`
`SUBJECT TO PROTECTIVE ORDER
`ORAL ARGUMENT NOT YET SCHEDULED
`Case Nos. 19-72109, 19-72280
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
`
`
`
`
`
`CENTER FOR FOOD SAFETY, et al.,
`Petitioners,
`v.
`JANE NISHIDA, et al.,
`Respondents,
`and
`DOW AGROSCIENCES LLC,
`Respondent-Intervenor.
`
`
`
`POLLINATOR STEWARDSHIP COUNCIL, et al.,
`Petitioners,
`v.
`JANE NISHIDA, et al.,
`Respondents,
`and
`DOW AGROSCIENCES LLC,
`Intervenor.
`ON PETITION FOR REVIEW FROM THE UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY
`CENTER FOR FOOD SAFETY ET AL. PETITIONERS’ REPLY
`(REDACTED)
`
`
`
`
`
`CENTER FOR FOOD SAFETY
`George A. Kimbrell
`Sylvia Shih-Yau Wu
`Amy van Saun
`2009 NE Alberta St., Suite 207
`Portland, OR 97211
`T: (971) 271-7372
`gkimbrell@centerforfoodsafety.org
`swu@centerforfoodsafety.org
`avansaun@centerforfoodsafety.org
`
`
`
`
`
`
`
`CENTER FOR BIOLOGICAL
`DIVERSITY
`Stephanie M. Parent
`PO Box 11374
`Portland, OR 97211
`T: (971) 717-6404
`SParent@biologicaldiversity.org
`
`Counsel for Petitioners Center for Food Safety,
`et al.
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 2 of 154
`
`TABLE OF CONTENTS
`
`TABLE OF CONTENTS ............................................................................................. i
`
`TABLE OF AUTHORITIES ....................................................................................... ii
`
`INTRODUCTION ...................................................................................................... 1
`
`ARGUMENT .............................................................................................................. 3
`
`I.
`
`II.
`
`The Court Should Again Deny EPA’s Request for Remand. ................ 3
`
`Respondents Have Failed to Meet Their Heavy Burden to Show
`that This Is the Rare Case Where the Default Remedy of
`Vacatur Is Not Warranted. ..................................................................... 7
`
`The Seriousness of the Legal Violations Weighs Heavily in
`the Vacatur Calculus. ................................................................... 8
`
`EPA’s Admission It Violated the ESA Is Not Just
`Serious, It Is Egregious. ................................................... 10
`
`EPA Violated FIFRA and Its Analysis Cannot Be
`Rectified with Mere Additional Explanation. ................. 13
`
`EPA Failed to Show that Sulfoxaflor is Safe for
`Non-Honey Bees. ............................................................. 22
`
`Vacatur Is the Appropriate Remedy for EPA’s
`Procedural Violations. ..................................................... 24
`
`EPA Fails to Show Disruptive Consequences to Overcome
`Vacatur. ...................................................................................... 29
`
`Respondents Fail to Show Environmental Harm
`from Vacatur. ................................................................... 29
`
`Contrary to Respondents’ Claims, Vacatur Would
`Not Result in Economic Disruption. .............................. 34
`
`CONCLUSION ........................................................................................................ 36
`
`i
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 3 of 154
`
`
`
`Federal Cases
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`All. for the Wild Rockies v. U.S. Forest Serv.
`907 F.3d (9th Cir. 2018) .......................................................................................... 7
`
`Amoco Prod. Co. v. Vill. of Gambell, AK
`480 U.S. 531 (1987) ................................................................................................ 8
`
`Coal. to Protect Puget Sound Habitat v. U.S. Army Corps. of Eng’rs
`466 F. Supp. 3d 1217 (W.D. Wash. 2020) ............................................................ 29
`
`Cottonwood Env’t Law Ctr. v. U.S. Forest Serv.
