Case: 17-70810, 10/21/2020, ID: 11867893, DktEntry: 245, Page 1 of 25
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`Nos. 17-70810, 17-70817
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`United States Court of Appeals
`for the Ninth Circuit
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`
`
`
`
`NATIONAL FAMILY FARM COALITION, ET AL.,
`Petitioners,
`
`v.
`UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ET AL.,
`Respondents,
`DOW AGROSCIENCES LLC,
`Intervenor-Respondent,
`
`
`
`
`
`NATURAL RESOURCES DEFENSE COUNCIL,
`Petitioner,
`
`v.
`ANDREW R. WHEELER, ET AL.,
`Respondents,
`DOW AGROSCIENCES LLC,
`Intervenor-Respondent.
`
`On Petition for Review of an Order of the Environmental Protection Agency
`
`
`
`INTERVENOR-RESPONDENT’S RESPONSE TO PETITION
`FOR REHEARING EN BANC
`
`
`
`David B. Weinberg
`WILEY REIN LLP
`1776 K Street, N.W.
`Washington, DC 20006
`(202) 719-7000
`
`Donald C. McLean
`ARENT FOX LLP
`1717 K Street, N.W.
`Washington, DC 20006-5344
`(202) 857-6000
`
`Kathleen M. Sullivan
`QUINN EMANUEL URQUHART &
` SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor
`New York, NY 10010
`(212) 849-7000
`
`
`
`
`Counsel for Intervenor-Respondent
`
`October 21, 2020
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`

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`Case: 17-70810, 10/21/2020, ID: 11867893, DktEntry: 245, Page 2 of 25
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`
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ..................................................................................................... 1
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`STATEMENT ............................................................................................................ 3
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`A.
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`Factual Background ............................................................................... 3
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`B.
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`C.
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`Statutory Framework ............................................................................. 4
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`The Panel Decision ................................................................................ 5
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`ARGUMENT ............................................................................................................. 7
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`I.
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`THE PANEL DECISION CORRECTLY APPLIED SETTLED
`CIRCUIT PRECEDENT IN UPHOLDING EPA’S “NO EFFECT”
`DETERMINATION UNDER THE ESA ........................................................ 7
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`A.
`
`B.
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`The Panel Correctly Concluded That EPA Complied With The
`“Best-Scientific-Data-Available” Requirement .................................... 7
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`The Panel Correctly Concluded That EPA Properly Interpreted
`The “May Effect” Trigger ................................................................... 12
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`II.
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`OVERTURNING THE PANEL DECISION IN A WAY THAT
`REQUIRES VACATUR WOULD HAVE ADVERSE PRACTICAL
`CONSEQUENCES ........................................................................................ 16
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`CONCLUSION ........................................................................................................ 19
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`CERTIFICATE OF COMPLIANCE ....................................................................... 20
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
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`Cal. ex. rel. Lockyer v. Dep’t of Agric.,
`575 F.3d 999 (9th Cir. 2009) ................................................................................14
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`California Cmtys. Against Toxics v. EPA,
`688 F.3d 989 (9th Cir. 2012) ......................................................................... 18, 19
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`Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv.,
`807 F.3d 1031 (9th Cir. 2015) ............................................................................6, 8
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`Defenders of Wildlife v. Flowers,
`414 F.3d 1066 (9th Cir. 2005) ..............................................................................13
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`Friends of Santa Clara River v. U.S. Army Corps of Engineers,
`887 F.3d 906 (9th Cir. 2018) ................................................................. 4, 5, 10, 13
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`Karuk Tribe of California v. U.S. Forest Service,
`681 F.3d 1006 (9th Cir. 2012) (en banc) ............................................. 2, 12, 13, 14
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`National Family Farm Coalition v. U.S. EPA,
`___ F.3d ___, 2020 WL 2901136 (9th Cir. June 3, 2020) ...................................16
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`San Luis & Delta-Mendota Water Auth. v. Locke,
`776 F.3d 971 (9th Cir. 2014) ......................................................................... 5, 7, 8
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`Western Watersheds Project v. Kraayenbrink,
`632 F.3d 472 (9th Cir. 2011) ................................................................................14
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`
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`Statutes & Regulations
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`16 U.S.C. § 1536 (a) (2) .................................................................................. 4, 5, 10
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`50 C.F.R. § 402.14 (a) .........................................................................................4, 12
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`ii
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`Other Authorities
