`
`No. 21-71180
`
`
`
`IN THE
`United States Court of Appeals
`for the Ninth Circuit
`
`
`
`
`
`
`
`
`
`CENTER FOR FOOD SAFETY AND CENTER FOR BIOLOGICAL DIVERSITY,
`
`Petitioners,
`
`v.
`UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,
`Respondents.
`
`
`
`
`
`
`
`
`
`
`
`ON PETITION FOR REVIEW FROM THE UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY
`
`
`
`
`
`
`BASF CORPORATION’S MOTION TO INTERVENE
`
`
`
`
`
`
`John C. Cruden
`Kathryn E. Szmuszkovicz
`David A. Barker
`
`BEVERIDGE & DIAMOND, P.C.
`1900 N Street, N.W., Suite 100
`Washington, D.C. 20036
` (202) 789-6000
`
`jcc@bdlaw.com
`
`kes@bdlaw.com
`
`dab@bdlaw.com
`
`
`Counsel for Proposed Intervenor
`BASF Corporation
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 2 of 23
`
`CORPORATE DISCLOSURE STATEMENT
`
`
`Pursuant to Federal Rule of Civil Procedure 7.1 and Federal Rule of
`
`Appellate Procedure 26.1, counsel for Proposed Intervenor BASF Corporation
`
`(“BASF”) certifies that BASF Corporation is a Delaware Corporation whose
`
`shares are not publicly traded. BASF Corporation is a wholly owned subsidiary of
`
`BASF USA Holding LLC, a Delaware limited liability company. BASF USA
`
`Holding LLC is a wholly owned subsidiary of BASF Nederland BV, a Dutch
`
`limited liability company. BASF Nederland BV is a wholly owned subsidiary of
`
`BASF SE (Societas Europaea – “SE”), a publicly traded European company.
`
`Further, no publicly held corporation owns 10% or more of BASF Corporation's
`
`stock.
`
`August 13, 2021
`
`
`
`
`/s/ Kathryn E. Szmuszkovicz
`Kathryn E. Szmuszkovicz
`BEVERIDGE & DIAMOND PC
`1900 N Street, N.W., Suite 100
`Washington, D.C. 20036
`(202) 789-6037
`kes@bdlaw.com
`Counsel for Proposed Intervenor
`BASF Corporation
`
`1
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 3 of 23
`
`TABLE OF CONTENTS
`
`
`
`I.
`
`II.
`
`INTRODUCTION ........................................................................................... 1
`
`BACKGROUND ............................................................................................. 3
`
`A.
`
`Regulatory Framework .......................................................................... 3
`
`1.
`
`2.
`
`FIFRA’s Comprehensive Regulation Of Pesticides ................... 3
`
`ESA And Its Implementation For Pesticides .............................. 5
`
`B.
`
`The Challenged Registrations ............................................................... 6
`
`III. ARGUMENT ................................................................................................... 7
`
`A. Allowing BASF To Intervene Serves the Policies Underlying
`Intervention As Of Right ....................................................................... 8
`
`1.
`
`2.
`
`3.
`
`4.
`
`The Motion Is Timely ................................................................. 9
`
`BASF Has A Significantly Protectable Interest In The Subject
`Matter Of This Action ............................................................... 10
`
`The Disposition of This Action May Impair or Impede BASF’s
`Ability to Protect Its Interests ................................................... 12
`
`BASF’s Interests Are Not Adequately Represented by EPA Or
`Other Parties .............................................................................. 13
`
`B. Allowing BASF To Intervene Serves the Policies Underlying
`Permissive Intervention ....................................................................... 16
`
`IV. CONCLUSION .............................................................................................. 18
`
`i
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 4 of 23
`
`I.
`
`INTRODUCTION
`
`Pursuant to Rule 15(d) of the Federal Rules of Appellate Procedure,
`
`BASF Corporation (“BASF”) respectfully moves for leave to intervene on
`
`behalf of Respondents in the above-captioned Petition for Review. BASF
`
`contacted counsel for the parties and Respondents’ counsel indicated they do
`
`not oppose the motion. Petitioners’ counsel indicated that they would reserve
`
`their position until after reviewing the motion.
