FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
` No. 17-70810
`
`EPA No.
`EPA-HQ-OPP-
`2016-0594
`
`
`NATIONAL FAMILY FARM
`COALITION; FAMILY FARM
`DEFENDERS; BEYOND PESTICIDES;
`CENTER FOR BIOLOGICAL DIVERSITY;
`CENTER FOR FOOD SAFETY;
`PESTICIDE ACTION NETWORK NORTH
`AMERICA,
`
`Petitioners,
`
`
`
`v.
`
`
`U.S. ENVIRONMENTAL PROTECTION
`AGENCY; ANDREW R. WHEELER, in
`his official capacity as
`Administrator,
`
`Respondents,
`
`
`DOW AGROSCIENCES LLC,
`Respondent-Intervenor.
`
`
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
` No. 17-70810
`
`EPA No.
`EPA-HQ-OPP-
`2016-0594
`
`
`NATIONAL FAMILY FARM
`COALITION; FAMILY FARM
`DEFENDERS; BEYOND PESTICIDES;
`CENTER FOR BIOLOGICAL DIVERSITY;
`CENTER FOR FOOD SAFETY;
`PESTICIDE ACTION NETWORK NORTH
`AMERICA,
`
`Petitioners,
`
`
`
`v.
`
`
`U.S. ENVIRONMENTAL PROTECTION
`AGENCY; ANDREW R. WHEELER, in
`his official capacity as
`Administrator,
`
`Respondents,
`
`
`DOW AGROSCIENCES LLC,
`Respondent-Intervenor.
`
`
`
`
`
`
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`2
`
`
`NATURAL RESOURCES DEFENSE
`COUNCIL,
`
`Petitioner,
`
`
`
` No. 17-70817
`
`EPA No.
`EPA-HQ-OPP-
`2016-0594
`
`
`OPINION
`
`v.
`
`
`ANDREW R. WHEELER, in his official
`capacity as Administrator of the
`United States Environmental
`Protection Agency; U.S.
`ENVIRONMENTAL PROTECTION
`AGENCY,
`
`Respondents,
`
`
`DOW AGROSCIENCES LLC,
`Respondent-Intervenor.
`
`On Petition for Review of an Order of the
`Environmental Protection Agency
`
`Argued and Submitted May 16, 2019
`Submission Withdrawn May 30, 2019
`Resubmitted July 22, 2020
`Portland, Oregon
`
`Filed July 22, 2020
`
`Before: N. Randy Smith, Paul J. Watford, and
`Ryan D. Nelson, Circuit Judges.
`
`Opinion by Judge R. Nelson;
`Concurrence by Judge R. Nelson;
`Dissent by Judge Watford
`
`
`
`
`
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`3
`
`
`
`
`SUMMARY*
`
`Environmental Protection Agency
`
`
`
`
`The panel granted one petition for review, denied
`
`another petition for review, and remanded without vacatur to
`the Environmental Protection Agency (“EPA”) in actions
`challenging the EPA’s decisions to register Enlist Duo – a
`pesticide designed to kill weeds on corn, soybean, and cotton
`fields – in 2014, 2015, and 2017.
`
`chemicals – 2,4-
`two
`combines
`Enlist Duo
`
`dichlorophenoxyacetic acid (“2,4-D”) choline salt and
`glyphosate.
`
`The panel held that the petitions for review were timely.
`
`A petition for review challenging a pesticide registration
`order in a court of appeal must be filed within 60 days after
`entry of such order. Here, the 2017 Notice of Registration
`was signed on January 12, 2017. The panel held that because
`the “date of entry” was not “explicitly” provided in the
`Notice of Registration, the “date of entry” was “two weeks
`after … [the Notice of Registration was] signed” – January
`26, 2017. 40 C.F.R. § 23.6. The petitions filed 54 days later
`were therefore timely. 7 U.S.C. § 136n(b).
