CENTER FOR FOOD SAFETY V. MICHAEL REGAN ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR FOOD SAFETY; No. 19-72109
CENTER FOR BIOLOGICAL
DIVERSITY, EPA No. 62719-625
Petitioners,
OPINION
v.
MICHAEL S. REGAN, in his official
capacity as Administrator; U.S.
ENVIRONMENTAL PROTECTION
AGENCY,
Respondents,
CORTEVA AGRISCIENCE LLC,
Respondent-Intervenor.
2 CENTER FOR FOOD SAFETY V. REGAN
POLLINATOR STEWARDSHIP No. 19-72280
COUNCIL; AMERICAN BEEKEEPING
FEDERATION; JEFFERY S. EPA Nos. 62719-625
ANDERSON, 62719-623
62719-631
Petitioners,
v.
MICHAEL S. REGAN, in his official
capacity as Administrator; U.S.
ENVIRONMENTAL PROTECTION
AGENCY,
Respondents,
CORTEVA AGRISCIENCE LLC,
Respondent-Intervenor.
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted January 19, 2022
Honolulu, Hawaii
Filed December 21, 2022
CENTER FOR FOOD SAFETY V. REGAN 3
Before: Diarmuid F. O’Scannlain, Eric D. Miller, and
Kenneth K. Lee, Circuit Judges.
Opinion by Judge Lee;
Partial Concurrence and Partial Dissent by Judge Miller
SUMMARY *
Pesticide / Environmental Protection Agency
The panel granted in part and denied in part petitions for
review brought by Center for Food Safety and Pollinator
Stewardship Council challenging the 2019 amended
registration of the pesticide sulfoxaflor, which was created
by Dow Agrosciences LLC.
A company seeking to register a pesticide must obtain
approval from the Environmental Protection Agency (EPA),
which in turn must comply with the Endangered Species Act
(ESA), and the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA). In 2010, Dow submitted an
application for sulfoxaflor. In January 2013, EPA
announced and invited public comment for a proposed
conditional registration at lower application rates with some
mitigating measures. Less than seven months later, EPA
decided to unconditionally register sulfoxaflor. In
Pollinator Stewardship Council v. EPA (Pollinator I), 806
F.3d 520 (9th Cir. 2015), this court vacated the sulfoxaflor
registration because of Dow’s flawed and limited data for
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 CENTER FOR FOOD SAFETY V. REGAN
honeybees. In 2016, EPA registered sulfoxaflor for limited
use without the additional court-ordered studies. In 2019, in
a surprise announcement, EPA unconditionally registered
sulfoxaflor.
The panel held that EPA violated the ESA’s mandate that
it determine whether the pesticide may affect endangered or
threatened species or their habitat, and (if so) consult other
wildlife agencies to consider its impact on endangered
species. Although EPA admitted it did not comply with the
ESA, EPA alleged it lacked the resources to do so. The
panel held that EPA cannot flout the will of Congress just
because it contends it is too busy or understaffed. The panel
further held that EPA’s repeated violations of the ESA
undermined the political structure.
The panel held that EPA failed to meet FIFRA’s notice
and comment requirement because it did not allow the public
to comment on Dow’s requested amendments to the 2016
registration to reinstate expanded usage of sulfoxaflor. EPA
cannot rely upon Dow’s original application for sulfoxaflor
to support the registration amendments. Because Dow
requested, and EPA approved, “new uses” for sulfoxaflor,
EPA should have solicited public comments.
The panel, however, did not vacate the agency’s decision
because a vacatur might end up harming the environment
more and disrupting the agricultural industry. The panel
instead remanded it to EPA for further proceedings. The
panel directed EPA to act immediately address the
deficiencies and complete the ESA “effects determination
and consultation” requirements, as well as the FIFRA notice
and comment obligation, within 180 days of the mandate
being issued in the case.
CENTER FOR FOOD SAFETY V. REGAN 5
Judge Miller concurred in part and dissented in part. He
agreed with the majority’s holding that the EPA acted
unlawfully by failing to engage in consultation or provide
public notice and an opportunity to comment before it
approved the expanded use of sulfoxaflor. He dissented
from the majority’s decision to leave the EPA’s action in
place, and he would instead vacate the order under review.
COUNSEL
George A. Kimbrell (argued), Sylvia Shih-Yau Wu, and
Amy L. van Saun, Center for Food Safety, Portland, Oregon;
Gregory C. Loarie (argued) and Gregory D. Muren,
Earthjustice, San Francisco, California; Stephanie M.
Parent, Center for Biological Diversity, Portland, Oregon;
Surbhi Sarang, Earthjustice, New York, New York; for
Petitioners.
Meghan E. Greenfield (argued), Senior Counsel for
Appellate Matters; Briena L. Strippoli and Sheila Baynes,
Trial Attorneys; Bruce Gelber and Todd Kim, Deputy
Assistant Attorney Generals; Jean E. Williams, Acting
Assistant Attorney General, United States Department of
Justice, Environment and Natural Resources Division,
Washington, D.C.; Erin S. Koch and Amber Aranda, of
Counsel, United States Environmental Protection Agency,
Washington, D.C.; for Respondents.
Amanda S. Berman (argued), David Y. Chung, Amy
Symonds, and Kristen L. Nathanson, Crowell & Moring
LLP, Washington, D.C.; for Respondent-Intervenor.
6 CENTER FOR FOOD SAFETY V. REGAN
Robert D. Swanson, Deputy Attorney General; Christie
Vosburg, Supervising Deputy Attorney General; Edward H.
