Case: 19-70115, 06/16/2020, ID: 11723963, DktEntry: 145, Page 1 of 26
`
`No. 19-70115
`
`IN THE
`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
`.........................................................................................................................................................................................
`BASF CORPORATION’S OPPOSITION TO PETITIONERS’
`EMERGENCY MOTION TO ENFORCE VACATUR AND
`CROSS-MOTION TO RECALL AND STAY MANDATE
`
`Neal Kumar Katyal
`Kirti Datla
`Jo-Ann Sagar
`HOGAN LOVELLS US LLP
`555 Thirteenth Street NW
`Washington, DC 20004
`(202) 637-5600
`
`John C. Cruden
`Kathryn E. Szmuszkovicz
`Anthony L. Michaels
`David A. Barker
`BEVERIDGE & DIAMOND PC
`1350 I Street NW Suite 700
`Washington DC 20005-3311
`(202) 789-6000
`kes@bdlaw.com
` Counsel for Proposed Intervenor BASF Corporation
`
`

`

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`TABLE OF CONTENTS
`
`II.
`
`B.
`
`C.
`
`B.
`
`C.
`
`INTRODUCTION .....................................................................................................1
`ARGUMENT.............................................................................................................3
`I.
`THE COURT SHOULD DENY PETITIONERS’ REQUEST TO
`RESHAPE AND REISSUE THE MANDATE. .............................................3
`A.
`Petitioners’ motion should be denied because Petitioners have
`already been afforded the relief provided by the Court’s
`decision, and because the Court lacks jurisdiction over EPA’s
`June 8 order...........................................................................................4
`Petitioners’ motion should be denied because there is no basis
`for the Court to issue an injunction against use. ...................................6
`Petitioners’ motion should be denied because Petitioners’
`alleged “emergency” was caused by their own litigation tactics..........8
`EPA’S EXISTING STOCKS ORDER IS A NECESSARY AND
`APPROPRIATE RESPONSE TO THIS COURT’S VACATUR. ...............11
`A.
`Petitioners’ motion misconstrues FIFRA and the nature of a
`product registration. ............................................................................11
`EPA’s June 8 order properly addressed the legal and practical
`consequences of vacatur......................................................................14
`The Panel’s Opinion did not purport to immediately “ban” all
`use of the vacated products. ................................................................15
`EPA’s actions were consistent with every prior instance where
`a registration was vacated by court order and with what EPA
`advised this Court it would do. ...........................................................16
`THE MANDATE SHOULD BE RECALLED AND SHOULD NOT
`REISSUE BEFORE THE NORMAL TIMEFRAME ESTABLISHED
`BY THE FEDERAL RULES. .......................................................................17
`CONCLUSION........................................................................................................20
`
`D.
`
`III.
`
`i
`
`

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`TABLE OF AUTHORITIES
`
`Cases
`Bennet v. Donovan,
`703 F.3d 582 (D.C. Cir. 2013)...........................................................................5, 6
`Fed. Power Comm’n v. Idaho Power Co.,
`344 U.S. 17 (1952).................................................................................................5
`
`FIFRA in Pollinator Stewardship Council v. EPA,
`806 F.3d 520 (9th Cir. 2015) ...................................................................12, 13, 16
`FTC v. Colgate-Palmolive,
`380 U.S. 374 (1965)...............................................................................................5
`Harmon v. Thornburgh,
`878 F.2d 484 (D.C. Cir. 1989)...............................................................................5
`Heartland Hosp. v. Thompson,
`328 F. Supp. 2d 8 (D.D.C. 2004)...........................................................................4
`Mathews v. Eldridge,
`424 US 319 (1976)...............................................................................................20
`Monsanto Co. v. Geertson Seed Farms,
`561 U.S. 139 (2010)...............................................................................................5
`Pollinator Stewardship Council v. EPA,
`806 F.3d 520 (9th Cir. 2015) .................................................................................9
`State of California v. United States Dep’t of Labor,
`155 F. Supp. 3d 1089 (E.D. Cal. 2016) .................................................................4
`Zipfel v. Halliburton Co.,
`861 F.2d 565 (9th Cir. 1988) ...............................................................................18
`Statutory Authorities
`7 U.S.C. § 136(q) .....................................................................................................13
`7 U.S.C. § 136a(a)....................................................................................................12
`ii
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`7 U.S.C. § 136j(a)(1)(A)..........................................................................................12
`7 U.S.C. § 136j(a)(2)(G)....................................................................................12, 13
`7 U.S.C. § 136n......................................................................................................3, 6
`Rules and Regulations
`Fed. R. App. P. 27(d)(1)(E) .......................................................................................1
`Fed. R. App. P. 27(d)(2)(A).......................................................................................1
`Fed. R. App. P. 41....................................................................................................18
`
`iii
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`

