Case: 19-70115, 07/30/2020, ID: 11771963, DktEntry: 175-2, Page 1 of 22
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`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
`
`BRIEF OF AMICUS CURIAE CROPLIFE AMERICA
`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
`
`

`

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`TABLE OF CONTENTS
`
`II.
`
`Page(s)
`CORPORATE DISCLOSURE STATEMENT........................................................v
`INTRODUCTION AND STATEMENT OF INTEREST .......................................1
`ARGUMENT............................................................................................................3
`I.
`EPA Has Long Regulated Pesticides Pursuant to a Rigorous,
`Science-Based Framework Under FIFRA. ..........................................3
`The Panel’s June 3 Order Usurped the Agency’s Role and
`Failed to Accord Appropriate Deference to EPA’s Decision-
`making..................................................................................................8
`A.
`The Dicamba Registrations Are the Product of EPA’s
`Rigorous Review and the Registrants’ Substantial
`Investment..................................................................................8
`By Substituting its Policy Preferences for EPA’s
`Scientific Review, the Panel Exceeded the Boundaries of
`Review under the “Substantial Evidence” Standard................10
`CONCLUSION.......................................................................................................13
`CERTIFICATE OF COMPLIANCE
`CERTIFICATE OF SERVICE
`
`B.
`
`i
`
`

`

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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`Andrews v. Shalala,
`53 F.3d 1035 (9th Cir. 1995) ..............................................................................10
`Baltimore Gas & Elec. Co. v. NRDC,
`462 U.S. 87 (1983)..............................................................................................10
`Biestek v. Berryhill,
`139 S. Ct. 1148 (2019)........................................................................................10
`Ctr. for Biological Diversity v. EPA,
`No. 11-cv-00293, 2013 WL 1729573 (N.D. Cal. Apr. 22, 2013) ........................7
`Davis v. EPA,
`348 F.3d 772 (9th Cir. 2003) ..............................................................................11
`Indus. Safety Equip. Ass’n v. EPA,
`656 F. Supp. 852 (D.D.C. 1987), aff’d, 837 F.2d 1115 (D.C. Cir.
`1988) ...................................................................................................................13
`League of Wilderness Defs. Blue Mountains Biodiversity Project v.
`Allen,
`615 F.3d 1122 (9th Cir. 2010) ............................................................................11
`Nat’l Ass’n of Home Builders v. Defs. of Wildlife,
`551 U.S. 644 (2007)............................................................................................12
`Nat’l Oilseed Processors Ass’n v. Browner,
`924 F. Supp. 1193 (D.D.C. 1996), aff’d in part sub nom. Troy
`Corp. v. Browner, 120 F.3d 277 (D.C. Cir. 1997)................................................9
`Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs,
`384 F.3d 1163 (9th Cir. 2004) ............................................................................12
`New York v. EPA,
`852 F.2d 574 (D.C. Cir. 1988)............................................................................11
`
`ii
`
`

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`Reckitt Benckiser, Inc. v. Jackson,
`762 F. Supp. 2d 34 (D.D.C. 2011)........................................................................7
`Ruckelshaus v. Monsanto Co.,
`467 U.S. 986 (1984)..........................................................................................3, 4
`Statutes and Regulations
`Federal Insecticide, Fungicide, and Rodenticide Act
`7 U.S.C. §§ 136–136y................................................................................................3
`7 U.S.C. § 136(bb).....................................................................................................5
`7 U.S.C. § 136(q)(1)(F), (G)......................................................................................5
`7 U.S.C. § 136a(a)......................................................................................................3
`7 U.S.C. § 136a(c)(2)(B) ...........................................................................................5
`7 U.S.C. § 136a(c)(7)(C) .......................................................................................5, 6
`7 U.S.C. § 136a(g)(1)(A)(iii)–(iv) .............................................................................6
`7 U.S.C. § 136j(a)(2)(G)............................................................................................5
`7 U.S.C. § 136n(b)...................................................................................................10
`Federal Environmental Pesticide Control Act of 1972, Pub. L. No. 92-
`516, 86 Stat. 973 (1972) .......................................................................................3
`40 C.F.R. § 152.50.................................................................................................4, 5
`40 C.F.R. pt. 158........................................................................................................5
`40 C.F.R. § 158.30.....................................................................................................5
`H.R. Rep. No. 92-511 (1971).......................................................................3, 4, 7, 12
`S. Rep. No. 92-838 (1972), reprinted in 1972 U.S.C.C.A.N. 3393 ..........................4
`
`iii
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`

