Case: 17-70810, 10/21/2020, ID: 11867148, DktEntry: 244, Page 1 of 23
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`Nos. 17-70810, 17-70817
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`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
`
`
`
`
`NATIONAL FAMILY FARM COALITION, et al.,
`Petitioners,
`
`v.
`
`UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,
`Respondents.
`
`
`
`
`
`
`On Petition for Review of Action of the
`United States Environmental Protection Agency
`
`
`
`
`RESPONDENTS’ OPPOSITION TO
`PETITIONERS’ PETITION FOR REHEARING EN BANC
`
`
`
`Of Counsel:
`
`MICHELE KNORR
`BENJAMIN WAKEFIELD
`Attorneys
`Office of General Counsel
`U.S. Environmental Protection Agency
`
`
`
`
`
`
`JONATHAN D. BRIGHTBILL
`Principal Deputy Assistant Attorney General
`ERIC GRANT
`JEAN E. WILLIAMS
`Deputy Assistant Attorneys General
`J. BRETT GROSKO
`MICHELE WALTER
`Attorneys
`Environment and Natural Resources Division
`U.S. Department of Justice
`Post Office Box 7611
`Washington, D.C. 20044
`(202) 305-0342
`Brett.Grosko@usdoj.gov
`
`

`

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`TABLE OF CONTENTS
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`GLOSSARY ............................................................................................................. iv
`
`INTRODUCTION ..................................................................................................... 1
`
`STATEMENT ........................................................................................................... 1
`
`A.
`
`Statutory and regulatory background .................................................... 1
`
`1.
`
`2.
`
`Federal Insecticide, Fungicide, and Rodenticide
`Act .............................................................................................. 1
`
`Endangered Species Act ............................................................. 2
`
`B.
`
`C.
`
`Factual background ............................................................................... 3
`
`Panel opinion ........................................................................................ 3
`
`ARGUMENT ............................................................................................................ 4
`
`I.
`
`The panel’s decision is consistent with Karuk Tribe and all
`relevant precedent ........................................................................................... 5
`
`II.
`
`The panel’s decision raises no issue of exceptional importance ................... 10
`
`A.
`
`B.
`
`The panel’s decision is unexceptional ................................................ 10
`
`The expert wildlife agencies espoused the continued use
`of EPA’s methodology in their 2014 Interim Report to
`Congress .............................................................................................. 12
`
`CONCLUSION ....................................................................................................... 17
`
`CERTIFICATE OF COMPLIANCE
`
`
`
`
`
`i
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`

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`TABLE OF AUTHORITIES
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`Cases
`
`American Wild Horse Campaign v. Bernhardt,
`963 F.3d 1001 (9th Cir. 2020) ....................................................................... 14
`
`California ex rel. Lockyer v. USDA,
`575 F.3d 999 (9th Cir. 2009) ................................................................. 5-7, 10
`
`Center for Biological Diversity v. U.S. Dep’t of Housing & Urban
`Development, 359 Fed. Appx. 781 (9th Cir. 2009) ....................................... 12
`
`Center for Food Safety v. EPA,
`9th Cir. Nos. 14-73359, 15-71207 ................................................................. 12
`
`Defenders of Wildlife v. Flowers,
`414 F.3d 1066 (9th Cir. 2005) ....................................................................... 11
`
`Drakes Bay Oyster Co. v. Jewell,
`747 F.3d 1073 (9th Cir. 2014) ....................................................................... 14
`
`Friends of Santa Clara River v. U.S. Army Corps of Engineers,
`887 F.3d 906 (9th Cir. 2018) .................................................................. passim
`
`Ground Zero Center for Non-Violent Action v. U.S. Dep’t of Navy,
`383 F.3d 1082 (9th Cir. 2004) ................................................................... 6, 11
`
`Karuk Tribe of California v. U.S. Forest Service,
`681 F.3d 1006 (9th Cir. 2012) ................................................................ passim
`
`Kohler v. Inter-Tel Technologies,
`244 F.3d at 1182 (9th Cir. 2001) ............................................................... 9, 11
`
`Southwest Center for Biological Diversity v. U.S. Forest Service,
`100 F.3d 1443 (9th Cir. 1996) ................................................................... 6, 11
`
`Western Watersheds Project v. Kraayenbrink,
`632 F.3d 472 (9th Cir. 2011) ....................................................................... 5, 9
`
`
`