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`Agriculture Improvements Act of 2018, Pub. L. No. 115-334,
`115th Cong., 132 Stat. 4490 .......................................................................... 11, 12
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`EPA, NMFS, FWS & USDA, INTERIM REPORT TO CONGRESS ON
`ENDANGERED SPECIES ACT IMPLEMENTATION IN PESTICIDE EVALUATION
`PROGRAMS (Nov. 2014) ...................................................................................... 11
`
`EPA, FWS, NMFS & USDA, INTERIM APPROACHES FOR NATIONAL-LEVEL
`PESTICIDE ENDANGERED SPECIES ACT ASSESSMENTS BASED ON THE
`RECOMMENDATIONS OF THE NATIONAL ACADEMY OF SCIENCES APRIL 2013
`REPORT 1 (Nov. 2013) ........................................................................................ 15
`
`H.R. REP. NO. 96-697 (1979) ..................................................................................... 4
`
`National Research Council of the National Academies, Assessing Risks to
`Endangered and Threatened Species from Pesticides (2013) ................................ 6
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`
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`iii
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`INTRODUCTION
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`Petitioner National Family Farm Coalition (“NFFC”) seeks en banc review of
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`only a fraction of the panel’s meticulous and comprehensive 60-page opinion in this
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`case (Dkt. 233 Addendum, at 1-60 (“Op.”)), which rejected nearly every challenge
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`brought by petitioners NFFC and Natural Resources Defense Council to the
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`Environmental Protection Agency’s (“EPA”) final registration of Intervenor-
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`Respondent Dow Agrosciences LLC’s (“Dow”) Enlist Duo™ herbicide.
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`Abandoning any challenge under the Federal Insecticide, Fungicide, and
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`Rodenticide Act (“FIFRA”), Petitioner challenges only narrow portions of the panel
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`decision upholding EPA’s determination under the Endangered Species Act
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`(“ESA”) that the Enlist Duo registration would have “no effect” on endangered
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`species or their critical habitats triggering consultation obligations under the ESA.
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`The panel decision upholding EPA’s “no effect” determination was correct
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`and rehearing en banc is unwarranted. EPA properly made “no effect”
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`determinations for listed species within the action area, which foreclosed any
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`obligation under the ESA to consult with the Fish & Wildlife Service (“FWS”) or
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`National Marine Fisheries Service (“NMFS”). In so doing, EPA relied on the best
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`scientific data available, using a methodology that the wildlife services agreed was
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`appropriate and indeed “highly conservative.” See Op. 52-53. NFFC’s suggestion
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`that EPA applied the wrong legal standard under the ESA is based principally upon
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`1
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`incorrect assertions about the force of a 2013 advisory report from the National
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`Academy of Sciences (“NAS”) and an erroneous reading of this Court’s decision in
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`Karuk Tribe of California v. U.S. Forest Service, 681 F.3d 1006 (9th Cir. 2012) (en
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`banc). NFFC also lacks any basis in this Court’s precedents to assert that any
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`“exposure” to pesticide application automatically satisfies the “may affect” trigger
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`to the ESA’s consultation requirement. NFFC meanwhile ignores this Court’s
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`precedent holding that EPA has broad discretion to make “no effect” determinations
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`and to select its scientific methodology in arriving at those determinations. NFFC
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`thus fails to demonstrate any intra-circuit conflict warranting en banc review.
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`NFFC also errs in suggesting that the panel decision warrants en banc review
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`on grounds of importance. NFFC’s suggestion (Pet. 16) that the decision “created a
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`dangerous new loophole” is unsupported hyperbole. In contrast, overturning the
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`panel decision would have enormous adverse policy consequences for the Nation’s
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`farmers. The Enlist Duo registration orders issued by EPA under the Obama
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`administration between 2014 and 2017 have responsibly provided an indispensable
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`tool for American farmers while demonstrating significant environmental benefits.
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`Vacating the Enlist Duo registration would disrupt both our agricultural economy
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`and environmental progress in the agricultural application of herbicides. Thus, any
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`consideration of the importance of this case weighs against— and not in favor of—
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`rehearing en banc.
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`2
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`STATEMENT
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`A.