`
`The panel next addressed petitioners’ Article III
`
`standing. First, concerning the claims under the Federal
`Insecticide, Fungicide, and Rodenticide Act (“FIFRA”),
`alleging
`that EPA misapplied FIFRA’s procedural
`
`
`* This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`4
`
`requirements and lacked substantial evidence in support of
`its decision that Enlist Duo’s registration complied with
`those requirements, the panel held that petitioners National
`Resource Defense Council (“NRDC”) and Center for Food
`Safety (“CFS”), based on their members’ standing, both had
`associational standing to bring FIFRA claims. Because one
`petitioner from each petition had associational standing, the
`panel did not need to decide whether the other National
`Family Farm Coalition
`(“NFFC”) petitioners had
`associational standing. Second, concerning the claims
`under the Endangered Species Act (“ESA”), alleging that
`EPA violated
`the ESA’s consultation procedures
`in
`registering Enlist Duo, the panel held that because one of
`CFS’s members had Article III standing, the organization
`also had associational standing to bring the ESA claims. In
`addition, the Article III standing of one NFFC petitioner
`made the ESA claims asserted by NFFC petitioners
`justiciable.
`
`Turning to the merits, the panel considered petitioners’
`
`FIFRA claims. FIFRA is a regulatory scheme aimed at
`controlling the use, sale, and labeling of pesticides; and the
`mechanism used to further this aim is a process called
`“registration.”
` Registration can be unconditional or
`conditional, and both
`types often
`involve “pesticide
`products.”
`
`The panel rejected NRDC’s claim that the EPA
`
`incorrectly applied what NRDC believed to be the more
`lenient “conditional” registration standard rather than the
`more stringent “unconditional” standard when it registered
`Enlist Duo in 2014. First, the panel held that NRDC waived
`the argument. Second, even absent waiver, the panel held
`that NRDC’s argument was not persuasive. The registration
`
`
`
`5
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`
`
`documents supported the conclusion that EPA was applying
`the unconditional standard.
`
` NFFC petitioners argued that EPA incorrectly applied
`FIFRA’s “cause any unreasonable adverse effects”
`unconditional registration standard in its 2017 registration
`decision. EPA conceded that it cited the wrong standard, but
`the panel held that any error was harmless because the
`standard for unconditional registration was higher, not
`lower, than the standard for conditional registration. The
`panel held that the error did not show that EPA lacked
`substantial evidence to support its conclusions.
`
`Petitioners argued that EPA lacked substantial evidence
`
`for its 2014, 2015, and 2017 registration decisions for four
`reasons. First, the panel agreed with petitioners that EPA
`failed to properly assess harm to monarch butterflies from
`increased 2,4-D use on milkweed in target fields. The panel
`held that given the record evidence suggesting monarch
`butterflies may be adversely affected by 2,4-D on target
`fields, EPA was required, under FIFRA, to determine
`whether any effect was “adverse” before determining
`whether any effect on the environment was, on the whole,
`“unreasonable.” The panel concluded that EPA’s failure to
`do so meant that its decision was lacking in substantial
`evidence on the issue. Second, the panel rejected the
`argument that EPA failed to consider that Enlist Duo would
`increase the use of glyphosate over time. The panel held that
`substantial evidence supported EPA’s conclusion that
`neither the initial 2014 registration of Enlist Duo – nor the
`subsequent approvals for new use – will increase the overall
`use of glyphosate. Third, the panel rejected petitioners’
`contention that EPA failed to properly consider 2,4-D’s
`volatility – i.e., its tendency to evaporate into a gas and drift
`to non-target plants. The panel held that EPA reasonably
`
`
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`6
`
`relied on studies to support its conclusion that the volatility
`of 2,4-D choline salt will not cause on unreasonable adverse
`effects on the environment. Accordingly, substantial
`evidence supported EPA’s findings. Fourth, the panel
`rejected NFFS petitioners’ contention that EPA should have
`accounted for the potential synergistic effect of mixing
`Enlist Duo with a different chemical called glufosinate. The
`panel held that this concern was speculative. In conclusion,
`as to FIFRA, the panel granted NRDC’s petition for review
`in part, and denied it in part.
`
`The panel next addressed, and rejected, the petitioners’
`
`ESA claims. The ESA and its implementing regulations
`delineate a process – known as Section 7 consultation – for
`determining the biological impacts of a proposed action.
`The process starts with a determination whether the
`proposed action will have “no effect” or if it “may effect”
`listed species or critical habitat. If an action will have no
`effect, no consultation with the expert agencies is needed.