` 789 F.3d 1075 (9th Cir. 2015) ................................................................. 12, 13, 34
`
`Ctr. for Biological Diversity v. EPA
`861 F.3d 174 (D.C. Cir. 2017) ............................................................ 10, 11, 12, 32
`
`Forest Guardians v. Johanns
`450 F.3d 455 (9th Cir. 2006) ................................................................................ 25
`
`Heartland Reg’l Med. Ctr. v. Sebelius
`566 F.3d 193 (D.C. Cir. 2009) .............................................................................. 24
`
`Hiivala v. Wood
`F.3d 1098, 1104 (9th Cir. 1999) ............................................................................. 3
`
`Humane Soc’y of U.S. v. Locke
`626 F.3d 1040 (9th Cir. 2010) ................................................................................ 7
`
`Idaho Farm Bureau Fed’n. v. Babbitt
`58 F.3d 1392 (9th Cir. 1995) .................................................................................. 7
`
`Karuk Tribe of Cal. v. U.S. Forest Serv.
`681 F.3d 1006 (9th Cir. 2012) (en banc) .............................................................. 10
`
`Monsanto Co. v. Geertson Seed Farms
`561 U.S. 139 (2010) .............................................................................................. 31
`
`
`
`ii
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 4 of 154
`
`
`
`Federal Cases (Cont'd)
`
`Page(s)
`
`Nat. Res. Def. Council v. EPA
`676 F. Supp. 2d 307 (S.D.N.Y. 2009) ................................................................... 25
`
`Nat. Res. Def. Council v. Jewell
`749 F.3d 776 (9th Cir. 2014) ............................................................................ 9, 10
`
`Nat. Res. Def. Council v. Wheeler
`955 F.3d 68 (D.C. Cir. 2020) ................................................................................ 24
`
`Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.
`524 F.3d 917 (9th Cir. 2008) ................................................................................ 36
`
`National Family Farm Coalition v. EPA
`960 F.3d 1120 (9th Cir. 2020) ........................................................................ passim
`
`National Family Farm Coalition v. EPA
`966 F.3d 893 (9th Cir. 2020) .................................................................................. 8
`
`Pollinator Stewardship Council v. EPA
`806 F.3d 520, 532-33 (9th Cir. 2015) ............................................................. passim
`
`Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs
`985 F.3d 1032 (D.C. Cir. 2021) ............................................................ 9, 24, 26, 27
`
`Tenn. Valley Auth. v. Hill
`437, U.S. 153 (1978) ................................................................................. 10, 33, 36
`
`Thomas v. Peterson
`753 F.2d 754 (9th Cir. 1985) .......................................................................... 26, 27
`
`Western Watersheds Project v. Kraayenbrink
`632 F.3d 472(9th Cir. 2011) ................................................................................... 9
`
`Federal Statutes
`
`7 U.S.C. § 136a(g) ..................................................................................................... 18
`
`7 U.S.C. § 136p ......................................................................................................... 35
`
`
`
`iii
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 5 of 154
`
`
`
`Federal Statutes (Cont'd)
`
`Page(s)
`
`16 U.S.C. § 1532(20) ................................................................................................. 33
`
`16 U.S.C. § 1532(8) ................................................................................................... 33
`
`16 U.S.C. § 1536(a)(2) ............................................................................................... 10
`
`16 U.S.C. § 1536(a)(3) ............................................................................................... 10
`
`Federal Regulations
`
`50 C.F.R. § 402.14(a) ............................................................................................. 4, 5
`
`50 C.F.R. § 402.14(b) ................................................................................................. 5
`
`Other Authorities
`
`EPA, Conventional Reduced Risk Pesticide Program
`https://www.epa.gov/pesticide-registration/conventional-reduced-risk-pesticide-
`program#:~:text=OP)%20Alternative%20Status-
`,What%20is%20the%20Conventional%20Reduced%20Risk%20Pesticide%20Pr
`ogram%3F,environment%20than%20existing%20conventional%20alternatives