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`INTRODUCTION
`
`BASF Corporation respectfully submits this Opposition to Petitioners’
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`Emergency Motion to Enforce This Court’s Vacatur, and Cross-Motion to Recall
`
`and Stay the Mandate (ECF 127).1 It is neither necessary nor permissible for the
`
`panel to take steps to “enforce” its June 3, 2020 decision that vacated the
`
`registrations of three dicamba pesticide products, including BASF’s Engenia. This
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`Court lacks jurisdiction over EPA’s June 8 “Final Cancellation Order for Three
`
`Dicamba Products,” because it is a new order issued after vacatur. Moreover,
`
`EPA’s order is entirely consistent with the Court’s ruling. The order acknowledges
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`that the registrations are vacated and speaks only to the legal and practical
`
`consequences of vacatur for existing stocks of product.
`
`Contrary to Petitioners’ assertions, EPA’s order does not seek to maintain
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`the status quo in the wake of the panel’s vacatur of the registrations. To the
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`contrary, the order confirms that registrants and distributors nationwide were (and
`
`still are) prohibited under FIFRA from selling or distributing any of the now-
`
`unregistered products, including existing stocks, as of the date of the panel’s
`
`mandate, June 3, 2020. The exception is shipment for purposes of return or
`
`
`1 BASF tenders this submission as a conditional filing pending resolution of
`its pending Motion to Intervene. ECF 130. BASF suggests that any responses to
`BASF’s cross-motion be submitted by June 18 to correspond to Petitioners’ reply
`deadline for their Motion.
`
`1
`
`

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`disposal of existing stocks, which EPA’s order authorizes because such return
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`shipments might otherwise be prohibited as “distribution” of an unregistered
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`pesticide under FIFRA. With respect to existing stocks of product already in the
`
`hands of farmers and licensed commercial applicators at the time of the June 3
`
`mandate, the order allows use by farmers and sale/use by commercial applicators2
`
`only until July 31, and only in accordance with the strict label restrictions. EPA’s
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`order prohibits all use of existing stocks after July 31. This approach is consistent
`
`with the legal framework for unregistered pesticides under FIFRA, longstanding
`
`EPA policies, and EPA’s response in every previous situation where a court action
`
`vacated a pesticide product registration. Absent EPA’s order, FIFRA would allow
`
`end-users to apply existing stocks with no deadline and no binding requirement to
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`follow the label restrictions. For these and other reasons, Petitioners’ Motion
`
`should be denied.3
`
`BASF further requests that the Court withdraw its mandate and deny
`
`Petitioners’ request to reissue a revised mandate immediately. Instead, the Court
`
`should follow the normal schedule for issuance of mandates established in the
`
`2 EPA’s order allows state-licensed commercial applicators to sell/apply
`existing stocks to their customers’ fields. Under the now-vacated 2018
`registrations, these products can only be applied personally by state-licensed
`certified applicators, who are effectively end-users of the products.
`3 BASF joins EPA and Intervenor-Respondent Monsanto in opposing
`Petitioners’ requests to hold EPA in contempt and to reopen the case to address the
`endangered species claims, as both are procedurally and substantively meritless.
`2
`
`

