throbber
Case: 19-70115, 06/11/2020, ID: 11719490, DktEntry: 127-1, Page 1 of 33
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`Oral Argument Held on April 21, 2020
`
`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
`PETITIONERS’ EMERGENCY MOTION TO ENFORCE THIS
`COURT’S VACATUR AND TO HOLD EPA IN CONTEMPT
`RELIEF REQUESTED BY EARLIEST POSSIBLE DATE
`______________________
`CENTER FOR FOOD SAFETY
`CENTER FOR BIOLOGICAL
`George A. Kimbrell
`DIVERSITY
`Sylvia Shih-Yau Wu
`Stephanie M. Parent
`Amy van Saun
`PO Box 11374
`2009 NE Alberta St., Suite 207
`Portland, OR 97211
`Portland, OR 97211
`T: (971) 717-6404
`T: (971) 271-7372
`sparent@biologicaldiversity.org
`gkimbrell@centerforfoodsafety.org
`swu@centerforfoodsafety.org
`avansaun@centerforfoodsafety.org
`
`Counsel for Petitioners
`
`

`

`Case: 19-70115, 06/11/2020, ID: 11719490, DktEntry: 127-1, Page 2 of 33
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`TABLE OF CONTENTS
`
`INTRODUCTION ....................................................................................... 1
`I. THE COURT HAS AUTHORITY TO ENFORCE ITS
`VACATUR. ............................................................................... 3
`II. THE COURT SHOULD ENFORCE ITS REMEDY. .............. 7
`A. EPA’s Administrative Order Flouts the Court’s
`Decision. .......................................................................... 7
`B. EPA Lacks Authority to Issue a “Cancellation”
`Order Reviving the Use Just Vacated by the
`Court. ............................................................................. 12
`The Entire Underlying Rationale for EPA’s
`Action Is False, Based on a Misinterpretation of
`This Court’s Decision. ................................................... 15
`III. THE COURT SHOULD HOLD EPA AND
`ADMINISTRATOR WHEELER IN CONTEMPT. ............... 20
`IV. TO PROTECT ENDANGERED SPECIES, THE
`COURT SHOULD REACH PETITIONERS’ ESA
`CLAIMS. ................................................................................. 23
`CONCLUSION ......................................................................................... 26
`
`
`
`
`
`C.
`
`
`
`
`
`i
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`