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`Miscellaneous
`EPA, Registration Decision for the Continuation of Uses of Dicamba
`on Dicamba Tolerant Cotton and Soybean,
`https://www.regulations.gov/document?D=EPA-HQ-OPP-2016-
`0187-0968 (Oct. 31, 2018)................................................................................ 8-9
`Phillips McDougall, Evolution of the Crop Protection Industry since
`1960, https://croplife.org/wp-content/uploads/2018/11/Phillips-
`McDougall-Evolution-of-the-Crop-Protection-Industry-since-
`1960-FINAL.pdf (Nov. 2018) ............................................................................11
`
`iv
`
`

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`CORPORATE DISCLOSURE STATEMENT
`
`Pursuant to Federal Rule of Appellate Procedure 26.1, Amicus Curiae
`
`CropLife America respectfully submits the following Corporate Disclosure
`
`Statement:
`
`CropLife America is a non-profit corporation. It has no parent corporation,
`
`and no publicly held corporation owns 10% or more of its stock.
`
`v
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`

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`INTRODUCTION AND STATEMENT OF INTEREST1
`
`Amicus curiae CropLife America (“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 Respondent-U.S.
`
`Environmental Protection Agency (“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 concern to the crop protection and pest control industry,
`
`and participating in such actions as appropriate.
`
`On June 3, 2020, a panel of this Court issued an Opinion (the “June 3
`
`Order”) directing the immediate vacatur of the FIFRA registrations for three
`
`pesticide products containing the active herbicide ingredient dicamba: XtendiMax,
`
`Engenia, and FeXapan, held by Intervenor-Respondents Monsanto Company,
`
`BASF Corporation, and E.I. du Pont de Nemours and Company (“EID”),
`
`respectively. The Panel found that EPA downplayed or failed to acknowledge
`
`certain risks, including off-target drift, potential product misuse, anti-competitive
`
`
`
`1 This brief was not authored in whole, or in part, by counsel for a party, and no
`party or party’s counsel contributed money intended to fund the preparation or
`submission of the brief. Fed. R. App. P. 29(a)(4)(E). No party has contributed
`funds in addition to the dues paid to CLA in the ordinary course of its membership.
`
`1
`
`

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`effects, and harm to the “social fabric” of farming communities. In doing so, the
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`Court assumed the role of the Administrator and conducted its own de novo review
`
`of EPA’s decision, usurping the role Congress intended for EPA in evaluating
`
`applications to register pesticides and discounting substantial record evidence
`
`supporting EPA’s assessment of the risks and benefits of the dicamba registrations
`
`at issue here.
`
`CLA urges the Court to grant en banc rehearing of the June 3 Order to
`
`prevent the harm that the June 3 Order would cause CLA’s members, the public,
`
`and the pesticide registration framework established by Congress if allowed to
`
`stand. Intervenor-Respondents, who are CLA member companies and the
`
`registrants of the dicamba products at issue, have invested considerable resources
`
`to obtain and maintain their EPA registrations for over-the-top dicamba use. CLA
`
`is deeply concerned that the June 3 Order departs from established precedent
`
`governing judicial review of agency action and casts aside the risk/benefit analysis
`
`Congress intended EPA, not courts, to conduct under FIFRA, undermining the
`
`regulatory certainty upon which CLA’s members rely.
`
`For reasons outlined in Intervenor-Respondents’ petitions and set forth
`
`below, CLA respectfully submits that en banc rehearing of the June 3 Order is
`
`warranted.
`
`2
`
`