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`Rules, which will allow an orderly process for pursuing rehearing. The record
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`does not demonstrate emergency circumstances supporting immediate issuance or
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`re-issuance of the mandate, as that record is limited to the information that was
`
`before EPA as of October 2018. Nothing in the record addresses use of the
`
`products under the additional restrictions and training requirements that EPA
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`imposed in 2018. Immediate issuance of the mandate irreparably harms BASF,
`
`whose product was simultaneously swept into the action and summarily vacated by
`
`the June 3 decision, without adequate notice to BASF and without the Court
`
`having seen the Engenia administrative record.
`
`The panel decision presents serious jurisdictional and legal questions that are
`
`appropriate subjects for rehearing, including whether BASF’s Engenia product was
`
`properly at issue, and whether the Court had jurisdiction over the Engenia
`
`registration given the undisputed lack of a public hearing on EPA’s Engenia
`
`decision (see 7 U.S.C. § 136n). The panel should recall the mandate, grant
`
`BASF’s motion to intervene, and refrain from reissuing a revised mandate pending
`
`petitions for rehearing.
`
`ARGUMENT
`
`I. THE COURT SHOULD DENY PETITIONERS’ REQUEST TO
`RESHAPE AND REISSUE THE MANDATE.
`
`Petitioners urge that this Court must “immediately” revise its June 3 Opinion
`
`and at the same time act to “enforce its … decision through appropriate relief and
`3
`
`

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`instruct EPA that it cannot avoid the vacatur of OTT uses….” ECF 127-1 at 26.
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`Petitioners do not specify the “appropriate relief” they seek or who is to be bound
`
`by it. In the first instance, Petitioners appear to seek the extraordinary summary
`
`invalidation of a post-ruling agency order that is not properly before the Court.
`
`Petitioners also seem to be asking the Court to effectively grant an affirmative
`
`injunction barring non-party growers from applying their existing stocks of the
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`vacated products “over the top” of their soybean and cotton crops, and/or directing
`
`EPA to issue an edict purporting to prohibit that conduct nationwide. In both cases,
`
`Petitioners seek their requested relief on an emergency basis. This Court should
`
`deny Petitioners’ request as neither form of relief is appropriate or available to
`
`Petitioners.
`
`A.
`
`Petitioners’ motion should be denied because Petitioners have
`already been afforded the relief provided by the Court’s decision,
`and because the Court lacks jurisdiction over EPA’s June 8 order.
`
`This Court should deny Petitioners’ request to “enforce” because it seeks
`
`relief beyond what the Court ordered. See State of California v. United States
`
`Dep’t of Labor, 155 F. Supp. 3d 1089, 1096 (E.D. Cal. 2016); Heartland Hosp. v.
`
`Thompson, 328 F. Supp. 2d 8, 13-14 (D.D.C. 2004) (“If the plaintiff has received
`
`all relief required by that prior judgment, the motion to enforce is denied.”). The
`
`Court ordered vacatur of three dicamba product registrations. EPA’s order
`
`accomplishes precisely that, consistent with established law. EPA’s order
`
`4
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`

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`recognizes that the registrations were vacated by the Court as of its June 3 mandate,
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`and are invalid. There is no relief provided by the Court’s order that was not
`
`implemented, and therefore the motion should be denied.
`
`After a court vacates an agency decision, it is up to the agency to determine
`
`in the first instance how to proceed consistent with the court’s judgment. See, e.g.,
`
`Bennett v. Donovan, 703 F. 3d 582, 589 (D.C. Cir. 2013) (after a court “set[s] aside
`
`an unlawful agency action … it is the prerogative of the agency to decide in the
`
`first instance how best to provide relief.”). This comports with the foundational
`
`administrative law principles that courts are not to direct agency policy or dictate
`
`in advance how an agency exercises its discretion. Monsanto Co. v. Geertson Seed
`
`Farms, 561 U.S. 139, 160-61 (2010); Harmon v. Thornburgh, 878 F.2d 484, 494
`
`(D.C. Cir. 1989); see also FTC v. Colgate-Palmolive, 380 U.S. 374, 379 (1965)
`
`(“…the agency is not foreclosed upon the remand of the case from enforcing the
`
`legislative policy of the act it administers, provided the new order does not conflict
`
`with the reviewing court’s mandate.”); Fed. Power Comm’n v. Idaho Power Co.,
`
`344 U.S. 17, 20 (1952).
`
`Moreover, this Court lacks jurisdiction to review EPA’s June 8 order. As
`
`Petitioners point out, this Court did not remand the decision to EPA, rather, the
`
`Court vacated the registrations. EPA’s subsequent order is a wholly new agency
`
`action that is subject to judicial challenge only in a new proceeding, based on the
`
`5
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`