`
`First, the panel rejected NFFC petitioners’ challenge to
`
`EPA’s “no effect” findings for plants and animals. The panel
`held that the EPA did what the ESA required it to do: assess
`risks to determine whether the exposure of protected species
`and critical habitat to potentially harmful chemicals would
`have any possible effect. The panel concluded that EPA’s
`ultimate “no effect” findings, and adoption of mitigation
`measures, were not arbitrary, capricious, or contrary to law.
`Second, the panel rejected NFFC petitioners’ argument that
`EPA’s rationale for limiting the “action area” to the treated
`field was not sound. The panel accorded deference to the
`EPA in the way it chose to define the action area. Third, the
`panel rejected NFFC petitioners’ argument that EPA
`violated its duty to insure no “adverse modification” of
`“critical habitat” by relying on its 2016 risk assessment.
`
`
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`
`
`Finally, the panel addressed the remedy for EPA’s error in
`its registration decisions under FIFRA. The panel held that
`remand without vacatur was warranted. EPA’s error in
`failing to consider harm to monarch butterflies caused by
`killing target milkweed was not “serious.” The panel
`remanded so that EPA can address the evidence concerning
`harm to monarch butterflies and whether the registration of
`Enlist Duo will lead to an unreasonable adverse effect on the
`environment.
`
`
` Concurring, Judge R. Nelson wrote separately to address
`how the interplay of FIFRA’s venue provision and standing
`could make a difference in a future case. In this case, the
`interplay between FIFRA’s venue provisions and Article III
`standing did not make a difference because, for each
`petition, one petitioner over which venue was proper also
`demonstrated standing.
`
` Dissenting, Judge Watford agreed with the majority that
`there was jurisdiction to review the petitioners’ challenges
`and that the EPA violated FIFRA by failing to assess the
`impact that Enlist Duo’s use will have on the monarch
`butterfly. However, in his view, EPA also violated the ESA
`by failing to use the best scientific data to assess whether
`Enlist Duo will adversely affect threatened or endangered
`species. Accordingly, he would vacate the 2014 and 2017
`registrations under review.
`
`
`
`
`7
`
`
`
`
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`8
`
`
`COUNSEL
`
`
`George A. Kimbrell (argued), Amy Van Saun, and Sylvia
`Shih-Yau Wu, Center for Food Safety, Portland, Oregon;
`Paul H. Achitoff, Earthjustice, Honolulu, Hawaii; for
`Petitioners National Family Farm Coalition, Family Farm
`Defenders, Beyond Pesticides, Center for Biological
`Diversity, Center for Food Safety, and Pesticide Action
`Network North America.
`
`Margaret T. Hsieh (argued), Mitchell S. Bernard, and Kaitlin
`Morrison, Natural Resources Defense Council, New York,
`New York; Peter J. DeMarco and Aaron Colangelo, Natural
`Resources Defense Council, Washington, D.C.;
`for
`Petitioner Natural Resources Defense Council.
`
`J. Brett Grosko (argued), Senior Trial Attorney; Michele L.
`Walter, Trial Attorney; Jeffrey H. Wood, Acting Assistant
`Attorney General; Jonathan D. Brightbill, Principal Deputy
`Assistant Attorney General; Environment and Natural
`Resources Division, United States Department of Justice,
`Washington, D.C.; Benjamin Wakefield and Michele Knorr,
`Pesticides & Toxics Substances Law Office, Office of
`General Counsel, United States Environmental Protection
`Agency, Washington, D.C.; for Respondents.
`
`Kathleen M. Sullivan (argued), Quinn Emanuel Urquhart &
`Sullivan LLP, New York, New York; David B. Weinberg,
`Wiley Rein LLP, Washington, D.C.; Stanley H. Abramson
`and Donald C. McLean, Arent Fox LLP, Washington, D.C.;
`Christopher Landau and Archith Ramkumar, Quinn
`Emanuel Urquhart & Sullivan LLP, Washington, D.C.;
`Andrew P. March, Quinn Emanuel Urquhart & Sullivan
`LLP, Redwood Shores, California;
`for Respondent-
`Intervenor.
