Case: 19-70115, 07/20/2020, ID: 11759213, DktEntry: 170, Page 1 of 79
`
`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,
`
`MONSANTO COMPANY, et al.,
` Respondents-Intervenors,
`
`and
`BASF CORPORATION,
`
` Intervenor.
`
`ON PETITION FOR REVIEW FROM THE UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY
`
`PETITION FOR REHEARING EN BANC
`
`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
`Counsel for Intervenor BASF Corporation
`
`Neal Kumar Katyal
`Kirti Datla
`Jo-Ann Tamila Sagar
`HOGAN LOVELLS US LLP
`555 Thirteenth Street NW
`Washington, DC 20004
`(202) 637-5600
`
`

`

`Case: 19-70115, 07/20/2020, ID: 11759213, DktEntry: 170, Page 2 of 79
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`TABLE OF CONTENTS
`
`Page
`TABLE OF AUTHORITIES .................................................................................... ii
`RULE 35(b) STATEMENT ....................................................................................... 1
`BACKGROUND ....................................................................................................... 1
`REASONS FOR GRANTING REHEARING EN BANC ........................................ 3
`I.
`THE DECISION TO VACATE BASF’S ENGENIA
`REGISTRATION VIOLATES BASIC PRINCIPLES OF
`ADMINISTRATIVE AND CONSTITUTIONAL LAW .......................... 3
`A.
`The Panel Did Not Review The Relevant Administrative
`Record, Contrary To Precedents Of The Supreme Court And
`This Court ......................................................................................... 4
`The Panel Vacated BASF’s Engenia Registration Without
`Giving BASF Notice And An Opportunity To Be Heard ................ 5
`The Panel Vacated BASF’s Engenia Registration Though
`Petitioners Lack Standing, Departing From Other Circuits ............. 8
`THE PANEL LACKED JURISDICTION OVER PETITIONERS’
`CHALLENGE TO BASF’S ENGENIA REGISTRATION .................... 10
`III. THE PANEL DID NOT APPLY THE DEFERENTIAL
`“SUBSTANTIAL EVIDENCE” STANDARD ....................................... 14
`CONCLUSION ........................................................................................................ 18
`CERTIFICATE OF COMPLIANCE
`ADDENDUM
`CERTIFICATE OF SERVICE
`
`B.
`
`C.
`
`II.
`
`i
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`

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`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES:
`Arkansas v. Oklahoma,
`503 U.S. 91 (1992) .............................................................................................. 14
`Ass’n of Pub. Agency Customers v. Bonneville Power Admin.,
`733 F.3d 939 (9th Cir. 2013) ................................................................................ 9
`Citizens Against Ruining the Env’t v. EPA,
`535 F.3d 670 (7th Cir. 2008) .............................................................................. 10
`Citizens to Preserve Overton Park, Inc. v. Volpe,
`401 U.S. 402 (1971), abrogated on other grounds by Califano v.
`Sanders, 430 U.S. 99 (1977) ................................................................................. 4
`Ctr. for Biological Diversity v. U.S. EPA,
`847 F.3d 1075 (9th Cir. 2017) .................................................................. 6, 10, 11
`Indus. Safety Equip. Ass’n v. EPA,
`837 F.2d 1115 (D.C. Cir. 1988) ............................................................................ 6
`Iowa League of Cities v. EPA,
`711 F.3d 844 (8th Cir. 2013) .............................................................................. 10
`Lands Council v. McNair,
`537 F.3d 981 (9th Cir. 2008) .............................................................................. 17
`Lujan v. Defs. of Wildlife,
`504 U.S. 555 (1992) .............................................................................................. 8
`Mathews v. Eldridge,
`424 U.S. 319 (1976) .............................................................................................. 8
`Nat’l Family Farm Coal. v. U.S. EPA,
`747 F. App’x 646 (9th Cir. 2019) ......................................................................... 2
`Nat’l Family Farm Coal. v. U.S. EPA,
`960 F.3d 1120 (9th Cir. 2020) .....................................................................passim
`
`ii
`
`