`ii
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`

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`Statutes, Regulations, and Court Rules
`
`Federal Insecticide, Fungicide, and Rodenticide Act,
`7 U.S.C. § 136a(a) ........................................................................................... 1
`
`
`
`
`
`7 U.S.C. § 136a(c)(5) ...................................................................................... 1
`
`7 U.S.C. § 136a(c)(7)(B) ................................................................................. 3
`
`Endangered Species Act,
`16 U.S.C. § 1531 ............................................................................................ 2
`
`
`
`
`
`16 U.S.C. § 1533 ............................................................................................. 2
`
`16 U.S.C. § 1536(a)(2) ................................................................................ 2, 4
`
`Agricultural Improvements Act of 2018, Pub. L. No. 115-334,
`§ 10115, 132 Stat. 4490, 4915-16 ................................................................. 17
`
`50 C.F.R. § 402.12 ..................................................................................................... 2
`
`50 C.F.R. § 402.14(a). ........................................................................................... 2, 6
`
`FWS, Interagency Cooperation, 51 Fed. Reg. 19,926 (June 3, 1986) ...................... 7
`
`Fed. R. App. P. 35 ..................................................................................................... 4
`
`Fed. R. App. P. 40(a)(2) ............................................................................................ 5
`
`Other Authorities
`
`National Research Council of the National Academies,
`Assessing Risks to Endangered and Threatened Species from
`Pesticides (2013), https://www.nationalacademies.org/our-
`work/ecological-risk-assessment-under-fifra-and-esa) ................................. 13
`
`EPA, FWS, NMFS, and USDA, Interim Report to Congress
`on Endangered Species Act Implementation in Pesticide
`Evaluation Programs (Nov. 2014), https://epa.gov/sites/
`production/files/2015-07/documents/esareporttocongress.pdf ............... 15-16
`
`iii
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`

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`GLOSSARY
`
`Environmental Protection Agency
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`Endangered Species Act
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`Federal Insecticide, Fungicide, and Rodenticide Act
`
`Fish and Wildlife Service
`
`National Academy of Sciences
`
`National Marine Fisheries Service
`
`U.S. Forest Service
`
`EPA
`
`ESA
`
`FIFRA
`
`FWS
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`NAS
`
`NMFS
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`USFS
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`
`
`iv
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`

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`INTRODUCTION
`
`
`
`Petitioners National Family Farm Coalition, et al. seek rehearing en banc of
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`one aspect of the panel’s decision largely upholding the registration of the pesticide
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`“Enlist Duo” pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act
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`(FIFRA). Specifically, Petitioners take issue with the panel’s ruling that the U.S.
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`Environmental Protection Agency (EPA) “applie[d] the correct legal standard” in
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`correctly concluding that the registration of Enlist Duo would have “no effect” on
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`certain species listed under the Endangered Species Act (ESA). Panel Opinion at
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`48. Rehearing is unwarranted because the panel’s decision is correct, it raises no
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`issue of exceptional importance, and it conflicts with no decisions of this Court.
`
`STATEMENT
`
`A.
`
`Statutory and regulatory background
`
`1.
`
`Federal Insecticide, Fungicide, and Rodenticide Act
`
`
`
`FIFRA establishes a federal registration scheme that generally precludes the
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`distribution or sale of any pesticide in the United States unless it is “registered” by
`
`EPA. 7 U.S.C. § 136a(a). EPA “shall register a pesticide if [EPA] determines that
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`. . . it will perform its intended function without unreasonable adverse effects on
`
`the environment; and . . . when used in accordance with widespread and commonly
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`recognized practice it will not generally cause unreasonable adverse effects on the
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`environment.” Id. § 136a(c)(5).