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`new administrative record that was before EPA when it issued the order. See
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`Bennet, 703 F. 3d at 589. Under FIFRA, jurisdiction over such a challenge resides
`
`in district court, not this court. 7 U.S.C. §136n.
`
`If Petitioners wish to challenge EPA’s existing stocks order, they may file a
`
`new district court action, where BASF would have the right to intervene as a party
`
`and be heard regarding the legal status of the existing stocks of BASF’s product.
`
`B.
`
`Petitioners’ motion should be denied because there is no basis for
`the Court to issue an injunction against use.
`
`After concluding that EPA’s decision to continue the registrations was not
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`supported by “substantial evidence,” the panel granted the only relief the
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`Petitioners properly sought: vacatur of the registrations. ECF 125 at 56. Directing
`
`EPA how to respond to the vacatur of the registrations or issuing what would
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`effectively be an immediate nationwide injunction against use of existing stocks
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`would be inconsistent with foundational administrative law principles. See Section
`
`I.A, above.
`
`If Petitioners nevertheless wanted to seek such a remedy, it was incumbent
`
`upon them to make a timely formal request for an injunction or other specific relief,
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`properly defined and supported by the required factual showings. That would have
`
`provided the parties, and the countless affected non-parties nationwide, fair notice
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`and a meaningful opportunity to be heard. It would have also given this Court time
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`to receive full briefing on a normal schedule, and to adequately consider the legal
`6
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`

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`and factual issues raised. The lack of a timely and properly-supported request for
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`injunctive relief further confirms that these issues were, and remain, outside the
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`scope of this Court’s jurisdiction in a record review case
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`Moreover, there is no record in this case that could support such an
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`immediate use injunction. Despite contending that “[p]reventing a repeat of the
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`past three seasons was central to this expedited litigation,” ECF 127 at 4,
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`Petitioners never sought a preliminary or permanent injunction against use of the
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`products based on alleged ongoing harms. Thus, the record before this Court is
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`limited to the facts before EPA in 2018, when it decided to extend the registrations
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`and impose new restrictions and training requirements to eliminate crop damage
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`concerns. There is no record evidence and there has been no briefing on the
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`current impacts of the more restricted products in 2019 or 2020 and the panel
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`(properly) made no findings on this question.
`
`Petitioners repeatedly attribute fact findings to the panel that are not in the
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`decision. This Court did not find that the costs to farmers of vacating the products
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`were “outweighed” by the risks of use, ECF 127 at 11-12, but rather found a lack
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`of “substantial evidence” in the administrative record to support EPA’s 2018
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`decision-making. ECF 125 at 56. The panel did not “promptly issue[] the mandate
`
`specifically to end dicamba OTT use by June 3,” it simply vacated the registrations
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`and issued the mandate forthwith. ECF 125 at 56. The panel did not “vacate[] the
`
`7
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`

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`new uses to put an immediate stop to … grave harms” to endangered species, ECF
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`127 at 6, it declined to “reach the question of whether the registration also violates
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`the Endangered Species Act.” ECF 125 at 6.
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`Without the necessary factual record and showings by Petitioners, the panel
`
`cannot issue an immediate, nationwide injunction, even if such relief were
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`otherwise available and even if Petitioners had timely requested it.
`
`C.
`
`Petitioners’ motion should be denied because Petitioners’ alleged
`“emergency” was caused by their own litigation tactics.
`
`It is no surprise to Petitioners that soybean and cotton growers are in the
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`midst of their growing season, or that EPA would issue an existing stocks order if
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`the Court granted the vacatur Petitioners sought. Any “emergency” is due to
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`Petitioners’ own delay in pursuing the case, and their failure to clearly state and
`
`properly pursue the remedies they now seek while this case was active. On that
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`basis alone, it would be appropriate for this Court to decline Petitioners’ invitation
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`to proceed on an emergency basis to issue another (revised) edict with immediate
`
`effect. Doing so would serve only to cause more confusion, disruption, and harm
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`to tens of thousands of non-parties nationwide who lack notice and a meaningful
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`opportunity to be heard.
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`It was Petitioners’ delay in pursuing their case that pushed its resolution into
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`the midst of the 2020 growing season. The EPA decision document Petitioners
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`challenged was issued on October 31, 2018. Petitioners waited over two months,
`8
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`

