Case: 19-70115, 06/16/2020, ID: 11723889, DktEntry: 144, Page 1 of 29
`
`Oral Argument Held April 21, 2020
`
`
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`No. 19-70115
`
`NATIONAL FAMILY FARM COALITION, ET AL.
`Petitioners,
`
`v.
`
`
`U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.
`Respondents,
`
`and
`
`
`
`
`MONSANTO COMPANY,
`Intervenor-Respondent.
`______________________
`
`
`
`On Petition For Review of Agency Action
`of the United States Environmental Protection Agency
`_______________________________
`
`EPA’S RESPONSE TO PETITIONERS’ EMERGENCY MOTION TO
`ENFORCE THIS COURT’S VACATUR AND TO HOLD EPA IN CONTEMPT
`__________________________
`Jonathan D. Brightbill
`Principal Deputy Assistant Attorney General
`Environment and Natural Resources Division
`
`Sarah A. Buckley
`Trial Attorney
`J. Brett Grosko
`Senior Trial Attorney
`Environment and Natural Resources Division
`U.S. Department of Justice
`P.O. Box 7611
`Washington, D.C. 20044
`(202) 616-7554 (Buckley)
`(202) 305-0342 (Grosko)
`sarah.buckley@usdoj.gov
`brett.grosko@usdoj.gov
`
`
`
`
`
`
`Of Counsel:
`Scott Garrison
`Michele Knorr
`U.S. Environmental Protection Agency
`Office of General Counsel
`Pesticides & Toxics Substances Law
`Office
`1200 Pennsylvania Avenue, NW
`Washington, D.C. 20460
`
`June 16, 2020
`
`

`

`Case: 19-70115, 06/16/2020, ID: 11723889, DktEntry: 144, Page 2 of 29
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`TABLE OF CONTENTS
`INTRODUCTION ....................................................................................................... 1
`
`BACKGROUND .......................................................................................................... 3
`
` EPA’s Registration Decision and the Court’s Order ........................... 3
`
` EPA’s Cancellation Order and Existing Stocks Provision .................. 5
`
`ARGUMENT................................................................................................................. 7
`
` The Court’s vacatur order was clear and definitive and should not be
`expanded or revised. ................................................................................ 9
`
` Petitioners’ desired “clarification” goes beyond the relief authorized
`by FIFRA and is contrary to basic principles of administrative law. 10
`
` The Court need not and should not recall the mandate to rule on the
`unaddressed ESA issues. ....................................................................... 13
`
` The Cancellation Order did not violate “a specific and definite court
`order” and thus cannot give rise to contempt sanctions. .................. 14
`
` The Cancellation Order was consistent with the vacatur order. ...... 18
`
`CONCLUSION ........................................................................................................... 21
`
`
`
`

`

`Case: 19-70115, 06/16/2020, ID: 11723889, DktEntry: 144, Page 3 of 29
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`Table of Authorities
`
`
`Cases
`
`Aerojet-Gen. Corp. v. Am. Arbitration Ass’n,
`478 F.2d 248 (9th Cir. 1973) ............................................................................................. 9
`
`
`Ahearn v. Int’l Longshore & Warehouse Union,
`721 F.3d 1122 (9th Cir. 2013) ......................................................................................... 15
`
`
`Cal. Wilderness Coal. v. Dep’t of Energy,
`631 F.3d 1072 (9th Cir. 2011) ......................................................................................... 10
`
`
`Calderon v. Thompson,
`523 U.S. 538 (1998) ...................................................................................................... 8, 10
`
`
`Chambers v. NASCO, Inc.,
`501 U.S. 32 (1991) ............................................................................................................ 14
`
`
`FCC v. Pottsville Broad. Co.,
`309 U.S. 134 (1940) .......................................................................................................... 11
`
`
`Fed. Power Comm’n v. Idaho Power Co.,
`344 U.S. 17 (1952) ...................................................................................................... 10, 11
`
`
`Gates v. Shinn,
`98 F.3d 463 (9th Cir. 1996).............................................................................................. 15
`
`
`Greater Bos. Television Corp. v. FCC,
`463 F.2d 268 (D.C. Cir. 1971) ................................................................................... 13, 21
`
`
`Int’l Longshoremen’s Ass’n v. Phila. Marine Trade Ass’n,
`389 U.S. 64 ......................................................................................................................... 17
`
`
`Int’l Union, United Mine Workers of Am. v. Bagwell,
`512 U.S. 821 (1994) .......................................................................................................... 14
`
`
`M2 Software Inc. v. Madacy Entm’t,
`463 F.3d 870 (9th Cir. 2006) ............................................................................................. 8
`
`
`
`
`
`i
`
`

