Case: 19-70115, 05/29/2020, ID: 11704623, DktEntry: 124, Page 1 of 9
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`No. 19-70115
`______________________
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`______________________
`
`NATIONAL FAMILY FARM COALITION, et al.,
`Petitioners,
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`v.
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`UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,
`Respondents,
`
`and
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`MONSANTO COMPANY,
`Intervenor-Respondent.
`______________________
`ON PETITION FOR REVIEW FROM THE UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY
`______________________
`INTERVENOR-RESPONDENT MONSANTO COMPANY’S BRIEF IN
`SUPPORT OF EPA’S MOTION FOR LEAVE TO FILE RESPONSE TO
`PETITIONERS’ LETTER BRIEF
`______________________
`Philip J. Perry
`Richard P. Bress
`Stacey L. VanBelleghem
`Andrew D. Prins
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, DC 20004
`(202) 637-2200
`Counsel for Intervenor-Respondent
`Monsanto Company
`
`May 29, 2020
`
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`No. 19-70115
`______________________
`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,
`
`and
`
`MONSANTO COMPANY,
`Intervenor-Respondent.
`______________________
`ON PETITION FOR REVIEW FROM THE UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY
`______________________
`INTERVENOR-RESPONDENT MONSANTO COMPANY’S BRIEF IN
`SUPPORT OF EPA’S MOTION FOR LEAVE TO FILE RESPONSE TO
`PETITIONERS’ LETTER BRIEF
`______________________
`Philip J. Perry
`Richard P. Bress
`Stacey L. VanBelleghem
`Andrew D. Prins
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, DC 20004
`(202) 637-2200
`Counsel for Intervenor-Respondent
`Monsanto Company
`
`May 29, 2020
`
`
`
`
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`Case: 19-70115, 05/29/2020, ID: 11704623, DktEntry: 124, Page 2 of 9
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`On April 29, 2020, this Court requested simultaneous briefs from all parties
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`addressing which registration order (or orders) are at issue in this suit. Petitioners’
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`letter brief exceeds that mandate. In addition to addressing the scope of their
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`challenge, Petitioners raise a brand new request for relief: They ask the Court to
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`issue “a per curiam order granting the petition and vacating the registration, halting
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`any sale and use of these pesticide products, and notifying the parties that the Court’s
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`reasons will be more fully explained in a forthcoming opinion.” ECF No. 115-1 at
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`10 (emphasis added). Monsanto supports EPA’s motion for leave to respond to this
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`last-minute request, and agrees with EPA that the request is inappropriate.
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`To start, Monsanto agrees with EPA that Petitioners’ request is procedurally
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`improper. After four years of litigation about the 2016 and 2018 Registrations of
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`XtendiMax, the merits of the most recent registration order are now pending before
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`the Court. Having reviewed and made its own independent assessment of numerous
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`registrant and academic studies, EPA imposed new conditions in the 2018
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`Registration that address all of the suggested causes of off-target movement.
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`Monsanto believes this Court should conclude that EPA more than satisfied the
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`requirements of FIFRA and the ESA, and that if the Court finds that EPA fell short
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`in any respect it should order an appropriately tailored remedy, informed by
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`supplemental briefing. Petitioners of course disagree on all counts. But, regardless
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`of the outcome of those disputes, it is far too late for Petitioners suddenly to ask this
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`1
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`Case: 19-70115, 05/29/2020, ID: 11704623, DktEntry: 124, Page 3 of 9
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`Court to take the extraordinary step of deciding this complex case (which also
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`presents serious jurisdictional issues) in their favor in summary fashion with
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`reasoning to follow.
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`The Court has taken that approach only in extreme circumstances requiring
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`urgent action. Having never sought a stay of either registration order in the course
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`of four years of litigation spanning three (now going on four) growing seasons,
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`Petitioners cannot credibly insist that the circumstances here require such
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`extraordinary relief. The record demonstrates that XtendiMax has assisted growers
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`in addressing a significant nationwide weed resistance problem, and soybean and
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`cotton yields have hit record highs nationwide during this litigation. Monsanto Br.