`
`BASF’s direct interest in this action justifies intervention. BASF owns the
`
`registrations issued by the United States Environmental Protection Agency (“EPA”
`
`or “the Agency”) for herbicide products containing the new active ingredient
`
`trifludimoxazin that Petitioners seek to challenge in this action. Petition at 2;
`
`Petition Exhibit A at 3. The registrations are federal licenses issued under the
`
`Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136 et
`
`seq., without which BASF cannot distribute and sell herbicide products containing
`
`trifludimoxazin, including its Tirexor product.
`
`On May 25, 2021, EPA granted BASF registrations for Tirexor Herbicide
`
`Technical, a technical product containing 99.2% trifludimoxazin, and Tirexor
`
`Herbicide, an end-use product containing trifludimoxazin. These registrations
`
`allow BASF to produce and sell Tirexor for use on agricultural fields and in non-
`
`
`
`1
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 5 of 23
`
`agricultural settings to control broadleaf and grass weed species. Trifludimoxazin
`
`provides growers an important new tool for control of waterhemp and palmer
`
`amaranth in crops, including corn and soybean, where PPO-inhibitor-resistant
`
`weeds are present.1 Its unique properties provide effective weed control and help
`
`manage increasing challenges posed by herbicide-resistant weeds.2
`
`Petitioners ask this Court to find unlawful EPA’s May 12, 2021 Registration
`
`Decision and the Agency’s May 25, 2021 orders granting the trifludimoxazin
`
`registrations, to set aside or vacate the registrations, and to stop the use and sale of
`
`trifludimoxazin herbicide products authorized by the registrations. Petition at 2.
`
`The requirements for intervention under Rule 15(d) are satisfied. BASF’s
`
`request is timely, BASF’s trifludimoxazin registrations are the registrations
`
`Petitioners seek to vacate, and BASF’s ability to protect its interests in its
`
`registrations would be impaired by an adverse disposition. Finally, as courts have
`
`repeatedly held in similar actions, BASF’s private interests will not be adequately
`
`represented by EPA. In defending its registration decisions, the Agency takes into
`
`account broader interests and objectives that diverge from BASF’s more specific
`
`
`1 Memorandum Supporting Decision to Approve Registration for the New
`Active Ingredient, Trifludimoxazin (May 12, 2021) (“Registration
`Memorandum”), Petition Exhibit A at 3, 19.
`2 Registration Memorandum at 19.
`
`2
`
`
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 6 of 23
`
`commercial and reputational interests in its own product registrations. As has
`
`occurred in prior challenges to FIFRA registrations, this may lead EPA to take
`
`different positions, present different arguments and interpretations of the
`
`administrative record, and agree to settlement terms that would not be acceptable
`
`to BASF. Accordingly, the Court should grant BASF’s Motion to Intervene.
`
`II. BACKGROUND
`
`A. Regulatory Framework
`
`1. FIFRA’s Comprehensive Regulation Of Pesticides
`
`Under FIFRA, every pesticide product must be registered by EPA before it
`
`can be distributed or sold in the United States (with limited exceptions not relevant
`
`here). 7 U.S.C. § 136a.3 “A “registration” is a “license that allows a pesticide
`
`product to be distributed or sold for specific uses under specified terms and
`
`conditions.” Pesticides; Procedural Regulations for Registration Review, 71 Fed.
`
`Reg. 45,720, 45,720 (Aug. 9, 2006); see Reckitt Benckiser Inc. v. EPA, 613 F.3d
`
`1131, 1133 (D.C. Cir. 2010). A registration is issued to a specific registrant, for a
`
`specific formulation, packaging, and label. See 40 C.F.R. § 152.3 (defining
`
`“[p]esticide product” as “a pesticide in the particular form (including composition,
`
`
`3 See also 40 C.F.R. § 152.15 (“No person may distribute or sell any pesticide
`product that is not registered under the Act.”); 7 U.S.C. § 136j(a)(1)(A) (unlawful to
`distribute or sell unregistered pesticides).
