Case: 19-70115, 06/03/2020, ID: 11710144, DktEntry: 125, Page 1 of 56
`
`FOR PUBLICATION
`
`FILED
`
`JUN 3 2020
`
`UNITED STATES COURT OF APPEALS
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
` FOR THE NINTH CIRCUIT
`
`No. 19-70115
`
`Environmental Protection Agency
`
`OPINION
`
`NATIONAL FAMILY FARM
`COALITION; CENTER FOR FOOD
`SAFETY; CENTER FOR BIOLOGICAL
`DIVERSITY; PESTICIDE ACTION
`NETWORK NORTH AMERICA,
`
`Petitioners,
`
` v.
`
`U.S. ENVIRONMENTAL PROTECTION
`AGENCY; ANDREW WHEELER, in his
`official capacity as Administrator,
`
`Respondents,
`
`MONSANTO COMPANY,
`
`Respondent-Intervenor.
`
`On Petition for Review of an Order of the
`U.S. Environmental Protection Agency
`
`Argued and Submitted April 21, 2020
`San Francisco, California
`
`Before: Michael Daly Hawkins, M. Margaret McKeown, and William A. Fletcher,
`Circuit Judges.
`
`Opinion by Judge W. Fletcher
`1
`
`
`
`FOR PUBLICATION
`
`FILED
`
`JUN 3 2020
`
`UNITED STATES COURT OF APPEALS
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
` FOR THE NINTH CIRCUIT
`
`No. 19-70115
`
`Environmental Protection Agency
`
`OPINION
`
`NATIONAL FAMILY FARM
`COALITION; CENTER FOR FOOD
`SAFETY; CENTER FOR BIOLOGICAL
`DIVERSITY; PESTICIDE ACTION
`NETWORK NORTH AMERICA,
`
`Petitioners,
`
` v.
`
`U.S. ENVIRONMENTAL PROTECTION
`AGENCY; ANDREW WHEELER, in his
`official capacity as Administrator,
`
`Respondents,
`
`MONSANTO COMPANY,
`
`Respondent-Intervenor.
`
`On Petition for Review of an Order of the
`U.S. Environmental Protection Agency
`
`Argued and Submitted April 21, 2020
`San Francisco, California
`
`Before: Michael Daly Hawkins, M. Margaret McKeown, and William A. Fletcher,
`Circuit Judges.
`
`Opinion by Judge W. Fletcher
`1
`
`
`
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`American farmers have been using dicamba, a chemical herbicide, to combat
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`weeds for more than fifty years. Dicamba is an effective weed killer, but its
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`toxicity is not limited to weeds. It can kill many desirable broadleaf plants, bushes,
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`and trees. It also has a well-known drawback. Dicamba is volatile, moving easily
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`off a field onto which it has been sprayed. It can drift if the wind blows during
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`application; it can drift if applied during temperature inversions; it can drift after
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`application when it volatilizes, or turns to a vapor, during hot weather. As a result
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`of its toxicity and its tendency to drift, dicamba had historically been used to clear
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`fields, either before crops were planted or before newly planted crops emerged
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`from the soil. This changed in 2017.
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`By the early 2000s, many weeds had developed a resistance to the widely
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`used herbicide glyphosate, the main ingredient in Roundup brand-name products
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`sold by the Monsanto Company (“Monsanto”). In response, Monsanto developed
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`and patented genes that allowed soybean and cotton crops to tolerate dicamba.