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`1
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`

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`2.
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`Endangered Species Act
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`
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`In an effort to conserve animal and plant species, the ESA generally provides
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`for the listing of “threatened” and “endangered” species—and designation of such
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`species’ “critical habitat”—by the U.S. Fish and Wildlife Service (FWS) and the
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`National Marine Fisheries Service (NMFS). See generally 16 U.S.C. §§ 1531,
`
`1533. Section 7(a)(2) of the ESA requires federal agencies like EPA to “insure
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`that any action authorized, funded, or carried out by such agency . . . is not likely to
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`jeopardize the continued existence of any endangered species or threatened species
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`or result in the destruction or adverse modification” of designated critical habitat.
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`Id. § 1536(a)(2). To this end, Section 7 and its implementing regulations delineate
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`a process for determining the biological impacts of a proposed action known as
`
`“Section 7 consultation.” Id. § 1536; 50 C.F.R. Part 402. Through this process, an
`
`agency proposing an action (the action agency) must determine whether its action
`
`“may affect” a listed species or the designated critical habitat for a listed species.
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`50 C.F.R. § 402.14(a). If the action agency determines that its proposed action
`
`will have “no effect” on a listed species or its designated critical habitat, Section 7
`
`consultation is not triggered. Id. §§ 402.12, 402.14(a).
`
`
`
`Consequently, the ESA requires EPA—in determining whether to register
`
`a pesticide pursuant to FIFRA—to consider the effect, if any, of that registration
`
`on ESA-listed species and their designated critical habitat. If EPA concludes that
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`2
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`

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`such registration would have “no effect,” then its ESA-related obligations are
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`satisfied. But if EPA concludes that such registration “may effect” listed species
`
`and critical habitat, it must engage in Section 7 consultation with the Services. See
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`generally Panel Opinion at 45-46.
`
`B.
`
`Factual background
`
`
`
`In 2014, EPA issued an order registering Enlist Duo under Section 3(c)(5) of
`
`FIFRA, 7 U.S.C. § 136a(c)(5), for use on genetically engineered corn and soybean
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`crops in six states. In 2015, EPA amended the 2014 registration to register Enlist
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`Duo in additional states (2015 Decision). In 2017, EPA amended the Enlist Duo
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`registration yet again under Section 3(c)(7)(B) of FIFRA, 7 U.S.C. § 136a(c)(7)(B)
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`(2017 Decision). See generally Panel Opinion at 10-13. In all of the decisions
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`relevant here, EPA concluded that its actions would have “no effect” on listed
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`species or their critical habitat.
`
`C.
`
`Panel opinion
`
`
`
`In a petition for review directly in this Court, Petitioners challenged EPA’s
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`2015 and 2017 Decisions under FIFRA and the ESA. On July 22, 2020, the panel
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`ruled that EPA satisfied the requirements of FIFRA, except as to one narrow issue
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`concerning EPA’s analysis of potential effects to monarch butterflies. The panel
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`rejected all of Petitioners’ ESA arguments. The Court remanded the Enlist Duo
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`registration “without vacatur.” Id. at 59-60. The dissent would have ruled that
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`3
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`

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`EPA violated the ESA “by failing to use the best scientific data available to assess
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`whether Enlist Duo will adversely affect threatened or endangered species.” Id. at
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`64 (referring to 16 U.S.C. § 1536(a)(2)).
`
`
`
`On September 15, 2020, Petitioners petitioned for rehearing and rehearing
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`en banc. EPA respectfully file this opposition at the Court’s direction.
`
`ARGUMENT
`
`
`
`The petition does not satisfy Federal Rule of Appellate Procedure 35’s
`
`standard for en banc review or Rule 40’s standard for panel rehearing.