` ............................................................................................................................... 12
`
`EPA, Final Registration Decision for the New Active Ingredient Inpyrfluxam (Aug. 27,
`2020)
`https://www.regulations.gov/document/EPA-HQ-OPP-2018-0038-0040 ........... 19
`
`EPA, Registration Review Schedules
`https://www.epa.gov/pesticide-reevaluation/registration-review-schedules ......... 18
`
`EPA, Response to Public Comments on EPA’s Registration of the New Active Ingredient
`Inpyrfluxam (Aug. 25, 2020)
`https://www.regulations.gov/document?D=EPA-HQ-OPP-2018-0038-0039 ....... 19
`
`EPA, Sulfoxaflor Final Cancellation Order (Nov. 12, 2015)
`https://www.epa.gov/sites/production/files/2015-
`11/documents/final_cancellation_order-sulfoxaflor.pdf ...................................... 35
`
`
`
`iv
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 6 of 154
`
`
`
`Other Authorities (Cont'd)
`
`Page(s)
`
`EPA, Testing Guideline 850.3030 – Honey Bee Toxicity of Residue on Foliage (June 2012)
`https://www.regulations.gov/document/EPA-HQ-OPPT-2009-0154-0017 ......... 20
`
`
`
`
`
`
`
`
`
`v
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 7 of 154
`
`
`
`INTRODUCTION
`
`More than a decade after Intervenor Corteva (formerly Dow)’s initial
`
`application to register sulfoxaflor in 2010, EPA admitted to the Court last year that
`
`it has remained in continuous violation of the Endangered Species Act (ESA), in all
`
`that time still failing to undertake any effort at analyzing and accounting for
`
`sulfoxaflor’s effects on the nation’s threatened and endangered species. Now, EPA
`
`further admits that its Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
`
`decision is also legally deficient. And these are serious deficiencies: EPA issued the
`
`2019 sulfoxaflor use approvals (the 2019 Registration) without following FIFRA’s
`
`core notice and comment procedure, without the necessary data to support its
`
`conclusion that sulfoxaflor use would be safer for honey bees and other pollinators
`
`than existing pesticides, and despite data demonstrating that sulfoxaflor threatens
`
`the health of wild (non-honey) bees.
`
`Despite a motions panel of this Court having already rejected its same
`
`arguments, EPA obstinately asks once again for this Court to remand but not vacate
`
`the 2019 Registration. And despite EPA’s admitted violations, EPA and Corteva
`
`(collectively Respondents) request the Court bless sulfoxaflor uses across U.S.
`
`agriculture—including the insecticide’s concomitant harm to bees and many
`
`pollinators, as well as its risks to myriad ESA-protected insects, birds, mammals, fish,
`
`
`
`1
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 8 of 154
`
`
`
`bats, reptiles, and frogs and the designated critical habitat upon which their
`
`existence depend—to go on indefinitely.
`
`Notably, EPA seeks remand not so it may rectify its serious violations of law
`
`by immediately entering into formal consultation with the expert wildlife agencies
`
`under the ESA and analyzing additional data and/or seeking public comments
`
`under FIFRA. Rather, EPA seeks remand only so that EPA may belatedly comply
`
`with its initial ESA duty, one that it has neglected since 2010, and only so that it can
`
`make its FIFRA registration explanatory rationale “more detailed.” EPA does not
`
`even promise that it will issue a new registration decision subject to further review,
`
`let alone commit to any timeline for completing its ESA and FIFRA assessments.
`
`The Court should reject EPA’s open-ended request to evade judicial review
`
`and instead grant these consolidated petitions for review, hold that EPA violated
`
`FIFRA and the ESA, and vacate the 2019 Registration. Indeed, the decision to
`
`vacate here should be easier than most remedy decisions. Unlike a brand-new
`
`scenario, this Court has already answered this exact question: just 5 years ago, in
`
`Pollinator Stewardship Council v. EPA (Pollinator I), this Court vacated the prior
`
`registration. 806 F.3d 520, 532-33 (9th Cir. 2015). And the answer now is even
`
`more straightforward and compelled. Then, the Court found a single, crucial-but-
`
`specific violation of FIFRA; now, there are multiple FIFRA violations and an
`
`
`
`2
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 9 of 154
`
`
`
`admitted ESA violation. Then, the risks at issue were to the precarious nature of bees,
`
`one species; now, the risks are both to still-precarious, not-yet-endangered bees, but
`
`also ESA-protected species already on the brink of extinction. These grave risks
`
`demand that the Court vacate the 2019 Registration.