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`at 9-10. To the extent Petitioners believed that, regardless, equity demands an
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`immediate halt to all sale and use of this pesticide, they had every opportunity to
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`seek that extraordinary remedy by motion or timely prayer for relief. But they had
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`no legitimate grounds to smuggle such a request belatedly into their letter brief, as it
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`was not even remotely responsive to the Court’s question about which registration
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`orders are properly before it in this case.
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`
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`Monsanto also agrees with EPA that Petitioners’ request for an order
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`immediately halting all sales and uses of the pesticide invites legal error and
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`potentially disastrous real-world impacts. Petitioners and EPA disagree about the
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`legal effect of a vacatur of the 2018 Registration and about EPA’s authority in the
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`2
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`Case: 19-70115, 05/29/2020, ID: 11704623, DktEntry: 124, Page 4 of 9
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`wake of a vacatur to regulate future sales, distributions, and uses of the pesticide.
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`Monsanto agrees with EPA that if the 2018 Registration were vacated “end users
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`would be free to use their remaining stocks.” ECF No. 115-1 at 7. Monsanto further
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`agrees that, if the Court vacates, EPA would retain authority to craft an appropriate
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`order addressing existing stocks. 7 U.S.C. § 136d(a)(1); see also id. § 136k
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`(granting EPA authority to stop sales). But regardless, these questions—what uses,
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`if any, are lawful following vacatur, and the extent of EPA’s post-vacatur
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`authority—are beyond the scope of the dispute in this case.
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`
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`To the extent Petitioners are asking this Court to issue an order that
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`preemptively decides those questions and constrains EPA’s post-decision authority,
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`they invite additional error. The parties disagree on the proper remedy (remand
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`versus partial or full vacatur) if the Court finds a deficiency in the registration. But
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`if the Court were to vacate the 2018 Registration, it should do just that and nothing
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`more. Jurisdiction would then return to EPA to determine whether and how to
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`respond to the Court’s order in light of existing circumstances. Any court order
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`addressing the lawfulness of future uses would be premature. And any court order
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`prejudging EPA’s remedial authority or otherwise limiting the agency’s discretion
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`ex ante would be invalid for the very same reason as the injunction that the Supreme
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`Court overturned in Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010)
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`(vacating injunction against future agency action obtained by Center for Food
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`3
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`Case: 19-70115, 05/29/2020, ID: 11704623, DktEntry: 124, Page 5 of 9
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`Safety); see also Immigration & Naturalization Serv. v. Orlando Ventura, 537 U.S.
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`12, 16 (2002) (explaining that “judicial judgment cannot be made to do service for
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`an administrative judgment” and that an “appellate court [cannot] intrude upon the
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`domain which Congress has exclusively entrusted to an administrative agency”
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`(citations omitted)).
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`
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`In addition to inviting legal error, Petitioners’ requested relief invites
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`imprudence because EPA (but not this Court) has the benefit of substantial new data
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`(including studies required by the 2018 Registration, and others completed in 2019
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`by independent academic scientists) that would inform the appropriate scope of any
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`EPA order setting conditions on existing stocks. See ER0023 (documenting
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`voluminous new data submission requirements that Monsanto and other registrants
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`have fulfilled since the 2018 Registration was issued). This new data also provides
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`valuable information bearing on the reliability of the studies that informed the 2018
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`Registration. And in addition to that data, EPA has access to substantial extra-record
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`information bearing on what, if any, realistic alternatives farmers would have if
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`deprived of the ability to use XtendiMax for weed control in the midst of the 2020
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`growing season, and the potentially significant consequences those alternatives
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`might have for agriculture and the environment. Monsanto accepts that all of this
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`extra-record data is irrelevant to the merits of the agency action currently under
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`review. But it would be highly relevant to EPA’s determination how best to regulate
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`4
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`Case: 19-70115, 05/29/2020, ID: 11704623, DktEntry: 124, Page 6 of 9
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`product use going forward should this Court remand or vacate the 2018 Registration.