`
`
`
`First, Petitioners seek rehearing en banc on the ground that the panel’s
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`decision conflicts with Karuk Tribe of California v. U.S. Forest Service, 681 F.3d
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`1006 (9th Cir. 2012) (en banc) (Karuk Tribe) and other decisions of this Court.
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`But as elaborated below, Petitioners misread Karuk Tribe and the other decisions
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`on which they rely. None of those decisions supports Petitioners’ outlandish and
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`oft-rejected notion that any overlap between an agency action’s footprint and a
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`species’ habitat must result in a “may affect” determination.
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`
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`Second, the panel’s decision presents no issue of exceptional importance.
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`Rather, it turned on a common, record-bound assessment of an agency’s choice of
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`scientific methodology in the context of making a “no effect” determination under
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`the ESA. Petitioners’ mere disagreement with the panel’s assessment of EPA’s
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`methodology on this particular administrative record does not make the issue an
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`4
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`

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`exceptional one. And FWS—which Petitioners repeatedly called the “expert”
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`wildlife agency—has espoused the use of EPA’s methodology for Enlist Duo.
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`
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`Third, Petitioners have identified no “point of law or fact that . . . the court
`
`has overlooked or misapprehended.” Fed. R. App. P. 40(a)(2).
`
`
`
`I.
`
`
`
`Therefore, the petition for rehearing and rehearing en banc should be denied.
`
`The panel’s decision is consistent with Karuk Tribe and all
`relevant precedent.
`
`Petitioners’ principal contention is that the panel’s decision somehow plows
`
`new ground, and particularly in a manner that is contrary to Karuk Tribe. Petition
`
`at 1, 14-16. But this contention has no basis in Karuk Tribe, in other decisions of
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`this Court concerning “no effect” findings under the ESA, or in the ESA itself. To
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`the contrary, as explained below the panel’s decision is both consistent with Karuk
`
`Tribe and solidly situated in precedent concerning “no effect” determinations. See
`
`Friends of Santa Clara River v. U.S. Army Corps of Engineers, 887 F.3d 906 (9th
`
`Cir. 2018) (Friends); California ex rel. Lockyer v. USDA, 575 F.3d 999 (9th Cir.
`
`2009) (Lockyer); Western Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th
`
`Cir. 2011) (Kraayenbrink).1
`
`
`
`Karuk Tribe opined that “actions that have any chance of affecting listed
`
`species” require consultation. 681 F.3d at 1070. Petitioners contend that, in so
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`1 The dissent did not question the majority’s treatment of Karuk Tribe. Rather, the
`dissent disagreed with the majority’s holding that EPA’s methodology constituted
`the best available science. Panel Opinion at 64-69.
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`5
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`

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`stating, Karuk Tribe means that EPA was required to consult here because there
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`was a risk of a hypothetical effect. Petition at 4, 10, 14-15, 20. But Karuk Tribe
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`did not create such an illogical standard; nor would such a reading be consistent
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`with the ESA’s implementing regulations. Pertinent regulations and this Court
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`both recognize that ESA consultation is triggered only when an action agency
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`determines that its action “may affect” a listed species. 50 C.F.R. § 402.14(a);
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`Lockyer, 575 F.2d at 1006 (citing Southwest Center for Biological Diversity v.
`
`U.S. Forest Service, 100 F.3d 1443, 1447-48 (9th Cir. 1996)). And while the
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`“may affect” standard is intended to be a low threshold, it is still a threshold
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`distinct from “no effect.” Thus, the regulations and case law speak in terms of
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`“may affect” and “possible effect”—not “possible exposure” or “possible risk.”