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`TABLE OF AUTHORITIES
`
` Page(s)
`
`Federal Cases
`Aerojet-General Corp. v. The American Arbitration Assoc.,
`478 F.2d 248 (9th Cir.1973) ................................................................... 4
`Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv.,
`789 F.3d 1075 (9th Cir. 2015) .............................................................. 24
`Dilley v. Alexander,
`627 F.2d 407 (D.C. Cir. 1980) ................................................................ 4
`Donovan v. Mazzola,
`716 F.2d 1226 (9th Cir. 1983) .............................................................. 21
`EEOC v. Commercial Office Prods.,
`486 U.S. 107 (1988) .............................................................................. 17
`Kokkonen v. Guardian Life Ins. Co.,
`511 U.S. 375 (1994) ................................................................................ 3
`Nat’l Family Farm Coal. v. EPA,
`--- F.3d ---, 2020 WL 2901136 (9th Cir. June 3, 2020) ................ passim
`Nat’l Wildlife Fed’n v. Burford,
`835 F.2d 305 (D.C. Cir. 1987) ........................................................ 24, 25
`Or. Natural Desert Ass’n v. Tidwell,
`No. 07-1871-HA, 2010 WL 5464269 (D. Or. Dec. 30, 2010) ............... 25
`Pollinator Stewardship Council v. EPA,
`806 F.3d 520 (9th Cir. 2015) ................................................................ 19
`Reno Air Racing Ass’n, Inc. v. McCord,
`452 F.3d 1126 (9th Cir. 2006) .............................................................. 22
`Stone v. City & Cnty. of San Francisco,
`968 F.2d 850 (9th Cir. 1992) ................................................................ 21
`
`
`
`ii
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`Page(s)
`
`Federal Cases (Cont’d)
`U.S. v. Bright,
`596 F.3d 683 (9th Cir. 2010) ................................................................ 20
`United States v. Goodner Bros. Aircraft,
`966 F.2d 380 (8th Cir. 1992) ................................................................ 14
`Wolfard Glassblowing Co. v. Vanbragt,
`118 F.3d 1320 (9th Cir.1997) ......................................................... 21, 22
`Zipfel v. Halliburton Co.,
`861 F.2d 565 (9th Cir. 1988) .................................................................. 4
`Federal Statutes
`7 U.S.C. § 136(ee)...................................................................................... 20
`7 U.S.C. § 136a(a) ..................................................................................... 16
`7 U.S.C. § 136d(a)(1) ........................................................................... 14, 16
`7 U.S.C. § 136j(a)(2)(F) ............................................................................. 20
`7 U.S.C. § 136k(a) ..................................................................................... 17
`7 U.S.C. § 136n ......................................................................................... 13
`Rules
`FRAP 41 ...................................................................................................... 9
`Circuit Rule 27-3 ......................................................................................... 1
`Regulations
`40 C.F.R. pt. 164 ....................................................................................... 13
`Other Authorities
`56 Fed. Reg. at 29,362 (June 26, 1981) .................................................... 14
`
`
`
`iii
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`Case: 19-70115, 06/11/2020, ID: 11719490, DktEntry: 127-1, Page 5 of 33
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`EPA, Press Release (June 5, 2020),
`https://www.epa.gov/newsreleases/epa-responds-ninth-
`circuit-vacatur-dicamba-registrations .................................................. 1
`
`
`
`
`
`
`
`iv
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`

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`INTRODUCTION
`
`Extraordinary events require extraordinary actions. EPA has
`
`
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`defied this Court’s decision, requiring Petitioners’ emergency motion,
`
`pursuant to Circuit Rule 27-3. On June 3, this Court granted the
`
`petition for review and held that Respondent EPA violated FIFRA in
`
`registering the new over-the-top (OTT) uses for three dicamba products
`
`on soybean and cotton based on the strong record evidence of their drift
`
`harm. Nat’l Family Farm Coal. v. EPA, --- F.3d ---, 2020 WL 2901136
`
`(9th Cir. June 3, 2020) (NFFC). As to remedy, the Court carefully
`
`weighed the impacts on growers of vacating the new uses against the
`
`drift harms of allowing the OTT use to continue and vacated, issuing its
`
`mandate concurrently to halt spraying immediately. Id. at *19-20. The
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`Court’s decision and remedy could not have been clearer.
`
`Instead of simply admitting that vacatur means the OTT uses are
`
`unlawful and spraying is no longer allowed, EPA remained silent for
`
`five days, then opted to “mitigate”1 the Court’s decision, brazenly
`
`attempting to tailor the Court’s vacatur to its liking, while in reality
`
`
`1 EPA, Press Release (June 5, 2020),
`https://www.epa.gov/newsreleases/epa-responds-ninth-circuit-vacatur-
`dicamba-registrations.
`
`
`
`1
`
`

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`Case: 19-70115, 06/11/2020, ID: 11719490, DktEntry: 127-1, Page 7 of 33
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`eviscerating it by making it prospective as to existing products until
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`July 31, effectively the rest of the spraying season. EPA called this a
`
`“cancellation” order but it was actually a “continuing uses despite
`
`vacatur” order. EPA Admin Order (attached as Kimbrell Decl., Exhibit
`
`A).
`
`Emergency relief is required to prevent off-field drift harms that
`
`will occur on millions of acres should spraying continue. First, while
`
`EPA can take new action after vacatur, such action must comply with
`
`FIFRA and this Court’s Order. But here, EPA made zero attempt to
`
`address the Court’s rulings or take an action consistent with them.
`
`Second and more fundamentally, EPA lacks authority to issue its
`
`“cancellation” order because there is nothing to cancel here; vacatur—
`
`which is wholly different from FIFRA pesticide cancellation—
`
` made null and void the 2018 new use decision allowing OTT dicamba
`
`spraying. And even if EPA could use its cancellation powers here, its
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`premise for doing so—that the Court’s Order vacated the entire three
`
`product registrations, leaving no lawful uses and that action is required
`
`to prevent indiscriminate use—is false. EPA absurdly interpreted this
`
`Court’s remedy as creating unregulated OTT dicamba spraying, rather
`
`
`
`2
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`