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`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`
`Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs,
`384 F.3d 1163 (9th Cir. 2004) ............................................................................ 15
`N. Laramie Range All. v. FERC,
`733 F.3d 1030 (10th Cir. 2013) .......................................................................... 10
`Nw. Requirements Utils. v. FERC,
`798 F.3d 796 (9th Cir. 2015) ................................................................................ 9
`Portland Audubon Soc’y v. Endangered Species Comm.,
`984 F.2d 1534 (9th Cir. 1993) .............................................................................. 4
`Sierra Club v. EPA,
`292 F.3d 895 (D.C. Cir. 2002) ........................................................................ 9, 10
`Sierra Club v. U.S. EPA,
`793 F.3d 656 (6th Cir. 2015) .......................................................................... 8, 10
`United Farm Workers of Am., AFL-CIO v. Am’r, EPA,
`592 F.3d 1080 (9th Cir. 2010) ............................................................................ 12
`Walter O. Boswell Mem’l Hosp. v. Heckler,
`749 F.2d 788 (D.C. Cir. 1984) .............................................................................. 4
`STATUTES:
`5 U.S.C. § 706 ............................................................................................................ 4
`7 U.S.C. § 136a(a) ...................................................................................................... 1
`7 U.S.C. § 136a(c)(1)(C) ............................................................................................ 1
`7 U.S.C. § 136a(c)(5)(D) ......................................................................................... 14
`7 U.S.C. § 136d(b) ................................................................................................... 14
`7 U.S.C. § 136j(a)(2)(G) .................................................................................... 14, 16
`7 U.S.C. § 136l(a)(1) ................................................................................................ 16
`
`iii
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`

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`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`7 U.S.C. § 136l(b)(1)(B) .......................................................................................... 16
`7 U.S.C. § 136n(a) ................................................................................................... 10
`7 U.S.C. § 136n(b) ....................................................................................... 10, 11, 14
`REGULATIONS:
`40 C.F.R. § 23.6 ....................................................................................................... 12
`40 C.F.R. § 152.3 ....................................................................................................... 1
`40 C.F.R. § 152.15 ..................................................................................................... 1
`
`Judicial Review Under EPA-Administered Statutes; Races to the
`Courthouse, 50 Fed. Reg. 7268 (Feb. 21, 1985) .......................................... 12, 13
`RULE:
`Fed. R. App. P. 15(a)(2)(C) ....................................................................................... 5
`OTHER AUTHORITY:
`13 Wright & Miller, Federal Practice & Procedure Jurisdiction § 3522
`(3d ed. 2020 update) ........................................................................................... 13
`
`iv
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`RULE 35(b) STATEMENT
`
`A panel of this Court issued a decision with broad reach and devastating
`
`consequences. Petitioners challenged the Environmental Protection Agency’s
`
`registration of one pesticide—XtendiMax—made by one manufacturer—Monsanto.
`
`The panel nonetheless reviewed two separate registrations—of Engenia and
`
`FeXapan—held by two other manufacturers—BASF and Corteva—neither a party
`
`to the appeal. Conducting its review without the administrative record for those
`
`separate registrations, applying a novel interpretation of the governing statutes, and
`
`distorting the standard of review, the panel vacated all three registrations.
`
`Knowing it would harm this country’s farmers, the panel had the mandate issue
`
`immediately. Its decision is wrong, conflicts with this Court’s and other circuits’
`
`precedents, and presents questions of exceptional importance. En banc review is
`
`appropriate.
`
`BACKGROUND
`
`Petitioners challenged EPA’s 2018 registration of Monsanto’s XtendiMax
`
`pesticide. EPA registers pesticide products under the Federal Insecticide,
`
`Fungicide, and Rodenticide Act (FIFRA). 7 U.S.C. § 136a(a). Registrations are
`
`issued to a specific registrant, for a specific formula, packaging, and label. See 40
`
`C.F.R. § 152.3; 7 U.S.C. § 136a(c)(1)(C). “No person may distribute or sell any
`
`pesticide product that is not registered.” 40 C.F.R. § 152.15.
`
`1
`
`