`

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`Monsanto Co. v. Geertson Seed Farms,
`130 S. Ct. 2743 (2010) ................................................................................................ 11, 21
`
`
`Nat’l Family Farm Coal. v. EPA,
`Case No. 17-70196 ............................................................................................................. 4
`
`Nat. Res. Def. Council v. EPA,
`676 F. Supp. 2d 307 (S.D.N.Y. 2009)............................................................................... 6
`
`
`Pollinator Stewardship Council v. EPA,
`806 F.3d 520 (9th Cir. 2015) ................................................................................... 1, 6, 12
`
`
`Reno Air Racing Ass’n, Inc. v. McCord,
`452 F.3d 1126 (9th Cir. 2006) ......................................................................................... 15
`
`
`Taggart v. Lorenzen,
`139 S. Ct. 1795 (2019) ...................................................................................................... 15
`
`
`
`United States Code
`
` 7
`
` 7
`
` 7
`
` 7
`
` 7
`
` 7
`
` 7
`
` 7
`
` U.S.C. § 136a .................................................................................................................. 5, 12
`
` U.S.C. § 136a(a) ................................................................................................ 2, 11, 12, 19
`
` U.S.C. § 136a(c)(7)(B) ......................................................................................................... 4
`
` U.S.C. § 136d(a)(1) .............................................................................................................. 6
`
` U.S.C. § 136j(a)(1) ............................................................................................................... 5
`
` U.S.C. § 136j(a)(1)(A) .................................................................................................... 5, 11
`
` U.S.C. § 136j(a)(2)(F) ........................................................................................................ 20
`
` U.S.C. § 136j(a)(2)(G) ................................................................................................... 5, 12
`
` 7
`
` U.S.C. § 136j(a)(2)(H) ....................................................................................................... 12
`
` U.S.C. § 136j(a)(2)(I) ......................................................................................................... 12
`
`
`
`ii
`
` 7
`
`
`
`

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`7 U.S.C. § 136j(a)(2)(K).................................................................................................... 6, 12
`
` 7
`
` 7
`
` 7
`
` 7
`
` U.S.C. § 136j(a)(2)(S) ......................................................................................................... 12
`
` U.S.C. § 136l ......................................................................................................................... 5
`
` U.S.C. § 136n(a) ................................................................................................................. 21
`
` U.S.C. § 136n(b) ...................................................................................................... 8, 10, 13
`
`
`
`Federal Rules of Civil Procedure
`
`Fed. R. Civ. P. 65(d) ............................................................................................................. 16
`
`
`
`Federal Register
`
`56 Fed. Reg. 29,362 (June 26, 1991) ............................................................................... 6, 19
`
`72 Fed. Reg. 68,580 (Dec. 5, 2007) ...................................................................................... 6
`
`85 Fed. Reg. 34,622 (June 5, 2020) ....................................................................................... 6
`
`
`
`
`iii
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`

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`Case: 19-70115, 06/16/2020, ID: 11723889, DktEntry: 144, Page 6 of 29
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`INTRODUCTION
`Petitioners’ motion to “Enforce This Court’s Vacatur and to Hold EPA in
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`Contempt” (“Pet’rs Mot.”) (Dkt. 127-1), is a thinly-veiled attempt to revive arguments
`
`the Court already rejected or declined to reach. It should be denied.
`
`EPA fully complied with the Court’s June 3, 2020 decision vacating three
`
`pesticide registrations for dicamba-based pesticide products. Those products remain
`
`unregistered. EPA has not taken any action to revive the registrations. EPA’s June 8,
`
`2020 Cancellation Order (Dkt. 127-3) reinforces the Court’s order, banning further
`
`distribution and sale of existing stocks and facilitating return to the manufacturer. It
`
`takes responsible steps to avoid unregulated and inappropriate use of existing stocks
`
`that may otherwise result. See Cancellation Order at 11. Petitioners’ argument that this
`
`action violates the Court’s vacatur order misconstrues the Federal Insecticide,
`
`Fungicide, and Rodenticide Act (“FIFRA”), the vacatur, and the Cancellation Order.
`
`The petition for review (as construed by the Court) sought vacatur of the
`
`registrations for three dicamba products. The Court granted this relief, taking the
`
`extraordinary step of issuing the mandate immediately. However, as EPA explained in
`
`prior briefing in this case, see Proposed EPA Response to Petitioners’ Supplemental
`
`Brief (“EPA Suppl. Resp.”) (Dkt. 121), and as this Court has recognized in prior
`
`cases, Pollinator Stewardship Council v. EPA, 806 F.3d 520 (9th Cir. 2015) (opinion
`
`amended on rehearing), pesticide registrations authorize the sale and distribution of
`
`pesticides, and govern the conditions for using that registered pesticide. See 7 U.S.C.
`1
`
`
`
`