Ochoa, Senior Assistant Attorney General; Xavier Becerra,
Attorney General of California; California Department of
Justice, Sacramento, California; for Amicus Curiae the
States of California, Hawaii, Maryland, Minnesota, New
Jersey, New York, New Mexico, Oregon, Vermont, and
Washington.
Sarah Gunn, Bradley Arant Boult Cummings LLP,
Birmingham, Alabama; Bartholomew J. Kempf and
Edmund S. Sauer, Bradley Arant Boult Cummings LLP,
Nashville, Tennessee; for Amici Curiae National Cotton
Council, American Soy Bean Association, National
Sorghum Producers, American Famr Nureau Federation,
National Corn Growers Association, National Alfalfa &
Forage Alliance, American Sugarbeet Growers Association,
Florida Citrus Mutual, Florida Fruit & Vegetable
Association, and National Potato Council.
Karen Ellis Carr, Stanley H. Abramson, Donald C. McLean,
and Kathleen R. Heilman, Arent Fox LLP, Washington,
D.C., for Amicus Curiae CropLife America.
David A. Bricklin and Zachary K. Griefen, Bricklin &
Newman LLP, Seattle, Washington; Mina S. Markarious
and Annie E. Lee, Anderson & Kreiger LLP, Boston,
Massachusetts; Phelps T. Turner, Sara V. Dewey, and Colin
Antaya, Conservation Law Foundation, Boston,
Massachusetts, Beverly Grossman Palmer and Caroline
Chiappetti, Stumwasser & Woocher LLP, Los Angeles,
California; for Amicus Curiae Conservation Law
Foundation et al.
CENTER FOR FOOD SAFETY V. REGAN 7
OPINION
LEE, Circuit Judge:
It’s déjà vu all over again. The U.S. Environmental
Protection Agency (EPA) comes before this court once more
because of its failure to abide by the law.
Before a company can introduce a pesticide to the
market, it must obtain approval from EPA. 7 U.S.C.
§ 136a(a). And EPA, in turn, must comply with the
Endangered Species Act (ESA) and the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) before it can
provide its stamp of approval for the pesticide. Broadly,
these two statutes require the agency to consider the impact
on the environment and threatened species.
Seven years ago, this court vacated EPA’s approval of
sulfoxaflor, a new pesticide created by Dow Agrosciences
LLC. We held that EPA erred because Dow had not
provided sufficient scientific evidence that this pesticide
would not harm honeybees. After Dow agreed to limit the
type and scope of usage for sulfoxaflor, EPA in 2016 greenlit
it for “limited uses” even without additional studies. Then
in 2019, EPA made a surprise announcement that it had
reviewed additional studies provided by Dow and had given
“unconditional approval” for sulfoxaflor on various usages
that it had earlier canceled. This 2019 amended registration
of sulfoxaflor led to the challenge before us.
We hold that EPA violated ESA’s mandate that it
determine whether the pesticide may affect endangered or
threatened species or their habitat, and (if so) consult other
wildlife agencies to consider its impact on endangered
species. EPA admits it did not comply with the ESA but
8 CENTER FOR FOOD SAFETY V. REGAN
defends itself by claiming that it lacks the resources to do so.
EPA cannot flout the will of Congress—and of the people—
just because it thinks it is too busy or understaffed.
EPA also failed to meet FIFRA’s notice and comment
requirement because it did not allow the public to comment
on Dow’s request to reinstate expanded usage of sulfoxaflor.
Because Dow requested and EPA approved “new uses” for
sulfoxaflor, EPA should have solicited public comments.
We, however, do not vacate the agency’s decision because a
vacatur may end up harming the environment more and
disrupting the agricultural industry. We instead remand it to
EPA for further proceedings.
BACKGROUND
I. A company seeking to register a pesticide must obtain
approval from EPA, which in turn must comply with
ESA and FIFRA.
To understand this case, we need briefly to recap the
regulatory framework for approving pesticides. Under
FIFRA, a company must first file a statement and submit
data supporting the pesticide registration to EPA. 7 U.S.C.
§ 136a(c). The statement must include “a complete copy of
the labeling of the pesticide, a statement of all claims to be
made for it, and any directions for its use;” “the complete
formula of the pesticide;” and “a full description of the tests
made and the results thereof upon which the claims are
based” or, alternatively, citations to public literature or
previously submitted data. 7 U.S.C. § 136a(c)(1)–(2).
FIFRA then requires EPA to “promptly” publish in the
Federal Register “a notice of each application for any
pesticide if it contains any new active ingredient or if it
would entail a changed use pattern.” 7 U.S.C. § 136a(c)(4).
CENTER FOR FOOD SAFETY V. REGAN 9
The agency must provide for a 30-day comment period, id.,
and “respond to comments received on the notice of
application” when it notifies the public of the registration, 40
C.F.R. § 152.102.
Before it can register a pesticide, EPA must conduct a
“cost-benefit analysis to ensure that there is no unreasonable
risk created for people or the environment from a pesticide.”
Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1032 (9th Cir.
2005), abrogated on other grounds as recognized in
Cottonwood Env’t L. Ctr. v. U.S. Forest Serv., 789 F.3d
1075, 1089 (9th Cir. 2015). EPA may deny an application
to prevent “unreasonable adverse effects,” which means
“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.” 7 U.S.C.
§§ 136a(a), 136(bb).
Finally, EPA must comply with the ESA, which requires
EPA first to make an “effects” determination on whether the
pesticide “may affect [a] listed species or critical habitat.”
50 C.F.R. § 402.14(a). If yes, EPA must then consult
another agency to see if the pesticide is “[l]ikely to
jeopardize” the species or critical habitat. Id.§ 402.14(h)(1)(iv)(A).