`
`3
`
`
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 7 of 23
`
`packaging, and labeling) in which the pesticide is, or is intended to be, distributed
`
`or sold”); 7 U.S.C. § 136a(c)(1)(C).
`
`To obtain an EPA registration for a pesticide product, with certain
`
`exceptions not relevant here, an applicant must submit extensive scientific data
`
`sufficient to support a determination by EPA that use of the product as directed
`
`will pose no “unreasonable risk to man or the environment, taking into account the
`
`economic, social, and environmental costs and benefits” of the product. 7 U.S.C.
`
`§ 136(bb). As reflected in this “risk/benefit” standard and throughout the statute,
`
`“FIFRA explicitly accommodates agriculture’s need for pesticides” and “reflects
`
`the need to balance environmental and agricultural impacts.” Merrell v. Thomas,
`
`807 F.2d 776, 780-81 (9th Cir. 1986).
`
`Under FIFRA, EPA can approve a registration unconditionally, deny the
`
`application, or approve it with conditions. 7 U.S.C. § 136a(c)(5)-(7). The statute
`
`directs EPA to grant an unconditional registration when it determines, among other
`
`things, that the product does not cause unreasonable adverse effects on the
`
`environment (applying the “risk/benefit” standard described above) when used as
`
`instructed on the EPA-approved product label.4 7 U.S.C. § 136a(c)(5)(C)-(D).
`
`
`4 It is illegal to use a pesticide in a manner inconsistent with its label. 7 U.S.C.
`§ 136j(a)(2)(G).
`
`4
`
`
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 8 of 23
`
`2. ESA And Its Implementation For Pesticides
`
`The Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-44, was originally
`
`enacted in 1973. Congress has amended the ESA on several occasions to foster a
`
`balance between the protection of endangered and threatened species, and the need
`
`to sustain vigorous agricultural production through the development and use of
`
`innovative new pesticide products registered under FIFRA.
`
`Each federal agency retains discretion to determine how best to fulfill its
`
`statutory obligations under the ESA. Pyramid Lake Paiute Tribe of Indians v. U.S.
`
`Dep’t of Navy, 898 F.2d 1410, 1418 (9th Cir. 1990). ESA Section 7(a)(2) includes
`
`procedural mechanisms for informal and formal consultation between the action
`
`agency (here, EPA) and one of the two federal services responsible for wildlife and
`
`marine life (the “Services”). 16 U.S.C. § 1536(a)(2). If the action agency
`
`determines that its action will have “no effect” on listed species or critical habitat,
`
`no consultation is required. 40 C.F.R. § 402.14(a). If the agency determines that
`
`its action “may effect” but is “not likely to adversely affect” a listed species or
`
`critical habitat, and the Service concurs, consultation is completed through
`
`informal consultation. 50 C.F.R. § 402.13(c). Otherwise, formal consultation is
`
`required to determine whether or not the action is “likely to jeopardize the
`
`continued existence of a listed species or result in the destruction or adverse
`
`
`
`5
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 9 of 23
`
`modification of critical habitat.” 50 C.F.R. 402.14(h)(1)(iv).
`
`In the 1988 ESA amendments, Congress explicitly directed that the ESA be
`
`implemented so as “to minimize the impacts to persons engaged in agricultural
`
`food and fiber commodity production and other affected pesticide users and
`
`applicators.” Endangered Species Act Amendments of 1988, Pub. L. No. 100-478,
`
`§ 1010, 102 Stat. 2313, 2313-14 (1988), 7 U.S.C. § 136a note; see also H.R. Rep.
`
`No. 100-928, at 23-24 (1988) (Conf. Rep.), reprinted in 1988 U.S.C.C.A.N. 2738,
`
`2741-42 (federal agencies are to “implement the [ESA] in a way that protects
`
`endangered and threatened species while minimizing, where possible, impacts on
`
`production of agricultural foods and fiber commodities”).5
`
`B.