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`Case: 19-70115, 06/11/2020, ID: 11719490, DktEntry: 127-1, Page 8 of 33
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`than making it unlawful. This contortion allowed EPA to claim that
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`conditions would be worse absent EPA’s continuing use decision,
`
`because farmers after vacatur can spray without any restriction.
`
`EPA has shown unconscionable disregard and contempt for this
`
`Court’s order and the rule of law. In light of the immediate risk of harm
`
`from the continued use of dicamba and the short period of time between
`
`now and the end of the 2020 growing season, Petitioners request this
`
`Court to immediately enforce its June 3, 2020 Order through
`
`appropriate relief, instruct EPA that it cannot avoid the vacatur of OTT
`
`uses in the 2020 season using this unlawful method, and find EPA in
`
`contempt.
`
`I.
`
`THE COURT HAS AUTHORITY TO ENFORCE ITS
`VACATUR.
`
`This Court has inherent authority to manage its proceedings,
`
`vindicate its authority, and effectuate its decrees. See, e.g., Kokkonen v.
`
`Guardian Life Ins. Co., 511 U.S. 375, 380 (1994) (recognizing courts’
`
`“inherent authority to appoint counsel to investigate and prosecute
`
`violation of a court’s order.”) (citing Young v. U.S. ex rel. Vuitton et Fils
`
`S.A., 481 U.S. 787 (1987)). This inherent authority includes, if
`
`necessary, the power to recall its mandate “to prevent injustice” or “to
`3
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`
`
`

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`protect the integrity of [the court’s] prior judgment” in extraordinary
`
`circumstances. Zipfel v. Halliburton Co., 861 F.2d 565, 567 (9th Cir.
`
`1988) (citations omitted). The Court should enforce its vacatur and hold
`
`EPA in contempt for overriding it.
`
`
`
`Here, there are very compelling circumstances requiring Court
`
`action: EPA defied this Court’s remedy by brazenly authorizing the
`
`continuation of the very harms this Court held EPA underestimated or
`
`entirely failed to consider. See Aerojet-General Corp. v. The American
`
`Arbitration Assoc., 478 F.2d 248, 254 (9th Cir.1973) (“[O]ne of the
`
`classic examples of [circumstances requiring clarification] is where the
`
`mandate does not fully express the intentions of the court” to ensure its
`
`proper enforcement.); Dilley v. Alexander, 627 F.2d 407, 408-411 (D.C.
`
`Cir. 1980) (where the Army unlawfully discharged two officers, finding
`
`“ample cause” to recall mandate to clarify the court’s intent that the
`
`Army must reinstate the officers retroactive to their discharge).
`
`Enforcement of the Court’s remedy is necessary to prevent the
`
`onslaught of dicamba drift that will otherwise occur again. Preventing a
`
`repeat of the past three seasons was central to this expedited litigation,
`
`and the Court promptly issued the mandate specifically to end dicamba
`
`
`
`4
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`