`
`ARGUMENT
`
`
`
`
`
`Earlier this year, the Court’s assigned motions panel rejected EPA’s same
`
`arguments for voluntary remand without vacatur of the challenged 2019
`
`Registration. See Order (Jan. 12, 2021), ECF No. 67. EPA fares no better in its
`
`second bite at the apple here and the result should be the same.1 EPA still failed to
`
`justify its failure to comply with its ESA duties, and worse, now admits that its
`
`FIFRA analysis is also deficient. The Court should proceed to address the merits of
`
`these consolidated petitions for review.
`
`First, as to the ESA, EPA still has no explanation for its exceptionally tardy
`
`admission of its ESA violation, other than pulling a new timeframe out of a hat,
`
`
`
`1 See, e.g., Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (explaining
`that while the ‘law of the case’ doctrine does not outright bar reconsideration,
`generally a “merits panel does not lightly overturn a decision made by a motions
`panel during the course of the same appeal”) (internal quotation marks and citation
`omitted).
`
`
`
`3
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 10 of 154
`
`
`
`now claiming that it could start the initial step for sulfoxaflor—making the “may
`
`effect” determination—as early as this summer, and that it “could” complete that
`
`determination by Spring 2022. EPA’s Br. 24-26 (citing EPA’s First Decl. ¶ 26; EPA’s
`
`Second Decl. ¶ 24), ECF No. 90; 50 C.F.R. § 402.14(a). EPA’s new timeline is
`
`disingenuous and contradicted by its prior position: the agency does not reconcile
`
`what, if anything, has changed since its prior remand motion last October such that
`
`it is now able to drastically move up its ESA assessment for sulfoxaflor—ahead of the
`
`numerous legally-mandated ESA deadlines for other pesticides from previous
`
`settlement agreements—deadlines that EPA previously claimed barred its ESA
`
`compliance for sulfoxaflor in the first instance. See EPA’s Mot. Remand 15, ECF
`
`No. 51-1.
`
`Moreover, all EPA has now offered is that it could initiate only the very first
`
`step of its ESA assessment process sooner, without any commitment to when EPA
`
`would complete the entire ESA consultation process. EPA acknowledges that, should
`
`it determine that sulfoxaflor “may affect” any ESA-protected species,2 the agency
`
`
`
`2 And make no mistake, this is a determination that EPA will likely reach.
`EPA so determined back in 2013 in its ecological risk assessment of the original
`2010 sulfoxaflor application, finding “potential direct effects” to different categories
`of ESA-protected species, including birds, mammals, terrestrial reptiles, terrestrial
`amphibians, terrestrial insects, and aquatic invertebrates. 4-PSCER-880.
`
`
`
`4
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 11 of 154
`
`
`
`would be required to consult with the expert wildlife agencies. See EPA’s Br. 24; 50
`
`C.F.R. § 402.14(a)-(b). In short, EPA offers nothing besides stating its belief that it
`
`could complete the very first step of its ESA analysis by Spring 2022, and could
`
`begin any necessary consultation with the expert wildlife agencies after that, with no
`
`end date in sight. EPA’s Second Decl. ¶ 24.
`
`Second, as to FIFRA, there is even more reason to reject EPA’s request for
`
`remand since EPA has changed its tune from its remand motion, now admitting
`
`that its FIFRA analysis is legally deficient. EPA’s Br. 26 n.4 (admitting that in its
`
`prior motion, EPA had “maintained that the FIFRA analysis was supported by
`
`substantial evidence,” but that “[t]he Agency has since undertaken a more searching
`
`review of the record and now recognizes that additional explanation is proper ….”).3
`
`Again, EPA provides no timeline for revisiting its deficient analysis. Nor does EPA
`
`commit to making a new decision, if there is no vacatur, thereby possibly avoiding
`
`judicial review of its FIFRA violations altogether.
`
`
`
`3 EPA claims this sudden new realization was caused by this Court’s decision
`in National Family Farm Coalition v. EPA, 960 F.3d 1120 (9th Cir. 2020), which was
`issued in June of last year. As a major pesticide decision of this Court in which EPA
`was the respondent, it strains credulity to believe EPA was not already well-aware of
`that decision when it filed its motion for remand in late October 2020.