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`Petitioners’ challenge began in 2016, when EPA issued a registration for
`
`XtendiMax. After Petitioners sought review, EPA amended the registration, and
`
`Petitioners amended their petition to seek review of the amended registration. See
`
`Case No. 17-70196, ECF Nos. 62, 68. The 2016 registration expired, and EPA
`
`issued a new XtendiMax registration on November 1, 2018. This Court then
`
`dismissed Petitioners’ challenge as moot. See Nat’l Family Farm Coal. v. U.S.
`
`EPA, 747 F. App’x 646, 647-648 (9th Cir. 2019). Its order directed the Clerk to
`
`expedite briefing and argument if Petitioners challenged “the 2018 registration
`
`decision.” Id. at 648.
`
`Petitioners filed this petition on January 11, 2019, continuing their challenge
`
`to XtendiMax. They cited the regulatory docket that had been opened for the
`
`XtendiMax registration (EPA-HQ-OPP-2016-0187-0968) and their prior petition.
`
`See ECF No. 1-6 at 2-3. And they described their challenge as one to a document
`
`that “extended two earlier registration decisions by EPA over this same pesticide
`
`product.” Id. at 2 (emphasis added). Petitioners did not mention BASF or Engenia.
`
`Monsanto intervened to defend the XtendiMax registration. See ECF No. 11.
`
`Though the petition for review was limited to XtendiMax, and though
`
`Petitioners stated they “d[id] not challenge” the “entire pesticide registrations and
`
`all their approved uses,” ECF No. 123-1 at 15, the panel vacated the registrations
`
`for Monsanto’s XtendiMax and for BASF’s Engenia and Corteva’s FeXapan. Nat’l
`
`2
`
`

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`Family Farm Coal. v. U.S. EPA, 960 F.3d 1120, 1144-45 (9th Cir. 2020). The
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`panel deemed “all three registrations . . . at issue” because Petitioners had attached
`
`to the petition a decision document explaining EPA’s rationale for amending the
`
`separately issued registrations. See id. at 1132-44. The mandate issued
`
`immediately. See ECF No. 126.
`
`Nine days later, BASF moved to intervene. See ECF No. 130. The panel
`
`granted that request. See ECF No. 162. BASF also moved to recall the mandate
`
`and stay its issuance. See ECF No. 145 at 17-20. The panel denied that request.
`
`See ECF No. 169.
`
`REASONS FOR GRANTING REHEARING EN BANC
`
`I.
`
`THE DECISION TO VACATE BASF’S ENGENIA REGISTRATION
`VIOLATES BASIC PRINCIPLES OF ADMINISTRATIVE AND
`CONSTITUTIONAL LAW.
`
`The panel decision vacating BASF’s Engenia registration—despite
`
`Petitioners’ failure to timely name or otherwise indicate their intent to challenge
`
`that registration—is inconsistent with the basic principle of administrative law that
`
`a court must evaluate an agency’s decision based on the administrative record; here,
`
`the panel never saw the administrative record for BASF’s Engenia registration. It
`
`is also inconsistent with basic due process principles, as neither Petitioners nor the
`
`Court gave BASF notice that its registration was at issue before it was vacated.
`
`Finally, Petitioners lacked standing to challenge BASF’s Engenia registration.
`
`3
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`

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`Because these grave errors conflict with the decisions of the Supreme Court, of this
`
`Court, and of other courts of appeals, rehearing en banc is warranted.
`
`A.
`
`The Panel Did Not Review The Relevant Administrative Record,
`Contrary To Precedents Of The Supreme Court And This Court.
`
`The panel vacated BASF’s Engenia registration without reviewing the
`
`administrative record for that registration.
`
` EPA prepared and filed the
`
`administrative record of the XtendiMax registration. See ECF No. 34-2 at 1-2
`
`(certification describing the scope of the administrative record). The panel thus
`
`vacated BASF’s Engenia registration without considering EPA’s basis for the
`
`registration.
`
`It is a bedrock principle that review of a challenge to administrative action
`
`must “be based on the full administrative record that was before the [agency] at the
`
`time [it] made [a] decision.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401
`
`U.S. 402, 420 (1971) (emphasis added), abrogated on other grounds by Califano v.
`
`Sanders, 430 U.S. 99 (1977); see also 5 U.S.C. § 706 (review “shall” be based on
`
`“the whole record” (emphasis added)). The full record “includes everything that
`
`was before the agency pertaining to the merits of its decision.” Portland Audubon
`
`Soc’y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993).
`
`Anything less “must be viewed as a fictional account of the actual decisionmaking
`
`process.” Id. (internal quotation marks omitted); see also, e.g., Walter O. Boswell
`
`Mem’l Hosp. v. Heckler, 749 F.2d 788, 793 (D.C. Cir. 1984) (remanding because
`4
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`