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`OTT use by June 3. EPA’s administrative order authorizes dicamba
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`OTT spraying until July 31, 2020, guaranteeing drift damage
`
`throughout June and July, the peak period for such drift. ER0482
`
`(incidents “continued to rise steadily throughout June and July, with
`
`most incidents reported in late-June, July, and August”); NFFC, 2020
`
`WL 2901136, at *4-5 (discussing Professor Bradley’s findings). EPA’s
`
`action flies in the face of this Court’s finding that cutting off later-
`
`season spraying was crucial to reducing drift damage in 2018. Id. at *6
`
`(noting “substantial differences” in number of reported incidents
`
`between states that had cut-off dates and those that did not). And EPA
`
`made no attempt to address these harms before greenlighting them, in
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`spite of this Court’s finding that EPA had substantially underestimated
`
`the drift incidents and the extent of damage. Id. at *12-18.
`
`Enforcing the vacatur is also critical to rectify EPA’s continued
`
`disregard of the significant social, economic, and environmental harms
`
`of OTT dicamba use. In holding the OTT use approval unlawful, this
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`Court explained that OTT dicamba use and resulting drift damage have
`
`“torn apart the social fabric of many farming communities,” a “clear
`
`social cost” that “was likely to increase” absent vacatur. Id. at *18.
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`
`
`5
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`

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`Continuing use imposed a heavy monopolistic cost, as more farmers
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`plant defensively and lose their right to choose what seeds they plant.
`
`Id. at *17-18.
`
`And as a result of EPA’s order undermining and violating vacatur,
`
`the OTT uses will continue to cause a 16 million pound increase in
`
`dicamba polluting the environment.2 This includes the harm to literally
`
`hundreds of federally protected endangered species near dicamba-
`
`sprayed fields that now faces further threats to their survival as a
`
`result. ECF 37-2 at 5-6, 45-47. The Court vacated the new uses to put
`
`an immediate stop to these grave harms, and EPA has nonetheless
`
`authorized them to continue. Immediate enforcement of this Court’s
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`ruling and relief is imperative.
`
`
`
`
`
`
`
`
`2 USDA estimated 25 million pounds of dicamba would be used in
`2020, ER1347; in its administrative order EPA estimates 4 million
`gallons (likely to downplay the perceived amount) which would roughly
`translate to 16 million pounds of active ingredient based on the
`conversion of gallons to pounds and dicamba being about half the
`formulation.
`
`
`
`6
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`

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`II. THE COURT SHOULD ENFORCE ITS REMEDY.
`
`A. EPA’s Administrative Order Flouts the Court’s
`
`Decision.
`
`EPA’s administrative order violates this Court’s vacatur, based on
`
`reasoning that this Court had squarely rejected, necessitating this
`
`Court to clarify and enforce its order to prevent harm and injustice.
`
`First, EPA’s position issued Monday evening is not new: it is a
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`carbon copy of EPA’s post-argument briefing that this Court rejected.
`
`EPA made the same erroneous argument then that vacatur could not
`
`stop use of existing stocks and that only it—EPA, not the Court—could
`
`address whether or how to stop existing stock use, in a further agency
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`order implementing the Court’s remedy on remand. Compare ECF 119
`
`& 121 at 5-7 with June 8 administrative order. Petitioners explained
`
`why EPA’s view of the scope of this case and of vacatur’s effect on
`
`stopping use was wrong, and thus why its motion should be denied.
`
`ECF 123-1 at 1-3, 5-9, 10-13. The Court rejected EPA’s arguments, but
`
`EPA has stubbornly gone ahead with its tactic anyway.3
`
`
`3 The Administrative Order acknowledges (at 2) EPA is putting
`forth the same argument the Court denied leave for it to bring,
`complaining it did not have the chance to “fully brief” it because the
`
`
`
`7
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`

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`
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`EPA acts as if this Court merely remanded without vacating the
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`unlawful registration decision, however, in vacating, the Court stated in
`
`no uncertain terms that it was “aware of the practical effects of our
`
`decision,” which included the “adverse impact on growers who have
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`already purchased DT soybean and cotton seeds and dicamba products
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`for this year’s growing season.” NFFC, 2020 WL 2901136, at *19-20.
`
`The Court quoted EPA’s prior representations to the Court regarding
`
`vacatur’s effects: that those pesticides would be prohibited from further
`
`OTT use. Id. The Court went on to carefully distinguish legal
`
`registration from the now-vacated and illegal new use, again quoting
`
`EPA, explaining it was illegal to use registered dicamba products for
`
`the specific OTT uses. Id. (“using registered dicamba products” that are
`
`no longer registered “specifically for post-emergence use” is a violation
`
`of the label and FIFRA). The Court recognized “the difficulties” growers
`
`might have in finding alternatives, but based on EPA’s substantial
`
`violations of law and the significant risks from continued use, vacated.
`
`There is no doubt the Court intended to halt harmful OTT uses, which
`
`
`Court denied its motion, apparently in willful denial that the Court has
`already rejected their position in its vacatur rationale.
`8
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`
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`