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`Factual Background
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`Enlist Duo is an agricultural herbicide that combines two active ingredients
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`(glyphosate and 2,4-D) that have been registered and widely used by American
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`farmers for decades. Enlist Duo has a more favorable environmental profile than
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`prior products using those active ingredients because it contains a choline salt form
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`of 2,4-D and other substances that make its molecules less prone to migrate off
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`treated fields into the surrounding environment. The use of Enlist Duo is subject to
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`stringent conditions, set forth in the federally-approved label, that further limit any
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`potential environmental effects.
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`After a multi-year review process, the EPA (under President Obama’s
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`administration) reasonably relied on the best data available when registering Enlist
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`Duo for several key U.S. farm crops. EPA first issued an order registering Enlist
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`Duo in October 2014 for use on Enlist™ corn and soybean in six states, and extended
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`that registration in March 2015 to use on Enlist corn and soybean in nine additional
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`states. Both orders were expressly reaffirmed in EPA’s 2017 final registration,
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`which extended the registration for use on corn and soybeans in an additional 19
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`states and added a registration for use on cotton in all 34 of those same states. See
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`Op. 12-13.
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`3
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`B.
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`Statutory Framework
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`Under the ESA, a federal agency must ensure, in consultation with the wildlife
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`services (FWS and NMFS), that any of its actions “is not likely to jeopardize” the
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`continued existence of any endangered species or result in the destruction of critical
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`habitats. 16 U.S.C. § 1536(a)(2). Under the services’ ESA implementing regulation,
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`an action agency like EPA is directed to consult with the wildlife services if it
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`determines that an action “may affect” a listed species or its critical habitat. 50
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`C.F.R. § 402.14(a) (“Each Federal agency shall review its actions at the earliest
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`possible time to determine whether any action may affect listed species or critical
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`habitat. If such a determination is made, formal consultation is required ….”). In
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`fulfilling these obligations, “each agency shall use the best scientific and commercial
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`data available.” 16 U.S.C. § 1536(a)(2). Congress added the latter requirement in
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`1979 amendments to the ESA that also relaxed the requirement to ensure that an
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`agency action “does not jeopardize” endangered species or critical habitats to the
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`current formulation “is not likely to jeopardize”—an amendment intended to make
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`it easier to allow the action agency to proceed even where it “cannot guarantee with
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`certainty” that its actions will not cause such jeopardy. See H.R. Rep. No. 96-697
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`at 12 (1979).
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`EPA’s “no effect” determinations and corresponding decisions not to consult
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`are reviewed under the “arbitrary and capricious standard.” Friends of Santa Clara
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`4
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`River v. U.S. Army Corps of Engineers, 887 F.3d 906, 920-21, 923-24 (9th Cir.
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`2018). Here, EPA made “no effect” determinations with respect to all relevant
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`species except for one, for which it did consult with FWS. See Op. 13-14.
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`C. The Panel Decision
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`As relevant here, the panel (R. Nelson, J., joined by N.R. Smith, J.) properly
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`rejected the petitioners’ challenge to EPA’s determination that registering Enlist Duo
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`would have “no effect” triggering the need to consult the services in its decision.
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`See Op. 47-53. The panel held (Op. 48-50) that the EPA’s use of its “risk
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`quotient/level of concern methodology” applied the correct legal standard in
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`determining whether its action “may affect” endangered species or critical habitats
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`so as to trigger a consultation obligation. Relying (Op. 48-49) on this Court’s
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`decision in Santa Clara River, 887 F.3d at 925-26, the panel rejected any argument
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`that mere “exposure” to a pesticide requires a conclusion of “may affect.”