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`Concurrently, Monsanto and two other herbicide manufacturers reformulated
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`dicamba herbicides in an attempt to make dicamba less volatile and therefore
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`usable during the growing season. Their efforts culminated in 2016, when,
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`pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7
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`U.S.C. §§ 136 et seq., the U.S. Environmental Protection Agency (“EPA”) granted
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`conditional, two-year amended registrations to Monsanto and later the two other
`2
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`agrochemical companies, approving their reformulated dicamba-based herbicides
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`for over-the-top (“OTT”), or “post-emergent” use on dicamba-tolerant (“DT”)
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`soybeans and cotton ahead of the 2017 growing season. The conditional
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`registrations were to expire in late 2018.1
`
`On October 31, 2018, the EPA approved conditional registrations for the
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`three dicamba-based herbicides for an additional two years. The EPA’s decision
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`document announced that the EPA “will be granting requests by Bayer
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`CropScience (formerly Monsanto Company), Corteva (formerly DuPont), and
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`BASF to amend their existing conditional registrations that contain expiration
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`dates of November 9, 2018, and December 20, 2018, respectively.” In the
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`following week, the EPA issued conditional two-year amended registrations to
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`Bayer for its “M1768 Herbicide,” also known as “XtendiMax With VaporGrip
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`Technology” (“XtendiMax”); to Corteva for its “DuPont FeXapan Herbicide”
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`(“FeXapan”); and to BASF for its “Engenia Herbicide” (“Engenia”).
`
`The National Family Farm Coalition, Center for Food Safety, Center for
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`Biological Diversity, and Pesticide Action Network North America (“petitioners”)
`
`sought review of the October 31, 2018, decision upon which the registrations were
`
`1 For the convenience of the reader, we list here the key abbreviations used in this
`opinion. “Over-the-top” (dicamba use) is abbreviated “OTT.” “Dicamba-tolerant”
`(soybean and cotton) is abbreviated “DT.” The Office of Pesticide Programs
`(housed within the EPA) is abbreviated “OPP.”
`3
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`based. Petitioners argue that the EPA’s decision violates both FIFRA and the
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`Endangered Species Act, 16 U.S.C. § 1536(a)(2).
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`We hold that the EPA’s October 31, 2018, decision, and the conditional
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`new-use registrations of XtendiMax, Engenia, and FeXapan for use on DT soybean
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`and cotton that are premised on that decision, violate FIFRA. As we will explain
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`in more detail below, FIFRA provides two requirements for conditional
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`amendment of an existing registration. The EPA must determine that (i) the
`
`applicant has submitted “satisfactory data,” and (ii) the amendment will not
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`“significantly increase the risk of any unreasonable adverse effect on the
`
`environment.” 7 U.S.C. § 136a(c)(7)(B). We need not decide whether substantial
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`evidence supports a finding that the applicants submitted satisfactory
`
`data—although, as we discuss below, the data have several flaws—because we
`
`hold that the EPA substantially understated risks that it acknowledged and failed
`
`entirely to acknowledge other risks.
`
`The EPA substantially understated three risks that it acknowledged. The
`
`EPA substantially understated the amount of DT seed acreage that had been
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`planted in 2018, and, correspondingly, the amount of dicamba herbicide that had
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`been sprayed on post-emergent crops. Further, the EPA purported to be agnostic
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`as to whether formal complaints of dicamba damage under-reported or over-
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`reported the actual damage, when record evidence clearly showed that dicamba
`4
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`damage was substantially under-reported. Finally, the EPA refused to estimate the
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`amount of dicamba damage, characterizing such damage as “potential” and
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`“alleged,” when record evidence showed that dicamba had caused substantial and
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`undisputed damage.
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`The EPA also entirely failed to acknowledge three other risks. The EPA
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`entirely failed to acknowledge record evidence showing the high likelihood that
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`restrictions on OTT dicamba application imposed by the 2018 label would not be
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`followed. The EPA based its registration decision on the premise that the label’s
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`mitigation measures would limit off-field movement of OTT dicamba. These
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`measures became increasingly restrictive with each iteration of OTT dicamba
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`labels. Record evidence shows that the restrictions on the 2016 and 2017 labels
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`had already been difficult if not impossible to follow for even conscientious users;
`
`the restrictions on the 2018 label are even more onerous. Further, the EPA entirely
`
`failed to acknowledge the substantial risk that the registrations would have anti-
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`competitive economic effects in the soybean and cotton industries. Finally, the
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`EPA entirely failed to acknowledge the risk that OTT dicamba use would tear the
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`social fabric of farming communities.