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`review on an incomplete record “undermines the reliability of a court’s review”).
`
`The differences between the administrative record supporting BASF’s
`
`Engenia registration and the record for Monsanto’s XtendiMax registration are
`
`material. For example, unlike XtendiMax, Engenia is formulated using the
`
`BAPMA salt form of dicamba, which creates different properties that influence
`
`volatility and require separate testing specific to the Engenia formulation. See ECF
`
`No. 112 at 8; see also ECF No. 130-2 (Kay Decl.) ¶¶ 8, 11. BASF submitted to
`
`EPA a dozen studies of the spray drift and volatilization characteristics of Engenia
`
`that showed Engenia performs differently from XtendiMax, none of which were
`
`before the panel. See Kay Decl. ¶ 7 & Attach. A. Though some documents
`
`“overlap,” such that the XtendiMax administrative record “includes materials
`
`concerning all three products,” Nat’l Family Farm Coal., 960 F.3d at 1132, the
`
`panel’s decision was nonetheless based on incomplete information. This led it to
`
`an incorrect result, to BASF’s detriment. En banc review is warranted to correct
`
`this error and resolve the conflict between the panel decision and this Court’s
`
`precedents.
`
`B.
`
`The Panel Vacated BASF’s Engenia Registration Without Giving
`BASF Notice And An Opportunity To Be Heard.
`
`The panel erred in entertaining a late-breaking challenge to BASF’s Engenia
`
`registration when BASF was not in the case and had no opportunity to respond.
`
`Federal Rule of Appellate Procedure 15(a)(2)(C) required Petitioners to “specify”
`5
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`

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`each order “or part thereof” that they intended to challenge. This rule ensures that
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`third parties like BASF, with a property interest at stake,1 have fair notice of the
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`challenge, and an opportunity to be heard. Petitioners did not comply with that
`
`rule, and the panel should not have addressed BASF’s Engenia registration.
`
`The panel held that the petition for review had included Engenia. It relied
`
`on the petition’s statement that it challenged an EPA decision document that “was
`
`‘intertwined with and extended two earlier registration decisions by EPA over this
`
`same pesticide product.’ ” Nat’l Family Farm Coal., 960 F.3d at 1132 (quoting
`
`ECF No. 1-6 at 2). The panel inferred that this reference to the EPA decision
`
`document swept in the registrations for BASF’s Engenia and Corteva’s FeXapan
`
`because that document announced EPA’s intent to amend those registrations. It
`
`reached this conclusion even though that document was not the final agency action
`
`as to Engenia’s registration; that required a separate agency action taken on
`
`November 2.
`
`In any event, that the panel concluded that the petition encompassed
`
`Engenia—after supplemental briefing by the parties—says nothing about whether
`
`BASF had notice and an opportunity to protect its rights before the panel reached
`
`1 As the owner of the Engenia registration, BASF has a property interest in
`that registration. See Ctr. for Biological Diversity v. U.S. EPA, 847 F.3d 1075,
`1085 (9th Cir. 2017) (“FIFRA establishes comprehensive procedures for the
`EPA’s . . . cancellation of registration of pesticide[s] . . . .”); Indus. Safety Equip.
`Ass’n v. EPA, 837 F.2d 1115, 1122 (D.C. Cir. 1988) (“There is no question that
`appellants possess cognizable property interests in their respirator certifications.”).
`6
`
`

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`that conclusion. In the same sentence the panel relied upon, Petitioners stated they
`
`were challenging only the “same pesticide product” the earlier petition had
`
`challenged: XtendiMax. ECF No. 1-6 at 2. Engenia was not at issue in that
`
`litigation. See ECF No. 115-1 at 6 (Petitioners conceding that the earlier petition
`
`“was limited to Xtendimax”); Case No. 17-70196, ECF Nos. 1-5, 1-6, 62, 68.
`
`BASF had no reason to think Engenia was at issue in this petition.
`
`Neither the petition itself, nor any of Petitioners’ subsequent filings, gave
`
`BASF fair notice that its property was at issue in this case. Again, the petition did
`
`not reference BASF’s Engenia registration. And while Petitioners incorrectly
`
`asserted in a single footnote in their opening brief that the challenged XtendiMax
`
`registration “also covers the competitor dicamba varieties approved by EPA for the
`
`same uses,” see ECF No. 35 at 2 n.4, the brief never mentioned Engenia or
`
`described its challenge as covering Engenia. EPA argued in response that this
`
`passing reference did not put Engenia within the scope of Petitioners’ challenge.
`
`See, e.g., ECF No. 48-1 at 12-13 & n.3. EPA also made clear that the
`
`administrative record covered only the XtendiMax registration. See ECF No. 26-2
`
`at 1-2. Petitioners did not object to the scope of the administrative record, refute
`
`EPA’s claim about the scope of their challenge in their reply brief, or mention
`
`Engenia at argument. Petitioners first claimed to challenge BASF’s Engenia
`
`registration after the panel ordered supplemental briefing on the scope of their
`
`7
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`