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`The panel also rejected (Op. 51-53) petitioner’s argument that the “no effect”
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`determination violated the ESA’s requirement that the agency “use the best scientific
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`and commercial data available,” 16 U.S.C. § 1536(a)(2). Relying on this Court’s
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`prior decisions in cases such as San Luis & Delta-Mendota Water Auth. v. Locke,
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`776 F.3d 971, 995 (9th Cir. 2014), and Santa Clara River, 887 F.3d at 924, the panel
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`reiterated (Op. 51) that the agency’s best-scientific-data-available determination is
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`itself a scientific determination warranting substantial deference to the agency’s
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`5
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`expertise, and held under that deferential standard that “[w]e cannot overturn EPA’s
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`scientific determination here.” The panel considered and rejected (Op. 51-53)
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`petitioner’s attempted reliance on the non-binding, advisory 2013 NAS report, which
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`questions EPA’s use of the risk quotient/levels of concern methodology and
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`recommends a more “probabilistic” approach.1 The panel noted (Op. 51) that the
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`NAS report itself recognized that the data needed to adopt the NAS’s new approach
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`was “not readily available.” The panel further observed (Op. 52) that EPA together
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`with the wildlife services submitted an Interim Report to Congress in November
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`2014 agreeing that they would implement the NAS approach in incremental stages
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`while continuing to apply the risk quotient/levels of concern methodology in order
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`to keep registrations operative in the meantime. The panel reiterated this Court’s
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`earlier rulings that “the best-scientific-data-available requirement ‘does not require
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`the agency to conduct new tests or make decisions on data that does not yet exist.’”
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`Op. 53 (quoting Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 807 F.3d
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`1031, 1047 (9th Cir. 2015)).
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`Judge Watford dissented (Dkt. 233 Addendum, at 64-69 (“Diss.”)) on a single
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`ground: namely, that the NAS report supposedly showed that EPA’s risk
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`1 See National Research Council of the National Academies, Assessing Risks to
`Endangered and Threatened Species from Pesticides (2013), available at
`https://www.nationalacademies.org/ourwork/ecological-risk-assessment-under-
`fifra-and-esa.
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`6
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`quotient/levels of concern approach was “scientifically unsound” (id. at 68). The
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`dissent conceded (id. at 67-68) that the data needed to support the NAS’s preferred
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`approach had “not yet been generated.”
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`ARGUMENT
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`I.
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`THE PANEL DECISION CORRECTLY APPLIED SETTLED
`CIRCUIT PRECEDENT IN UPHOLDING EPA’S “NO EFFECT”
`DETERMINATION UNDER THE ESA
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`The panel correctly held that the “no effect” determination President Obama’s
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`EPA reached in connection with registering Enlist Duo was properly based upon
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`species-specific conclusions that potential exposure to Enlist Duo was so low it
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`would have “no effect” on listed ESA species. The panel further correctly concluded
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`that, in reaching the “no effect” determination, EPA complied with the ESA’s “best-
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`scientific-data-available” requirement and the “may affect” standard. The petition
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`fails to demonstrate any conflict with the ESA’s statutory requirements or any prior
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`decision of this Court that would warrant en banc review.
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`A. The Panel Correctly Concluded That EPA Complied With The
`“Best-Scientific-Data-Available” Requirement
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`As the panel correctly summarized (Op. 50-51), the purpose of the ESA’s
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`best-scientific-data-available requirement is to prevent an agency from basing its
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`action “on speculation and surmise”; even “if the only available data is weak, and
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`thus not dispositive, an agency’s reliance on such data does not render the agency’s
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`determination arbitrary and capricious.” Locke, 776 F.3d at 995 (internal citations
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`7
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`and quotations omitted). “[W]hat constitutes the best scientific and commercial data
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`available is itself a scientific determination deserving of deference.” Id. While an
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`agency may not ignore “available scientific evidence that is in some way better than
`
`the evidence it relies on,” this statutory provision “does not require the agency to
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`conduct new tests or make decisions on data that does not yet exist.” Op. 50 (quoting
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`Locke, 776 F.3d at 995); Op. 53 (quoting Ctr. for Biological Diversity, 807 F.3d at
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`1047).
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`The panel faithfully followed this settled precedent in concluding that EPA’s
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`use of its risk quotient/levels of concern methodology in making its “no effect”
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`determination satisfied the ESA’s best-scientific-data-available standard. Any
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`suggestion that the 2013 NAS report somehow renders EPA’s use of the risk
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`quotient/levels of concern methodology “scientifically unsound” is unfounded.
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`Equally unavailing, and practically unworkable, is any contention that EPA should
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`have essentially shut down the registration process until it could identify and use
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`data consistent with NAS’s preferred “probabilistic” methodology. The panel
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`correctly held that the ESA requires no such thing.