`
`
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`9
`
`
`
`Kirsten L. Nathanson, David Y. Chung, and Amy B.
`Symonds, Crowell & Moring LLP, Washington, D.C., for
`Amicus Curiae CropLife America.
`
`Matthew H. Lembke and Anna M. Manasco, Bradley Arant
`Boult Cummings
`LLP, Birmingham, Alabama;
`Bartholomew J. Kempf, Bradley Arant Bould Cummings
`LLP, Nashville, Tennessee; for Amici Curiae American
`Farm Bureau Federation, American Soybean Association,
`National Cotton Council of America, and National Corn
`Growers Association.
`
`
`
`OPINION
`
`R. NELSON, Circuit Judge:
`
`Petitioners challenge EPA’s decisions to register Enlist
`Duo—a pesticide designed to kill weeds on corn, soybean,
`and cotton fields—in 2014, 2015, and 2017. According to
`Petitioners, EPA’s decisions violate FIFRA and the ESA.
`We grant one petition in part as to FIFRA, deny the other
`petition as to both the ESA and FIFRA, and remand to the
`agency without vacatur.
`
`I
`
`Corn, soybeans, and cotton are three of the most
`important agricultural commodities in the United States.
`Corn is the primary feed grain in the United States and
`worldwide, soybeans are the world’s largest source of
`protein feed for animals and the second largest source of
`vegetable oil, and cotton is one of the most important textile
`fibers in the world.
`
`
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`10
`
`
`These crops provide vital value to the United States and
`the world. Domestically, these three crops together have a
`gross production value of approximately $103 billion per
`year. Internationally, the United States is the world’s
`leading corn and soybean producer and exporter. The United
`States also provides, together with China and India, two-
`thirds of the world’s cotton.
`
`This important industry, however, is not immune from a
`plight that threatens every gardener: weeds. Since the
`1970s, glyphosate dimetyhlammonium salt (“glyphosate”)
`has been used on corn, soybeans, and cotton crops to reduce
`weeds. Over time, however, certain noxious weeds have
`grown resistant to glyphosate. That resistance in turn
`decreases crop yield, with severe economic consequences.
`
`To help solve this problem, Dow Agrosciences LLC
`(“Dow”) invented Enlist Duo. Enlist Duo combines two
`chemicals—2,4-dichlorophenoxyacetic
`acid
`(“2,4-D”)
`choline salt and glyphosate. Both 2,4-D and glyphosate have
`been registered for certain uses as pesticides for decades.
`When combined, however, they represent a significant
`improvement over glyphosate and 2,4-D, used separately.
`Combining the two chemicals delays the development of the
`weeds’ resistance and allows pesticide use later in the
`growing season, thereby improving yields.
`
`EPA issued a final order registering Enlist Duo under the
`Federal Insecticide, Fungicide, and Rodenticide Act
`(“FIFRA”) in October 2014. In that registration decision,
`EPA did not perform a risk assessment for Enlist Duo’s
`glyphosate component. Instead, it found that a new
`assessment was not needed because glyphosate was already
`being used in the same way in other pesticides to treat weeds.
`But the same was not true for 2,4-D. That component was
`being approved for use later into the growing season and on
`
`
`
`11
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`
`
`taller-growing crops for the first time. So EPA performed a
`full risk assessment for 2,4-D. That analysis assessed human
`health risks; ecological risks; and risks to endangered
`species, plants, and critical habitats posed by 2,4-D. It also
`considered whether 2,4-D would volatilize—that
`is,
`evaporate into a gas—and drift to non-target plants and
`animals.
`
`EPA found, based on multiple studies, that the type of
`2,4-D in Enlist Duo—a choline salt variety—is less volatile
`than other forms of 2,4-D. That meant there was no risk of
`harm off
`the
`treated field, so
`long as
`the
`label
`requirements—including the use of nozzles, buffers, and
`avoiding application aerially—were followed to avoid the
`risk of spray drift. This finding led EPA to limit the “action
`area” to treated fields, thereby reducing the number of
`species subject to an ESA analysis. EPA then concluded,
`based on its FIFRA risk assessments and conservative ESA
`analysis, that Enlist Duo’s registration would “not generally
`cause unreasonable adverse effects on the environment”
`under FIFRA and would comply with the ESA, subject to
`certain use restrictions.