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`is, after all, what this case was about. If that was not clear enough, the
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`Court also denied EPA’s motion to brief this issue further. Id. at *19.
`
`
`
`Notably, while vacating, the Court did not also remand, indicating
`
`that there was nothing further in the way of rulemaking that EPA
`
`needed to do to implement its decision and address stopping use
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`(contrary to what EPA has just done). Id. at 20. The Court also sua
`
`sponte issued the mandate immediately, showing its clear intent that
`
`use immediately halt as of the day of its decision. Id; cf. FRAP 41.
`
`
`
`Despite all this, EPA did not simply confirm to regulated entities
`
`the plain intent of the Court’s decision to halt OTT use. Rather, after
`
`doing nothing for days when asked if existing product use was unlawful,
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`thereby stoking confusion from affected parties and states, EPA then
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`flagrantly contravened this Court’s opinion and vacatur by allowing
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`continued use.
`
`Second, from start to finish EPA’s rationale for continuing OTT
`
`use shows utter disregard for this Court and its decision. EPA says that
`
`the Court immediately vacated “on the view” (Admin Order at 4) that
`
`EPA substantially underestimated risks, a view that EPA clearly
`
`disagrees with, but does not have the authority to override. EPA is
`
`
`
`9
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`

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`effectively editing the Court’s decision to make the vacatur for existing
`
`product use prospective to July 31. EPA goes on to ignore all the Court’s
`
`findings and holdings, and allows business-as-usual dicamba spraying
`
`on cotton and soy for the rest of the season.
`
`For example, the administrative order addresses the risks and
`
`benefits of OTT use, the exact questions this Court addressed in its
`
`opinion. EPA purports to assess, inter alia, the “risks” and “benefits”
`
`“resulting from the use of the existing stocks,” and the financial
`
`expenditures already made to purchase dicamba, all questions this
`
`Court directly resolved, but EPA nonetheless chose to reach a different
`
`conclusion. Admin Order at 4. These issues have been decided, and they
`
`cannot be re-litigated, let alone nullified in an administrative order.
`
`As to the risks of continued OTT spraying of the existing 16
`
`million pounds of dicamba this summer, EPA finds in two sentences
`
`that continuing use over the rest of 2020 would be worse if users are not
`
`required to follow the label. Admin Order at 5. This is based on what
`
`EPA surely knows is the entirely false premise that the entire label is
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`null and void, as opposed to the OTT use. ECF 123-1 at 1-3, 5-9 & infra
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`pp. 15-20.
`
`
`
`10
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`