II. Dow submits an application for sulfoxaflor, but EPA
asks Dow to submit more data before suddenly
registering it for unconditional use anyway.
In 2010, Dow Agrosciences LLC sought to register three
insecticides containing the chemical sulfoxaflor, a new and
highly effective “active ingredient” for killing insects that
are difficult to control. Sulfoxaflor is unique compared to
other registered insecticides. It kills the insects by
interfering with their central nervous system, causing
10 CENTER FOR FOOD SAFETY V. REGAN
tremors, paralysis, and death. But unlike other insecticides
in its class, sulfoxaflor has a distinct mechanism for acting
on insects, which makes it effective while other insecticides
are not. To apply it, growers spray the product onto plants,
and the plants absorb it into the tissues, pollen, and nectar.
Insects die by either touching the insecticide or ingesting a
plant that has absorbed it. Pollinator Stewardship Council
v. EPA (Pollinator I), 806 F.3d 520, 523 (9th Cir. 2015). As
part of its application, Dow submitted several scientific
studies supporting the registration of sulfoxaflor.
EPA noticed the public and invited comment on Dow’s
sulfoxaflor application on December 22, 2010, as required
by FIFRA. Pesticide Products; Registration Applications,
75 Fed. Reg. 80,490 (Dec. 22, 2010). EPA’s notice
disclosed that Dow sought to register its sulfoxaflor products
for use on diverse crops, including citrus, cotton, cucurbits
(e.g., squash and cucumbers), berries, and soybeans. 75 Fed.
Reg. at 80,491–92. And the agency gave the public 30 days
to submit comments. Id. at 80,490.
EPA then analyzed the studies submitted by Dow “using
a new framework it had recently developed to better analyze
the risks to bees” due to “growing concerns about the rapid
decline in bee populations.” Pollinator I, 806 F.3d at 524.
The framework involves a three-tiered analysis. At Tier 1,
EPA identifies whether there is a potential risk to bees. Id.at 524–25. If the agency identifies a risk, then Tier 2 and
Tier 3 define the risks and their magnitude, respectively. Id.“[W]hereas the Tier 1 analysis focuses on the effects of the
insecticide on individual bees, Tier 2 and Tier 3 analyses
attempt to measure the effect on the colony as a whole.” Id.
at 525.
In EPA’s analysis of sulfoxaflor studies, it identified a
CENTER FOR FOOD SAFETY V. REGAN 11
“potential for risk to honey bees” under Tier 1. But EPA
found the Tier 2 studies insufficient, as they were “unable to
preclude risk to developing brood or long-term colony health
from the proposed sulfoxaflor applications due to limitations
associated with their design and conduct.” EPA thus
concluded that new data was needed.
While EPA did not unconditionally approve sulfoxaflor
because of the gaps in data, it still conditionally approved its
registration to obtain more data. Id. at 526–27; see also 7
U.S.C. § 136a(c)(5). FIFRA allows the agency to
“conditionally register a pesticide containing an active
ingredient not contained in any currently registered pesticide
for a period reasonably sufficient for the generation and
submission of required data . . . on the condition that by the
end of such period [the agency] receives such data and the
data do not meet or exceed risk criteria enumerated in
regulations . . . .” 7 U.S.C. § 136a(c)(7)(C). But EPA may
only conditionally register a pesticide if it “determines that
use of the pesticide during such period will not cause any
unreasonable adverse effect on the environment, and that use
of the pesticide is in the public interest.” Id.
So, in January 2013, EPA announced and invited public
comment for a proposed conditional registration at lower
application rates with some mitigating measures. EPA
conditioned registration upon Dow providing more studies.
Although EPA announced its proposed decision
conditionally to register sulfoxaflor in January 2013—
pending receipt of more data—EPA less than seven months
later decided to “unconditionally” register sulfoxaflor,
meaning that EPA “necessarily” had “sufficient data to
evaluate the environmental risks.” Pollinator I, 806 F.3d at
523, 527. But “Dow never completed the requested
additional studies.” Id. at 527. EPA still “gave its approval
12 CENTER FOR FOOD SAFETY V. REGAN
to usage under modified circumstances,” id., and concluded
that sulfoxaflor applied according to the label would “not
present unreasonable adverse effects against bees.”
III. The Ninth Circuit vacates the sulfoxaflor
registration because of Dow’s flawed and limited data
for honeybees.
In response, commercial beekeepers and beekeeping
organizations petitioned this court to review EPA’s
unconditional registration decision. Id. at 528. They argued
that EPA’s decision was based on insufficient data to assess
the risk to honeybees. Id. We agreed and held that “EPA’s
decision to unconditionally register sulfoxaflor was based on
flawed and limited data.” Id. at 522. We explained that
“[w]ithout sufficient data,” EPA had “no real idea whether
sulfoxaflor will cause unreasonable adverse effects on bees,
as prohibited by FIFRA.” Id. at 532. We vacated the 2013
registration and ordered additional studies to assess the risk
to honeybees. Id. at 532–33.
Right after we issued our decision, EPA stopped
manufacturers from selling and distributing sulfoxaflor. The
agency issued “a final cancellation order for all pesticide
products containing the active ingredient sulfoxaflor.” The
order explained that “vacatur of the sulfoxaflor registration”
meant that “the registrations were no longer in effect under
FIFRA, and no new sulfoxaflor material could or can
lawfully be released for shipment by manufacturers unless
and until new registrations are issued.”
IV. EPA registers sulfoxaflor for limited use without the
additional court-ordered studies.
