EVANS (DC Cir Bar #53186)
`Center for Biological Diversity
`1212 Broadway, Suite 800
`Oakland, CA 94612
`Tel: (510) 844-7100 x318
`Fax: (510) 844-7150
`jevans@biologicaldiversity.org
`
`Attorneys for Petitioners Farmworker
`Association of Florida, Environmental
`Working Group, and Center for Biological
`Diversity
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`
`
`
`
`6
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`USCA Case #21-1079 Document #1898307 Filed: 05/12/2021 Page 8 of 8
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`CERTIFICATE OF COMPLIANCE
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`I certify that the forgoing proposed sur-reply was printed in a proportionally
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`spaced font of 14 points and that, according to the word-count program
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`in Microsoft Word, it contains 1,231words in compliance with D.C. Circuit Rule
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`27(c).
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`DATED: May 11, 2020
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`/s/ Stephanie Parent
`Stephanie Parent
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`7
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