`
`The Challenged Registrations
`
`BASF invented and developed trifludimoxazin, a new active ingredient
`
`belonging to the PPO-inhibitor class of herbicides, in response to the growing need
`
`for additional tools to provide control of problematic annual broadleaf weed and
`
`grass weed species.6 Because of its unique properties, trifludimoxazin will help
`
`
`5 See also, 134 Cong. Rec. 18573-4 (1988) (directing that EPA activities
`regarding ESA implementation be conducted in ways that “would protect
`endangered or threatened species from pesticides and. . . minimize any adverse
`effect on the production of food and fiber,” thereby “minimizing impacts to the
`farmers, ranchers, and foresters who earn their living from food and fiber
`production”) (statement of Sen. Quentin Burdick).
`6 See Registration Memorandum at 16-17.
`6
`
`
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 10 of 23
`
`control the spread of weed types that have become resistant to other PPO-inhibitor
`
`herbicides, including troublesome and economically important weed types like
`
`waterhemp and palmer amaranth.7 In order to obtain approval for trifludimoxazin
`
`and the end-use Tirexor product and bring Tirexor to market, BASF made
`
`substantial investments in research, development, scientific data required for
`
`regulatory approval, training, and stewardship.
`
`On May 12, 2021 EPA published its decision to approve the registration of
`
`products containing the new active ingredient trifludimoxazin, and on May 25,
`
`2021, EPA issued orders granting unconditional registration of BASF’s Tirexor
`
`Herbicide Technical and Tirexor Herbicide Products.8
`
`III. ARGUMENT
`
`Under Rule 15(d), a party moving for intervention must do so “within 30
`
`days after the petition for review is filed” and need only provide a “concise
`
`statement of interest . . . and the grounds for intervention.” Fed. R. App. P. 15(d).
`
`Although Rule 15(d) does not specify criteria for intervention, Federal Rule of
`
`Civil Procedure 24 and the “policies underlying intervention” in district courts
`
`
`7 Id.
`8 Registration Memorandum, Petition Exhibit A; Tirexor Herbicide
`Registration (May 25, 2021), Petition Exhibit B. The Petition does not include a
`copy of the May 25, 2021 Tirexor Herbicide Technical registration order.
`7
`
`
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 11 of 23
`
`provide guidance. See Int’l Union U.A.W. v. Scofield, 382 U.S. 205, 216 n.10
`
`(1965).
`
`Intervention is plainly warranted. BASF owns the trifludimoxazin
`
`registrations that Petitioners seek to vacate. BASF invested considerable resources
`
`to obtain those registrations and to create with Tirexor a needed solution for
`
`farmers to control resistant weeds on their fields. The trifludimoxazin registrations
`
`are federal licenses specific to BASF, which provide the legal basis for BASF to
`
`conduct its business. BASF will suffer severe and irreparable harm if its
`
`trifludimoxazin registrations are vacated as requested by Petitioners. For all of
`
`these reasons, this Court should grant BASF’s motion for intervention. Indeed,
`
`registrants’ motions to intervene are routinely granted when their FIFRA
`
`registrations are challenged.
`
`A. Allowing BASF To Intervene Serves the Policies Underlying
`Intervention As Of Right
`
`An applicant is entitled to intervene as of right under Federal Rule of Civil
`
`Procedure 24(a)(2) if (1) the motion is “timely”; (2) the applicant claims a
`
`“significantly protectable” interest in property that is the subject of the action; (3)
`
`the action “may as a practical matter impair or impede [the applicant’s] ability to
`
`protect that interest”; and (4) the applicant’s interest is “inadequately represented”
`
`by the parties to the action. Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173,
`
`
`
`8
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 12 of 23
`
`1177 (9th Cir. 2011). Rule 24(a) is construed broadly in favor of granting
`
`intervention. Id. at 1179 (“[A] liberal policy in favor of intervention serves both
`
`efficient resolution of issues and broadened access to the courts.”) (quoting United
`
`States v. City of Los Angeles, 288 F.3d 391, 397-98 (9th Cir. 2002)). The Ninth
`
`Circuit’s practice reflects the “consistent approval of intervention of right on the
`
`side of the federal defendant in cases asserting violations of environmental
`
`statutes . . . .” Wilderness Soc’y, 630 F.3d at 1179 (citations omitted).