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`ARGUMENT
`
`I.
`
`EPA Has Long Regulated Pesticides Pursuant to a Rigorous, Science-
`Based Framework Under FIFRA.
`
`Congress, through FIFRA, authorized EPA to regulate pesticides under a
`
`comprehensive, science-based regime that renders pesticides among the most
`
`heavily regulated substances in the United States. FIFRA §§ 2–35, 7 U.S.C. §§
`
`136–136y. Under FIFRA, all pesticides must be registered by EPA before they can
`
`be marketed, distributed, or sold in the United States. FIFRA § 3(a), 7 U.S.C.
`
`§ 136a(a).
`
`As originally enacted, “FIFRA was primarily a licensing and labeling
`
`statute.” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991 (1984). In 1972, as a
`
`result “of mounting public concern about the safety of pesticides and their effect on
`
`the environment and because of a growing perception that the existing legislation
`
`was not equal to the task of safeguarding the public interest,” Congress transferred
`
`authority over pesticides to the newly formed EPA and made other significant
`
`revisions to FIFRA through the adoption of the Federal Environmental Pesticide
`
`Control Act of 1972 (“FEPCA”), Pub. L. No. 92-516, 86 Stat. 973 (1972). Id.
`
`Congress’s intent in 1972 was “to change FIFRA from a labeling law into a
`
`comprehensive regulatory statute that will … more carefully control the
`
`manufacture, distribution, and use of pesticides.” H.R. Rep. No. 92-511, at 1
`
`(1971).
`
`3
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`

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`Key to the 1972 amendments was Congress’s express intent to provide EPA
`
`with a framework for balancing the growing importance to American agriculture of
`
`using pesticides to minimize crop damage from weeds, insects, and other harmful
`
`crop pests with the risk of harm to humans and the environment potentially posed
`
`by those products. As the House Agriculture Committee stated:
`
`[t]his bill is in part a result of the growing awareness of possible
`undesirable effects of pesticides and a realization of the necessity of
`considering the disadvantages along with the beneficial effects realized
`through protection of public health and enhancement of agricultural
`productivity. . . . [FIFRA] needs to be thoroughly overhauled in order
`to better serve the Nation [and] . . . to properly balance all of the many
`factors interrelated with our current management of pesticides.
`
`H.R. Rep. No. 92-511, at 4. To achieve a “reasonable balance” that “recognize[s]
`
`both the benefit and risk of these materials in society,” id., at 5, Congress “added a
`
`new criterion for registration” by EPA: that use of a pesticide in accordance with
`
`its label will “not cause ‘unreasonable adverse effects’” “when used in accordance
`
`with widespread and commonly recognized practice.”2 Monsanto Co., 467 U.S. at
`
`992 (citing FIFRA § 3(c)(5)(C) and (D), 7 U.S.C. § 136a(c)(5)(C) and (D)); see
`
`also 40 C.F.R. § 152.50. Incorporating this risk/benefit balance, Congress defined
`
`
`
`2 Congress considered but rejected the goal of “complete” risk avoidance because
`such protection ignored the benefits of pesticide use. H.R. Rep. No. 92-511, at 5,
`14; S. Rep. No. 92-838, at 5 (1972), reprinted in 1972 U.S.C.C.A.N. 3393, 3996–
`97. As the Senate Committee on Agriculture and Forestry commented,
`“appropriate pesticides properly used are essential to man and his environment. . . .
`Their wise control based on a careful balancing of benefit versus risk to determine
`what is best for man is essential.” 1972 U.S.C.C.A.N. at 3996.
`
`4
`
`