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`First, the NAS report merely offers “a common approach that EPA, FWS, and
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`NMFS could use to conduct assessments.” SBER10. It is not a binding framework
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`for risk assessment, nor did it interpret the ESA’s legal requirements. To the
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`contrary, the NAS report expressly “does not take a position on any legal or
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`8
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`regulatory policy issue, provide any legal or policy advice, or comment on the merit
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`of any particular court ruling or other legal or policy decision.” SBER44. The NAS
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`report itself recognized that transitioning to any of the various techniques it
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`discussed would take time and did not purport to identify the data needed for any
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`transition. SBER58. Moreover, the report nowhere indicates that NAS reviewed
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`EPA’s ecological risk assessment for the active ingredients in Enlist Duo or the
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`conclusions of the experts at EPA and the wildlife services that expressly relate to
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`those ingredients. In the absence of any such data, there is no legitimate basis to
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`ignore the deference that should be afforded EPA’s expert determination of what
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`constitutes the best available scientific data.
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`Second, this Court should reject any suggestion that the word “available” be
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`read out of the ESA and replaced by reliance on an abstract “best science” standard
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`that Congress never enacted. As this Court’s precedents make clear, the data an
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`agency must rely on is that which already exists, not that which could possibly be
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`generated in the future by new tests applying a new methodology. As the dissent
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`concedes (Diss. 67-68), any data the new NAS approach might rely on or produce
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`has “not yet been generated.” Moreover, as the panel observes, even the “data
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`needed to adopt the recommended [probabilistic] approach was not readily
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`available” at the time of EPA’s assessment of Enlist Duo. Op. 51 (emphasis added).
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`9
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`This absence of data forecloses any reasonable conclusion that EPA failed to rely on
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`the best available scientific data.
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`Third, this Court should reject any suggestion that the word “data” be read
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`out of the ESA and replaced by a requirement to rely on the best available scientific
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`methodology. As the panel correctly observed (Op. 53 & n.12), the statute requires
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`reliance on the best available scientific data, not the best available scientific
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`methodology. Section 1536(a)(2) applies not to the best available “science” but
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`rather to the best available “scientific and commercial data,”—i.e., facts and
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`statistics, not methodologies. 16 U.S.C. § 1536(a)(2) (emphasis added); see Santa
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`Clara River, 887 F.3d at 924 (“The best available data requirement ‘merely prohibits
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`[the agency] from disregarding available scientific evidence that is in some way
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`better than the evidence it relies on.”) (emphasis added and alteration omitted).
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`Accordingly, any suggestion that an alternative approach might yield “realistic,
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`objective estimates of risk” in the future (Diss. 66 (quoting NAS report at 15))
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`disregards the plain statutory text.2
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`2 For the same reasons, the amicus brief in support of the petition (Dkt. 237-2) errs
`in suggesting (id. at 11, 13) that the panel supposedly ignored “the availability of
`methodologies that would produce defensible scientific data.” Far from ignoring
`this point, the majority explained (Op. 51) that there “not readily available” at the
`time of EPA’s assessment of Enlist Duo either any data generated by NAS’s
`recommended approach or any data “needed to adopt” that approach (emphasis
`added).
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`10
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`Finally, there is no reason for this Court to second-guess the panel’s
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`conclusion that EPA used “highly conservative” assumptions in ensuring that its use
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`of the risk quotient/levels of concern methodology here was tailored to the ESA’s
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`“no effect” standard rather than FIFRA’s “not likely to adversely affect” standard.
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`See Dow Br. 68-70 (citing record evidence). As the panel correctly observed (Op.
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`52-53), this was not just EPA’s self-serving view of its own methodology; to the
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`contrary, NWS and NMFS themselves agreed in the November 2014 joint Interim
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`Report to Congress that EPA’s application of its risk quotient/levels of concern
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`methodology in its threshold ESA determinations “was ‘highly conservative’ and
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`‘will be protective of non-target species, including endangered species.’”3 This
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`opinion by the very wildlife services with which EPA would have been obliged to
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`consult had it made a “may affect” determination supports the conclusion that EPA’s
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`expert scientific determination was reasonable and not arbitrary and capricious.4
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`3 See U.S. ENVIRONMENTAL PROTECTION AGENCY, U.S. FISH & WILDLIFE SERVICE,
`NATIONAL MARINE FISHERIES SERVICE, AND U.S. DEPARTMENT OF AGRICULTURE,
`Interim Report to Congress on Endangered Species Act Implementation on Pesticide
`Evaluation Programs (Nov. 2014), at 20 (“EPA scientists used highly conservative
`and protective assumptions to evaluate ecological risks for the new uses of 2,4-D in
`Enlist Duo. The assessments confirm that these uses meet safety standards for
`pesticide registration, and, as approved, will be protective of non-target species,
`including endangered species.”), available at goo.gl/V4tzeE.