`
`We therefore vacate the EPA’s October 31, 2018, registration decision and
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`the three registrations premised on that decision. Because our vacatur is based on
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`5
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`our holding under FIFRA, we do not reach the question whether the registration
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`decision also violates the Endangered Species Act.
`
`I. Background
`
`A. Evolution of Glyphosate-Resistant Weeds
`
`Before its purchase by Bayer in 2018, Monsanto had become a household
`
`name largely due to its flagship herbicide Roundup. In the 1990s, Monsanto
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`developed a “Roundup Ready” crop system, selling this glyphosate-based
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`herbicide along with seeds genetically modified to tolerate glyphosate.
`
`Monsanto’s Roundup Ready system allowed farmers to apply glyphosate over
`
`genetically modified crops during the growing season, killing weeds but leaving
`
`their crops unharmed. By 2008, 92 percent of soybeans and 68 percent of cotton
`
`plantings in the United States came from glyphosate-resistant seeds. Glyphosate
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`was so popular that many farmers sold their weed-tilling equipment and stopped
`
`buying other herbicides, instead applying glyphosate on their fields year after year.
`
`After years of heavy glyphosate use by farmers, many weeds developed
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`glyphosate resistance. Such “superweeds” include Palmer amaranth, a large and
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`fast-growing weed that, left unchecked, can take over a field. In search of a new
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`weed-killer, Monsanto and other agrochemical companies turned to dicamba,
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`which had been registered for limited use since 1967. Dicamba works by
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`mimicking auxin, a plant hormone, to cause abnormal and ultimately fatal cell
`6
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`growth. Dicamba is extremely toxic to broadleaf plants, bushes, and trees. It can
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`damage or kill fruiting vegetables, fruit trees, grapes, beans, peas, potatoes,
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`tobacco, flowers, and ornamental plants. It can also damage or kill many species
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`of large trees, including oaks, elms, and maples. Dicamba damage is easily
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`identified by its signature marker, “leaf cupping.”
`
`Dicamba’s toxic effect is magnified by its tendency, shared with other
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`synthetic auxins, to move off a field where it is sprayed. Dicamba droplets can
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`drift during or shortly after spraying if the wind is blowing too hard or the spraying
`
`equipment is moving too fast. Dicamba vapor can drift if dicamba is applied
`
`during a temperature inversion—an atmospheric condition in which cool air at the
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`earth’s surface traps warmer air above it, allowing the vapor to remain in a
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`concentrated cloud and move off-field during a light wind. And dicamba vapor
`
`can drift if dicamba volatilizes after it has come to rest on plants or the ground.
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`Dicamba can volatilize hours or even days after it has been applied, and it does so
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`more easily and in greater volumes as the temperature rises. During temperature
`
`inversions, or after volatilizing on hot days, dicamba can drift long distances,
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`sometimes a mile or more.
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`Because of its tendency to drift, dicamba had been largely used in late winter
`
`or early spring before crops were planted. Post-emergent use of dicamba was
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`7
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`limited to crops that are naturally tolerant of dicamba, such as corn and wheat, and
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`was typically limited to use early in the growing season.
`
`B. Development of Lower-Volatility Dicamba Herbicides
` and EPA’s 2016 Two-Year Conditional Registration Decision
`
`
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`Monsanto and two other agrochemical companies—DuPont and
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`BASF—developed new dicamba products with reduced (though not eliminated)
`
`volatility. The companies claimed to the EPA that their new dicamba herbicides
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`had such low volatility that they were unlikely to move in significant amounts off
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`the field to which they were applied and could therefore be used safely during the
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`growing season. In 2010 and 2012, Monsanto submitted applications to the EPA
`
`to register two different formulations of dicamba-based herbicide for post-
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`emergent use on genetically modified, dicamba-tolerant (“DT”) soybeans and
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`cotton.