Dow then “amended the remanded sulfoxaflor
application to add restrictions that eliminated [sulfoxaflor]
CENTER FOR FOOD SAFETY V. REGAN 13
exposure to pollinators,” such as limiting sulfoxaflor
spraying to “post bloom” (that is, after flowering) on crops
that attract bees and requiring spray drift and buffer zones.
In other words, Dow decided to limit the proposed use of
sulfoxaflor rather than provide more studies that would
allow more expansive use of it.
In May 2016, EPA invited public comment on its
proposed decision to register sulfoxaflor. The proposed
decision stated:
Specifically addressing the Ninth Circuit
Court of Appeals’ direction to “obtain further
studies and data regarding the effects of
sulfoxaflor on bees are required by EPA
regulations,” EPA finds that given the
parameters of this proposed decision, there is
no need for additional data to be submitted.
EPA also included an addendum to the agency’s 2013 risk
assessment that analyzed the risk based on the proposed
revised labels.
In October 2016, EPA unconditionally registered
sulfoxaflor for “limited uses” with restrictions. The
registration did not include “indeterminate blooming crops”
(citrus, cotton, cucurbits, soybeans, and strawberry), which
were vacated with the 2013 registration. And for those crops
registered, EPA explained that, given the court’s directive,
“a buffer is required to eliminate exposure to bees at a level
that could be expected to cause adverse effects” until Dow
submitted, and EPA reviewed, more pollinator studies.
14 CENTER FOR FOOD SAFETY V. REGAN
V. EPA in a surprise announcement unconditionally
registers sulfoxaflor products in 2019.
Sometime later, Dow apparently requested that EPA
expand its sulfoxaflor registrations. It is unclear from the
record how Dow went about making the request, and the
parties could not provide more context at oral argument.
What we do know is this: On July 12, 2019, without notice
to the public about Dow’s request, EPA announced that it
was unconditionally approving new uses of sulfoxaflor
under § 3(c)(5) of FIFRA. EPA added new uses that Dow
had applied for in 2014, added back the indeterminate
blooming crops (that is, citrus, cotton, cucurbits, soybeans,
and strawberry) from the vacated registration, and removed
certain restrictions that EPA had required when it
reregistered crops in 2016.
EPA cited two previously noticed applications—one in
2014 and the other in 2018—to meet its notice and comment
obligations under FIFRA. See 7 U.S.C. § 136a(c)(4). It did
not, however, provide notice and comment on the newly
authorized uses for indeterminate blooming crops or on the
removal of the 2016 restrictions.
Before issuing the new registration, EPA conducted
another ecological risk assessment to evaluate “the
likelihood that exposure to one or more pesticides may cause
harmful ecological effects” and a benefits analysis to
determine whether the expanded registration posed any
unreasonable adverse effects to the environment. In its
assessment, EPA relied on new studies that Dow had
submitted with its request. Dow had submitted three new
Tier 1 studies; three new Tier 2 semi-field tunnel studies and
two new Tier 2 colony feeding studies, each of which
evaluated long-term effects on honeybee colonies; and
CENTER FOR FOOD SAFETY V. REGAN 15
fourteen other Tier 2 field residue studies for assessing oral
exposure to sulfoxaflor. 1 EPA concluded that it “ha[d]
adequate data to demonstrate that there will be no
unreasonable adverse effects to honey bees resulting from
the expanded registration of sulfoxaflor” and that the pest-
control benefits outweighed the risk to the bee population.
EPA decided, however, to not make an “effects
determination” for sulfoxaflor, meaning that the agency did
not determine whether the new proposed uses “may affect”
or are “not likely to adversely affect” an endangered or
threatened species or its habitat, as required by federal
regulation. 50 C.F.R. §§ 402.14(a), 402.13(c).
After EPA announced its final decision unconditionally
to register sulfoxaflor again, the Center for Food Safety
(CFS), Center for Biological Diversity, Pollinator
Stewardship Council (PSC), American Beekeeping
Federation, and Jeffery Anderson filed timely petitions for
review with this court, alleging that the 2019 sulfoxaflor
registration violated the ESA, 16 U.S.C. § 1531 et seq., and
FIFRA, 7 U.S.C. § 136a et seq. 2 Dow, now known as
Corteva, intervened in support of EPA. 3 EPA admits that it
committed “legal error” by disregarding the ESA.
For the FIFRA claims, Petitioners argue that EPA had to
conduct notice and comment before it could approve the
1
The semi-field tunnel studies place bees in tunnel enclosure and feed
them pesticide-treated crops. Pollinator I, 806 F.3d at 525.
2
We have jurisdiction under 7 U.S.C. § 136n(b) to review the ESA and
FIFRA claims. See Ctr. for Biological Diversity v. EPA, 847 F.3d 1075,
1088–90 (9th Cir. 2017).
3
While Dow is now known by Corteva Agriscience LLC, we refer to the
Intervener as “Dow” for consistency.
16 CENTER FOR FOOD SAFETY V. REGAN
2019 registration amendments authorizing use on
indeterminate blooming crops and removing restrictions
from the 2016 registration. Petitioners also argue that EPA’s
decision to amend the sulfoxaflor registration is not
supported by substantial evidence.
EPA and Dow defend the registration, claiming that the
agency complied fully with FIFRA’s procedural
requirements. EPA does, however, concede that its rationale
could be more “detailed” when explaining third-party
economic costs. The agency requests voluntary remand or,
in the alternative, that we remand without vacatur. But Dow
makes no such concession and argues that EPA considered
all relevant factors and provided a comprehensive
explanation for its decision.