`
`In applying the intervention factors, courts “accept as true the non-conclusory
`
`allegations made in support of an intervention motion.” Sw. Ctr. for Biological
`
`Diversity v. Berg, 268 F.3d 810, 819-20 (9th Cir. 2001) (citations omitted). “Courts
`
`are to take all well-pleaded, nonconclusory allegations in the motion to intervene . . .
`
`as true absent sham, frivolity or other objections.” Id. at 820.
`
`All requirements for intervention as of right are satisfied here.
`
`1.
`
`The Motion Is Timely
`
`This motion is timely because it was filed within the 30 day period set by
`
`Rule 15(d). None of the other applicable timeliness considerations weigh against
`
`intervention. BASF has not delayed in seeking intervention and intervention at this
`
`early stage will not cause any prejudice to other parties. See League of United
`
`Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997).
`
`
`
`9
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 13 of 23
`
`2.
`
`BASF Has A Significantly Protectable Interest In The
`Subject Matter Of This Action
`
`An applicant for intervention has adequate interests in a suit where “the
`
`resolution of the plaintiff’s claims actually will affect the applicant.” S. Cal.
`
`Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002). An interest is
`
`“significantly protectable” if it is “protectable under some law” and “there is a
`
`relationship between the legally protected interest and the claims at issue.” Sw.
`
`Ctr. for Biological Diversity, 268 F.3d at 818; Sierra Club v. U.S. EPA, 995 F.2d
`
`1478, 1484 (9th Cir.1993), abrogated on other grounds by Wilderness Soc’y U.S.
`
`Forest Serv., 630 F.3d 1173, 1180 (9th Cir. 2010). “[T]he ‘interest’ test is
`
`primarily a practical guide to disposing of lawsuits by involving as many
`
`apparently concerned persons as is compatible with efficiency and due process.”
`
`County of Fresno v. Andrus, 622 F.2d 436, 438 (9th Cir. 1980) (citation omitted).
`
`The Ninth Circuit has long recognized that the holder of a government-
`
`issued license has a sufficiently protectable interest to support intervention in an
`
`action that attacks the validity of the license. See, e.g., Sierra Club, 995 F.2d at
`
`1482-83 (holding that water quality permittees could intervene as of right where
`
`plaintiffs sought to have EPA restrict the permits). Federal courts have repeatedly
`
`held that a FIFRA registrant has a legally protected property interest in its pesticide
`
`registration sufficient to warrant intervention as of right in actions challenging the
`
`
`
`10
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 14 of 23
`
`validity of the registration. See, e.g., Pesticide Action Network N. Am. (PANNA) v.
`
`U.S. Envtl. Prot. Agency, No. C 08-01814 MHP, 2008 WL 11404954, at *3 (N.D.
`
`Cal. July 8, 2008) (“The registrations involved here are essentially government
`
`licenses to produce, distribute and sell pesticides . . . [and] therefore constitute
`
`property . . . .”); Nat. Res. Def. Council v. U.S. EPA, 99 F.R.D. 607, 609 (D.D.C.
`
`1983) (“Plaintiffs’ complaint challenges procedures pursuant to which EPA
`
`reached preliminary decisions that the intervenors’ pesticide products merited
`
`continued registration. . . . Thus, the intervenors can be said to have a substantial
`
`and direct interest in the subject of this litigation.”).9
`
`Indeed, because BASF holds a property interest in the challenged
`
`registration, it has a constitutional due process right to be heard in this case. See,
`
`e.g., PANNA at *3 (FIFRA registrations “constitute property”); Parklane Hosiery
`
`Co., Inc. v. Shore, 439 U.S. 322, 327 n.7 (1979) (“It is a violation of due process
`
`for a judgment to be binding on a litigant who was not a party or a privy and
`
`
`9 See also, e.g., Order, Am. Soybean Ass’n v. Regan, No. 20-1441 (D.C. Cir.