`
`
`
`5
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 12 of 154
`
`
`
`Furthermore, EPA’s reassessment under FIFRA will not address CFS
`
`Petitioners’ specific claims that (1) EPA’s hazard comparison of sulfoxaflor to other
`
`pesticides was based on insufficient data, and (2) EPA failed to account for
`
`sulfoxaflor’s harms to non-honey bees. See CFS Pet’rs’ Br. 39-51, ECF No. 71. This is
`
`because EPA has indicated that upon remand, it does not intend to review
`
`additional data, and that any explanation it may add to its FIFRA analysis will focus
`
`only on the socioeconomic—and not ecological—impacts of its 2019 Registration. See
`
`EPA’s Br. 25-26 (stating that EPA intends to revise its FIFRA assessment to address
`
`the “economic and social costs of the registration amendments”). Thus, remanding
`
`the 2019 Registration to EPA to further explain its FIFRA analysis would not redress
`
`CFS Petitioners’ injuries.
`
`In sum, granting EPA’s remand without vacatur would allow sulfoxaflor uses—
`
`and harm to ESA-protected species—to continue, while stripping CFS Petitioners of
`
`their right to judicial review of the 2019 Registration. The Court should again deny
`
`EPA’s request.
`
`
`
`
`
`
`
`
`
`
`
`6
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 13 of 154
`
`
`
`
`
`Because of EPA’s acknowledged violations of ESA and FIFRA, the Court
`
`should vacate the 2019 Registration. See CFS Pet’rs’ Br. 51-65.
`
`Still, reading Respondents’ answering briefs in isolation might mislead an
`
`unschooled reader to believe the vacatur/remand without vacatur judicial
`
`examination is a simple equitable balancing test, or worse, that it is Petitioners who
`
`need to show irreparable harm, such as with an injunction. So, to reaffirm, the legal
`
`standard for vacatur is the opposite of an injunction: Respondents, not Petitioners,
`
`have the burden to show why anything less than vacating the unlawful agency action
`
`is the proper remedy. CFS Pet’rs’ Br. 51-53 (describing the vacatur test standards);
`
`All. for the Wild Rockies v. U.S. Forest Serv., 907 F.3d 1105, 1121-22 (9th Cir. 2018). It
`
`is only appropriate in “rare” cases, Humane Soc’y of U.S. v. Locke, 626 F.3d 1040,
`
`1053 n.7 (9th Cir. 2010), namely when “equity demands” a departure from the
`
`presumptive remedy of vacatur. Idaho Farm Bureau Fed’n. v. Babbitt, 58 F.3d 1392,
`
`1405 (9th Cir. 1995). To analyze whether these “rare” circumstances are present,
`
`courts “weigh the seriousness of the agency’s errors against the disruptive
`
`consequences of an interim change that may itself be changed.” Nat’l Family Farm
`
`Coal., 960 F.3d at 1144. Here, Respondents have failed to carry their heavy burden
`
`to prove this case not only fits that rare exception to the default remedy, CFS Pet’rs’
`
`
`
`7
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 14 of 154
`
`
`
`Br. 62-65, but also more particularly here, to show why the result should be any
`
`different than it was the last time around. Because it should not be.
`
`
`
`The Seriousness of the Legal Violations Weighs Heavily in the Vacatur
`Calculus.
`
`EPA continues to argue that the “seriousness” an agency’s violation for
`
`purposes of vacatur turns on whether EPA could “cure” its errors and re-register
`
`sulfoxaflor after remand. E.g., EPA’s Br. 31-32. That myopic remand focus mistakes
`
`the core of the seriousness inquiry. Applied correctly, the test’s first prong sounds in
`
`how grave an agency violation is within the statutory scheme that the agency
`
`violated.4 That is, whether an error is minor or serious is judged based on the
`
`underlying purposes of the statute. Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S.
`
`531, 542-43 (1987).