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`challenge after argument.
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`It was thus not until the panel issued its decision that BASF simultaneously
`
`received notice that its Engenia registration was at issue, in the portion of the
`
`decision ruling on the scope of Petitioners’ challenge, and that its registration was
`
`no more, in the portion of decision vacating that registration. That is presumably
`
`why the panel allowed BASF to intervene after its decision. But it also is why the
`
`panel’s decision violated BASF’s due process rights. See Mathews v. Eldridge,
`
`424 U.S. 319, 333 (1976) (“The fundamental requirement of due process is the
`
`opportunity to be heard at a meaningful time and in a meaningful manner.”
`
`(internal quotation marks omitted)). Because the panel’s decision presents a
`
`question of exceptional importance regarding the due process rights of those who
`
`hold licenses, permits, or registrations issued by EPA, en banc review is warranted.
`
`C.
`
`The Panel Vacated BASF’s Engenia Registration Though
`Petitioners Lack Standing, Departing From Other Circuits.
`
`The “injury in fact” requirement of standing is “an indispensable part of the
`
`plaintiff’s case,” but is missing here. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-
`
`561 (1992). In a challenge to agency action filed directly in a court of appeal, “the
`
`petitioner carries a burden of production similar to that required at summary
`
`judgment.” Sierra Club v. U.S. EPA, 793 F.3d 656, 662 (6th Cir. 2015); see also
`
`Lujan, 504 U.S. at 561 (standing “must be supported . . . with the manner and
`
`degree of evidence required at the successive stages of the litigation”). After all, a
`8
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`

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`petitioner “does not ask the court merely to assess the sufficiency of its legal
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`theory” like a plaintiff at the motion to dismiss stage, but instead “like a plaintiff
`
`moving . . . for summary judgment,” asks “for a final judgment on the merits.”
`
`Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002).
`
`By choosing not to address standing, the panel granted Petitioners relief
`
`even though they lacked standing to challenge Engenia. As EPA noted, see ECF
`
`No. 112 at 9, Petitioners neither offered evidence nor pointed to evidence in the
`
`XtendiMax record that established their standing to challenge BASF’s Engenia
`
`registration. Instead, Petitioners’ standing declarations support a challenge only of
`
`XtendiMax. See, e.g., ECF No. 35 at 1-2 n.3; id. at A118 (“NFFC and its members
`
`are being, and will be, adversely affected by EPA’s decision to register XtendiMax
`
`herbicide for new uses on dicamba-resistant cotton and soybeans”); A118-121
`
`(discussing XtendiMax); A125-127 (same).
`
`In vacating BASF’s Engenia registration without requiring Petitioners to
`
`show that they were injured by EPA’s decision to approve Engenia’s registration,
`
`the panel silently drives a wedge between this Court and its sister circuits.2 Every
`
`court of appeals to have addressed this issue holds that a petitioner seeking review
`
`2 This Court has “suggested” that the summary judgment standard governs.
`Ass’n of Pub. Agency Customers v. Bonneville Power Admin., 733 F.3d 939, 971
`n.7 (9th Cir. 2013) (Alarcón, J., dissenting); see also Nw. Requirements Utils. v.
`FERC, 798 F.3d 796, 805 (9th Cir. 2015) (suggesting that the summary judgment
`standard applies). The panel did not discuss standing at all and thus did not
`recognize the appropriate burden of proof.
`9
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`