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`Id.; see also Friends, 887 F.3d at 925-26 (affirming “no effect” determination
`
`despite potential exposure of species); Ground Zero Center for Non-Violent Action
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`v. U.S. Dep’t of Navy, 383 F.3d 1082, 1092 (9th Cir. 2004) (affirming “no effect”
`
`determination despite remote risk of an affect). In contrast, Petitioners’ theory—
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`that any possible, conceivable, or hypothetical exposure or risk of an effect triggers
`
`consultation—would essentially collapse the distinction between “no effect” and
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`“may affect” determinations. This would negate the meaning of § 402.14(a).
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`
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`Petitioners’ misplaced reliance on snippets of language from Karuk Tribe
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`does not detract from this conclusion. The action agency in that case (the United
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`6
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`

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`States Forest Service, or USFS), did not contest that the activity at issue (suction
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`dredge mining conducted by private parties) would have measurable effects on
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`ESA-listed fish species. 681 F.3d at 1013-16. Rather, USFS contended that it was
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`not required to consult with FWS, notwithstanding those effects, because it had not
`
`taken affirmative agency action and because it did not retain sufficient discretionary
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`involvement and control over the action at issue to trigger ESA consultation. Id. at
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`1021-26. Karuk Tribe rejected USFS’ argument, but nothing in the Court’s holding
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`in this regard hinged on an assessment of USFS’ scientific judgment as to whether
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`the “may affect” threshold had been met; the agency had not conducted one. The
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`intervenors in Karuk Tribe did attempt to argue that the “may affect” threshold had
`
`not been met. But the Court rejected this plea because the record there, including
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`documents from USFS, indicated that suction dredge mining may adversely affect
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`listed species. Id. at 1027-29.
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`
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`In contrast, here EPA did conduct the requisite ESA effects analysis, and as
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`the panel found, the methodology employed by EPA “applie[d] the correct legal
`
`standard.” Panel Opinion at 48 (citing Karuk Tribe; Lockyer; FWS, Interagency
`
`Cooperation, 51 Fed. Reg. 19,926, 19,949 (June 3, 1986)); see also id. at 47-48
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`(describing EPA’s methodology, which applied “conservative assumptions” and
`
`include both a general (“screening”) assessment and a “refined, species-specific
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`assessment”). Focusing on discernible or observable effects, “EPA’s methodology
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`7
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`

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`found that there would be no such effects.” Id. at 48. Although there could be
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`exposure, EPA properly considered environmental effects to occur when exposure
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`to the chemical “2,4-D” reached levels where the available exposure and toxicity
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`data indicated that effects on organisms can be reasonably expected to occur. Id.2
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`
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`Thus, the panel correctly found that EPA applied the “any possible effect”
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`standard stated in Karuk Tribe. The difference is that as opposed to Karuk Tribe,
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`where the Court found that a different agency record did not support a “no effect”
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`determination, the panel here concluded that the record before it supported the
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`EPA’s conclusion that its action would not have “any possible effect.” That the
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`panel here applied the Karuk Tribe test but reached a different conclusion on a
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`different record does not make the panel’s decision inconsistent with Karuk Tribe.
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`Moreover, Petitioners do not even attempt to grapple with Friends, 887 F.3d 906,
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`915, 925-26, cited in Panel Opinion at 48. Friends post-dates Karuk Tribe and the
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`below-discussed cases that Petitioners cite by six to thirty years.
`
`
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`The other five cases cited by Petitioners, see Petition at 1, are either not on
`
`point or are consistent with the panel’s decision. As an initial matter, Petitioners
`
`cite Center for Biological Diversity v. BLM, 698 F.3d 1101 (9th Cir. 2012), and
`
`2 Petitioners argue that EPA should have used the “No Observed Effect Level”
`(NOEL) in lieu of the “No Observed Adverse Effect Level” (NOAEL) for ESA-
`protected mammals. Petition at 12. This again is just a disagreement with the
`agency’s choice of methodology, and the panel’s assessment that that technical
`judgment was reasonable. The distinction between NOEL and NOAEL is not
`grounds for en banc review.