STANDARD OF REVIEW
“Because the ESA does not specify a standard of review,
we review EPA’s compliance under the [Administrative
Procedure Act] and uphold agency action unless it is
arbitrary, capricious, an abuse of discretion, or contrary to
law,” and we review EPA’s compliance with FIFRA for
“substantial evidence when considered on the record as a
whole.” Nat’l Fam. Farm Coal. v. EPA, 966 F.3d 893, 914,
923 (9th Cir. 2020).
ANALYSIS
This litigation presents two separate procedural
challenges to EPA’s 2019 registration of sulfoxaflor. First,
we must decide whether EPA complied with the ESA.
Second, we must decide whether EPA complied with
FIFRA’s notice and comment requirement. We hold that it
failed to comply with either.
CENTER FOR FOOD SAFETY V. REGAN 17
I. EPA violated the Endangered Species Act by not
making an effects determination for sulfoxaflor.
EPA admits that it violated the ESA by not making an
“effects” determination for sulfoxaflor and not conducting
any potentially required agency “consultation” before
registering the chemical.
A. EPA has disregarded Congress’s legislative
command to ensure its actions do not jeopardize
endangered species and their habitats.
Federal agencies must comply with the ESA’s
procedural requirements, which seek to protect endangered
or threatened species. Id. at 922; see also 16 U.S.C. § 1531.
Section 7(a)(2) of the ESA mandates that federal agencies
must ensure that their actions are “not likely to jeopardize”
endangered species or their habitats by consulting the
appropriate wildlife agency. 16 U.S.C. § 1536(a)(2); 50
C.F.R. § 17.11. This process is called “consultation.”
“The threshold for triggering” consultation is “relatively
low.” California ex rel. Lockyer v. U.S. Dep’t of Agric., 575
F.3d 999, 1018 (9th Cir. 2009). For each proposed action, a
federal agency must determine “at the earliest possible time”
whether it “may affect a listed species or critical habitat”
(that is, make an effects determination). 50 C.F.R.
§ 402.14(a). Should the agency determine that its proposed
action—such as a pesticide registration—would have no
effect, further action is unnecessary. Id. § 402.14(b)(1). But
if the agency determines that its proposed action may have
such an effect, then it triggers the consultation requirement.
Id. § 402.14(a). The agency must then consult the
appropriate wildlife agency, which usually prepares a
“biological opinion” on whether the proposed action is
“[l]ikely to jeopardize the continued existence of listed
18 CENTER FOR FOOD SAFETY V. REGAN
species or result in the destruction or adverse modification
of critical habitat.” Id. § 402.14(h)(1)(iv)(A).
In approving the amended registration of sulfoxaflor in
2019, EPA did not make an effects determination for
sulfoxaflor, nor did it estimate when it would comply with
any consultation requirement (if necessary). Rather, EPA
acknowledged its noncompliance and granted the
unconditional registration of sulfoxaflor. The agency’s
actions violated § 7(a)(2). See Ctr. for Biological Diversity,
847 F.3d at 1091 (stating that “Section 7 consultation” is
“triggered by an affirmative agency action”).
EPA’s reasons for not making an effects determination
are unpersuasive. The agency explained that it was
“focusing most of its resources” on registered pesticides for
which EPA had not yet made an effects determination. EPA
further claims that it did not “believe” that “the environment
or the public would be best served by delaying the
registration” to comply with the consultation requirement. It
warned that, were the agency to focus its “limited resources”
on the consultation of sulfoxaflor, it “would by necessity
come at the expense of . . . evaluating . . . what EPA believes
to be more toxic compounds that, among other things, pose
greater risk, to endangered species than do sulfoxaflor.”
But an agency cannot ignore the will of Congress just
because it genuinely believes that it has a good reason or
excuse for doing so. As the Supreme Court recently
reminded us, “our system does not permit agencies to act
unlawfully even in pursuit of desirable ends.” Ala. Ass’n of
Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485,
2490 (2021) (citing Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 582, 585–86 (1952)); cf. FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 125
CENTER FOR FOOD SAFETY V. REGAN 19
(2000) (“Regardless of how serious the problem an
administrative agency seeks to address, however, it may not
exercise its authority ‘in a manner that is inconsistent with
the administrative structure that Congress enacted into
law.’”).
Simply put, EPA must make an effects determination at
“the earliest possible time,” not when the agency believes
the public or environment may be best served by it. 50
C.F.R. § 402.14(a). The “language” of the statute “admits
of no exception.” Tenn. Valley Auth. v. Hill, 437 U.S. 153,
173 (1978); cf. id. (“One would be hard pressed to find a
statutory provision whose terms were any plainer than those
in § 7 of the Endangered Species Act.”). Nor has EPA
qualified for any formal exemption under 16 U.S.C.
§ 1536(h) to avoid the consultation requirement. Ctr. for
Biological Diversity v. EPA, 861 F.3d 174, 188 n.10 (D.C.
Cir. 2017).
We doubt that EPA would be as forgiving if companies
justified their failure to abide by environmental laws with a
similar excuse that they lack the resources or that the
government regulation asks the impossible. Cf. Niz-Chavez
v. Garland, 141 S. Ct. 1474, 1486 (2021) (“If men must turn
square corners when they deal with the government, it
cannot be too much to expect the government to turn square
corners . . . .”). Government regulators would likely be
displeased by the lack of progress and would require
companies to double their efforts to comply with the law—
or face severe consequences. EPA cannot set two standards
of compliance under environmental law: a lenient standard
for itself, and a stricter one for companies and individuals.
To be sure, we recognize that an “agency confronting
resource constraints may change its own conduct” within its
20 CENTER FOR FOOD SAFETY V. REGAN
authority. Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 327
(2014). But prioritizing pressing matters does not mean
agencies have license to ignore the law. Simply put,
“[a]bdication of responsibility is not part of the
constitutional design.” Clinton v. City of New York, 524 U.S.