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`of agency action in the court of appeals must establish standing in the same manner
`
`“as that of a plaintiff moving for summary judgment in the district court.” Sierra
`
`Club, 292 F.3d at 899; see also Sierra Club, 793 F.3d at 662; N. Laramie Range
`
`All. v. FERC, 733 F.3d 1030, 1034 (10th Cir. 2013); Iowa League of Cities v. EPA,
`
`711 F.3d 844, 869-870 (8th Cir. 2013); Citizens Against Ruining the Env’t v. EPA,
`
`535 F.3d 670, 675 (7th Cir. 2008). Because the panel’s decision conflicts with
`
`decisions of other courts of appeals, en banc review is warranted.
`
`II. THE PANEL LACKED JURISDICTION OVER PETITIONERS’
`CHALLENGE TO BASF’S ENGENIA REGISTRATION.
`
`In FIFRA, Congress created two different paths to judicial review for
`
`persons who claim to be adversely affected by EPA orders issued under the statute.
`
`Certain orders issued by the EPA—in particular, those that are “issued by the
`
`Administrator following a public hearing”—must be challenged “in the United
`
`States court of appeals . . . within 60 days after the entry of such order.” 7 U.S.C.
`
`§ 136n(b). Whereas “other final actions of the Administrator . . . are judicially
`
`reviewable by the district courts of the United States.” Id. § 136n(a); see also Ctr.
`
`for Biological Diversity, 847 F.3d at 1087 (explaining that district court actions are
`
`subject to a six-year statute of limitations).
`
`To the extent that Petitioners sought to challenge EPA’s November 2, 2018
`
`order extending BASF’s Engenia registration, FIFRA required them to take the
`
`second path, and to bring that challenge in the district court—instead of petitioning
`10
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`