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`Accordingly, in addition to lacking the authority to preemptively enjoin future
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`EPA action, this Court lacks the information it would need to assess the merits of
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`any future exercise of EPA’s regulatory authority. Without knowing the grounds,
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`breadth, or timing of this Court’s decision, or even the registration orders to which
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`it may apply, it is impossible to know what information would be relevant to any
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`such remedial action, but it could include the following:
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`• To the extent the Court identifies specific deficiencies in EPA’s registration
`decision, identification of the limited geographic areas within the 34 states
`where the 2018 Registration applies where those deficiencies are actually
`relevant;
`• The immediate impact of a vacatur on farmers in the midst of the growing
`season, including whether serious weed control issues (and the consequences
`thereof) would proliferate in certain locations or nationwide and materially
`impact crop yield, whether growers would purchase and use pesticides with
`potentially greater environmental impact, and the potential collateral impacts
`of those pesticides;
`• How the results of the 2019 growing season affect the assessment of risks and
`benefits;
`• How the results of further registrant and academic studies may inform the
`assessment of risks;
`• Whether there are additional effective measures to diminish further the
`alleged risk of off-target movement from pesticide volatility without
`compromising the effective control of problematic weeds; and
`• Whether farmers would have any options to convert immediately to manual
`labor for weeding in the midst of the growing season (and midst of the
`COVID-19 health crisis).
`At a minimum, this Court should not take the preemptory action Petitioners
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`5
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`Case: 19-70115, 05/29/2020, ID: 11704623, DktEntry: 124, Page 7 of 9
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`demand without the benefit of full briefing on such issues.1 A remedy that fails to
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`account for these (and many other) factors will produce net harm, both to the
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`economy and to the environment.
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`1 EPA and Monsanto have argued that supplemental briefing is essential should this
`Court grant the petition for review, in part to provide the Court itself the information
`it would need to appropriately tailor its own remedial order. Although Petitioners
`argue that a blanket vacatur of the 2018 Registration is the only appropriate remedy,
`it is common for court-approved settlements in ESA litigation to allow pesticide
`registrations to remain in effect pending consultation. See, e.g. Center for Biological
`Diversity v. EPA, Dkt No. 364, Case No. 11-0293 (N.D. Cal. Oct. 18, 2019).
`Petitioner Center for Food Safety itself participated in such a Joint Stipulation on
`remedy where the court had already found that EPA failed to consult under the ESA
`on two pesticide active ingredients. Among other measures, the Joint Stipulation
`established a schedule for ESA effects determinations, and the 59 challenged product
`registrations containing those active ingredients remained in effect pending those
`determinations. See Ellis v. Keigwin, Dkt. No. 371, Case No. 13-01266 (N.D. Cal.
`May 31, 2019) (order approving Stipulated Notice of Dismissal); EPA-HQ-OGC-
`2018-0745-0002 (Proposed Joint Stipulation). Should this Court grant the petition
`for review, there are good reasons to follow a similar approach in the circumstances
`of this case.
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`6
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`Case: 19-70115, 05/29/2020, ID: 11704623, DktEntry: 124, Page 8 of 9
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`Respectfully submitted,
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`
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`s/ Philip J. Perry
`Philip J. Perry
`Richard P. Bress
`Stacey L. VanBelleghem
`Andrew D. Prins
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, DC 20004
`(202) 637-2200
`philip.perry@lw.com
`Attorneys for Intervenor-Respondent
`Monsanto Company
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`7
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`Case: 19-70115, 05/29/2020, ID: 11704623, DktEntry: 124, Page 9 of 9
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`CERTIFICATE OF COMPLIANCE
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`I hereby certify that this brief complies with the requirements of Fed. R. App.
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`P. 32(a)(5) and (6) because it has been prepared in 14-point Times New Roman font,
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`a proportionally spaced font.
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`I further certify that this brief complies with Rule 27(d)(2) of the Federal
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`Rules of Appellate Procedure, because it contains 1,492 words, excluding the parts
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`of the brief exempted under Rule 32(a)(7)(B)(iii), according to the count of
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`Microsoft Word.
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` s/ Philip J. Perry
`Philip J. Perry
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`8
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