`July 12, 2021) (granting BASF intervention in action challenging a pesticide
`registration held by BASF); Order, Am. Soybean Ass’n v. Wheeler, No. 1:20-cv-
`3190-RCL, Dkt. No. 20 (D.D.C. Nov. 13, 2020) (same); Nat'l Family Farm Coal.
`v. U.S. Envtl. Prot. Agency, No. 19-70115, Dkt. No. 29 (9th Cir. May 15, 2020)
`(granting intervention to owner of pesticide registration challenged in the action);
`Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, No 17-70810, Dkt No. 14
`(9th Cir. May 3, 2017) (same).
`
`11
`
`
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 15 of 23
`
`therefore has never had an opportunity to be heard.”) (citation omitted).
`
`As the owner of the trifludimoxazin registrations that Petitioners seek to
`
`vacate, BASF has a significantly protectable interest in the subject matter of this
`
`case. If EPA’s orders approving the trifludimoxazin registrations are invalidated,
`
`or the registrations are vacated or restricted, BASF will lose its legal basis to
`
`distribute and sell its Tirexor product.
`
`3.
`
`The Disposition of This Action May Impair or Impede
`BASF’s Ability to Protect Its Interests
`
`Impairment is demonstrated where the “relief sought by the plaintiffs will
`
`have direct, immediate, and harmful effects upon [the proposed intervenor’s]
`
`legally protectable interests.” Sw. Ctr. for Biological Diversity, 268 F.3d at 818
`
`(quoting Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1494
`
`(9th Cir. 1995)). “If an absentee would be substantially affected in a practical
`
`sense by the determination made in an action, he should, as a general rule, be
`
`entitled to intervene . . . .” Citizens for Balanced Use v. Mont. Wilderness Ass’n,
`
`647 F.3d 893, 898 (9th Cir. 2011) (quoting Fed. R. Civ. P. 24 advisory
`
`committee’s note).
`
`To deny intervention would render BASF a bystander as the fate of its own
`
`registration is decided. As discussed above, vacating the trifludimoxazin
`
`registration would deprive BASF of its property, and an order that suspended or
`
`
`
`12
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 16 of 23
`
`restricted the trifludimoxazin registrations or enjoined their further use would
`
`severely impact BASF’s interest in its trifludimoxazin registrations and business.
`
`BASF would suffer the loss of its investments spent to develop the product, obtain
`
`registration, and prepare to bring it to market. It would also suffer substantial
`
`economic and reputational impairment, including lost income and profits and the
`
`disruption of business relationships with distributors and customers who rely on
`
`BASF to defend its registrations and ensure the continued availability of important
`
`agricultural products.
`
`4.
`
`BASF’s Interests Are Not Adequately Represented by EPA
`
`This final requirement is “minimal,” and is satisfied so long as “the applicant
`
`can demonstrate that representation of its interests ‘may be’ inadequate.” Citizens
`
`for Balanced Use v. Montana Wilderness Ass’n, 647 F.3d 893, 898 (9th Cir. 2011)
`
`(quoting Arakaki, 324 F.3d at 1086); see also Trbovich v. United Mine Workers of
`
`Am., 404 U.S. 528, 538 n.10 (1972). Three factors are relevant in conducting this
`
`inquiry: “(1) whether the interest of a present party is such that it will undoubtedly
`
`make all of a proposed intervenor’s arguments; (2) whether the present party is
`
`capable and willing to make such arguments; and (3) whether a proposed
`
`intervenor would offer any necessary elements to the proceeding that other parties
`
`would neglect.” Citizens for Balanced Use, 647 F.3d at 898.