`
`Here, EPA’s violations cut to the quick of both FIFRA and the ESA. CFS
`
`Pet’rs’ Br. 53-56.5 The seriousness of the agency’s admitted violations of core ESA
`
`
`
`4 Respondents’ “we can cure it all on remand, don’t worry” focus is also belied
`by the fact that this Court does not have to remand at all and can simply just vacate
`the 2019 Registration without remand. And in that instance, there would be no “after
`remand” scenario about which to speculate. This is precisely what this Court did in
`National Family Farm Coalition. See 960 F.3d at 1145.
`5 Respondents (EPA’s Br. 30; Corteva’s Br. 39) cite National Family Farm
`Coalition v. EPA, 966 F.3d 893 (9th Cir. 2020), but there the Court held that EPA
`did comply with the ESA, id. at 922-30, unlike EPA’s admitted failure here. It also
`
`
`
`
`8
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 15 of 154
`
`
`
`law weighs heavily in favor of the default remedy. See CFS Pet’rs’ Br. 53-57. Section
`
`7’s consultation procedure is the “heart” of the ESA, Western Watersheds Project v.
`
`Kraayenbrink, 632 F.3d 472, 495 (9th Cir. 2011), which EPA knowingly flouted. The
`
`ESA violation would be well more than enough reason alone to vacate.6
`
`Similarly, vacatur is the appropriate remedy for EPA’s failure to adhere to
`
`FIFRA’s notice and comment procedure, as well as its conclusion that sulfoxaflor
`
`would not result in unreasonable adverse effects on the environment based on
`
`insufficient bee toxicity data of other comparative pesticides, and in the absence of
`
`data on sulfoxaflor’s harm to non-honey bees. See Standing Rock Sioux Tribe v. U.S.
`
`Army Corps of Eng’rs, 985 F.3d 1032, 1051 (D.C. Cir. 2021), rehearing en banc denied
`
`(Apr. 23, 2021) (“[A]n agency that bypassed required notice and comment
`
`rulemaking obviously could not ordinarily keep in place a regulation while it
`
`completed that fundamental procedural prerequisite.”); Pollinator I, 806 F.3d at 532
`
`(“Without sufficient data, the EPA has no real idea whether sulfoxaflor will cause
`
`
`
`held only a narrow and sole FIFRA “technical” error, id. at 929, again in sharp
`contrast to the violations here.
`6 ESA violations are even graver than the FIFRA violations like those Court
`held sufficient to vacate in Pollinator I because “the consultation requirement reflects
`a conscious decision by Congress to give endangered species priority over the
`primary missions of federal agencies.” Nat. Res. Def. Council v. Jewell, 749 F.3d 776,
`779 (9th Cir. 2014) (internal quotation omitted).
`
`
`
`9
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 16 of 154
`
`
`
`unreasonable adverse effects on bees, as prohibited by FIFRA.”); see CFS Pet’rs’ Br.
`
`54-55.
`
`
`
`EPA’s Admission It Violated the ESA Is Not Just Serious, It Is
`Egregious.
`
`
`As it must, EPA admits that it failed to determine the effects of sulfoxaflor
`
`
`
`uses on bees, butterflies, birds, and other wildlife and plants that are supposed to be
`
`protected because they are at the brink of extinction. EPA’s Br. 24. Let’s be candid
`
`about what this means—EPA intentionally disregarded a congressional mandate to
`
`“insure,” “whatever the cost,” that its actions will not push these imperiled species
`
`closer to extinction, because Congress intended species in danger of extinction be
`
`given the “highest of priorities.” 16 U.S.C. § 1536(a)(2); Tenn. Valley Auth. v. Hill,
`
`437, U.S. 153, 174, 184 (1978). Under the ESA, EPA has a substantive duty assisted
`
`by a procedural duty to consult with the expert wildlife agencies. Congress required
`
`EPA to make these determinations before taking the action here, a registration that
`
`allows the release of sulfoxaflor into the environment. 16 U.S.C. § 1536(a)(3)
`
`(consultation required “on any prospective agency action”); Karuk Tribe of Cal. v. U.S.
