Case: 19-70115, 07/30/2020, ID: 11771963, DktEntry: 175-1, Page 1 of 8
`
`Case 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, BASF CORPORATION, AND E.I. DU PONT DE
`NEMOURS AND COMPANY,
`Intervenor-Respondents.
`
`ON PETITION FOR REVIEW FROM THE
`UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
`
`MOTION OF CROPLIFE AMERICA FOR LEAVE TO FILE BRIEF AS
`AMICUS CURIAE IN SUPPORT OF INTERVENOR-RESPONDENTS’
`PETITIONS FOR REHEARING EN BANC
`
`Of Counsel:
`Rachel Lattimore
`Executive Vice President &
`General Counsel
`Caleb Pearson
`Assistant General Counsel
`Ashley Boles
`Counsel
`CropLife America
`1156 15th Street NW, Ste. 400
`Washington, DC 20005
`
`Karen Ellis Carr
`Stanley H. Abramson
`Donald C. McLean
`Kathleen R. Heilman
`ARENT FOX LLP
`1717 K Street, NW
`Washington, DC 20006
`karen.carr@arentfox.com
`Tel: (202) 715-8531
`
`Counsel for Amicus Curiae CropLife America
`
`
`
`Case 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, BASF CORPORATION, AND E.I. DU PONT DE
`NEMOURS AND COMPANY,
`Intervenor-Respondents.
`
`ON PETITION FOR REVIEW FROM THE
`UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
`
`MOTION OF CROPLIFE AMERICA FOR LEAVE TO FILE BRIEF AS
`AMICUS CURIAE IN SUPPORT OF INTERVENOR-RESPONDENTS’
`PETITIONS FOR REHEARING EN BANC
`
`Of Counsel:
`Rachel Lattimore
`Executive Vice President &
`General Counsel
`Caleb Pearson
`Assistant General Counsel
`Ashley Boles
`Counsel
`CropLife America
`1156 15th Street NW, Ste. 400
`Washington, DC 20005
`
`Karen Ellis Carr
`Stanley H. Abramson
`Donald C. McLean
`Kathleen R. Heilman
`ARENT FOX LLP
`1717 K Street, NW
`Washington, DC 20006
`karen.carr@arentfox.com
`Tel: (202) 715-8531
`
`Counsel for Amicus Curiae CropLife America
`
`
`
`Case: 19-70115, 07/30/2020, ID: 11771963, DktEntry: 175-1, Page 2 of 8
`
`INTRODUCTION
`
`Pursuant to Federal Rule of Appellate Procedure 29 and Circuit Rule 29-2,
`
`CropLife America (“CLA”) respectfully moves for leave to submit the attached
`
`brief as amicus curiae in support of the petitions of Intervenor-Respondents
`
`Monsanto Company, E.I. du Pont de Nemours and Company, and BASF
`
`Corporation for en banc rehearing of this Court’s June 3, 2020 Opinion (“June 3
`
`Order”) immediately vacating the FIFRA registrations for XtendiMax, Engenia,
`
`and FeXapan, three pesticide products containing the active ingredient dicamba.
`
`Pursuant to Circuit Rule 29-3, CLA contacted counsel for the parties in an effort to
`
`obtain their consent to this motion. Respondent U.S. Environmental Protection
`
`Agency (“EPA” or the “Agency”) and Intervenor-Respondents Monsanto
`
`Company, E.I. du Pont de Nemours and Company, and BASF Corporation consent
`
`to CLA’s motion. Petitioners take no position on this motion.
`
`CLA’S STATEMENT OF INTEREST
`
`CLA is a national, non-profit trade association representing companies that
`
`develop, register, and sell pesticide products in the United States. CLA’s member
`
`companies produce most of the crop protection and pest management products
`
`regulated by EPA under the Federal Insecticide, Fungicide, and Rodenticide Act
`
`(“FIFRA”), 7 U.S.C. § 136 et seq. CLA represents its members’ interests by,
`
`among other things, monitoring federal agency actions and related litigation of
`
`1
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`Case: 19-70115, 07/30/2020, ID: 11771963, DktEntry: 175-1, Page 3 of 8
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`concern to the crop protection and pest control industry, and participating in such
`
`actions as appropriate.
`
`CLA has a direct and immediate interest in the Court rehearing the Panel’s
`
`June 3 Order. The Panel’s June 3 Order concluded that EPA’s 2018 approval of
`
`the dicamba registrations violated FIFRA and directed the immediate vacatur of
`
`the registrations. In so holding, the Panel improperly substituted its own
`
`assessment of the risks of the dicamba products for EPA’s, divesting the Agency of
`
`its Congressionally prescribed role in balancing the risks of registration with
`
`benefits and discounting substantial record evidence supporting EPA’s decision.
`
`CLA seeks leave to participate as amicus curiae because its members have a
`
`strong interest in ensuring that EPA’s pesticide registration decisions requiring
`
`complex scientific judgments are given appropriate judicial deference. Allowing
`
`EPA to assess complicated scientific issues not only fulfills Congress’s intent but
`
`also provides much-needed certainty and predictability to registrants who are
`
`CLA’s members. CLA can provide unique insight into the legal and policy issues
`
`raised by the Panel’s order, allowing the Court to fully appreciate the impact of its
`
`decision on the regulated community.
`
`The Panel’s June 3 Order raises novel and complex issues of law, policy,
`
`and science, with the potential to have broad-ranging impacts that extend beyond
`
`the parties and products at issue. Accordingly, CLA respectfully requests that the
`
`2
`
`
`
`Case: 19-70115, 07/30/2020, ID: 11771963, DktEntry: 175-1, Page 4 of 8
`
`motion be granted, and that the attached amicus brief be accepted and considered
`
`by the Court.