`
`Based on this conclusion, EPA issued a registration of
`Enlist Duo under FIFRA, which allowed Enlist Duo to be
`used on corn and soybean crops in six states. EPA’s
`decision, however, was ambiguous as to which FIFRA
`registration standard it was applying. The pesticide license
`approved an “unconditional” registration. So did the
`Proposed Decision Document. But the final registration
`document articulating EPA’s reasoning cited FIFRA’s
`“conditional” registration provision instead. EPA also
`referenced additional data requirements in the registration,
`even though outstanding data requirements are typically
`referenced in conditional registrations.
`
`
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`12
`
`
`Petitioners National Family Farm Coalition, Family
`Farm Defenders, Beyond Pesticides, Center for Biological
`Diversity (“CBD”), Center for Food Safety (“CFS”), and
`Pesticide Action Network North America (“PANNA”)
`(collectively,
`the “NFFC Petitioners”) and Petitioner
`National Resource Defense Council (“NRDC”) challenged
`EPA’s 2014 registration decision in this Court. NRDC v.
`EPA, No. 14-73353 (9th Cir. Oct. 30, 2014); Ctr. for Food
`Safety v. EPA, No. 14-73359 (9th Cir. Oct. 30, 2014). While
`that litigation was pending, EPA issued a final order
`amending the 2014 registration to allow the use of Enlist
`Duo on corn and soybean crops in an additional nine states.
`That 2015 registration decision was supported by an
`ecological risk assessment for the protected species in the
`new states. The decision also relied on critical habitat
`modification determinations for the new uses of 2,4-D.
`
`Petitioners challenged the 2015 registration decision as
`well, NRDC v. EPA, No. 15-71213 (9th Cir. Apr. 20, 2015);
`Ctr. for Food Safety v. EPA, No. 15-71207 (9th Cir. Apr. 20,
`2015), and the challenges to the 2014 and 2015 registration
`decisions were consolidated in one proceeding. But briefing
`was never completed. Instead, EPA moved to remand and
`vacate the 2014 and 2015 registrations. EPA did so after
`discovering that Dow had filed a patent application with the
`U.S. Patent and Trademark office claiming “synergism”—
`that is, two chemicals working together to produce a greater
`combined effect than they would separately—between
`glyphosate and 2,4-D. This Court granted the request to
`remand the case, but denied the request for vacatur, leaving
`the 2014 and 2015 registration decisions in place.
`
`Shortly thereafter, on January 12, 2017, EPA issued
`another registration decision regarding Enlist Duo. In that
`decision, EPA relied on new data on synergy to conclude
`
`
`
`13
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`
`
`that no concern lay with synergy between the glyphosate and
`2,4-D in Enlist Duo. EPA did not, however, address
`evidence that destruction of milkweed on target fields would
`harm the monarch butterfly population. The decision also
`contained three main conclusions. First, it reaffirmed EPA’s
`2014 and 2015 registration decisions. Second, it authorized
`the use of Enlist Duo on corn and soybean crops in
`19 additional states, bringing the total number of permitted-
`use states to 34. Third, it authorized a new use of Enlist Duo
`on cotton crops in all 34 states.
`
`To support these decisions, EPA relied in part on its prior
`analysis of glyphosate and 2,4-D. But EPA did perform
`some new analysis. For example, EPA relied on an updated
`ecological risk assessment for 531 ESA-listed species in the
`34 states where Enlist Duo was approved. The updated risk
`assessment, like the prior ones, used an iterative approach,
`through which species were ruled out and given “no effect”
`findings if their exposure to 2,4-D did not exceed a set “level
`of concern” after screening-level and, in some cases,
`species-specific assessments. Using this methodology, EPA
`made “no effect” findings as to all plants and animals off the
`treated field, after imposing similar mitigation measures as
`it had in 2014. This same methodology supported EPA’s
`“no effect” findings for 19 of 23 species on the treated field.