`
`Forest Serv., 681 F.3d 1006, 1020 (9th Cir. 2012) (en banc) (“duty to consult …
`
`before engaging in discretionary action”). Other agency obligations cannot supersede
`
`the ESA’s consultation requirements. See Jewell, 749 F.3d at 779; Ctr. for Biological
`
`Diversity v. EPA, 861 F.3d 174, 188 n.10 (D.C. Cir. 2017) (EPA “may not duck its
`
`
`
`10
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 17 of 154
`
`
`
`consultation requirement, whether based on limited resources, agency priorities or
`
`otherwise” when approving pesticides).
`
`
`
`EPA claims that on remand it will undertake the ESA analysis as
`
`“expeditiously as practicable,” EPA’s Br. 26, but without vacatur, EPA has
`
`demonstrated it will take no action at all. Respondents point to the D.C. Circuit’s
`
`decision to remand without vacatur in Center for Biological Diversity v. EPA, 861 F.3d
`
`174 (D.C. Cir. 2017). In that extra-circuit case concerning EPA’s failure to comply
`
`with the ESA when it registered the pesticide cyantraniliprole, which CFS
`
`Petitioners believe rightly held that EPA had violated the ESA, as it has here, that
`
`court also, wrongly in CFS Petitioners’ opinion, remanded without vacatur.
`
`Respondents leave out the rest of the story: Four years after that court held that EPA
`
`violated the ESA, EPA does not even include cyantraniliprole on its list of pesticides
`
`for which it plans to conduct ESA effects determinations over the next several years.
`
`Four years later, EPA has still not consulted, and has not even stated when it plans
`
`to start. See A2-109 (Second Donley Decl.) ¶ 46; Exs. E-D.
`
`
`
`Respondents rely on the D.C. Circuit’s ruling there to argue that the FIFRA
`
`analysis, in place of an ESA effects determination, is sufficient to avoid vacatur here.
`
`EPA’s Br. 29-30; Corteva’s Br. 36, ECF No. 110-2. That case is easily distinguishable
`
`for numerous reasons. First, the petitioners did not challenge the FIFRA analysis,
`
`
`
`11
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 18 of 154
`
`
`
`only the lack of ESA compliance. See Ctr. for Biological Diversity, 861 F.3d at 180-81.
`
`Here, EPA cannot rely on its faulty FIFRA analyses—that do not even meet the lower
`
`FIFRA bar of “no unreasonable adverse effects”—to support its failure to comply
`
`with its higher ESA substantive duty to avoid jeopardy. See infra pp. 13-22. That is a
`
`house of cards. Second, the challenged pesticide cyantraniliprole there, is classified
`
`by EPA as a “reduced risk” pesticide, meaning EPA concluded that it “pose[s] less
`
`risk … than conventional [pesticides]”7 like sulfoxaflor. Ctr. for Biological Diversity,
`
`861 F.3d at 189 (noting that “EPA classified [cyantraniliprole] as a ‘Reduced Risk’
`
`pesticide). Third, the D.C. Circuit did not apply the principle of institutionalized
`
`caution that this Circuit recognizes is the heart of the ESA. See Cottonwood Env’t Law
`
`Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1090-91 (9th Cir. 2015) (explaining that, even
`
`under more onerous injunctive relief standards, the balance of equities tips in favor
`
`of the protected species). Fourth, unlike CFS Petitioners here, petitioners in that
`
`case did not seek vacatur, and only asked the court to order EPA to conduct an ESA
`
`effects determination by a deadline. See Ctr. for Biological Diversity, 861 F.3d at 189
`
`
`
`7 EPA, Conventional Reduced Risk Pesticide Program,
`https://www.epa.gov/pesticide-registration/conventional-reduced-risk-pesticide-
`program#:~:text=OP)%20Alternative%20Status-
`,What%20is%20the%20Conventional%20Reduced%20Risk%20Pesticide%20Prog
`ram%3F,environment%20than%20existing%20conventional%20alternatives (last
`visited June 3, 2021).
`
`
`
`12
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 19 of 154
`
`
`
`n.12. The court claimed, wrongly in CFS Petitioners’ opinion, that it did not have
`
`the authority to do so. Id. And because petitioners there did not seek vacatur, the
`
`issue was never fully briefed. See Pet’rs’ Br. 48, Ctr. for Biological Diversity v. EPA, No.