`
`
`
`13
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 17 of 23
`
`The existing parties do not adequately represent BASF’s interests. Although
`
`EPA and BASF may have “similar interests, they are not perfectly congruent”
`
`since EPA “represent[s] a broader view than the more narrow, parochial interests”
`
`of BASF. Ctr. for Biological Diversity v. United States Forest Serv., 2016 WL
`
`3638128, at *4 (D. Ariz. June 10, 2016) (internal quotation marks omitted). EPA’s
`
`interests as a regulator are different from BASF’s, and it may have objectives in
`
`this action that diverge from BASF’s. EPA presumably will defend its action.
`
`However, EPA has broader public policy objectives relating to its administration of
`
`the federal pesticide program as a whole, and is charged with balancing the private
`
`interests of pesticide registrants with the competing interests of various other
`
`stakeholders. In addition, EPA’s litigation positions are at least in part determined
`
`by the U.S. Department of Justice, which is further constrained by the need to
`
`serve government-wide policy objectives and to protect the government’s litigation
`
`position in other cases.
`
`By contrast, BASF has a particular interest in the trifludimoxazin
`
`registrations, coupled with specific knowledge that can be offered in defense of the
`
`product and registrations, including arguments EPA may be unable or unwilling to
`
`make. BASF has a direct financial interest in preserving its registration and in
`
`continuing to operate and expand its trifludimoxazin business that is plainly not
`
`
`
`14
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 18 of 23
`
`shared by EPA as a regulator. See Forest Conservation Council v. U.S. Forest
`
`Serv., 66 F.3d 1489, 1499 (9th Cir. 2016) (“Inadequate representation is most
`
`likely to be found when the applicant asserts a personal interest that does not
`
`belong to the general public.”) (quoting 3B James Wm. Moore et al., Moore’s
`
`Federal Practice ¶ 24.07[4] at 24-78 (2d ed. 1995)). These distinct interests and
`
`objectives may lead EPA to take different positions, present different arguments
`
`and interpretations of the administrative record, and agree to settlement terms that
`
`would not be acceptable to BASF.
`
`Moreover, EPA regulates BASF and decides whether or not a requested
`
`registration will be granted, and on what terms. See United States v. City of Los
`
`Angeles, 288 F.3d 391, 402 (9th Cir. 2006) (“The presumption [of adequate
`
`representation] has not been applied to parties who are antagonists in the collective
`
`bargaining process.”); Associated Gen. Contractors of Am. v. Cal. Dep’t of
`
`Transp., No. 09-01622, 2009 WL 5206722, at *2-3 (E.D. Cal. Dec. 23, 2009)
`
`(finding that no presumption of adequate representation applied where the
`
`intervenors’ interest “has at times pitted them against” the government defendant).
`
`For all these reasons, courts have repeatedly recognized that pesticide registrants’
`
`interests in defending their registrations are not adequately represented by EPA.10
`
`
`10 See e.g., Ellis v. Bradbury, No. 3:13-cv-01266-MMC, Dkt. No. 66 (N.D.
`15
`
`
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 19 of 23
`
`For the foregoing reasons, BASF should be granted leave to intervene in all
`
`aspects of this matter as of right, pursuant to Fed. R. Civ. P. 24(a)(2).
`
`B. Allowing BASF To Intervene Serves the Policies Underlying
`Permissive Intervention
`
`If intervention as of right is denied, the Court should grant BASF permissive
`
`intervention, which requires (1) “an independent ground for jurisdiction;” (2) “a
`
`timely motion”; and (3) “a common question of law and fact between the movant’s
`
`claim or defense and the main action.” Freedom from Religion Found., Inc. v.
`
`Geithner, 644 F.3d 836, 843 (9th Cir. 2011) (internal quotation marks omitted).
`
`BASF easily satisfies all of these requirements. First, because this is “a
`
`federal-question case” and BASF “does not seek to bring any counterclaims or
`
`cross-claims,” “the independent jurisdictional grounds requirement does not
`
`apply.” Id. at 844 (explaining that in this circumstance, the court’s jurisdiction “is
`
`grounded in the federal question(s) raised by the plaintiff,” and so “the identity of
`
`
`Calif. Aug. 6, 2013) (granting registrants’ motion to intervene); Hardin v. Jackson,
`600 F. Supp. 2d 13, 16-17 (D.D.C. 2009) (granting registrant’s motion to intervene
`because its economic interests were not shared by EPA); United Farm Workers v.