417, 452 (1998) (Kennedy, J., concurring). The ESA
commits agencies to make certain that its actions do not
jeopardize threatened or endangered animals. See Nat’l
Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644,
667 (2007) (“To ‘insure’ something . . . means ‘[t]o make
certain, to secure, to guarantee (some thing, event, etc.).’”
(alteration in original) (internal quotation marks omitted));
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524
F.3d 917, 928–29 (9th Cir. 2008) (holding that consultation
is required so long as the agency could comply with both the
ESA and other statutory requirements).
B. EPA’s repeated violation of the ESA undermines
the political structure.
Equally troubling is EPA’s apparent habit of ignoring
ESA’s effect determination and consultation requirements.
Five years ago, the D.C. Circuit chastised EPA for not
making an effects determination for another pesticide and
failing to consult other federal agencies in approving a
pesticide. See Ctr. for Biological Diversity, 861 F.3d at
188. 4
4
EPA also has settlement agreements and is embroiled in litigation for
not complying with the consultation process before registering other
pesticides. Proposed Settlement Agreement; Biological Evaluations, 85
Fed. Reg. 81,205, 81,205–06 (Dec. 15, 2020) (proposing a settlement
agreement to make an effects determination for five different active
ingredients).
CENTER FOR FOOD SAFETY V. REGAN 21
Yet EPA did it again. And it did so by recycling the same
argument that another circuit court rejected. In Center for
Biological Diversity, the D.C. Circuit rejected the argument
that “EPA’s failure to consult [was] excusable because it”
had “fulfilled the ‘purpose’ of the ESA by ‘devis[ing] a
rational solution to prioritize its resources and avoid
delaying the availability of reduced risk [pesticide].’” 861
F.3d at 188 n.10 (second alternation in original). The D.C.
Circuit warned that “an agency may not duck its consultation
requirement, whether based on limited resources, agency
priorities or otherwise.” Id. We agree. Resource constraints
and agency priorities do not justify an agency’s
noncompliance with federal law.
EPA explains that it has a backlog because FIFRA
predates the ESA, and the agency has “many hundreds” of
registered pesticides. But a half century has passed since the
statute’s enactment. See Pub. L. No. 93-205, 87 Stat. 884
(1973). How long does the agency expect us to excuse its
failure to follow the law? “Once Congress, exercising its
delegated powers, has decided the order of priorities in a
given area, it is for the Executive to administer the laws and
for the courts to enforce them when enforcement is sought,”
no matter “[o]ur individual appraisal of the wisdom or
unwisdom of a particular course consciously selected by the
Congress.” Tenn. Valley Auth., 437 U.S. at 194.
When an agency deliberately ignores Congress’s
legislative command, it undermines the will of the people
and ultimately our constitutional structure of government.
“Administrative agencies are creatures of statute. They
accordingly possess only the authority that Congress has
provided.” Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab.,
Occupational Safety & Health Admin., 142 S. Ct. 661, 665
(2022) (per curiam). The consultation requirement compels
22 CENTER FOR FOOD SAFETY V. REGAN
federal agencies to review its actions. See Lopez v. Davis,
531 U.S. 230, 241 (2001) (noting Congress’s “use of a
mandatory ‘shall’ . . . to impose discretionless obligations”).
Thus, when EPA does not comply with the ESA’s
consultation requirement, the agency effectively exceeds its
authority. See City of Arlington v. FCC, 569 U.S. 290, 297
(2013) (“Both [agencies’] power to act and how they are to
act is authoritatively prescribed by Congress, so that when
they act improperly, no less than when they act beyond their
jurisdiction, what they do is ultra vires.”).
EPA assures us that Congress is aware of EPA’s backlog
and is pushing the agency to comply with the consultation
process. 5 Congressional oversight of administrative
agencies’ decision-making is not only desirable but also
central to our structure. But despite Congress’s efforts,
EPA’s pesticide registrations are not in compliance with the
law. That Congress is trying to make the agency comply
with its legislative command clearly does not excuse EPA
from compliance with the law.
Over a decade has passed since Dow submitted its initial
application for sulfoxaflor, yet EPA has still not finalized an
effects determination for the chemical. Shortly before and
after oral argument, EPA submitted correspondence
promising that it will issue an effects determination soon.
While we welcome such a development, EPA appears to be
5
In 2014, Congress ordered EPA to report on its compliance with the
consultation process. Pub. L. No. 113-79, § 10013, 128 Stat. 649 (2014).
Congress acted again in 2018 and established an interagency working
group that is tasked with improving compliance with the consultation
process. Pub. L. No. 115-334, § 10115, 132 Stat. 4490 (2018). As part
of its oversight, this working group is to submit progress reports to
Congress. Id.CENTER FOR FOOD SAFETY V. REGAN 23
engaging in a whack-a-mole strategy for complying with the
ESA: It does little to comply with the law and then devotes
resources once it has been sued—and then this process
repeats itself. Parties should not have to file a lawsuit to
compel EPA to follow the law. EPA must not delay to
comply with the ESA’s effects determination/consultation
requirement. § 7(a)(2).
II. EPA violated FIFRA by failing to conduct notice and
comment on Dow’s requested amendments to the 2016
registration.
Petitioners also argue that EPA violated FIFRA when it
approved Dow’s request for an amended registration for
sulfoxaflor in 2019. Specifically, EPA removed restrictions
for sulfoxaflor usage imposed in the 2016 application and
added back indeterminate blooming crops—without
providing notice and an opportunity for public comment on
Dow’s latest request.