`EPA therefore did not contact the consultation agencies as to
`these species. As to the remaining four species, EPA
`imposed location-based label restrictions to avoid harm to
`three of them. EPA then consulted the Fish and Wildlife
`Service (“FWS”) as to the Eskimo curlew—after which
`FWS concurred with EPA’s conclusion that the Eskimo
`curlew would not be adversely affected by Enlist Duo. The
`2017 decision, relying on new critical habitat analysis, also
`concluded that no critical habitats would be affected because
`the eight species that occurred on corn, cotton, and soybean
`
`
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`14
`
`fields did not have physical or biological features essential
`to the species in agricultural fields.
`
`Despite this new data and analysis, there were, for the
`first time, data gaps relating to 2,4-D that were not present
`during the prior registrations. These gaps—which related to
`2,4-D generally—meant that EPA could not register Enlist
`Duo unconditionally. Instead, EPA registered the entire
`Enlist Duo product on a “conditional” basis under FIFRA.
`In doing so, however, EPA cited FIFRA’s unconditional
`“cause unreasonable adverse effects” standard rather than
`FIFRA’s conditional “significantly increase the risk of
`unreasonable adverse effects” standard.
`
`Petitioners challenged EPA’s 2017 decision on March
`21, 2017. In the resulting briefing, the parties disagreed
`about whether EPA’s 2014 and 2015 registration decisions
`could also be reviewed. We held, after oral argument, that
`all three decisions were subject to review. We then ordered
`the parties to submit supplemental briefing addressing any
`challenges to the 2014 and 2015 registrations.
`
`II
`
`We first address whether this case is properly before us.
`EPA does not raise any overarching challenge
`to
`jurisdiction.1 Dow, by contrast, argues that (1) the petitions
`
`
`1 EPA does argue that NRDC lacks Article III standing to raise
`arguments about glyphosate. According to EPA, any favorable decision
`about glyphosate would not redress NRDC’s alleged injuries because
`glyphosate will continue to be used in the same quantities. We address—
`and reject—that argument below. See infra Section II.B.2.
`
`
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`
`
`for review were untimely; and (2) Petitioners
`associational standing.2
`
`15
`
`lack
`
`A
`
`We begin with Dow’s argument that the petitions for
`review were untimely. A petition for review challenging a
`pesticide registration order in a court of appeals must be filed
`“within 60 days after the entry of such order.” 7 U.S.C.
`§ 136n(b).3 The “date of entry of an order” is governed by
`regulation. 40 C.F.R. § 23.6. “Unless . . . [EPA’s]
`Administrator otherwise explicitly provides in a particular
`order, the time and date of entry of an order issued by the
`Administrator” is “two weeks after it is signed.” Id.
`
`Here, the 2017 Notice of Registration was signed on
`January 12, 2017. In addition, the “Date of Issuance” on the
`Notice of Registration is January 12, 2017. But Petitioners
`did not file their petitions until March 21, 2017—68 days
`
`
`2 Dow also argues that venue is improper as to three of the six NFFC
`Petitioners (National Family Farm Coalition, Family Farm Defenders,
`and Beyond Pesticides) because none of them “reside[]” or “ha[ve] a
`place of business” in the Ninth Circuit. 7 U.S.C. § 136n(b). But we need
`not address that argument. Venue is proper as to the other three NFFC
`Petitioners (CFS, CBD, and PANNA) because they do “reside” or “have
`a place of business” in the Ninth Circuit. So regardless whether venue
`is improper as to three of the six NFFC Petitioners, we can address the
`merits of the NFFC petition.
`
`3 FIFRA also allows for judicial review of EPA’s decisions in
`federal district courts when EPA refuses to “cancel or suspend a
`registration or to change a classification” or for “other final actions of
`the Administrator not committed to the discretion of the Administrator
`by law.” 7 U.S.C. § 136n(a).
`
`
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`16
`
`after the Notice of Registration was issued. According to
`Dow, this means the petitions were eight days too late.
`
`Dow’s argument rests on the date of issuance—January
`12—being the “date of entry” of the order under 7 U.S.C.
`§ 136n(b) and 40 C.F.R. § 23.6. But for this argument to
`work, the date of issuance must say that it is the “date of
`entry” “explicitly,” 40 C.F.R. § 23.6—that is, “without
`ambiguity or vagueness,” Explicit, Black’s Law Dictionary
`(10th ed. 2014). And here, considerable ambiguity exists.