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`“unreasonable adverse effects” as “any unreasonable risk to man or the
`
`environment, taking into account the economic, social, and environmental costs
`
`and benefits of the use of [the] pesticide.” FIFRA § 2(bb), 7 U.S.C. § 136(bb).
`
`The process EPA undertakes to assess an application for registration under
`
`FIFRA’s no “unreasonable adverse effects” standard is time-consuming, costly,
`
`exceptionally rigorous, and grounded in science. Registration applicants must
`
`submit to EPA extensive scientific studies, tests, and other data and information
`
`relevant to the potential risks of the pesticide and its intended use. See 40 C.F.R.
`
`pt. 158.3 FIFRA and its implementing regulations also confer on EPA broad
`
`authority and flexibility to demand additional data and information from applicants
`
`where necessary to address potential risks associated with the proposed uses, both
`
`before and after registration. See 40 C.F.R. § 158.30; FIFRA § 3(c)(2)(B), 7
`
`U.S.C. § 136a(c)(2)(B). EPA may register a new pesticide or pesticide use only
`
`when satisfied that its use in accordance with its proposed label is adequately
`
`protective of health and the environment.4 FIFRA § 2(q)(1)(F), (G), 7 U.S.C. §
`
`136(q)(1)(F), (G).
`
`
`
`3 An applicant seeking a registration must also submit to EPA information
`regarding how the product will be packaged and a copy of the proposed label. See
`40 C.F.R. § 152.50. Use of a pesticide in a manner inconsistent with its label is
`unlawful. FIFRA § 12(a)(2)(G), 7 U.S.C. § 136j(a)(2)(G).
`4 FIFRA authorizes EPA to conditionally register a pesticide under certain
`circumstances, including “for a period reasonably sufficient for the generation and
`submission of required data.” FIFRA § 3(c)(7)(C), 7 U.S.C. § 136a(c)(7)(C). As
`
`5
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`

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`In addition to study data supporting the product, EPA sometimes imposes
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`further obligations on pesticide registrants to educate growers and other users on
`
`proper use of their products in order to mitigate pesticide resistance and avoid
`
`adverse impacts on health and the environment. These additional regulatory
`
`requirements represent another iterative tool that EPA employs to ensure that a
`
`registration continues to meet FIFRA’s registration standard after approval, and
`
`require the investment of considerable time and resources by the registrant. FIFRA
`
`also requires EPA to conduct periodic reassessments of all registered pesticides, to
`
`ensure that they continue to satisfy FIFRA’s safety standard as scientific
`
`capabilities evolve and as policies and practices change over time. FIFRA §
`
`3(g)(1)(A)(iii)–(iv), 7 U.S.C. § 136a(g)(1)(A)(iii)–(iv).
`
`EPA and its expert scientists have been engaged in these activities for nearly
`
`five decades and, during that time period, have amassed extensive experience in
`
`assessing from a science perspective the risks and benefits of particular pesticide
`
`products and uses. Pesticide registrants, including CLA’s members, participate in
`
`these assessments and reassessments, and routinely submit comments and other
`
`information to the Agency to inform its decisional process.
`
`While FIFRA’s standards for assessing environmental and human health
`
`
`
`with all pesticide products, “conditionally” registered products must satisfy
`FIFRA’s stringent “unreasonable adverse effects” standard for registration. Id.
`
`6
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`