`
`In 2015, the U.S. Department of Agriculture deregulated DT soybean and
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`cotton seeds under authority granted by the Plant Protection Act, 7 U.S.C. §§ 7701
`
`et seq. Monsanto, which had developed and patented the dicamba-tolerance seed
`
`trait, began to sell these DT seeds ahead of the 2016 growing season, before the
`
`companion dicamba herbicides had been approved by the EPA for over-the-top
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`(“OTT”) use. Farmers planted about 1.7 million acres of DT soybeans and close to
`
`50,000 acres of DT cotton in 2016. Record evidence contains reports that some
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`8
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`growers illegally sprayed the old dicamba herbicides during the post-emergent
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`phase of the 2016 growing season.
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`Under FIFRA, the EPA can conditionally amend the registration of a
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`pesticide (including an herbicide) to permit an additional use only if it finds that
`
`the new use will not significantly increase the risk of any unreasonable adverse
`
`effect on humans or the environment, taking into account the pesticide’s economic,
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`social, and environmental costs and benefits. See 7 U.S.C. § 136a(c)(7)(B)
`
`(allowing the EPA to conditionally amend the registration of a pesticide to allow
`
`for a new use); § 136(bb) (defining “unreasonable adverse effects on the
`
`environment” to include “any unreasonable risk to man or the environment, taking
`
`into account the economic, social, and environmental costs and benefits of the use
`
`of any pesticide”).
`
`Beginning in the fall of 2016, the EPA announced that it would grant two-
`
`year conditional registrations for three lower-volatility, OTT dicamba
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`herbicides—Monsanto’s XtendiMax; DuPont’s FeXapan; and BASF’s Engenia. In
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`support of its decision, the EPA identified two “important” benefits from OTT
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`application of dicamba on DT soybeans and cotton. First, dicamba “provides an
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`effective tool to treat especially noxious weeds . . . including glyphosate-resistant
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`biotypes that threaten soybean and cotton production today.” Second, “effective
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`treatment of glyphosate-resistant weeds can help control the spread of resistance.”
`9
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`The EPA stated that the lower-volatility dicamba formulations, if used in
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`compliance with restrictions on an approved label, posed little or no risk of adverse
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`effects on the environment and therefore imposed minimal costs. In its registration
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`decision, the EPA wrote that the label restrictions “are known to profoundly impact
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`any drift potential from pesticide application.” “In aggregate, these formulations
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`and labeling requirements are expected to eliminate any offsite exposures and
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`effectively prevent risk potential to people and non-target species.” The EPA
`
`concluded, “After weighing all the risks of concern against the benefits of the new
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`uses, the EPA finds that when the mitigation measures for these uses are applied,
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`the benefits of the use of the pesticide outweigh[] any remaining minimal risks, if
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`they exist at all.”
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`The conditional registrations allowed OTT dicamba use in thirty-four states.2
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`The conditional registrations for XtendiMax and FeXapan were set to expire on
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`November 9, 2018; the conditional registration for Engenia was set to expire on
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`December 20, 2018. The EPA wrote that the conditional registrations would
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`2 The states are Alabama, Arizona, Arkansas, Colorado, Delaware, Florida,
`Georgia, Illinois, Iowa, Indiana, Kansas, Kentucky, Louisiana, Maryland,
`Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Jersey, New Mexico,
`New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South
`Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, and
`Wisconsin.
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`10
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`automatically expire unless the agency determined that off-site incidents of
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`dicamba damage were not occurring at “unacceptable frequencies or levels.”
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`The EPA’s 2016 registration decision required a detailed label restricting the
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`manner in which the dicamba-based herbicides could be used. The most important
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`restrictions were: (1) application was prohibited during wind speeds above fifteen
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`miles per hour; (2) application was prohibited during temperature inversions; (3)
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`application was prohibited if rain was expected in the next twenty-four hours; (4)
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`application was prohibited when spraying equipment was traveling at a ground
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`speed above fifteen miles per hour; (5) a buffer of at least 110 feet between the last
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`treated crop row and the nearest downwind edge of the field was required; and (6)
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`a maximum sprayer boom height of twenty-four inches above the weeds or crop
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`canopy was required.