The parties disagree about the scope of our prior vacatur
from our 2015 decision. See Pollinator I, 806 F.3d at 532–
33. CFS argues that our vacatur essentially voided the
original application, which had gone through notice and
comment. They thus argue that Dow’s 2019 request to
remove restrictions and add back indeterminate blooming
crops—in whatever form it was submitted to the agency—
was effectively a new application. EPA disagrees. The
agency contends that there was no new application because
the court vacated only the registrations, not the application.
EPA thus argues the agency treated the original application
as “pending” because the court did not address the status of
the application. So, no new application, no need for
additional notice and comment under FIFRA, according to
EPA.
24 CENTER FOR FOOD SAFETY V. REGAN
We need to clarify the scope of our prior vacatur and the
record before we decide whether Dow’s requested
amendments triggered notice and comment under FIFRA.
A. EPA cannot rely upon Dow’s original application
for sulfoxaflor to support the registration
amendments.
Federal courts have equitable power to award an
appropriate remedy where an agency commits error or
exceeds its statutory authority. See Franklin v. Gwinnett
Cty. Pub. Sch., 503 U.S. 60, 70–71 (1992) (“The general rule
. . . is that absent clear direction to the contrary by Congress,
the federal courts have the power to award any appropriate
relief in a cognizable cause of action brought pursuant to a
federal statute.”). When a court orders vacatur, it sets aside
or invalidates an agency decision or order. See Action on
Smoking & Health v. C.A.B., 713 F.2d 795, 797 (D.C. Cir.
1983) (per curiam) (“To vacate . . . means ‘to annul; to
cancel or rescind; to declare, to make, or to render, void; to
defeat; to deprive of force; to make of no authority or
validity; to set aside.’” (citation omitted)). The scope of our
vacatur is determined, in part, by our jurisdiction in each
controversy.
Here, our vacatur and remand of the 2013 registration did
not impact Dow’s original application for sulfoxaflor. In
Pollinator I, the petitioners requested that we vacate the
registration. 806 F.3d at 528. Indeed, they could not have
asked us to vacate the application because we had
jurisdiction only to review “the validity of any order issued
by the [EPA] following a public hearing.” 7 U.S.C.
§ 136n(b). An application is not such an order. Our decision
states several times that we were vacating registration but
never mentions the fate of the application. See, e.g.,
CENTER FOR FOOD SAFETY V. REGAN 25
Pollinator I, 806 F.3d at 522, 528. And we asked only that
“EPA to obtain further studies and data regarding the effects
of sulfoxaflor on bees.” Id. at 533. We did not ask EPA to
instruct Dow to resubmit its application. So, our vacatur and
remand of the 2013 registration invalidated only the
sulfoxaflor registrations.
But EPA’s argument that it treated the original
application as pending is unsupported by the record.
Following our vacatur and EPA’s final cancellation order in
2015, Dow “amended the remanded sulfoxaflor application
to add restrictions that eliminated exposure to pollinators.”
The amended application did not include indeterminate
blooming crops, which are attractive to bees. EPA
“reevaluated this application,” asked for notice and comment
on it, and then reregistered sulfoxaflor with its limitations on
usage. Therefore, Dow did not leave the application pending
in its original form. 6
EPA also points to no authority that permits the agency
to keep an incomplete application pending. By EPA
regulation, if EPA determines that an application for
registration is incomplete, and the applicant fails to complete
it, the agency will “terminate any action on such application,
. . . treat the application as if it had been withdrawn by the
6
On appeal, EPA argues that it took additional comment in 2016 under
its “transparency policy” and not under 7 U.S.C. § 136a(c)(4). But the
agency’s record citation does not prove or disprove its assertion. We
cannot rely on EPA’s representation because it did not rely on itself when
issuing the registration. See Nat’l Fam. Farm Coal., 966 F.3d at 917;
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983) (“We may not supply a reasoned basis for the
agency’s action that the agency itself has not given.” (quoting SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947))).
26 CENTER FOR FOOD SAFETY V. REGAN
applicant,” and “[a]ny subsequent submission relating to the
same product must be submitted as a new application.” 40
C.F.R. § 152.105.
We thus conclude that EPA cannot avoid further public
scrutiny by relying on the 2010 application to support the
sulfoxaflor registration amendments.
B. Dow’s request to add indeterminate blooming
crops and remove restrictions from the already-
registered uses triggered notice and comment
under FIFRA.
We next consider whether the vacated uses that Dow
requested trigger notice and comment under FIFRA. EPA’s
actions are not governed by the Administrative Procedure
Act’s notice and comment requirements but by the
procedures set forth in FIFRA. Neither FIFRA nor its
implementing regulations set forth procedures for the
remand. See 7 U.S.C. § 136n. EPA thus must provide notice
and comment only where required by FIFRA.
“As always, we begin with the text of the statute.”
Friends of Animals v. U.S. Fish & Wildlife Serv., 879 F.3d
1000, 1003 (9th Cir. 2018) (quoting Limtiaco v. Camacho,
549 U.S. 483, 488 (2007)). FIFRA requires EPA to
“promptly” publish in the Federal Register “a notice of each
application for any pesticide if it contains any new active
ingredient or if it would entail a changed use pattern.” 7
U.S.C. § 136a(c)(4). EPA’s position is that the public has
no right to know about Dow’s request to remove the
CENTER FOR FOOD SAFETY V. REGAN 27
restrictions because the public received notice of Dow’s
original application from nine years ago. We disagree. 7
The record does not explain how Dow went about
requesting that EPA add the cancelled uses back to the 2016
sulfoxaflor registration. At oral argument, Dow pointed to
its 2010 application, but—as we just explained—the
application was not pending in its original form. When we
pressed Dow about how it actually requested that EPA add
back the indeterminate blooming crops and remove the
restrictions to the 2016 sulfoxaflor registration, it did not
know the answer.