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`And EPA’s order entirely ignores the Court’s finding that EPA
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`“substantially understated the risks that it acknowledged,” and
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`“entirely failed to acknowledge other risks.” These harms include: the
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`acreage of DT seed usage; the complaints understating dicamba drift
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`damage; quantification of the amount of damage to non-target plants
`
`caused by OTT dicamba applications; the substantial infeasibility of
`
`compliance with label restrictions; the anti-competitive effect of a DT
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`seed monopoly or near-monopoly; and the social cost of tearing apart
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`the social fabric of farming communities. NFFC, 2020 WL 2901136, at
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`*10-19.
`
`The same is true of benefits and costs. EPA relies on the same
`
`benefits as it did in approving the OTT new uses, Admin Order at 6, but
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`the Court already held that EPA “failed to perform a proper analysis of
`
`the risks and resulting costs of the uses,” including “enormous and
`
`unprecedented damage,” and therefore lacked substantial evidence to
`
`support the OTT approval. NFFC, 2020 WL 2901136, at *18-19. EPA
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`did the same in relying on costs to farmers who already purchased
`
`dicamba: the Court specifically addressed this and found such costs
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`
`
`11
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`outweighed by the substantial environmental, economic, and social
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`risks of continuing use. Id. at *19-20.
`
`B. EPA Lacks Authority to Issue a “Cancellation” Order
`Reviving the Use Just Vacated by the Court.
`
`In the face of this Court’s vacatur, EPA lacks the authority to
`
`
`
`allow continued existing OTT dicamba use through this disingenuous
`
`“cancellation” tactic. EPA’s attempt flies in the face of the Court’s
`
`Order, which rendered illegal any further OTT use of these pesticides as
`
`of June 3.
`
`First, vacatur does not limit an agency from proposing a new
`
`action within the bounds of the law and the Court’s order. EPA could
`
`try a wholly new use registration, applying FIFRA registration
`
`standards, with different restrictions, if supported by substantial
`
`evidence. Regardless, in any new proposed use decision, EPA will have
`
`to address the multiple legal violations the Court held and cannot just
`
`issue the same decision. NFFC, 2020 WL 2901136, at *19 (EPA’s
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`“fundamental flaws” in the 2018 OTT new uses decision were “so
`
`substantial that it is exceedingly unlikely that the same rule would be
`
`adopted on remand.”) (internal quotations omitted).
`
`
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`12
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`Second, without a new basis for lawful use, EPA cannot
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`unilaterally tailor the Court’s vacatur to its own liking. EPA pretends
`
`the Court’s vacatur is the agency’s own pesticide cancellation, where it
`
`gets to decide things like when spraying stops and how. That is, EPA
`
`attempted to revive the old, now-nullified unlawful registration decision,
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`zombie-like, and squeeze two more months and 16 million more pounds
`
`of dicamba spraying out of it. This it cannot do.
`
`Judicial vacatur is not the same as pesticide cancellation. OTT
`
`dicamba use was not cancelled: the new uses were vacated. The
`
`differences between vacatur and pesticide cancellation under FIFRA are
`
`significant: FIFRA cancellation is subject to extensive rules and process
`
`that have nothing to do with a judicial order. E.g., 40 C.F.R. Part 164.
`
`Vacatur is very different: setting aside or vacating voids the approval,
`
`returning the status quo ante before it was granted. 7 U.S.C. § 136n
`
`(reviewing court to “affirm[] or set aside[]” a challenged EPA order).
`
`Unless in the Court’s equitable discretion it decides to remand without
`
`vacatur, or only apply vacatur prospectively,4 it automatically would
`
`
`4 EPA could have argued in briefing for prospective vacatur, that
`is, that users who had already purchased their products by the date of
`the Court’s decision should be allowed to use them. But it did not.
`13
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`Case: 19-70115, 06/11/2020, ID: 11719490, DktEntry: 127-1, Page 19 of 33
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`apply retroactively to cover products purchased earlier. United States v.
`
`Goodner Bros. Aircraft, 966 F.2d 380, 385 (8th Cir. 1992) (“[C]onsistent
`
`with the meaning of the word ‘vacate,’ we find that invalidation of the
`
`mixture rule applies retroactively.”). Very simply, vacatur obliterates
`
`the unlawful OTT use approval; there is nothing left of the challenged
`
`use on which to undertake a further cancellation order.
`
`FIFRA only allows EPA to issue “existing stocks” orders like it has
`
`tried here when EPA cancels or suspends a pesticide, not when a court
`
`vacates, and certainly not when a court vacates on the grounds set forth
`
`in this case. 7 U.S.C. § 136d(a)(1) (EPA “may permit the continued sale
`
`and use of existing stocks of a pesticide whose registration is suspended
`
`or cancelled ….”). FIFRA does not confer on EPA the authority to allow
`
`existing stock use for a pesticide use that was never lawfully approved
`
`in the first instance and thus has never been cancelled or suspended.5
`
`
`5 EPA’s reference to its 1991 existing stocks policy statement only
`confirms the difference. Admin Order at 4 (citing 56 Fed. Reg. 29362).
`That policy applies only to three categories of changes to a registration:
`“Changes requested by a registrant; changes imposed by EPA for failure
`to comply with various obligations imposed upon registrants; and
`changes imposed by EPA because of a determination by the Agency that
`use of the pesticide product results in unreasonable adverse effects to
`man or the environment.” 56 Fed. Reg. at 29362 (emphases added).
`None of those categories apply here.
`14
`
`
`
`