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`until January 11, 2019, to start this case. ECF 1. Petitioners initially had until
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`June 28 to file their opening brief, but demanded a further extension to August 13,
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`2019, to give their lawyers four months to review the administrative record that
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`EPA produced on April 12. ECF 26; ECF 29. Indeed, Petitioners had the bulk of
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`the record even before that, as key regulatory documents were publicly available in
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`EPA’s Xtendimax docket. ECF 1-6 at 2. Petitioners’ lack of urgency in pursuing
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`their own challenge made it inevitable that a decision would not issue until the
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`2020 growing season was underway.
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`And while Petitioners now feign surprise, they were fully aware of EPA’s
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`long-standing interpretation of its authority and obligation to address existing
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`stocks in the wake of the judicial vacatur of a registration. EPA has issued existing
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`stocks orders in each other instance where a court has vacated a FIFRA registration,
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`including a recent Ninth Circuit case in which Petitioners and their counsel were
`
`involved. See Pollinator Stewardship Council v. EPA, 806 F.3d 520, 521–22 (9th
`
`Cir. 2015); ECF 127, Exh. A at 3
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`Yet at no time during the 18-month lifespan of this case did Petitioners seek
`
`preliminary or emergency relief. Nor did they attempt to properly put before this
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`Court any of the questions of statutory interpretation they now ask this Court to
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`decide on an “emergency” basis – including the post-vacatur regulatory status of
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`existing stocks under FIFRA and EPA’s authority to issue the existing stocks order.
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`9
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`The first hint Petitioners gave that they wanted the Court to grant relief
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`beyond vacating the registrations was their supplemental brief on May 13, 2020.
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`ECF 115-1 at 10 (requesting an “order granting the petition and vacating the
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`registration, halting any sale and use of these pesticide products, and notifying the
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`parties that the Court’s reasons will be more fully explained in a forthcoming
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`opinion.”). In response, EPA sought leave to file a supplemental brief describing
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`the steps EPA planned to take if the registrations were vacated. ECF 119, 121. In
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`that brief, EPA explained that “[FIFRA] does not prohibit the use of an
`
`unregistered pesticide,” and therefore “if the Court were to grant the petition and
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`vacate the Xtendimax registration, once the mandate is issued, manufacturers and
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`others could no longer sell or distribute Xtendimax in commerce,” but “Xtendimax
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`end users would be free to use their remaining stocks.” ECF 121 at 6-7.
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`Petitioners successfully opposed EPA’s request to file that supplemental brief.
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`ECF 120, 123.
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`Having sat for months on their novel arguments regarding the legal
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`implications of vacatur and EPA’s existing stocks authority, Petitioners now
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`demand that this Court act within days to impose broad and ill-defined “emergency”
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`relief that will impact tens of thousands of non-party farmers and businesses. Even
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`if this Court had jurisdiction to review EPA’s existing stocks order, or to otherwise
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`dictate EPA’s post-decision activities, the Court should decline Petitioners’ attempt
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`10
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`