`
`C. Experience During the 2017 Growing Season, and
` Label Amendment for the 2018 Growing Season
`
`XtendiMax, Engenia, and FeXapan were on the market in time for the 2017
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`growing season. Many farmers adopted the new crop system, planting seeds with
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`Monsanto’s dicamba-tolerance trait on 27 million acres and using dicamba
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`herbicides on the post-emergent crops. From 2012 to 2016, before use of OTT
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`dicamba was allowed on DT soybeans and cotton, an average of 231,000 pounds
`
`acid equivalent of dicamba had been applied each year to cotton, while an average
`
`11
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`of 537,000 pounds of dicamba had been applied to soybeans. In 2017, almost 8
`
`million pounds of dicamba were applied to post-emergent soybeans, and almost 2
`
`million pounds were applied to post-emergent cotton.
`
`In its 2016 registration decision, the EPA had written that the label
`
`restrictions were “expected to eliminate any offsite exposures” to dicamba.
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`(Emphasis added.) But as the 2017 growing season progressed, complaints of
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`dicamba-caused damage to commercial crops and other plants soared. By the end
`
`of the season, according to a report by Professor Kevin Bradley of the University
`
`of Missouri, 2,708 formal complaints of dicamba-caused damage were being
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`investigated by state departments of agriculture. Bradley reported that university
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`weed scientists estimated that approximately 3.6 million acres of soybeans in
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`twenty-four states, or about 4 percent of all U.S. soybean acreage, were damaged
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`by off-field movement of dicamba.
`
`Reuben Baris, Acting Chief of the herbicide branch of the EPA’s Office of
`
`Pesticide Programs, told state regulatory officials at a meeting in Washington,
`
`D.C., in the fall of 2017 that the agency was “very concerned with what has
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`occurred” with the OTT use of dicamba. During a presentation in September 2018,
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`Baris confirmed that “[m]ore than 3.6 million acres” of soybeans had been
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`damaged by dicamba during the 2017 season. Baris noted, further, that the
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`reported damage was likely an underestimate of the actual damage because, in his
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`words, “[n]ot all reports of crop damage were reported to State Departments of
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`Agriculture.” Speaking on the topic of dicamba at an annual meeting of the
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`Pesticide Stewardship Alliance in February 2018, Rick Keigwin, the Director of
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`the EPA’s Office of Pesticide Programs, remarked, “I don’t say this in jest, but
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`2018 cannot look like 2017.”
`
`Monsanto proposed changes to the XtendiMax label for the 2018 growing
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`season to address what the EPA characterized as a “high number of crop damage
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`incidents.” The EPA also consulted state agencies and the U.S. Department of
`
`Agriculture on the changes, but it did not undertake a formal registration
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`amendment process before approving additional label restrictions for the OTT
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`dicamba products for the 2018 season. The most important additional restrictions
`
`were: (1) application was prohibited if the wind speed during application was less
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`than three miles per hour or more than ten miles per hour (rather than more than
`
`fifteen miles per hour); (2) application was permitted only between sunrise and
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`sunset (rather than at any time other than during a temperature inversion); (3) the
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`herbicides had to be labeled as “restricted use pesticides,” which could be applied
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`only by certified applicators or people working under their direct supervision; and
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`(4) applicators had to receive dicamba-specific training.
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`In a letter to Monsanto adopting the changes, the EPA wrote, “The
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`amendment approved through this letter includes additional restrictions further
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`minimizing off-field movement of the active ingredient dicamba and do not affect
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`the conclusions in the supporting assessment of risk. EPA accordingly continues
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`to rely on all the assessments that supported the new uses, and therefore does not
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`require . . . [any] new risk assessment.” In other words, the EPA continued to rely
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`on its risk assessment from a year earlier, when it had concluded that the 2016
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`labeling requirements “are expected to eliminate any offsite exposures and
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`effectively prevent risk potential to people and non-target species.”