`
`ARGUMENT
`
`This Court has broad discretion to allow participation of amici curiae.
`
`Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982), abrogated on other grounds
`
`by Sandin v. Conner, 515 U.S. 472 (1995). The “classic role” of amici curiae is
`
`three-fold: (1) to assist in a case of general public interest; (2) to supplement the
`
`efforts of counsel; and (3) to draw the court’s attention to law that escaped
`
`consideration. Miller-Wohl Co. v. Comm’r of Labor & Indus., 694 F.2d 203, 204
`
`(9th Cir. 1982). The Court may also exercise its discretion to grant amicus status
`
`in order to avail itself of the benefit of “thorough and erudite legal arguments.”
`
`Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 n.3 (9th Cir. 1987).
`
`A.
`
`CLA Has a Substantial Interest in the Court’s Disposition of the
`Petitions for Rehearing.
`
`CLA member companies have invested considerable resources to obtain and
`
`maintain EPA registrations, both for the dicamba products at issue and many
`
`others. They have developed and submitted voluminous data and information to
`
`EPA and participated extensively in EPA’s administrative processes under FIFRA.
`
`CLA has a compelling interest in ensuring that the risk/benefit analyses Congress
`
`directed EPA to conduct under FIFRA is accorded appropriate deference by
`
`reviewing courts. If the Panel’s June 3 Order is allowed to stand, it would create
`3
`
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`Case: 19-70115, 07/30/2020, ID: 11771963, DktEntry: 175-1, Page 5 of 8
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`significant uncertainty within in the regulated community, negatively impacting
`
`the rights and interests of CLA’s members and the growers who rely on their
`
`products.
`
`This Court has allowed the participation of amici in support of a petition for
`
`rehearing where, as here, such participation provides different perspectives
`
`regarding the effect of a panel ruling. See, e.g., FTC v. AT&T Mobility LLC, 883
`
`F.3d 848, 852 n.3 (9th Cir. 2018) (“In connection with en banc proceedings, we
`
`received . . . amicus briefs from a broad array of interested parties . . . . The briefs
`
`were helpful to our understanding of the implications of this case from various
`
`points of view. We thank amici for their participation.”); see also Order, Newton
`
`v. Parker Drilling Mgmt. Servs., Ltd., No. 15-56352 (9th Cir. Apr. 27, 2018), ECF
`
`No. 52 (granting motion for leave to file brief as amicus curiae in support of
`
`petition for rehearing en banc). Indeed, CLA regularly participates in litigation
`
`before this Court in cases raising issues that impact the rights of CLA members,
`
`including at the rehearing stage. See, e.g., Order, Nat’l Family Farm Coal. v. EPA,
`
`No. 19-70115 (9th Cir. June 19, 2020), ECF No. 164; Order, League of United
`
`Latin Am. Citizens v. Wheeler, No. 17-71636 (9th Cir. Nov. 13, 2018), ECF No.
`
`138 (granting motions of CLA and others to file amicus briefs in support of EPA
`
`petition for rehearing en banc). The attached proposed brief will similarly allow
`
`4
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`
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`Case: 19-70115, 07/30/2020, ID: 11771963, DktEntry: 175-1, Page 6 of 8
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`this Court to consider the potential ramifications of the Court’s June 3 Order on
`
`members of the regulated community.
`
`B.
`
`CLA Will Provide Helpful Information to the Court.
`
`The Court will be aided in its consideration of Intervenor-Respondents’
`
`petitions by CLA’s substantial experience with FIFRA’s registration process,
`
`including the risk/benefit analysis EPA conducts to make decisions concerning
`
`approvals of new pesticide products. CLA can provide additional authorities
`
`explaining Congress’s intent in crafting this risk/benefit framework, and
`
`recognizing the need and the standard for deference to the expert Agency’s
`
`scientific judgments. CLA can also provide a unique perspective on the disruptive
`
`consequences the Panel’s June 3 Order will have on the regulated community.
`
`CONCLUSION
`
`For the foregoing reasons, CLA respectfully requests this Court to grant its
`
`motion for leave and accept the proposed amicus brief in support of Intervenor-
`
`Respondents’ petitions for rehearing en banc.
`
`5
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`
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`Case: 19-70115, 07/30/2020, ID: 11771963, DktEntry: 175-1, Page 7 of 8
`
`July 30, 2020
`
`Respectfully submitted,
`
`
`
`/s/ Karen Ellis Carr
`Karen Ellis Carr
`Stanley H. Abramson
`Donald C. McLean
`Kathleen R. Heilman
`ARENT FOX LLP
`1717 K Street, NW
`Washington, DC 20006
`karen.carr@arentfox.com
`stanley.abramson@arentfox.com
`donald.mclean@arentfox.com
`katie.heilman@arentfox.com
`Tel: (202) 715-8531
`Counsel for Proposed Amicus Curiae
`CropLife America
`
`Of Counsel:
`Rachel Lattimore
`Executive Vice President & General Counsel
`Caleb Pearson
`Assistant General Counsel
`Ashley Boles
`Counsel
`CropLife America
`1156 15th Street NW, Suite 400
`Washington, DC 20005
`
`6
`
`
`
`Case: 19-70115, 07/30/2020, ID: 11771963, DktEntry: 175-1, Page 8 of 8
`
`CERTIFICATE OF SERVICE
`I hereby certify that I electronically filed the foregoing with the Clerk of the
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`Court for the United States Court of Appeals for the Ninth Circuit by using the
`
`appellate CM/ECF system on July 30, 2020.
`
`I certify that all participants in the case are registered as CM/ECF users and
`
`will receive service by the appellate CM/ECF system.
`
`/s/ Karen Ellis Carr
`Karen Ellis Carr
`
`
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