`

`Case: 19-70115, 06/11/2020, ID: 11719490, DktEntry: 127-1, Page 20 of 33
`
`These dicamba OTT new uses cannot be subject to the post-registration
`
`cancellation process because they were not lawfully registered to begin
`
`with; the 2018 decision was unlawful. EPA cannot permit their
`
`continued sale and use.
`
`Absent a stay of the Court’s decision, EPA has no authority to
`
`allow continued distribution, sale, or use. EPA’s attempt to circumvent
`
`the Court’s vacatur command through continued use is contrary to the
`
`Court’s mandate and FIFRA.
`
`
`
`
`C. The Entire Underlying Rationale for EPA’s Action Is
`
`False, Based on a Misinterpretation of This Court’s
`
`Decision.
`
`EPA’s groundless rationale (again, the same as that in ECF 119 &
`
`121) is as follows: a “cancellation” order was needed post-vacatur
`
`because vacatur by itself made the three products dangerous—
`
`completely unregistered—“rogue” pesticides. Admin Order at 1 (EPA
`
`considers the products “no longer registered” post vacatur). EPA claims
`
`vacatur is “read” or “viewed” to be “equivalent” to when it undertakes a
`
`pesticide cancellation. Id. at 3. Based on that (mis)equation, EPA goes
`
`on to assume that after a cancellation, EPA can only prohibit their sale
`
`or distribution, not their use. Id at 2. So for users who have already
`
`
`
`15
`
`

`

`Case: 19-70115, 06/11/2020, ID: 11719490, DktEntry: 127-1, Page 21 of 33
`
`bought the products before the June 3 vacatur, those products could be
`
`sprayed with abandon over soy and cotton fields the rest of summer,
`
`without any regulation or restriction. Id. at 3 (“persons holding stocks of
`
`these dicamba products would not be legally precluded from using those
`
`stocks without following label directions”).
`
`Thus EPA claims it was actually doing Petitioners a favor: EPA’s
`
`Administrative Order extending OTT uses of existing stocks until July
`
`31 under the old label instructions—despite the Court’s holdings about
`
`the inadequacy of the label—was actually more protective than the
`
`agency simply confirming that the Court’s vacatur made existing use
`
`unlawful as of June 3. The reasoning and result are beyond absurd.
`
`To begin with, vacatur is very different from cancellation and not
`
`limited by it, as explained supra. But even for cancellation, EPA has it
`
`precisely backwards: the default is no use, not unregulated use. 7
`
`U.S.C. § 136d(a)(1) (EPA “may permit the continued sale and use…”)
`
`(emphasis added). When read in context, FIFRA clearly prohibits the
`
`use of unregistered pesticides. See 7 U.S.C. § 136a(a) (“[T]he
`
`Administrator may by regulation limit the distribution, sale, or use in
`
`any State of any pesticide that is not registered under this
`
`
`
`16
`
`