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`D. Experience During the 2018 Growing Season
`
`In 2018, more than 103 million acres of soybeans and cotton were planted in
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`the United States. Of that total, 56 million acres were planted with seeds with
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`Monsanto’s dicamba-tolerance trait, up from 27 million acres the year before.
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`Bradley reported that by July 15, 2018, university weed scientists estimated that in
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`eighteen states there were about 1.1 million acres of soybeans with dicamba
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`damage. The other sixteen states where OTT dicamba was approved were not
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`included in the report. By the same date the previous year, Bradley reported,
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`university weed scientists had estimated 2.5 million acres of damaged soybeans. It
`
`is unclear how many states were included in the July 2017 estimate.
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`The 2018 growing season was again marked by many complaints of off-site
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`dicamba damage. In the country’s major soybean-producing states, the sharp
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`increase in 2017 of complaints to state agriculture departments about dicamba
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`damage to crops was followed by only a slight decrease in complaints in 2018. In
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`2017 and 2018, Illinois, Indiana, Iowa, Minnesota, Missouri, Nebraska, North
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`Dakota, and South Dakota planted the most acres of soybeans. See Quick Stats,
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`NAT’L AGRIC. STATISTICS SERV.,
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`https://quickstats.nass.usda.gov/results/96B2EF56-2AC3-329E-803E-
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`6D6D3CC5444C. In those states in 2017, there were 1,287 complaints to state
`
`departments of agriculture of dicamba damage; in 2018, there were 1,064
`
`complaints. In total, according to the Association of American Pesticide Control
`
`Officials, approximately 1,400 complaints of crop damage resulting from OTT
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`dicamba herbicides were reported to state regulatory authorities in 2018.
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`There were substantial differences from state to state in reported dicamba
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`damage in 2018. Some states imposed restrictions for the 2018 growing season
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`over and above the label requirements imposed by the EPA and experienced
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`substantial decreases in the number of dicamba complaints. For example, in 2018
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`Minnesota imposed two additional restrictions on OTT application of dicamba
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`herbicides: (1) after June 20, OTT application of dicamba was forbidden; and (2)
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`before June 20, OTT application of dicamba was forbidden on days when field
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`temperatures exceeded 85 degrees. In 2017, there were 250 complaints of
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`dicamba-related crop damage in Minnesota; in 2018, there were 29. Similarly, in
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`2018 Arkansas prohibited OTT applications of dicamba between April 16 and
`15
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`October 31, effectively banning its use during the growing season. In 2017, there
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`were 986 complaints of dicamba-related crop damage in Arkansas; in 2018, there
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`were 200. By contrast, in 2018 Illinois imposed no additional requirements
`
`beyond those on the EPA label. In 2017, there were 245 complaints of dicamba-
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`related crop damage in Illinois; in 2018, the number of complaints increased to
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`330.
`
`E. 2018 Registration Decision
`
`With the 2016 conditional registrations due to expire in late 2018, Bayer
`
`(Monsanto’s new owner), Corteva, and BASF sought amendments that would
`
`extend the registrations for another two years. On October 31, 2018, the EPA
`
`announced it would “be granting requests by Bayer CropScience (formerly
`
`Monsanto Company), Corteva (formerly DuPont), and BASF to amend their
`
`existing conditional registrations that contain expiration dates of November 9,
`
`2018, and December 20, 2018, respectively.” On November 1, 2018, pursuant to
`
`its October 31 “registration decision,” the EPA issued a conditional registration to
`
`Bayer for its “M1768 Herbicide,” also known as XtendiMax. On November 2,
`
`2018, the EPA issued a conditional registration to BASF for its “Engenia
`
`Herbicide.” On November 5, 2018, the EPA issued a conditional registration to
`
`Corteva for its “DuPont FeXapan Herbicide.”