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`drive testing and labeling registration standards, as mentioned above, FIFRA
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`registrations also operate as product-specific licenses and confer on registrants
`
`legally protectable property rights. See Reckitt Benckiser, Inc. v. Jackson, 762 F.
`
`Supp. 2d 34, 36 (D.D.C. 2011) (pesticide registrants have a legally cognizable
`
`property interest in a pesticide registration, which operates as a “product-specific
`
`license”); Ctr. for Biological Diversity v. EPA, No. 11-cv-00293, 2013 WL
`
`1729573, at *6-7 (N.D. Cal. Apr. 22, 2013) (“The applicants are owners of the
`
`pesticide registrations, and thus have property and financial interests in the
`
`registrations.”). Congress intended pesticide registration under FIFRA to be risk-
`
`based and provide certainty and transparency to all participants in the value
`
`chain—developers and manufacturers, distributers, and growers—as they make
`
`business decisions and invest in products to improve farming, strengthen the
`
`American agricultural economy, and promote a sustainable U.S. food supply. See
`
`H.R. Rep. No. 92-511, at 4. The sophisticated balancing of risk and benefit
`
`Congress entrusted in EPA, as well as the property rights of registrants and the
`
`need of growers and other pesticide users for certainty, all require reviewing courts
`
`afford the appropriate level of deference to EPA’s decisions.
`
`7
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`

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`II.
`
`The Panel’s June 3 Order Usurped the Agency’s Role and Failed to
`Accord Appropriate Deference to EPA’s Decision-making.
`
`A.
`
`The Dicamba Registrations Are the Product of EPA’s Rigorous
`Review and the Registrants’ Substantial Investment.
`
`The three dicamba registrations at issue in this proceeding are the product of
`
`both EPA’s rigorous scientific review under FIFRA and enormous investments of
`
`time and resources by CLA’s members, who have collectively invested tens of
`
`millions of dollars to meet the rigorous requirements necessary to achieve
`
`registration.
`
`Congress made clear that in order to assess whether a particular pesticide use
`
`meets FIFRA’s no “unreasonable adverse effects” standard, EPA—as the agency
`
`with the necessary scientific and technical expertise—is to undertake a
`
`comprehensive assessment of the risks and benefits of registration of the particular
`
`use at issue. Pursuant to its authority under FIFRA, EPA conducted an exhaustive
`
`review of the risks and benefits of over-the-top dicamba use, based on an extensive
`
`scientific record and input from numerous stakeholders. EPA concluded that the
`
`registrations and labeled uses satisfied FIFRA’s no “unreasonable adverse effects”
`
`safety standard. To protect against adverse impacts, EPA imposed various
`
`conditions for registration, including best management practices, labeling
`
`requirements, confirmatory data requirements, and monitoring requirements
`
`(including for off-target incidents and dicamba-resistant weeds). See EPA,
`
`8
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`

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`Registration Decision for the Continuation of Uses of Dicamba on Dicamba
`
`Tolerant Cotton and Soybean at 22–24,
`
`https://www.regulations.gov/document?D=EPA-HQ-OPP-2016-0187-0968 (Oct.
`
`31, 2018). EPA’s decision is precisely the kind of complex, scientific judgment
`
`that EPA, as the expert agency, is uniquely qualified to make. Nat’l Oilseed
`
`Processors Ass’n v. Browner, 924 F. Supp. 1193, 1201 (D.D.C. 1996) (“EPA
`
`rulemaking involves consideration of complex scientific data and sophisticated
`
`analysis fit primarily for those tutored in the field.”), aff’d in part sub nom. Troy
`
`Corp. v. Browner, 120 F.3d 277 (D.C. Cir. 1997).
`
`For their part, CLA’s members have participated extensively in EPA’s
`
`administrative review process for these registrations—they have developed and
`
`submitted voluminous data and information, prepared comments and analyses, and
`
`spent countless hours meeting with EPA personnel to support the finding that the
`
`over-the-top uses of dicamba meet FIFRA’s no “unreasonable adverse effects”
`
`safety standard. They have made business decisions and investments based on
`
`EPA’s approval of their registrations, and rely on revenues from the distribution
`
`and sale of their dicamba products. CLA and its members thus expect that major
`
`decisions resulting in the potential removal of these innovative products from the
`
`market will be entrusted to EPA—the expert Agency designated by Congress to
`
`assess the registration of pesticide products under the FIFRA standard.
`
`9
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`