`

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`§ 136a(a) (“Except as provided by this subchapter, no person in any State may
`
`distribute or sell . . . any pesticide that is not registered under this subchapter.”
`
`(emphasis added)); see also Cancellation Order at 2-3 (discussing relevant statutory
`
`provisions and administrative precedents in more detail). Accordingly, rescission of a
`
`pesticide registration (either by judicial or administrative action) only makes it illegal to
`
`distribute or sell that pesticide. It does not outlaw use of products already legally
`
`purchased.
`
`Petitioners’ unsuccessful attempt to seek an injunction on use of the dicamba
`
`products in their post-argument supplemental brief implicitly recognized this
`
`distinction. Dkt. 115-1 at 9-10. The Court declined to grant that additional relief (Dkt.
`
`125 at 56), after EPA submitted a proposed response illustrating why such an
`
`injunction was inappropriate (Dkt. 121). Instead, the Court limited its decision to the
`
`relief actually requested in the petition for review: vacatur of the registrations.
`
`Against this background, there is no legal or factual basis for Petitioners’
`
`allegation that EPA violated the Court’s order by providing for a responsible wind-
`
`down of existing stocks instead of banning their use immediately and completely.
`
`Simply put, EPA can hardly be faulted for not complying with an order the Court
`
`never issued, especially when immediately banning use of existing stocks of these
`
`pesticides, as Petitioners advocate, would have draconian effects on the U.S.
`
`agricultural system. See Cancellation Order at 5-11. Indeed, Petitioners’ request to
`
`clarify the Court’s order is a concession that grounds for contempt are lacking.
`2
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`
`
`

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`Moreover, the action EPA took was entirely lawful and appropriate. While the
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`Court’s decision did not directly affect use of existing stocks, vacatur of the
`
`registrations does have one significant, and potentially problematic, indirect effect on
`
`pesticide use. When a registration is vacated, misuse of that product is no longer a
`
`violation of FIFRA. The Cancellation Order addresses this indirect and potentially
`
`disruptive environmental harm. The Order plugs a regulatory gap by ensuring that
`
`existing stocks of these newly-unregistered pesticides are used safely and
`
`appropriately, and only for a limited period of time. See Cancellation Order at 5. As
`
`EPA explained, this necessary and responsible regulatory action is expressly
`
`authorized by FIFRA. See id. at 3-4.
`
`There are numerous other problems with Petitioners’ Motion. For example,
`
`Petitioners’ request that the Court recall the mandate so that Petitioners can have
`
`another opportunity to litigate their Endangered Species Act claims and raise entirely
`
`new merits arguments distinguishing over-the-top uses from other uses is wholly
`
`unwarranted. But the most important point is that EPA’s Cancellation Order is,
`
`contrary to Petitioners’ distorted characterization, an entirely appropriate and
`
`responsible response to this Court’s decision.
`
`BACKGROUND
` EPA’s Registration Decision and the Court’s Order
`Petitioners sought review of EPA’s action to amend the FIFRA registration for
`
`
`
`a dicamba-based pesticide product, XtendiMax. Exercising its authority under 7
`3
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`
`
`