`
`8
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`Washington Toxics Coalition v. EPA, 413 F.3d 1024 (9th Cir. 2005), but make no
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`argument that the panel’s decision is inconsistent with them. Id. The Court should
`
`therefore consider any argument with respect to those cases as abandoned. Kohler
`
`v. Inter-Tel Technologies, 244 F.3d 1167, 1182 (9th Cir. 2001) (“Issues raised in a
`
`brief which are not supported by argument are deemed abandoned.”). In any event,
`
`both cases support EPA and the panel’s decision. Center for Biological Diversity
`
`merely held that the petitioners bore the burden of demonstrating that an action
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`“may affect” a listed species and that such an effect must be “discernible.” 698
`
`F.3d at 1122. And Washington Toxics does not speak to the threshold between “no
`
`effect” and “may affect.” Instead, the case dealt with the question whether EPA
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`must comply with both FIFRA and the ESA, which is simply not at issue here.
`
`
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`The other cases, which Petitioners mention in passing only, likewise do
`
`not help them. Kraayenbrink concerned a “no effect” finding to which FWS had
`
`objected. 632 F.3d at 474. And record evidence contradicted the action agency’s
`
`“no effect” determination. Id. There is no such contrary evidence here, and FWS
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`has espoused EPA’s methodology. See infra pp. 15-16. Lockyer, which concerned
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`an argument that a new “roadless area” rule for all national forests would have “no
`
`effect” on listed species, 575 F.3d at 1005, 1018-19, is not on point either. Unlike
`
`here, the action agency conceded that the new rule would in fact reduce protections
`
`for listed species. Finally, Connor v. Burford, 828 F.2d 1441, 1454 (9th Cir. 1988),
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`9
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`merely stated that in complying with Section 7 of the ESA, agencies must use the
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`“best scientific and commercial data available.” Here, EPA’s methodology used
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`the best scientific data available in 2014, 2015, and 2017. Panel Opinion at 50-54.
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`
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`In sum, the Panel’s decision is consistent with all relevant precedent.
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`II. The panel’s decision raises no issue of exceptional importance.
`
`
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`Petitioners’ “exceptional importance” argument, divided into two subparts,
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`lacks merit.
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`A. The panel’s decision is unexceptional.
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`
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`Petitioners first contend that the issue presented by them is of exceptional
`
`importance based on the notion that no court “has ever held an agency approval
`
`of this type and magnitude could have absolutely no effect on any of hundreds of
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`species.” Petition at 1.3 But Petitioners have pointed to no case in which a court
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`has been presented with a challenge to a “no effect” determination under similar
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`circumstances. Moreover, Petitioners are wrong.
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`
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`As a threshold matter, Petitioners abandon this rationale after the first page
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`of their Petition. The Court should accordingly consider it abandoned. Kohler,
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`244 F.3d at 1182. But in any event, the panel’s decision simply applied the
`
`appropriate standard of review to an agency’s technical judgments and choice of
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`3 As a factual matter, Petitioners mischaracterize EPA’s determination. EPA did
`not find that its approval would have “absolutely no effect.” Petition at 1. EPA in
`fact determined that use of Enlist Duo in five instances “may affect” listed species,
`and consulted with FWS as to those species. ECF 83 at 25 n.10 (July 11, 2018).
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`10
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`methodology. This is a standard type of case in which this Court reviews agency
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`action under a deferential standard of review. That Petitioners believe the agency
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`action involved is of a large magnitude is of no moment.