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`to enlist this Court to dictate agricultural practices across the country on an
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`“emergency” schedule and without a complete factual record or an opportunity to
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`be heard by those most directly impacted.
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`II. EPA’S EXISTING STOCKS ORDER IS A NECESSARY AND
`APPROPRIATE RESPONSE TO THIS COURT’S VACATUR.
`
`In claiming that EPA “defied” the Court’s vacatur decision by issuing the
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`June 8 order, Petitioners misrepresent the nature of both. Petitioners ignore the
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`legal and practical necessity to address existing stocks of the now-unregistered
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`products, and the fact that EPA’s action is consistent with the approach taken by
`
`the Agency in every prior instance where a registration was vacated by Court order.
`
`A.
`
`Petitioners’ motion misconstrues FIFRA and the nature of a
`product registration.
`
`A premise of Petitioners’ Motion is that EPA registration is required to
`
`authorize pesticide use, and thus if a registration is vacated farmers are barred by
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`FIFRA from using their existing stock of a pesticide unless otherwise authorized
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`by EPA. ECF 127-1 at 15-19. While the legal and practical consequences of
`
`vacating the registrations are not properly before this Court (see Section I above),
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`Petitioners’ views of the consequences of vacatur are inconsistent with FIFRA.
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`Fundamentally, a FIFRA registration is a license to sell, not a license to use.
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`A registration is issued to the manufacturer and authorizes the “distribution and
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`sale” of a particular product bearing specific EPA-approved label directions. In
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`11
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`considering whether to grant a registration, EPA is required to consider whether
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`use of the product in accordance with its proposed label will have unreasonable
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`adverse effects on the environment. But that requirement is distinct from the fact
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`that registration is required to sell a product, while use of an unregistered product
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`is not prohibited by FIFRA. 7 U.S.C. §§ 136a(a), 136j(a)(1)(A).
`
`Petitioners misstate the law in suggesting otherwise. The very statutory
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`provisions cited by Petitioners make explicit that FIFRA limits and regulates the
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`use of registered pesticides. See e.g. 7 U.S.C. § 136j(a)(2)(G) (“it shall be
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`unlawful for any person … to use any registered pesticide in a manner inconsistent
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`with its labeling.”) (emphasis added); ECF 127-1 at 20. By contrast, the statute
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`generally makes it unlawful for any person to “distribute or sell … any pesticide
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`that is not registered under section 3…” Id. § 136j(a)(1) (emphasis added).
`
`The Ninth Circuit recognized this limitation of FIFRA in Pollinator
`
`Stewardship Council v. EPA, 806 F.3d 520 (9th Cir. 2015). The Court granted
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`EPA’s petition for rehearing and modified its published opinion to make clear that
`
`while FIFRA generally prohibits the “sale” of an unregistered pesticide, FIFRA
`
`does not preclude its “use.” Id.; ECF 122, Exh. A (EPA Petition for Rehearing).
`
`Simply put, FIFRA generally makes it illegal to sell an unregistered pesticide.
`
`Nothing in FIFRA generally restricts or prohibits an end-user from using an
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`unregistered pesticide in its possession. Without EPA’s June 8 order limiting use
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`12
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`of existing stocks, growers would be free to use those stocks indefinitely and with
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`no enforceable federal requirement to follow the label restrictions.4
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`Petitioners argue that the Court’s Opinion only vacated EPA’s approval of the
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`products’ over-the-top (“OTT”) uses on soybean and cotton, and therefore any
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`existing stocks remain registered pesticides that “can only be used in ways for
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`which they are (lawfully) registered.” ECF 127-1 at 20. However, the court’s
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`decision reads more broadly. ECF 125 at 54. The Opinion does not include
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`language
`
`limiting
`
`the vacatur
`
`to particular uses, but concludes simply
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`“Registrations VACATED.” Id. at 56.
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`Even if Petitioners were correct that the Opinion only vacated the OTT uses,
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`they misstate the statutory consequences for existing stocks. If the products
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`remained registered for other uses, FIFRA requires only that their use be consistent
`
`with their existing labeling. See 7 U.S.C. § 136j(a)(2)(G) (prohibiting application
`
`in “manner inconsistent with its labeling”). Under FIFRA, “labeling” means the
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`physical label that actually accompanies the product at a particular point in time.
`
`See 7 U.S.C. § 136(q). The physical labels that accompany all existing stocks of
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`these products still provide for OTT use on soy and cotton, and end-users who
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`apply the products consistent with those labels would not violate FIFRA.
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`
`4 Growers would remain subject to any state-law requirements governing the
`use of an unregistered pesticide, but such requirements do not exist in every state,
`and are not consistent among states that have them.
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`Case: 19-70115, 06/16/2020, ID: 11723963, DktEntry: 145, Page 18 of 26
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`B.