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`U.S.C. § 136a(c)(7)(B), EPA issued the conditional registration for Xtendimax on
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`November 1, 2018, including the “new use” of the product over-the-top of cotton
`
`and soybean genetically modified to tolerate dicamba. The conditional registration
`
`superseded the prior registration for that product, which was set to expire on
`
`November 9, 2018. ER0065; cf. Nat’l Family Farm Coal. v. EPA, Case No. 17-70196,
`
`Order (Jan. 10, 2019) (“Mootness Order”) (finding 2016 registration “no longer has
`
`any legal effect”). EPA later issued conditional registrations to BASF and DuPont for
`
`their similar products (Engenia and FeXapan). ER0121; ER0167. All three
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`registrations included previously approved uses in addition to the new over-the-top
`
`uses.1
`
`After briefing and argument, the Court issued a decision on June 3, 2020. Dkt.
`
`125. The Court’s decision construed the petition to encompass XtendiMax, Engenia,
`
`and FeXapan, over EPA and Monsanto’s objection. Id.2 The Court further concluded
`
`that all three registrations were invalid under FIFRA and ordered the registrations
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`vacated. Id. at 56 (“Registrations VACATED.”). The Court further ordered the
`
`mandate to issue the same day. Dkt. 126.
`
`
`
`1 Other uses permitted under the previously approved labels include, for
`example, weed control in asparagus,corn, and sorghum. See ER0026.
`
` 2
`
` A fourth over-the-top dicamba product, Syngenta’s Tavium, was registered on
`April 5, 2020, and is not part of the litigation.
`4
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`
`
`

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` EPA’s Cancellation Order and Existing Stocks Provision
`The Court’s vacatur eliminated the registrations for Xtendimax, Engenia, and
`
`FeXapan. Existing stocks of these products thus became unregistered, effective
`
`immediately upon issuance of the mandate. See Cancellation Order at 1. This action
`
`removed the license to “distribute or sell” those products, see 7 U.S.C. § 136a, and
`
`made further distribution or sale of the now-unregistered products subject to potential
`
`civil or criminal penalties, id. §§ 136l, 136j(a)(1)(A).
`
`There is, however, no corresponding provision of FIFRA that makes use of
`
`unregistered pesticides illegal. See id. § 136j(a)(1) (providing it is unlawful to sell or
`
`distribute “any pesticide that is not registered under section 136a of this title or whose
`
`registration has been canceled or suspended,” unless otherwise authorized (emphasis
`
`added)). There is also no provision that requires that unregistered pesticides—even
`
`formerly registered pesticides—must be used according to their labels. See id.
`
`§ 136j(a)(2)(G) (providing it is a violation of FIFRA to use a registered pesticide in a
`
`manner inconsistent with its labeling). Thus, where there are “existing stocks”3 of an
`
`unregistered pesticide—regardless of how the pesticide became unregistered—already
`
`
`
`3 Existing stocks are “those stocks of a registered pesticide product which are
`currently in the United States and which have been packaged, labeled, and released for
`shipment prior to the effective date of the [cancellation] action.” Existing Stocks of
`Pesticide Products, Statement of Policy, 56 Fed. Reg. 29,362, 29,362 (June 26, 1991).
`
`
`
`
`5
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`

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`in the possession of users (for example, certified applicators, including growers),
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`FIFRA neither directly prohibits nor regulates their use.
`
`FIFRA does, however, provide EPA with authority to address this regulatory
`
`gap. Specifically, 7 U.S.C. § 136d(a)(1) authorizes EPA, in appropriate circumstances,
`
`to “permit the continued sale and use of existing stocks of a pesticide whose
`
`registration is suspended or canceled . . . under such conditions, and for such uses as
`
`the Administrator determines that such sale or use is not inconsistent with the
`
`purposes of [FIFRA].” Because 7 U.S.C. § 136j(a)(2)(K) makes the failure to comply
`
`with a cancellation order enforceable under FIFRA, EPA can establish enforceable
`
`terms and conditions for the disposition of existing stocks in such an order. Those
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`conditions can and often do include a provision for limited use of existing stocks
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`consistent with the previously approved labeling. See Cancellation Order at 3; see also,
`
`e.g., 85 Fed. Reg. 34,622 (June 5, 2020); 72 Fed. Reg. 68,580 (Dec. 5, 2007).
`
`EPA has consistently interpreted its existing stocks authority to apply whether
`
`a registration is cancelled by administrative action or vacated by court order. See
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`Cancellation Order at 3 (citing cancellation orders following vacatur in Natural
`
`Resources Defense Council v. EPA, 676 F. Supp. 2d 307 (S.D.N.Y. 2009), and Pollinator
`
`Stewardship Council v. EPA, 806 F.3d 520 (9th Cir. 2015)).
`
`EPA’s Cancellation Order states that the Court’s vacatur caused Xtendimax,
`
`Engenia, and FeXapan to become unregistered. Cancellation Order at 1. And with
`
`respect to existing stocks only, the Cancellation Order:
`6
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`
`
`