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`
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`Indeed, this Court has routinely affirmed ESA “no effect” determinations
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`both large and small, where the record supported the agency’s finding. Friends,
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`887 F.3d at 914 (upholding Corps of Engineers’ “no effect” determination related to
`
`a proposed development encompassing approximately 12,000 acres and 5.5 linear
`
`miles of the Santa Clara River and its tributaries); Defenders of Wildlife v. Flowers,
`
`414 F.3d 1066, 1069-70 (9th Cir. 2005) (upholding Corps of Engineers’ “no effect”
`
`determination related to a proposed 598-acre development); Southwest Center for
`
`Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1449 (9th Cir. 1996)
`
`(upholding Forest Service’s “no effect” determination related to 69-acre timber
`
`harvest); Ground Zero Center, 383 F.3d at 1092 (affirming U.S. Navy’s “no effect”
`
`determination related to possible accidental explosion of a Trident nuclear missile);
`
`Center for Biological Diversity v. U.S. Dep’t of Housing & Urban Development,
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`359 Fed. Appx. 781 (9th Cir. 2009) (upholding “no effect” determination for loan
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`guarantee programs of HUD, Small Business Administration, and Department of
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`Veterans Affairs). The decision affirming EPA’s “no effect” determinations here
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`is not unusual.
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`Further, Petitioners’ own briefs undermine their contention that registration
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`of Enlist Duo is of exceptional importance. They contend that such registration
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`will affect “hundreds of species.” Petition at 19. But while 2,4-D has been
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`registered in the United States since the late 1940s, and while Enlist Duo has been
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`registered for six years, Petitioners have never offered any evidence that 2,4-D
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`has ever had any discernible or observable effect on any ESA-listed species despite
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`participating in multiple proceedings where the issue is present. See Center for
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`Food Safety v. EPA, 9th Cir. Nos. 14-73359, 15-71207, ECF 32 (Feb. 6, 2015)
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`(motion to stay Enlist Duo registration); ECF 36 (Feb. 17, 2015) (reply in support of
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`same); ECF 79 (Oct. 23, 2015) (opening brief); ECF 94 (Aug. 15, 2015) (order
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`denying Petitioners’ motion to stay registration).
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`For these reasons, the panel’s decision is not of exceptional importance.
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`B.
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`The expert wildlife agencies espoused the continued use of
`EPA’s methodology in their 2014 Interim Report to Congress.
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`Petitioners’ next argument is that the decision is of exceptional importance
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`because no court has previously “permitted an agency in its ESA decision to rely
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`on modeling and data that the National Academy of Sciences [NAS] deemed ‘not
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`scientifically defensible’ ” in a 2013 Report. Petition at 1 (referring to Assessing
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`Risks to Endangered and Threatened Species from Pesticides, SBER002-195
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`(2013), https://www.nationalacademies.org/our-work/ecological-risk-assessment-
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`under-fifra-and-esa); accord id. at 6-9, 16-17. That argument mischaracterizes the
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`Case: 17-70810, 10/21/2020, ID: 11867148, DktEntry: 244, Page 18 of 23
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`2013 Report and misapprehends the ESA’s mandate to use the best scientifically
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`available information. On its face, an agency-specific choice to deviate from a
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`particular NAS report clearly is not an issue of importance, much less exceptional
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`importance, outside of possibly this specific dispute. In Petitioners’ own words,
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`moreover, FWS and NMFS are the “expert wildlife agencies”—not the NAS.
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`Petitioners’ Opening Brief passim (ECF 64-1, Apr. 11, 2018). FWS and NMFS
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`have endorsed EPA’s methodology for Enlist Duo. Thus, Petitioners’ attempt to
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`manufacture an issue here falls short.
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`
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`As a threshold matter, the decision as to how to assess harm to species,
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`harmonize FIFRA and the ESA, and conduct pesticides consultations is for EPA,
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`FWS, and NMFS—not the NAS—to decide. Neither Congress nor any of these
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`three agencies has delegated the agencies’ responsibility to interpret or implement
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`FIFRA or the ESA to the NAS. When Congress wants agencies to consult with,
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`or be bound by, NAS reports, it so states. But Congress has not done so here. See
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`infra pp. 16-17 (discussing Agricultural Improvements Act of 2018); cf. American
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`Wild Horse Campaign v. Bernhardt, 963 F.3d 1001, 1013 (9th Cir. 2020) (observing
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`that, in contrast to ESA, the Wild Free Roaming Horses and Burros Act requires
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`BLM to “consult” NAS when making determinations about how to achieve
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`appropriate management levels for wild horse herds); Drakes Bay Oyster Co. v.