`The Notice of Registration does not “explicitly” include a
`“date of entry.” Nor does “issue” mean the same thing as
`“entry.” Compare Issue, Black’s Law Dictionary (10th ed.
`2014) (“to send out or distribute officially”), with Entry,
`Black’s Law Dictionary (10th ed. 2014) (“the placement of
`something before the court or on the record”). Thus, the date
`of issuance of the 2017 registration does not “explicitly”
`indicate the “date of entry.”
`
`Because the “date of entry” was not “explicitly”
`provided in the Notice of Registration, the “date of entry”
`was “two weeks after . . . [the Notice of Registration was]
`signed”—January 26, 2017. 40 C.F.R. § 23.6. The petitions,
`filed 54 days later, were therefore timely. 7 U.S.C.
`§ 136n(b); 40 C.F.R. § 23.6.4
`
`B
`
`Dow also argues Petitioners lack standing to bring their
`petitions for review. To have associational standing, each
`organization must show that “(a) its members would
`otherwise have standing to sue in their own right; (b) the
`
`4 This comports with EPA’s interpretation of the relevant statute and
`regulation in this and other cases.
`
`
`
`17
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`
`
`interests it seeks to protect are germane to the organization’s
`purposes; and (c) neither the claim asserted nor the relief
`requested requires the participation of individual members
`in the lawsuit.” Am. Diabetes Ass’n v. U.S. Dep’t of the
`Army, 938 F.3d 1147, 1155 (9th Cir. 2019) (citation
`omitted). Here, there is no dispute that at least one Petitioner
`from each petition for review has satisfied the second and
`third requirements. We therefore decide whether at least one
`Petitioner from each petition has shown that at least one of
`its members would have Article III standing to sue in his or
`her own right. Mont. Shooting Sports Ass’n v. Holder,
`727 F.3d 975, 981 (9th Cir. 2013) (“the presence in a suit of
`even one party with standing suffices to make a claim
`justiciable” (quoting Brown v. City of Los Angeles, 521 F.3d
`1238, 1240 n.1 (9th Cir. 2008))).
`
`Article III of the United States Constitution confines
`federal
`courts
`to
`hearing
`only
`“[c]ases”
`and
`“[c]ontroversies.” U.S. Const. art. III, § 2, cl. 1. “A suit
`brought by a plaintiff without Article III standing is not a
`‘case or controversy,’ and an Article III federal court
`therefore lacks subject matter jurisdiction over the suit.”
`City of Oakland v. Lynch, 798 F.3d 1159, 1163 (9th Cir.
`2015) (citation omitted). To establish standing, a plaintiff
`must demonstrate “(1) a concrete and particularized injury
`that is ‘actual or imminent, not conjectural or hypothetical’;
`(2) a causal connection between the injury and the
`defendant’s challenged conduct; and (3) a likelihood that a
`favorable decision will redress that injury.” Pyramid Lake
`Paiute Tribe of Indians v. Nev., Dep’t of Wildlife, 724 F.3d
`1181, 1187 (9th Cir. 2013) (quoting Lujan v. Defs. of
`Wildlife, 504 U.S. 555, 560–61 (1992)).
`
`To meet this standard, Petitioners must show a
`“substantial probability” of standing, Nw. Requirements
`
`
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`18
`
`Utils. v. FERC, 798 F.3d 796, 805 (9th Cir. 2015) (citation
`omitted), which is the same burden “as that of a plaintiff
`moving for summary judgment in the district court,” Sierra
`Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002). Because
`a “plaintiff must demonstrate standing for each claim he
`seeks to press and for each form of relief that is sought,” we
`analyze Petitioners’ Article III standing for the ESA and
`FIFRA claims separately. Town of Chester v. Laroe Estates,
`Inc., 137 S. Ct. 1645, 1650 (2017) (quoting Davis v. FEC,
`554 U.S. 724, 734 (2008)).