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`(a) prohibits further sale or distribution of existing stocks by the registrants,
`except for purposes of proper disposal;
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`(b) bars further sale or distribution of existing stocks for persons other than the
`registrant except for disposal or to facilitate return to the registrant, unless
`otherwise allowed below;
`
`(c) allows limited distribution and sale of existing stocks that are in the
`possession of commercial applicators for the purpose of facilitating use no
`later than July 31, 2020; and
`
`(d) prohibits any use of existing stocks inconsistent with the previously-
`approved labeling and prohibits all use after July 31, 2020.
`
`Id. at 11. In short, the Cancellation Order ensures that existing stocks of these now-
`
`unregistered products can lawfully be returned to the registrant, transported for
`
`disposal, and be used for a limited time and only in accordance with previously
`
`approved label restrictions that reduce the risk of adverse effects.
`
`ARGUMENT
`EPA fully complied with this Court’s vacatur, issuing a Cancellation Order
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`pursuant to FIFRA and consistent with prior EPA actions stretching back over 20
`
`years. Petitioners’ motion is not only procedurally and substantively unsound; it is
`
`internally inconsistent.
`
`Petitioners first ask the Court to recall its mandate in order to “clarify” the
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`Court’s order and provide additional relief. See Pet’rs Mot. at 3-4, 7, 19-20, 23-26; id.,
`
`Form 16 at 1 (Dkt. 127-4) (requesting recall of the mandate). However, recalling the
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`mandate is an extraordinary measure to be exercised only for “good cause” and to
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`“prevent injustice.” It is not a vehicle for Petitioners to seek an additional ruling or
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`
`
`7
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`

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`remedy, particularly when the court granted the precise relief Section 136n(b)
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`authorizes and Petitioners requested: vacatur.
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`Petitioners’ request that the Court hold EPA and Administrator Wheeler in
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`contempt strays even further afield of the applicable legal standard. Petitioners have
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`not come close to the clear and convincing showing that the EPA violated a specific
`
`and definite order of the court necessary to warrant the severe remedy of contempt.
`
`EPA’s Cancellation Order is consistent with the vacatur order and a lawful exercise of
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`EPA’s FIFRA authority. The Court issued no injunction, despite Petitioners eleventh-
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`hour request for one. As evidenced by Petitioners’ call for clarification, the Court’s
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`vacatur order did not enjoin use of existing stocks already lawfully sold and
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`distributed or EPA’s authority to issue a cancellation order addressing existing stocks,
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`as the Agency has done in similar circumstances.
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`Finally, Petitioners cannot seek judicial review of the Cancellation Order in the
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`guise of a motion to “enforce” the Court’s vacatur. The Cancellation Order is a
`
`separate agency action that must, per FIFRA’s jurisdictional provisions, be reviewed
`
`in district court. Petitioners’ motion should be denied.
`
`
`
`Petitioners demonstrate no “exceptional circumstances” supporting
`recall of the mandate.
`Petitioners do not justify their request that the Court recall its mandate. This
`
`power should be exercised sparingly and only in extraordinary circumstances. See
`
`Calderon v. Thompson, 523 U.S. 538, 550 (1998); M2 Software Inc. v. Madacy Entm’t, 463
`
`
`
`8
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`

`

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`F.3d 870 (9th Cir. 2006) (Beezer, specially concurring) (the power of recall “is one of
`
`last resort, to be held in reserve against grave, unforeseen contingencies”). Petitioners
`
`contend that recall is warranted because the Court actually intended to prohibit only
`
`certain uses of the products. Petitioners therefore ask the Court to “instruct EPA that
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`the only uses vacated were the new uses approved conditionally in the 2018 decision” and
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`“clarif[y]” that the Court’s vacatur order “prohibits the OTT uses on cotton and
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`soybean from continuing this summer.” Pet’rs Mot. at 19-20 (emphasis in original). As
`
`explained below, however, the vacatur order was clear. Recalling the mandate is not
`
`appropriate merely because Petitioners wish the Court had ordered different relief,
`
`reached additional issues, or want to challenge a subsequent agency action.
`
` The Court’s vacatur order was clear and definitive and should not
`be expanded or revised.
`Petitioners contend that the Court must clarify its order to effectuate its
`
`intentions. Pet’rs Mot. at 7, 19-20. But this is not a case where the Court’s order
`
`requires clarification. See Aerojet-General Corp. v. Am. Arbitration Ass’n, 478 F.2d 248,
`
`254 (9th Cir. 1973). The Court held that the registrations were not supported by
`
`substantial evidence and thus “vacate[d] the registrations.” Dkt. 125 at 55, 56. The
`
`Court’s ordering paragraph stated clearly: “Registrations VACATED.” Id. at 56. This
`
`granted precisely the relief that FIFRA contemplates and that Petitioners requested:
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`that “the Court vacate the registration.” Pet’rs Br. at 74 (Dkt. 35).
`
`
`
`9
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`