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`4 Similarly, Congress itself, in enacting the Agriculture Improvements Act of 2018,
`Pub. L. No. 115-334, did not mention the 2013 NAS report and required the EPA,
`FWS, and NMFS to file reports over the next five years as to their progress in
`clarifying “what constitutes the best scientific and commercial data available in the
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`11
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`For all these reasons, en banc review of the panel’s best-scientific-data-
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`available holding should be denied.
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`B.
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`The Panel Correctly Concluded That EPA Properly Interpreted
`The “May Effect” Trigger
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`The Court should also deny the petition for rehearing en banc insofar as it
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`urges (Pet. 11-16) that mere exposure to a pesticide is automatically a “may affect”
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`trigger requiring consultation with the wildlife services. The panel correctly rejected
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`this argument. Op. 48 (“EPA’s recognition of exposure is not a recognition that
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`Enlist Duo ‘may affect’ protected species and critical habitats.”). Notably, Judge
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`Watford did not dissent from this aspect of the majority opinion, and NFFC’s
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`arguments for en banc review of this holding are unavailing.
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`First, the notion that any finding of exposure is automatically a “may affect”
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`trigger flies in the face of the statute and of the implementing regulation, which
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`expressly provides that each action agency shall make the may affect/no effect
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`determination. See 50 C.F.R. § 402.14(a); Karuk Tribe, 681 F.3d at 1027 (“An
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`agency may avoid the consultation requirement only if it determines… ‘no
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`effect’….”) (emphasis added). NFFC’s petition would improperly recast the
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`agency’s exercise of its delegated discretion as a rubber stamp.
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`fields of pesticide use and ecological risk assessment,” id. § 10115, 132 Stat. 4490,
`4915-16.
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`Second, this Court’s precedents support the panel’s refusal to equate mere
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`exposure with “may affect.” For example, in Santa Clara River, this Court held that
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`the Army Corps of Engineers’ “determination that the [agency action] would not
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`affect steelhead was not arbitrary and capricious”—despite its engineers’ estimate
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`of “combined discharge from the Project’s stormwater runoff and its wastewater
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`treatment plan . . . of 9.0 micrograms of dissolved copper per liter” and a NMFS
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`memorandum suggesting that such discharges could “have ‘sublethal impacts’ on
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`steelhead smolt.” 887 F.3d at 924. Thus, there would be some exposure to the
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`endangered fish in that case, but not at a level that in the Corps’ view would rise to
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`“may affect.” The panel decision here is entirely consistent and likewise comports
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`with Defenders of Wildlife v. Flowers, 414 F.3d 1066 (9th Cir. 2005), in which this
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`Court upheld the Army Corps of Engineers’ determination that two developments
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`would have “no effect” on the pygmy-owl or its habitat, even though one of the
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`development sites had previously been designated as “critical habitat for the …
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`pygmy-owl,” id. at 1070-71.
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` Third, NFFC errs in suggesting (Pet. 11, 13, 14-16) that the panel decision
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`creates a conflict with Karuk Tribe. As the panel decision noted, the action agency
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`in Karuk Tribe (unlike EPA here) “never made a ‘no effect’ finding.’” Op. 50 (citing
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`Karuk Tribe, 681 F.3d at 1028). To the contrary, the agency in Karuk Tribe “d[id]
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`not dispute” that the challenged mining activities “may affect” listed coho salmon
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`and critical habitat. 681 F.3d at 1027. Karuk Tribe thus did not address the standard
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`to be applied where, as here, an action agency has already made a “no effect”
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`determination. Moreover, as the panel correctly noted (Op. 50), Karuk Tribe’s
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`conclusion that mitigation measures there were not a substitute for the missing “no
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`effect” determination in no way bars EPA from finding “no effect” here “in partial
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`reliance on mitigation measures” such as label use restrictions. Karuk Tribe
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`nowhere suggests that an agency conducting an ESA assessment should ignore such
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`use restrictions or that mitigation measures necessarily foreclose a “no effect”
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`determination. Any such conclusion would grind the registration process to a halt
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`because mitigation measures are frequently employed.