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`B.
`
`By Substituting its Policy Preferences for EPA’s Scientific
`Review, the Panel Exceeded the Boundaries of Review under the
`“Substantial Evidence” Standard.
`
`In addition to establishing FIFRA’s risk/benefit framework, Congress also
`
`established the standard of judicial review to be applied by courts reviewing EPA
`
`decisions under FIFRA, providing that an EPA registration decision “shall be
`
`sustained if it is supported by substantial evidence when considered on the record
`
`as a whole.” FIFRA § 16(b), 7 U.S.C. § 136n(b). The “record as a whole”
`
`necessarily includes the risk/benefit analyses Congress instructed EPA to
`
`undertake in connection with registrations under FIFRA. The Supreme Court has
`
`described “substantial evidence” as a “term of art” used in administrative law “to
`
`describe how courts are to review agency factfinding.” Biestek v. Berryhill, 139 S.
`
`Ct. 1148, 1154 (2019) (citation omitted). “[T]he threshold for such evidentiary
`
`sufficiency is not high.” Id.; see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th
`
`Cir. 1995) (“Substantial evidence means more than a mere scintilla but less than a
`
`preponderance; it is such relevant evidence as a reasonable mind might accept as
`
`adequate to support a conclusion.”).
`
`Courts owe even more exacting deference where an agency makes decisions
`
`based on its scientific and technical expertise. The Supreme Court has directed
`
`that a reviewing court in such a circumstance “be at its most deferential.”
`
`Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983). Indeed, numerous
`
`10
`
`

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`courts have recognized that EPA is entitled to special deference on complex
`
`scientific and technical issues within the Agency’s expertise. See, e.g., Davis v.
`
`EPA, 348 F.3d 772, 779, 781–783 (9th Cir. 2003) (“[d]eference [to the Agency] is
`
`particularly great where EPA’s decision is based on complex scientific or technical
`
`analysis.”) (citation omitted); League of Wilderness Defs. Blue Mountains
`
`Biodiversity Project v. Allen, 615 F.3d 1122, 1130 (9th Cir. 2010) (deference to
`
`EPA’s judgment “is highest when reviewing an agency’s technical analyses and
`
`judgments involving the evaluation of complex scientific data within the agency’s
`
`technical expertise”); accord New York v. EPA, 852 F.2d 574, 580 (D.C. Cir. 1988)
`
`(when a court is reviewing determinations “within an agency’s area of special
`
`expertise, at the frontiers of science, the ‘court must generally be at its most
`
`deferential’”) (quoting Baltimore Gas & Elec. Co., 462 U.S. at 103).
`
`According greater deference to agency decisions on complex scientific and
`
`technical issues not only comports with Congress’s intended framework but
`
`provides regulatory certainty and predictability to the regulated community. This
`
`is particularly important for CLA’s members, who invest significant sums to
`
`develop products and obtain and maintain their FIFRA licenses. See Phillips
`
`McDougall, Evolution of the Crop Protection Industry since 1960 at 8,
`
`https://croplife.org/wp-content/uploads/2018/11/Phillips-McDougall-Evolution-of-
`
`the-Crop-Protection-Industry-since-1960-FINAL.pdf (Nov. 2018) (average cost to
`
`11
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`