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`EPA’s June 8 order properly addressed the legal and practical
`consequences of vacatur.
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`EPA’s order does precisely what Petitioners contend it should do; it
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`acknowledges that the products are “no longer … registered as of the time of the
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`June 3, 2020 order” and “take[s] action consistent with” the Court’s rulings. ECF
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`127-3 at 1; ECF 127-1 at 2. EPA’s order addresses the regulatory status of existing
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`stocks of the now-unregistered product, consistent with FIFRA and long-standing
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`EPA policy and practice. Contrary to Petitioners’ portrayal, EPA’s order does not
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`somehow reinstate the cancelled registrations, or bring back the status quo prior to
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`this Court’s vacatur. In fact, EPA’s order prohibits far more than it allows.
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`EPA’s order confirms that, because Xtendimax, Engenia, and FeXapan were
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`no longer registered as of June 3, 2020, it “is a violation of FIFRA for any person
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`to sell or distribute them.” EPA’s order at 1 (ECF 127-1 at 2). The order prohibits
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`BASF and the other registrants from distributing or selling any existing stocks of
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`the vacated products as of the June 3 decision, “except for distribution for the
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`purposes of proper disposal.” Id. at 11. Existing stocks in the hands of licensed
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`commercial applicators and end users may be used only until July 31, 2020, and
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`only in conformance with the label restrictions previously imposed by EPA in
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`granting the registrations. Id. As discussed above, absent EPA’s order, end-users
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`would be free to continue to use their existing stocks with no deadline, and with no
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`binding federal requirement to follow the label restrictions.
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`Case: 19-70115, 06/16/2020, ID: 11723963, DktEntry: 145, Page 19 of 26
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`Petitioners falsely state that the June 8 order allows 16 million pounds of
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`dicamba products to be applied over the top of cotton and soybean. ECF 127 at 6,
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`10, 13, 26. This figure is derived from EPA’s estimate of the amount of product
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`“in the channels of trade.” Id. at 5. But much of those existing stocks cannot be
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`used. Only the limited amount that was already in the hands of certified
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`applicators and growers as of June 3 can be used, and only subject to the order’s
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`restrictions. Id. at 11. Petitioners entirely ignore the prohibition on all distribution
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`and sale by registrants, distributors, and retailers (other than the limited
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`commercial applicator sale/use of existing stocks, noted above). EPA’s order
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`thereby cut off any further supply to end-users and commercial applicators as of
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`the date of the panel’s June 3 mandate. BASF alone holds $44 million of Engenia
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`product, sufficient to protect 6.6 million soybean acres, none of which can be
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`distributed, sold, or used. Kay Decl. ¶ 16 (ECF 130-2 at 5).
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`C.
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`The Panel’s Opinion did not purport to immediately “ban” all use
`of the vacated products.
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`Petitioners assert that EPA is “brazenly attempting to tailor the Court’s
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`vacatur to its liking.” ECF 127-1 at 1. This is patently untrue.
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`Petitioners misconstrue the June 3 decision to impose an immediate ban on
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`all OTT use of the products. As amici in the Pollinator Stewardship case,
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`Petitioners knew that vacating the registrations would not automatically halt “use”
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`of the now-unregistered products. At the last minute, Petitioners improperly
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`Case: 19-70115, 06/16/2020, ID: 11723963, DktEntry: 145, Page 20 of 26
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`suggested that the panel, for the first time, issue an order “granting the petition and
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`vacating the registration, [and] halting any sale and use of these pesticide
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`products….” ECF at 115 at 10. Despite that request, the panel issued a simple
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`order vacating the registrations. ECF 125 at 56. Petitioners cannot now contend
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`that in doing so the panel “show[ed] its clear intent that use immediately halt as of
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`the day of its decision.” ECF 127 at 9.
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`Likewise, to support their argument against allowing limited use of existing
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`stocks, Petitioners contend that the June 3 decision did not vacate the registrations,
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`but only OTT use of the products on soybeans and cotton. On this point, the
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`panel’s order was clear: “Registrations VACATED.” ECF 125 at 56. The panel’s
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`order vacated registrations, it did not purport to vacate uses, and nothing in the
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`Opinion appears to limit the vacatur by use. Petitioners’ request that the panel
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`rewrite the order to support their misguided ratio