`

`Case: 19-70115, 06/11/2020, ID: 11719490, DktEntry: 127-1, Page 22 of 33
`
`subchapter…”) (emphasis added). And EPA’s interpretation leads to
`
`nonsensical results, such as it being allegedly unlawful for a user to
`
`return a pesticide for disposal, or that it would be lawful to apply it at
`
`five times the label rate. See, e.g., EEOC v. Commercial Office Prods.,
`
`486 U.S. 107, 120-21 (1988) (rejecting reading of statute that would lead
`
`to “absurd or futile results ... plainly at variance with the policy of the
`
`legislation as a whole”).6
`
`But here is the most critical point: the scenario EPA presents as
`
`the entire rationale for its administrative action, even assuming it is
`
`correct, is irrelevant, because the condition precedent—that the
`
`pesticides become rogue, “unregistered” pesticides after vacatur—is
`
`false. After vacatur of the OTT new use approvals, the products
`
`themselves did not become unregistered. They are also registered for
`
`other different uses on different crops, uses with their own specific
`
`conditions.
`
`
`6 EPA’s view that it lacks authority to stop use is also belied by
`the fact it also has independent authority to issue a “stop sale, use, or
`removal” order prohibiting further use, 7 U.S.C. § 136k(a), which EPA
`admits but rejects. Admin Order at 3, 10.
`17
`
`
`
`

`

`Case: 19-70115, 06/11/2020, ID: 11719490, DktEntry: 127-1, Page 23 of 33
`
`For example, XtendiMax is also registered for use on conventional
`
`crops like asparagus, barley, and sorghum. See ER81-84 (listing other
`
`crops), ER105-114 (XtendiMax other approved uses and crops); ER200-
`
`209 (Engenia uses, for “conventional (non-dicamba tolerant) crops”);
`
`ER149-158 (same for FeXapan). These other uses were approved in
`
`earlier agency decisions entirely separate from the challenged 2018
`
`decision. See, e.g., ECF 123-2 & 123-3 (XtendiMax other uses, on May 1,
`
`2014).7 Those other uses were not at issue in this case, nor its remedy.
`
`Thus only those new OTT uses for soy and cotton approved in the
`
`challenged decision were vacated, not the entire registration and not all
`
`uses. See NFFC, 2020 WL 2901136, at *8-9.
`
`
`
`EPA admits these other uses exist and were “permitted under the
`
`previously-approved labels.” Admin Order at 6 n.3 (listing other crop
`
`uses). EPA also acknowledges that the 2016 and 2018 conditional
`
`registration decisions were for “post-emergent use on crops genetically
`
`
`7 M1768 is the alternative name for XtendiMax. ER4, ER25 (EPA
`Reg. #524-617). These uses were approved unconditionally, unlike the
`2018 conditional approval of the new OTT uses challenged.
`
`
`
`18
`
`

`

`Case: 19-70115, 06/11/2020, ID: 11719490, DktEntry: 127-1, Page 24 of 33
`
`engineered to be dicamba tolerant,” Admin Order at 1, not all uses of
`
`the products.8
`
`
`
`The only way EPA’s theory is correct is if the Court’s vacatur to
`
`address all these other uses, despite this case not being about them.
`
`These other uses are not the cause of the harms the Court found and
`
`were registered prior to the challenged conditional new use decision,
`
`i.e., not the new uses at issue in the 2018 new use approval. EPA’s view
`
`makes no sense.
`
`
`
`Accordingly the Court should instruct EPA that the only uses
`
`vacated were the new uses approved conditionally in the 2018 decision:
`
`the OTT use of the products on dicamba-tolerant soybean and cotton.
`
`That clarifies that while the products will otherwise remain registered,
`
`vacatur prohibits the OTT uses on cotton and soybean from continuing
`
`
`8 Pollinator Stewardship involved registration of a new pesticide,
`and all uses of it. Pollinator Stewardship Council v. EPA, 806 F.3d 520,
`523 (9th Cir. 2015) (“Sulfoxaflor is a new insecticide … Dow asked the
`EPA to approve sulfoxaflor for use on a variety of different crops ….”).
`Unlike here, after vacatur of that registration, no lawful use remained,
`so EPA’s theory would apply. Although there the use of “cancellation” to
`circumvent court vacatur of unlawful registration for existing stocks
`was unchallenged, it is nonetheless unlawful. See supra. The Court
`should stop EPA from getting around the law in this way, which has
`dangerous

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