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`Case: 19-70115, 06/16/2020, ID: 11723889, DktEntry: 144, Page 15 of 29
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`Petitioners ask that the Court clarify that its order prohibits any further use of
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`these products. Pet’rs Mot. at 19-20. But Petitioners already requested such relief in
`
`their supplemental letter brief. Dkt. 115-1 at 10. In response, EPA explained in its
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`proposed response to Petitioners’ supplemental brief (Dkt. 121 at 5-8) that FIFRA
`
`does not bar the use of existing stocks of unregistered pesticides and thus vacating the
`
`registrations does not have the effect of prohibiting use of the pesticides.4 The Court
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`did not grant Petitioners’ request: the vacatur order does not prohibit “use.” Dkt. 125
`
`at 55-56. Therefore, recall is not warranted. See Calderon, 523 U.S. at 551 (recall not
`
`warranted to revive a denied en banc petition for review of a determination that “had
`
`been given full consideration on the merits by a panel”).
`
`
`
`Petitioners’ desired “clarification” goes beyond the relief
`authorized by FIFRA and is contrary to basic principles of
`administrative law.
`The Court should (again) decline Petitioners’ request to prohibit use of existing
`
`stocks of the dicamba products because such relief goes beyond what FIFRA
`
`authorizes and would be inconsistent with basic administrative law principles. 7 U.S.C.
`
`§ 136n(b) (authorizing reviewing court to “set aside the order complained of in whole
`
`or in part”). It is well settled that “the function of the reviewing court ends when an
`
`error of law is laid bare.” Fed. Power Comm’n v. Idaho Power Co., 344 U.S. 17, 20 (1952);
`
`
`
`4 The Court did not grant EPA’s motion for leave to file that response because
`it was unnecessary in light of the Court’s vacatur order. Dkt. 125 at 56.
`10
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`
`
`