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`bring a new pesticide to market was $286 million in 2014). It is also important for
`
`growers who rely on CLA’s members’ products to ensure a sustainable supply of
`
`food and fiber.
`
`As described in Intervenor-Respondents’ petitions for rehearing, the Panel,
`
`in finding that EPA’s approval of the dicamba registrations violated FIFRA,
`
`ignored substantial record evidence supporting EPA’s decision-making, substituted
`
`its judgment for EPA’s, and intruded on the domain Congress delegated to the
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`Agency. See Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d 1163,
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`1180 (9th Cir. 2004) (“We are presented with a technical issue that requires
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`scientific expertise. Our judicial role is not to second-guess the decisions of the
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`agency….”); see also Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S.
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`644, 658–59 (2007) (in deciding the issues for the agency, the Ninth Circuit
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`“erroneously deprived the Agency of its usual administrative avenue for explaining
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`and reconciling the arguably contradictory rationales that sometimes appear in the
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`course of lengthy and complex administrative decisions”). The Panel’s erroneous
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`decision has the potential to destabilize the framework Congress crafted and EPA
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`has implemented to encourage the development of new agricultural tools and to
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`ensure “a modern and efficient agricultural industry in this Nation.” H.R. Rep. No.
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`92-511, at 4.
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`Case: 19-70115, 07/30/2020, ID: 11771963, DktEntry: 175-2, Page 19 of 22
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`Allowing the June 3 Order to stand poses the risk of significant harm and
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`disruption to CLA’s members and the users of their products. Subsequent
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`registrants will face uncertainty regarding their registrations, which may face
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`threats from an artificially lowered bar for a reviewing court’s deference to agency
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`decision-making. Like Intervenor-Respondents BASF and EID here, whose
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`dicamba registrations were not properly before this Court but were nevertheless
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`swept into the Court’s June 3 Order, they risk having their rights determined
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`without the opportunity to defend themselves. See Indus. Safety Equip. Ass’n v.
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`EPA, 656 F. Supp. 852, 856 (D.D.C. 1987), aff’d, 837 F.2d 1115 (D.C. Cir. 1988)
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`(“It is well settled that an agency license can create a protectible [sic] property
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`interest, such that it cannot be revoked without due process of law.”). And growers
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`will face uncertainty with respect to available tools. See Amicus Curiae Brief of
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`the American Farm Bureau Federation, et al. CLA thus supports rehearing en banc
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`of the Panel’s June 3 Order for reasons outlined in the Respondent-Intervenors’
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`petitions, and to ensure that its members can depend on EPA’s ability to carry out
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`its mandate of making pesticide registration decisions based on the weight of the
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`scientific evidence.
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`CONCLUSION
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`For the foregoing reasons, CLA supports Respondent-Intervenors’ request
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`that the Court grant the petition for rehearing en banc.
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`Case: 19-70115, 07/30/2020, ID: 11771963, DktEntry: 175-2, Page 20 of 22
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`July 30, 2020
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`Respectfully submitted,
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`
`
`/s/ Karen Ellis Carr
`Stanley H. Abramson
`Donald C. McLean
`Karen Ellis Carr
`Kathleen R. Heilman
`ARENT FOX LLP
`1717 K Street, NW
`Washington, DC 20006
`stanley.abramson@arentfox.com
`donald.mclean@arentfox.com
`karen.carr@arentfox.com
`katie.heilman@arentfox.com
`Tel: (202) 715-8531
`
`Counsel for Amicus Curiae
`CropLife America
`
`14
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`Case: 19-70115, 07/30/2020, ID: 11771963, DktEntry: 175-2, Page 21 of 22
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`CERTIFICATE OF COMPLIANCE
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`I certify that this brief complies with the type-volume limitation of Circuit
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`Rule 29-2(c)(2) because this brief contains 2,948 words, excluding the parts of the
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`brief exempted by Fed. R. App. P. 32(f). I further certify that this brief complies
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`with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style
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`requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a
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`proportionately spaced typeface using Microsoft Word 2016, Times New Roman
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`14 point.
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`/s/ Karen Ellis Carr
`Karen Ellis Carr
`
`
`
`

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`Case: 19-70115, 07/30/2020, ID: 11771963, DktEntry: 175-2, Page 22 of 22
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`CERTIFICATE OF SERVICE
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`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
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`appellate CM/ECF system on July 30, 2020.
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`I certify that all participants in the case are registered as CM/ECF users and
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`will receive service by the appellate CM/ECF system.
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`/s/ Karen Ellis Carr
`Karen Ellis Carr
`
`