`
`1
`
`First, the FIFRA claims. NFFC Petitioners and NRDC
`both assert that EPA misapplied FIFRA’s procedural
`requirements and lacked substantial evidence in support of
`its decisions that Enlist Duo’s registration complied with
`those requirements. These are procedural injuries. Indeed,
`the registration standards at issue are the safeguards put in
`place by Congress to ensure that approved pesticides do not
`cause adverse effects on the environment. 7 U.S.C. § 136a.
`And EPA’s alleged failure to follow those standards is what
`leads to the alleged “substantive harm to the environment”
`in this case. Citizens for Better Forestry v. U.S. Dep’t of
`Agric., 341 F.3d 961, 971 (9th Cir. 2003) (internal quotation
`marks and citation omitted). We therefore apply the rules of
`Article III standing that apply to procedural injuries in
`determining Petitioners’ standing to assert their FIFRA
`claims. See Nat. Res. Def. Council v. Jewell, 749 F.3d 776,
`783 (9th Cir. 2014). NRDC and one of NFFC Petitioners,
`CFS, meet that standard here based on their assertion of
`procedural violations of FIFRA.
`
`Injury in Fact for NRDC. In the context of procedural
`violations, the injury-in-fact requirement is met if “the
`procedures in question are designed to protect some
`
`
`
`19
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`
`
`threatened concrete interest of [the petitioner] that is the
`ultimate basis of his standing.” Salmon Spawning &
`Recovery All. v. Gutierrez, 545 F.3d 1220, 1225 (9th Cir.
`2008) (internal quotation marks and citation omitted).
`NRDC meets that standard here. Members of NRDC have
`submitted declarations stating that they enjoy watching the
`monarch butterfly migration where they live, that Enlist Duo
`is approved for use in their states, and that they are
`concerned they will no longer be able to enjoy observing
`monarch butterflies because of Enlist Duo’s effects on
`milkweed.
`
`These declarations show a concrete interest for two
`reasons. First, a concrete interest can be “an aesthetic or
`recreational interest in a particular place, or animal, or plant
`species.” Ecological Rights Found. v. Pac. Lumber Co.,
`230 F.3d 1141, 1147 (9th Cir. 2000). And second, there is a
`“geographic nexus between the individual[s] asserting the
`claim and the location suffering [the] environmental
`impact.” Ashley Creek Phosphate Co. v. Norton, 420 F.3d
`934, 938 (9th Cir. 2005) (internal quotation marks and
`citation omitted); see id. (“[P]laintiffs who use the area
`threatened by a proposed action or who own land near the
`site of a proposed action have little difficulty establishing a
`concrete interest.”).
`
`Moreover, the registration provisions at issue are
`designed to protect the environment. Salmon Spawning,
`545 F.3d at 1226. Both the conditional and unconditional
`registration provisions in FIFRA require EPA to consider
`“unreasonable adverse effects on
`the environment.”
`7 U.S.C. § 136a(c)(5)(C), (c)(7). These effects would
`include any effect on monarch butterflies, which is what
`NRDC’s members are concerned about.
`
`
`
`NAT’L FAMILY FARM COALITION V. USEPA
`
`20
`
`
`Dow argues that NRDC cannot satisfy the injury-in-fact
`requirement because it cannot prove that Enlist Duo has
`caused a decline in the monarch butterfly population. But “a
`credible threat of harm is sufficient to constitute actual injury
`for standing purposes.” Cent. Delta Water Agency v. United
`States, 306 F.3d 938, 950 (9th Cir. 2002). Thus, NRDC need
`only show that the exercise of a procedural right “could
`protect [its] concrete interests.” Cottonwood Envtl Law Ctr.
`v. U.S. Forest Serv., 789 F.3d 1075, 1082 (9th Cir. 2015). It
`has done so here.
`
`Causation and Redressability for NRDC. We now turn
`to the second and third requirements for Article III standing,
`which are relaxed for NRDC because it has established
`injury in fact. See Salmon Spawning, 545 F.3d at 1226. The
`causation requirement is satisfied by showing a “reasonable
`probability of the challenged action’s threat to [NRDC’s]
`concrete interest.” Hall v. Norton, 266 F.3d 969, 977 (9th
`Cir. 2001) (internal quotation marks and citation omitted).
`To satisfy the redressability requirement,
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