`Adm’r, U.S. EPA, No. C 07-3950, 2008 WL 3929140, at *2 (N.D. Cal. Aug. 26,
`2008) (“Courts have recognized that . . . private companies like [the pesticide
`registrant] have a more parochial and financial interest not shared by the EPA.”)
`(citing Forest Conservation Council, 66 F.3d at 1498-99); PANNA at *3 (“EPA’s
`interests, as the governmental body that regulates pesticides, necessarily differ from
`the interests of the regulated private parties that manufacture pesticides and own the
`registrations.”).
`
`16
`
`
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 20 of 23
`
`the parties is irrelevant”). Second, as discussed above, BASF’s motion is timely
`
`because intervention before any responsive pleadings are filed will not unduly
`
`delay or prejudice the adjudication of the rights of the existing parties. Third,
`
`Petitioners seek to vacate or restrict the trifludimoxazin registrations and to contest
`
`that outcome BASF will “raise[] questions of law and fact common to” EPA’s
`
`defense of the registrations. S. California Edison, 307 F.3d at 804.
`
`Finally, BASF’s participation will not “unduly delay” the action or “unfairly
`
`prejudice the existing parties.” Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir.
`
`1998). BASF’s intervention within the Rule 15(d) deadline and before any
`
`responsive pleadings or other motions have been filed will not cause any delay or
`
`prejudice. Moreover, permissive intervention is especially appropriate in litigation
`
`involving complex issues where the intervenor would aid the court in
`
`understanding the factual issues of the case. See 6 Moore’s Federal Practice
`
`§ 24.10[2][b]. EPA’s decision to register a new active ingredient involves a highly
`
`technical and scientific review of data submitted by the applicant for an active
`
`ingredient registration. Here, BASF submitted extensive data in support of the
`
`trifludimoxazin registration, so BASF’s participation will facilitate the Court’s
`
`review of the administrative record, and BASF will be in a position to “assist the
`
`court in its orderly procedures leading to the resolution of th[e] case . . . .”
`
`
`
`17
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 21 of 23
`
`Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1111 (9th Cir. 2002)
`
`abrogated on other grounds by Wilderness Soc’y, 630 F.3d at 1180; see also id. at
`
`1110-11 (affirming a grant of permissive intervention because “the magnitude of
`
`this case is such that . . . intervention will contribute to the equitable resolution of
`
`this case”) (internal quotation marks omitted).
`
`Accordingly, if denied intervention as of right, BASF should be granted leave
`
`to intervene permissively in all aspects of this case.
`
`IV. CONCLUSION
`
`This Court should grant BASF’s Motion to Intervene under Fed. R. App. P.
`
`15(d).
`
`
`August 13, 2021
`
`
`
`Respectfully submitted,
`
`
`
`
`
`/s/ Kathryn E. Szmuszkovicz
`John C. Cruden
`Kathryn E. Szmuszkovicz
`David A. Barker
`BEVERIDGE & DIAMOND, P.C.
`1900 N Street, N.W., Suite 100
`Washington, D.C. 20036
`T: (202) 789-6000 F: (202) 789-6190
`jcc@bdlaw.com
`kes@bdlaw.com
`dab@bdlaw.com
`
`Counsel for Proposed Intervenor
`BASF Corporation
`
`18
`
`
`
`Case: 21-71180, 08/13/2021, ID: 12201197, DktEntry: 10, Page 22 of 23
`
`CERTIFICATE OF COMPLIANCE
`
`I certify that this motion complies with Federal Rule of Appellate Procedure
`
`27(d)(1)(E) because it has been prepared in Times New Roman 14-point font using
`
`Microsoft Word 2010. I further certify that it complies with Federal Rule of
`
`Appellate Procedure 27(d)(2)(A) because it contains