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`Nor does the panel decision conflict with any of NFFC’s other cited
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`authorities (see Pet. 1). For example, in Western Watersheds Project v.
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`Kraayenbrink, 632 F.3d 472 (9th Cir. 2011), a “no effect” determination by the
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`Bureau of Land Management (“BLM”) was not substantive—it was instead based
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`on BLM’s characterization of the regulations in question as “administrative
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`changes,” and, moreover, conflicted with FWS’s conclusion that the regulations
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`“would affect status species and their habitat,” id. at 495-97. Here, in contrast and
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`as noted above, the services have expressly endorsed the methodology EPA used.
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`In California ex rel. Lockyer v. U.S. Dep’t of Agriculture, 575 F.3d 999 (9th Cir.
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`2009), the agency’s “no effect” determination was similarly based on its erroneous
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`assumption that promulgation of the rule in question “simply created a new
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`administrative procedure,” even though it involved “repeal of … substantive
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`protections afforded to inventoried roadless areas,” id. at 1019. Again in contrast,
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`EPA here made a substantive and reasoned “no effect” determination under the
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`correct legal standard, as the panel rightly noted (Op. 50).
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`Finally, contrary to NFFC’s erroneous suggestion (Pet. 7 & n.4, 11), EPA
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`never agreed in a November 2013 interagency document that mere geographic
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`overlap between the pesticide’s potential use and species habitats automatically
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`shows “may affect”—a proposition for which the petition cites not a single case.
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`The 2013 document merely confirmed that EPA would run a pilot program applying
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`the NAS report’s methodology to certain chemicals while continuing to apply its
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`risk quotient/levels of concern approach to ecological assessments for other
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`chemicals.5
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`For all these reasons, the Court should deny en banc review of the panel’s
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`ruling as to “may affect.”
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`5 EPA, FWS, NMFS & USDA, INTERIM APPROACHES FOR NATIONAL-LEVEL
`PESTICIDE ENDANGERED SPECIES ACT ASSESSMENTS BASED ON THE
`RECOMMENDATIONS OF THE NATIONAL ACADEMY OF SCIENCES APRIL 2013 REPORT
`1
`(Nov.
`2013),
`available
`at
`epa.gov/sites/production/files/2015-
`07/documents/interagency.pdf.
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`15
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`II. OVERTURNING THE PANEL DECISION IN A WAY THAT
`REQUIRES VACATUR WOULD HAVE ADVERSE PRACTICAL
`CONSEQUENCES
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`Considerations of public importance weigh against and not in favor of en banc
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`review.
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`First, any vacatur of the Enlist Duo registration would be enormously
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`disruptive to agriculture and worsen the plight of American farmers. As explained
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`by amici in the panel briefing, “[t]he continued availability of Enlist Duo is crucial
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`to the production of three vital crops: corn, soybeans, and cotton.” Farm Bureau
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`Br. 5-6, 17-18. Interrupting growers’ current use of Enlist Duo would result in
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`“lower per-acre yield” for those three vital crops. Id. at 17, 18. These negative
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`effects would exacerbate the challenges American farmers face in light of recent
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`vacatur of EPA registrations for other herbicides such as dicamba. See National
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`Family Farm Coalition v. U.S. EPA, ___ F.3d ___, 2020 WL 2901136 (9th Cir.
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`June 3, 2020).
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`Moreover, because “Enlist Duo is effective to fight weeds that are resistant to
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`glyphosate,” Farm Bureau Br. at 16-17, vacating the Enlist Duo registration would
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`deprive farmers of the benefits of herbicide-resistant technologies and increase
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`farming costs while reducing revenues. Herbicide-resistant technologies in general
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`have revolutionized agriculture by allowing farmers to apply “herbicides ‘over the
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`top’ during the growing season,” rather than resort to “intensive tillage practices”
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`such as hand-weeding and spot treatment. Id. at 13. But glyphosate-resistant weeds
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`have, in turn, “threatened to undermine the benefits of herbicide resis