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`13
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`Case: 17-70810, 10/21/2020, ID: 11867148, DktEntry: 244, Page 19 of 23
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`Jewell, 747 F.3d 1073, n.7 (9th Cir. 2014). Petitioners’ reliance on the 2013 NAS
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`Report is therefore misplaced.
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`Moreover, Petitioners tell only a small snippet of the narrative, omitting the
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`salient fact that FWS, NMFS, and EPA have been appropriately considering the
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`2013 Report and incorporating it, with public input, into their deliberations in light
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`of their decades of collective pesticide consultation experience. In 2011, EPA (on
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`behalf of itself, FWS, NMFS, and the U.S. Department of Agriculture) requested
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`that a committee of the NAS convene to examine scientific and technical issues
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`associated with determining the risk of pesticide registration and use to threatened
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`and endangered species. F.E.R 022.4 The NAS provided its recommendations in
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`2013. F.E.R. 020-194. It assessed FWS’, NMFS’ and EPA’s risk assessment
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`methodologies, F.E.R. 34, 169-171, and provided a framework—not an alternative
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`methodology or data—for FWS, NMFS, and EPA to follow, F.E.R 169-71. The
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`NAS 2013 Report noted that “to ensure that the best data available are captured,”
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`EPA would need to conduct “a broad data search . . . at the beginning” of each
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`registration process. F.E.R. 063.
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`
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`It is true that the NAS suggested that EPA’s methodology was imprecise,
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`and that it may underestimate risk to species. F.E.R. 171. But it also found that
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`the methodology may overestimate risk, and it endorsed the use of “levels of
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`4 “F.E.R.” refers to Petitioners’ Supplemental Brief Excerpts of Record (ECF 171,
`filed July 29, 2019).
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`Case: 17-70810, 10/21/2020, ID: 11867148, DktEntry: 244, Page 20 of 23
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`concern” in EPA’s methodology. F.E.R. 120-21. The NAS disclaimed any
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`intention to opine on “acceptable levels of risk” or on “how to manage risk.”
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`F.E.R. 63. It went on to suggest that EPA, FWS, and NMFS begin a phased
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`transition toward an improved, more probabilistic approach. Id.
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`
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`Although Petitioners elide the backstory, the panel correctly observed that
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`EPA, FWS and NMFS have employed this “iterative approach” since 2013. Panel
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`Opinion at 13, 57. As part of this process, the agencies submitted an Interim Report
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`to Congress in November 2014, stating that “EPA intends to complete Overview
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`Document-compliant endangered species assessments for new herbicide-tolerant
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`crop uses,” and making very clear that “the Overview Document is the basis for
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`all ecological assessments for all chemicals other than [five not including 2,4-D
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`or Enlist Duo].” EPA, FWS, NMFS, and USDA, Interim Report to Congress on
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`Endangered Species Act Implementation in Pesticide Evaluation Programs 22
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`(Nov. 2014), https://epa.gov/sites/production/files/2015-07/documents/esareport
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`tocongress.pdf. The Interim Report went on to observe that EPA had recently
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`registered Enlist Duo, and also that EPA “scientists used highly conservative and
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`protective assumptions to evaluate ecological risks for the new uses of 2,4-D.”
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`Id. at 20. It stated that Enlist Duo use “will be protective of non-target species,
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`including endangered species.” Id. Based on these facts and on other record
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`evidence, the panel rightly held that EPA’s “no effect” determinations were not
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`15
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`Case: 17-70810, 10/21/2020, ID: 11867148, DktEntry: 244, Page 21 of 23
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`arbitrary or capricious. Contrary to Petitioners’ argument, t