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`Case: 19-70115, 06/16/2020, ID: 11723889, DktEntry: 144, Page 16 of 29
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`see Cal. Wilderness Coal. v. Dep’t of Energy, 631 F.3d 1072, 1095 (9th Cir. 2011) (“When a
`
`court determines that an agency’s action failed to follow Congress’s clear mandate the
`
`appropriate remedy is to vacate that action.”).
`
`Relatedly, the Supreme Court has found courts cannot restrict the options
`
`available to an agency following judicial review. See Idaho Power Co., 344 U.S. at 20
`
`(finding the D.C. Circuit erred in modifying an agency order in response to a motion
`
`to “clarif[y]” its judgment); FCC v. Pottsville Broad. Co., 309 U.S. 134 (1940) (holding
`
`the court of appeals lacked authority to issue a writ of mandamus to control
`
`proceedings on remand after the court identified a legal error in the agency’s original
`
`decision). Indeed, even where a court has found a statutory violation, it cannot
`
`prevent an agency from taking subsequent action within its statutory authority. See
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`Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2753-54, 2758 (2010).
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`The action under review here was EPA’s registration of pesticide products,
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`granting a license to sell and distribute the products for particular uses. FIFRA
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`prohibits the distribution or sale of unregistered pesticide products. 7 U.S.C. § 136a(a). But
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`it does not directly prohibit the use of that product. Id. Similarly, while FIFRA makes
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`distribution and sale of an unregistered pesticide an unlawful act, id. § 136j(a)(1)(A), it
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`only makes use of an unregistered pesticide unlawful in certain circumstances, such as
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`in a manner inconsistent with its labeling or if it is in violation of a cancellation order,
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`see id. § 136j(a)(2)(G), (K).5
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`Thus, setting aside a pesticide registration sets aside the legal license to sell or
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`distribute that product. Id. § 136a(a). And because FIFRA does not directly regulate
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`use of unregistered pesticides, setting aside that registration does not, of its own force,
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`prohibit use.
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`The Court recognized this in Pollinator Stewardship Council, 806 F.3d 520 (opinion
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`amended on rehearing). There, this Court granted EPA’s Petition for Panel Rehearing,
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`which requested that the Court amend its opinion to remove references implying that
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`7 U.S.C. § 136a regulated the use of unregistered pesticide products. Id. at 522; see EPA
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`Petition for Panel Rehearing, Pollinator Stewardship Council v. EPA, Case No. 13-72346,
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`October 26, 2015 (Dkt. 60-1).
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`That vacatur does not render use of existing stocks unlawful is true even if the
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`Court embraces Petitioners’ argument that this vacatur order did or should only set
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`aside the registration for over-the-top use. See Pet’rs Mot. at 17-19. For one, there is
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`no separate or severable “registration” for over-the-top uses of the three products at
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`issue here; the previous registration expired and has no legal effect. The vacated
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`registrations were the sole legal licenses to sell and distribute Xtendimax, Engenia, and
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`5 The other circumstances where use of unregistered pesticides would be
`unlawful are subject to certain rules (7 U.S.C. § 136j(a)(2)(S)), orders (7 U.S.C.
`§ 136j(a)(2)(I)), and experimental use permits (7 U.S.C. § 136j(a)(2)(H)).
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`FeXapan for all uses. See, e.g., ER0026; see also Cancellation Order at 6 (noting the
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`cancelled registrations included “many uses other than post-emergent use on
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`dicamba-resistant soybeans and cotton”). What’s more, even if a partial vacatur of
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`only the over-the-top uses would make them unregistered uses, it would not make them
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`unlawful uses, for the reasons explained above.
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`To the extent Petitioners’ are requesting an order preventing EPA from issuing
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`a cancellation order addressing existing stocks would reach beyond the action
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`challenged in this petition and the relief authorized by FIFRA, 7 U.S.C. § 136n(b).
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`The Court should not—and cannot—limit EPA’s discretion to take future actions
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`consistent with the Court’s vacatur. Accordingly, it should be denied. Greater Bos.
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`Television Corp. v. FCC, 463 F.2d 268, 281 (D.C. Cir. 1971) (a court’s mandate “must
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`preserve and respect the distinctive administrative role of the agency and not
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`encroach on its permissible zone of discretion”).
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` The Court need not and should not recall the mandate to rule on
`the unaddressed ESA issues.
`There is also no basis to recall the mandate to reach the ESA claims that the
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`Court did not address in its opinion. See Pet’rs Mot. at 23-26. The Court’s finding that
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`the registrations were not supported by substantial evidence was sufficient to afford
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`Petitioners all the relief they requested: vacatur. There is no need for the Court to
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`address issues not necessary to dispose of the petition. Petitioners’ desire for a
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`broader or different holding, moreover, is not one of the “exceptional circumstances”
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`warranting recalling the mandate. To the extent Petitioners believe an opinion
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`addressing their ESA arguments would afford them different relief, they can request
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`panel rehearing. Petitioners’ emergency request to recall the mandate for this purpose
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`should be denied.
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` EPA acted consistent with and did not violate the Court’s Order.
`EPA’s Cancellation Order does not violate the Court’s vacatur order. The
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`Cancellation Order is a reasonable exercise of EPA’s statutory authority to
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`responsibly wind down use of existing stocks of products whose registrations have
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`been cancelled or, in this case, terminated by the Court. EPA has not restored the
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`registrations for these products, and the Cancellation Order does not have that effect.
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`Further, the Court’s vacatur order did not enjoin or limit EPA’s authority to take
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`future administrative actions related to existing stocks whose registrations were
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`vacated. The Court should reject Petitioners request to “enforce” its vacatur by
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`declaring the Cancellation Order unlawful or finding EPA in contempt.
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` The Cancellation Order did not violate “a specific and definite
`court order” and thus cannot give rise to contempt sanctions.
`EPA did not violate a specific and definite order; no contempt sanction is
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`warranted. The power to hold a party in civil contempt to enforce compliance with a
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`court’s order is a potent weapon, that, “[b]ecause of [its] ver