`
`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`____________
`
`September Term, 2020
`EPA-Reg. No. 87895-2
`Filed On: June 7, 2021
`
`No. 21-1079
`
`Farmworker Association of Florida, et al.,
`
`Petitioners
`
`v.
`
`Environmental Protection Agency,
`
`Respondent
`
`------------------------------
`
`AgLogic Chemical, LLC,
`Intervenor
`
`BEFORE: Millett, Wilkins, and Katsas, Circuit Judges
`
`O R D E R
`
`Upon consideration of the motion for summary vacatur or to stay pending expedited
`review, the responses thereto, and the replies; the motion for remand without vacatur, the
`response thereto, the reply, the motion for leave to file a surreply, and the lodged surreply;
`the Rule 28(j) letters, the responses thereto, the notice dated May 17, 2021, and the
`response thereto; the motion to extend time, the response thereto, and the reply; and the
`motions to participate as amicus curiae, it is
`
`ORDERED that the motion for leave to file a surreply be granted. The Clerk is
`directed to file the lodged surreply. It is
`
`FURTHER ORDERED that the motion for summary vacatur be granted and the
`motion for remand without vacatur be denied. The Environmental Protection Agency
`acknowledges it did not make an Endangered Species Act (ESA) effects determination
`prior to approving aldicarb for use on oranges and grapefruit in Florida and has, therefore,
`violated section 7(a)(2) of the ESA. 16 U.S.C. § 1536(a)(2); see Center for Biological
`Diversity v. EPA, 861 F.3d 174, 188 (D.C. Cir. 2017). EPA has been explicit that it will not
`provide any reconsideration on remand before 2024 at the earliest – long after the
`registration at issue has expired. So EPA has admitted that it will not provide the timely
`reconsideration that is the central rationale for remand without vacatur. Cf. Limnia, Inc. v.
`
`
`
`USCA Case #21-1079 Document #1901578 Filed: 06/07/2021 Page 2 of 2
`
`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`____________
`September Term, 2020
`
`No. 21-1079
`
`Dept. of Energy, 857 F.3d 379, 386 (D.C. Cir. 2017) (“In general, a voluntary remand
`request made in response to a party’s APA challenge may be granted only when the agency
`intends to take further action with respect to the original agency decision on review.”).
`Vacatur is further warranted in light of the seriousness of the admitted error and the error’s
`direct impact on the merits of the EPA’s registration decision given the agency’s finding as
`to the acute toxicity of aldicarb. See Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n,
`988 F.2d 146, 150-51 (D.C. Cir. 1993). In addition, vacatur would not result in material
`disruption because aldicarb has not been authorized for use on oranges and grapefruit in
`Florida for nearly a decade, and because at present the Florida Department of Agriculture
`and Consumer Services has denied intervenor’s application for state registration for the use
`of aldicarb on oranges and grapefruit. See FDACS Notice of Denial (Apr. 21, 2021),
`petition for administrative hearing filed May 11, 2021.
`
`FURTHER ORDERED that the motion to extend time to file the certified index be
`dismissed as moot.
`
`FURTHER ORDERED that the motions for leave to participate as amicus curiae be
`denied. Neither the Federal Rules of Appellate Procedure nor the Circuit Rules provide for
`the participation of amici at the motions stage of a case. See Fed. R. App. P. 29.
`
`Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is
`directed to withhold issuance of the mandate herein until seven days after resolution of any
`timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b);
`D.C. Cir. Rule 41.
`
`Per Curiam
`
`FOR THE COURT:
`Mark J. Langer, Clerk
`
`BY:
`
`/s/
`Manuel J. Castro
`Deputy Clerk
`
`Page 2
`
`
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