`
`14-1036 (D.C. Cir. filed Feb. 18, 2016) (briefing only court-ordered deadline rather
`
`than vacatur as remedy).
`
`In stark contrast, CFS Petitioners here have alleged—and EPA has now
`
`admitted to—violations under both FIFRA and the ESA, as well as consistently
`
`sought vacatur since it is the default remedy for violations of either statute. See
`
`Cottonwood Env’t Law Ctr., 789 F.3d at 1090-91; Pollinator I, 806 F.3d at 532 (“We
`
`order remand without vacatur only in ‘limited circumstances.’”). In sum, that single
`
`decision is an outlier, extra-circuit case that is not in accordance with this Court’s
`
`vacatur or ESA jurisprudence. Respondents’ admitted ESA violations here cut to the
`
`heart of the statute and weigh heavily in favor of vacatur.
`
`
`
`EPA Violated FIFRA and Its Analysis Cannot Be Rectified with
`Mere Additional Explanation.
`
`
`Contrary to EPA’s assertion, EPA’s FIFRA analysis is fundamentally flawed
`
`not for a lack of explanation, but because EPA lacks critical data to support with
`
`substantial evidence its conclusion that sulfoxaflor is less toxic to bees and other
`
`species than alternative pesticides and thus the 2019 Registration would not result
`
`in unreasonable adverse effects. See CFS Pet’rs’ Br. 39-46.
`
`
`
`13
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 20 of 154
`
`
`
`First, Respondents fail to justify the unduly narrow scope of EPA’s hazard
`
`comparison of sulfoxaflor to only the six most toxic pesticides available, other than
`
`emphasizing the obvious fact that those older pesticides are widely used. See EPA’s
`
`Br. 44; Corteva’s Br. 25. But the record is replete with examples of less toxic,
`
`reduced risk pesticides, as well as non-pesticidal methods of pest control—both of
`
`which
`
`
`
`—only to then conveniently
`
`leave them out the hazard comparison. See CFS Pet’rs’ Br. 41-43 (and record
`
`citations therein); Second Donley Decl. ¶ 12; 2-CFSFER-016-54. 8
`
`Corteva tries to justify EPA’s overly cabined comparison by inviting this
`
`Court to go down the availability rabbit hole of less toxic alternatives to sulfoxaflor
`
`on a crop-by-crop, pest-by-pest basis, and in so doing, selectively chooses certain
`
`crops and pests where there are no widely-used less toxic alternatives. There is no
`
`
`
`8 Corteva (Corteva’s Br. 26 n.10) misleadingly claims that CFS Petitioners rely
`“almost exclusively on extra-record evidence” in their critique of EPA’s unlawfully
`narrow hazard comparison. In reality, CFS Petitioners quoted directly from EPA’s
`own benefits assessment in the administrative record, and referenced Dr. Nathan
`Donley’s declaration, previously submitted in support of CFS Petitioners’ opposition
`to EPA’s prior remand request, which discusses the 12 reduced risk pesticides that
`EPA identified in the benefits assessment. See CFS_A138-39 (First Donley Decl. ¶¶
`20-21), ECF No. 59-2.
`
`
`
`
`14
`
`
`
`Case: 19-72109, 06/04/2021, ID: 12134858, DktEntry: 129, Page 21 of 154
`
`
`
`reason to engage in such piecemeal analysis. For example, Corteva highlights two
`
`crops (alfalfa and cotton) in which the EPA-identified less toxic alternatives are not
`
`commonly sprayed. Corteva’s Br. 22-26. But EPA did not just approve sulfoxaflor
`
`use on those two crops: the 2019 Registration approved sulfoxaflor spraying on
`
`major bee-attractive crops, crops that bloom—and expose bees and other pollinators
`
`to sulfoxaflor—indefinitely, as well as specialty crops that depend on commercial-
`
`scale bee pollination for production. See 1-PSCER-23-27. The list of approved crops
`
`is extensive and includes major agricultural crops such as pome fruit (apples and
`
`pears), ston