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`for review directly before the court of appeals—because EPA did not conduct a
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`“public hearing” regarding EPA’s registration decision for BASF’s Engenia. See 7
`
`U.S.C. § 136n(b) (the court of appeals has jurisdiction to review only those EPA
`
`orders issued after a “public hearing”). But even if there had been a “public
`
`hearing,” such that petitioning for review directly before the court of appeals could
`
`be appropriate, this Court would still lack jurisdiction over Petitioners’ challenge
`
`because they sought review in this Court after the 60 day statutory filing period
`
`had already elapsed.3
`
`Id. (the petition for review must be filed in the court of
`
`appeals “within 60 days after the entry of such order”); see also Ctr. for Biological
`
`Diversity, 847 F.3d at 1089-90 (holding that the 60-day filing deadline is
`
`jurisdictional).
`
`The panel, however, disregarded both the public hearing requirement and the
`
`60-day filing deadline in its attempt to sweep BASF’s Engenia registration into
`
`Petitioners’ challenge. First, gutting the “public hearing” requirement, the panel
`
`held that it had jurisdiction over Petitioners’ challenge because the 2016 notice-
`
`and-comment process EPA conducted on Monsanto’s XtendiMax registration could
`
`meet the public hearing requirement for EPA’s separate 2018 decision regarding
`
`BASF’s Engenia. See Nat’l Family Farm Coal., 960 F.3d at 1131. That decision
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`3 The EPA issued a decision document on October 31, 2018, and its final
`order extending and revising the Engenia registration on November 2, 2018. ECF
`No. 1-7; ECF No. 36-1 at ER0167. Petitioners filed their Petition for Review 70
`days later. ECF No. 1.
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`Case: 19-70115, 07/20/2020, ID: 11759213, DktEntry: 170, Page 17 of 79
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`conflicts with this Court’s precedent. A “public hearing” requires “notice be given
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`of a decision to be made and presentation to the decisionmaker of the positions of
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`those to be affected by the decision.” United Farm Workers of Am., AFL-CIO v.
`
`Am’r, EPA, 592 F.3d 1080, 1082 (9th Cir. 2010). As explained above, see supra at
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`5, XtendiMax and Engenia are different products, with different properties,
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`supported by different administrative records, and registered by EPA in different
`
`decisions. Regardless of any overlapping issues, EPA’s notice-and-comment
`
`process specific to an XtendiMax registration decision that was finalized in 2016
`
`cannot be characterized as “notice … of a decision to be made” regarding EPA’s
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`separate 2018 decision about Engenia or “presentation to the decisionmaker of the
`
`positions of those to be affected” by the future decision. United Farm Workers,
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`592 F.3d at 1082.
`
`Second, side-stepping the 60-day filing deadline, the panel held that the
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`petitioners’ challenge was timely based on an EPA regulation providing that the
`
`“date of entry of an order” for purposes of FIFRA is “two weeks after it is signed”
`
`unless EPA “otherwise explicitly provides in a particular order.” See Nat’l Family
`
`Farm Coal., 960 F.3d at 1131 (quoting 40 C.F.R. § 23.6). But the panel was
`
`wrong about that too. EPA itself made clear in adopting its regulation that it does
`
`not apply where “EPA sought to make a rule or action [immediately] effective.”
`
`Judicial Review Under EPA-Administered Statutes; Races to the Courthouse, 50
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`Case: 19-70115, 07/20/2020, ID: 11759213, DktEntry: 170, Page 18 of 79
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`Fed. Reg. 7268, 7269 (Feb. 21, 1985). It is undisputed that EPA’s registration
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`orders were effective immediately. See ECF No. 1-7 at 3; ECF No. 36-1 at
`
`ER0167. Moreover, the regulation could not operate to delay an entry date to two
`
`weeks after an effective date, as EPA has recognized. 50 Fed. Reg. at 7269 (noting
`
`that “the courts would not follow the rule’s deferral of the issuance date if EPA
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`sought to make a rule or action effective prior to its issuance for judicial review
`
`purposes”). If an order is effective, by definition it must have been “entered.”
`
`EPA cannot by regulation expand this Court’s jurisdiction beyond that provided by
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`Congress. E.g., 13 Wright & Miller, Federal Practice & Procedure Jurisdiction
`
`§ 3522 (3d ed. 2020 update).
`
`In this one decision, the panel significantly expanded both the type and
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`number of challenges that petitioners may now bring directly before the court of
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`appeals. The statute does not permit this expansion of the court of appeals’
`
`jurisdiction. And there is no good reason for it. While Petitioners cannot seek
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`review of the BASF’s Engenia registration directly before this Court, the
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`registration is not beyond review. For example, Petitioners could have petitioned
`
`EPA to cancel BASF’s Engenia registration and sought judicial review in the
`
`district court if EPA declined to do so. However, what Petitioners could not do—
`
`and what the panel should not have allowed—is use a challenge to a separate
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`pesticide’s registration to sweep BASF’s Engenia registration into this case.
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`Case: 19-70115, 07/20/2020, ID: 11759213, DktEntry: 170, Page 19 of 79
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`Because the panel’s decision rewrites FIFRA to significantly expand the
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`jurisdiction of the courts of appeals, en banc review is warranted.
`
`III. THE PANEL DID NOT APPLY THE DEFERENTIAL
`“SUBSTANTIAL EVIDENCE” STANDARD.
`
`The panel failed to limit its review to whether “substantial evidence”
`
`supported EPA’s judgments based on “the record as a whole,” 7 U.S.C. § 136n(b),
`
`and instead “supplant[ed] the agency’s findings merely by identifying alternative
`
`findings that could be supported by substantial evidence,” Arkansas v. Oklahoma,
`
`503 U.S. 91, 113 (1992). The panel made many such errors, but one most clearly
`
`illustrates the panel’s disregard for the governing statutes and standards of review:
`
`The panel vacated BASF’s Engenia registration because, in the panel’s view, EPA
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`“entirely failed to acknowledge . . . the high likelihood that restrictions on OTT
`
`dicamba application imposed by the 2018 label would not be followed.” Nat’l
`
`Family Farm Coal., 960 F.3d at 1124.
`
`As an initial matter, FIFRA does not require EPA to address risks from
`
`potential product misuse. Instead, the statute requires EPA to register a pesticide if
`
`it causes no “unreasonable adverse effects” “when used in accordance with
`
`widespread and commonly recognized practice.” 7 U.S.C. §§ 136a(c)(5)(D),
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`136d(b). FIFRA prohibits use of a pesticide in a manner inconsistent with its label,
`
`id. § 136j(a)(2)(G), and unlawful use cannot qualify as “widespread and commonly
`
`recognized practice.” In making a registration decision, EPA is entitled to rely on
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`Case: 19-70115, 07/20/2020, ID: 11759213, DktEntry: 170, Page 20 of 79
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`the extensive federal and state powers to enforce the label restrictions
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`In any event EPA did explicitly acknowledge the risk of misuse. See ECF
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`No. 1-7 at 5 (acknowledging risk of damage from “poor adherence to the label”),
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`10 (past “incidents may be due to . . . not following the label”), 20 (acknowledging
`
`“off-target movement of dicamba due to failure to follow the label”). Further, EPA
`
`took extensive steps to address that risk. EPA revised the Engenia label to “add
`
`greater clarity and structure” and to clarify training requirements, id. at 18, 22, and
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`EPA restricted use “to only certified applicators,” who are “the most highly trained
`
`individuals” with the greatest incentive to follow the label (because they risk losing
`
`their license), id. at 20. EPA reasonably concluded that these measures, coupled
`
`with additional substantive restrictions, would “increase compliance with label
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`requirements and . . . further minimize the potential for off-target movement.” Id.
`
`The panel wrongly a