`
`16
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`In its October 31, 2018, decision to grant the conditional registrations, the
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`EPA assessed the benefits and costs of OTT application of dicamba on DT
`
`soybeans and cotton. In making this assessment, the EPA had before it comments
`
`from state agencies, farm bureaus, trade associations, farmers, seed companies,
`
`crop consultants, non-governmental organizations, academic and commercial weed
`
`scientists, and various other individuals.
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`The EPA found two benefits resulting from OTT application of dicamba.
`
`First, dicamba “provides growers with an additional postemergence active
`
`ingredient to manage difficult to control broadleaf weeds during the crop growing
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`season, particularly for those situations where herbicide-resistant biotypes, such as
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`Palmer amaranth, may occur (and few alternatives are available).” Second,
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`dicamba “provides a long-term benefit as a tool to delay resistance [to] other
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`herbicides when used as part of a season-long weed management program that
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`includes preemergence (residual) and postemergence (foliar) herbicides (along
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`with rotations between different MOA [modes of action]).”
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`In a separate document prepared by the EPA Office of Pesticide Programs
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`(“OPP document”) and dated the same day as the registration decision document,
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`the EPA rejected two additional benefits that had been proposed by the registrants.
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`First, the EPA refused to find that OTT application of dicamba to DT soybean and
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`cotton provided a comparative advantage in increasing crop yields: “The Agency
`17
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`Case: 19-70115, 06/03/2020, ID: 11710144, DktEntry: 125, Page 18 of 56
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`finds that dicamba can control weeds that might lead to yield loss but did not find
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`sufficient information to show it was more effective than other weed control
`
`programs in reducing yield loss due to weeds.” Second, the EPA refused to find
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`that OTT dicamba was “a crucial part of maintaining a conservation tillage
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`program.”
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`In its October 31 decision document, the EPA also listed the costs, or risks,
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`of dicamba use, which it characterized as “impacts.” It first discussed in a single
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`paragraph “[i]mpacts to non-dicamba tolerant soybean growers.” Citing a
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`slideshow from Monsanto’s second quarter 2018 financial results, the EPA wrote
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`that Monsanto had predicted that 40 million acres of DT soybeans would be
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`planted in 2018. The EPA then inferred that 55 percent of the 2018 soybean crop
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`would be non-DT and “may potentially be damaged by very low levels of off-
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`target dicamba.” In the OPP document, the EPA elaborated that “[i]n general,
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`exposure during the reproductive growth stages could result in reductions in
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`yield . . . , but the Agency does not have information to quantify this claim.”
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`The EPA next mentioned in a single paragraph “[i]mpacts to growers of
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`other dicamba sensitive crops.” It wrote, “Many other plants are sensitive to low
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`levels of dicamba and are listed on the dicamba labels.” The EPA named a number
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`of the dicamba-sensitive crops listed on the labels. It also noted that the labels list
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`“about 250 weeds—annual and perennial broadleaf plants and trees— . . . some of
`18
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`Case: 19-70115, 06/03/2020, ID: 11710144, DktEntry: 125, Page 19 of 56
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`which are desirable in non-crop settings.” In its separate OPP document, the EPA
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`wrote that “[t]he Agency does not know the extent of the damage to sensitive
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`crops.”
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`Finally, the EPA noted in a single paragraph “[i]mpacts to the landscape.”
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`It wrote, “In 2017 and 2018, state agencies received reports from growers about
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`incidents alleging damage to trees and other non-crop plants . . . . Potential impacts
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`could result in damage to shelterbelts and windbreaks, as well as desirable plants in
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`public parks and spaces.”
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`In its decision authorizing additional two-year conditional registrations, the
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`EPA imposed more restrictions on OTT application of dicamba herbicides to DT
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`soybeans and cotton. The most important additional restrictions were: (1)
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`application was permitted only between one hour after sunrise and two hours
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`before sunset (rather than any time between sunrise and sunset); (2) only two OTT
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`applications were permitted per crop for soybeans, with the last application made
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`no later than forty-five days after planting; (3) only two OTT applications were
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`permitted per crop for cotton, with the last application made no later than sixty
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`days after planting; (4) an omnidirectional, in-field fifty-seven-foot buffer was
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`required in certain counties to protect listed plant species; and (5) applications
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`could be made only by certified applicators.
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`II. Procedural History
`19
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`Case: 19-70115, 06/03/2020, ID: 11710144, DktEntry: 125, Page 20 of 56
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`Petitioners previously filed a petition for review of the EPA’s 2016
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`registration decision for XtendiMax. Monsanto filed a motion to intervene, which
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`we granted. Following the October 2017 label amendments, petitioners filed a
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`motion to amend their petition for review, which we also granted. We held oral
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`argument on August 29, 2018.
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`The EPA’s October 31, 2018, decision to grant additional, conditional two-
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`year registrations for XtendiMax, Engenia, and FeXapan was published before we
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`issued an opinion. We therefore held petitioners’ challenge moot, as the 2016
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`registration decision no longer had any legal effect. We held that petitioners’
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`challenge was not “capable of repetition but evading review” because there was no
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`reasonable expectation that petitioners would be subject to the same action—the
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`2016 registration decision—again. See Pub. Utils. Comm’n v. FERC, 100 F.3d
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`1451, 1459–60 (9th Cir. 1996). We therefore dismissed the petition.
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`Petitioners filed a new petition for review on January 11, 2019, challenging
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`the EPA’s October 31, 2018, decision. Monsanto again filed a motion to
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`intervene, which we granted. We directed the Clerk of the Court to set an
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`expedited briefing schedule. We held oral argument on April 21, 2020.
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`III. Jurisdiction
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`20
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`Case: 19-70115, 06/03/2020, ID: 11710144, DktEntry: 125, Page 21 of 56
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`FIFRA provides for review in the courts of appeals “as to the validity of any
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`order issued by the Administrator following a public hearing” by “any person who
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`will be adversely affected by such order and who had been a party to the
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`proceedings.” 7 U.S.C. § 136n(b). A petition for review must be filed within sixty
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`days of the entry of a challenged order. Id. “Unless the Administrator otherwise
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`explicitly provides in a particular order, . . . the . . . date of entry of an order issued
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`by the Administrator following a public hearing . . . shall be . . . on the date that is
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`two weeks after it is signed.” 40 C.F.R. § 23.6.
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`The Administrator signed the EPA’s decision document on October 31,
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`2018. Petitioners filed their petition for review within two weeks and sixty days of
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`that date, on January 11, 2019. Intervenor Monsanto argues that we lack
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`jurisdiction, contending that the petition was filed too late. The EPA does not join
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`Monsanto’s argument.
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`Monsanto contends that because the XtendiMax registration was “issued”
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`and its Master Label marked “accepted” on November 1, 2018, that date
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`constitutes the “date of entry,” making the EPA’s decision immediately reviewable
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`and the petition therefore untimely. We disagree. Neither the November 1
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`registration nor the November 1 Master Label acceptance “explicitly provides” that
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`the “date of entry” of the EPA’s order has been altered. We therefore conclude
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`that the petition for review was timely filed and that we have jurisdiction.
`21
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`Case: 19-70115, 06/03/2020, ID: 11710144, DktEntry: 125, Page 22 of 56
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`IV. Scope of Petitioners’ Challenge
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`Petitioners challenge the EPA’s October 31, 2018, decision to conditionally
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`amend the registrations of XtendiMax, Engenia, and FeXapan, permitting the OTT
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`use of dicamba on DT soybeans and cotton for another two years. The scope of
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`petitioners’ challenge is stated in the first sentence of their brief: “This petition
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`seeks review of the October 31, 2018 decision by the United States Environmental
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`Protection Agency (EPA) to continue the new uses registrations of the pesticide
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`dicamba on dicamba-resistant cotton and soybean[.]”
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`The EPA, however, asserts that petitioners have challenged only the
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