So, we look to the regulations for ways in which Dow
could have asked EPA to add the cancelled uses back. There
are three ways, and all require notice and comment. The first
two ways were for Dow to submit a new application, 40
C.F.R. § 152.42, or an application for amended registration,
id. at § 152.44 (to relabel the pesticide to include more uses).
Both would have triggered EPA’s notice and comment
obligations if the cancelled uses entailed “new use[s].” Id.
at § 152.102. In this context, “new use” means, in part: “Any
additional use pattern that would result in a significant
increase in the level of exposure, or a change in the route of
exposure, to the active ingredient of man or other
7
EPA also argues that the public does not have a right to notice and
opportunity for comment on the new court-ordered Tier 2 studies. We
agree. FIFRA typically does not require new notice and comment every
time the agency receives new data, see 7 U.S.C. § 136a(c)(4), but Dow
did not merely submit additional data to support an existing application,
see, e.g., 40 C.F.R. § 152.92 (“An applicant may demonstrate
compliance for a data requirement by submitting a valid study that has
not previously been submitted to the Agency.”). Instead, the company
submitted to EPA the court-ordered Tier 2 studies and requested that
EPA amend the sulfoxaflor registration.
28 CENTER FOR FOOD SAFETY V. REGAN
organisms.” Id. § 152.3. Alternatively, but unlikely, Dow
could have claimed that the cancelled uses were a minor
modification under § 152.46(a)(1). That subsection, too,
would have required EPA to conduct notice and comment.
Id. EPA does not represent that it waived the application
requirement, see 40 C.F.R. § 152.44, so the question before
us is whether the amended uses are “new uses.”
We hold that Dow’s request to add back indeterminate
blooming crops and remove restrictions on already-
registered uses falls under “new use.” Indeterminate
blooming crops are attractive to bees and thus were not
included in the registration until Dow submitted more data
on the potential effects on bees. Similarly, Dow added the
restrictions to labels because they “eliminated exposure to
pollinators.” Removing those restrictions and adding bee-
attractive crops would therefore cause a “significant increase
in the level of exposure” of sulfoxaflor to pollinators. 40
C.F.R. § 152.3. Thus, no matter how Dow asked EPA to
remove restrictions on already-registered crops and add
indeterminate blooming crops back, the agency should have
allowed the public to weigh in.
We reject EPA’s argument that Dow’s request contained
no new uses because those uses were previously registered.
Cf. Auer v. Robbins, 519 U.S. 452, 462 (1997) (explaining
that courts may defer to an interpretation made in a legal
brief so long as it is not a “post hoc rationalization advanced
by an agency seeking to defend past agency action against
attack” (cleaned up)). EPA documents repeatedly refer to
the 2019 amendments as “new uses.” For example, the
agency stated in its decision memorandum that it was
“unconditionally granting new uses for sulfoxaflor under
section 3(c)(5) of FIFRA.” Those uses included
indeterminate blooming crops. While EPA distinguished
CENTER FOR FOOD SAFETY V. REGAN 29
between “entirely new uses” and “new uses that had been
previously granted and vacated,” the regulations do not
permit this distinction. See 40 C.F.R. § 152.3. 8 We hold that
EPA had to conduct notice and comment on the addition of
indeterminate blooming crops and removal of the
restrictions in the 2019 registration. 9
III. Vacatur of the 2019 sulfoxaflor registration is not
warranted.
EPA admits to having made two errors and requests
voluntary remand to comply with the ESA and FIFRA. First,
as discussed, EPA acknowledges that it has not made an
effects determination as required by the ESA. See 16 U.S.C.
§ 1536(a)(2). 10 The agency filed two declarations
8
When evaluating an application for registration of a pesticide involving
use of the pesticide that EPA has suspended or cancelled, the agency
must follow the regulations in “subpart D of part 164,” which sets forth
rules for reversing or modifying a suspension or cancellation order. 40
C.F.R. §§ 152.100(b); 164.130. EPA issued a final cancellation order
under section 6 of FIFRA for all relevant sulfoxaflor registrations.
Therefore, we ordered supplemental briefing asking the parties whether
EPA should have followed the regulations for reregistering uses that
were subject to a cancellation order. Dk. 161. But we do not need
address this issue because the parties have waived any argument that
EPA was required to follow subpart D of part 164. See WildEarth
Guardians v. EPA, 759 F.3d 1064, 1072 n.3 (9th Cir. 2014).
9
Because we find that EPA procedurally violated FIFRA, we do not
reach whether EPA’s registration decision is supported by substantial
evidence.
10
At oral argument, EPA’s counsel represented that the agency would
complete an effects determination by the end of Spring 2022. On July
19, 2022, however, EPA filed a Federal Rule of Appellate Procedure
28(j) letter notifying the court that is has completed a draft effects
determination, but it still needed at least six months to finalize it.
30 CENTER FOR FOOD SAFETY V. REGAN
acknowledging its responsibilities under the statute and
setting forth a timeline for the agency to complete an effects
determination. Second, EPA concedes that its rationale
“could be more detailed” when explaining third-party
economic costs. On remand, EPA offers to “explicitly
address why the economic and social costs of the registration
amendments, on balance support registration.” Petitioners,
however, request that this court vacate the 2019 sulfoxaflor
registration, which both the agency and Dow oppose.
We leave invalid agency action in place “‘when equity
demands’ that we do so.” Pollinator I, 806 F.3d at 532(quoting Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392,
1405 (9th Cir. 1995)). When determining whether an
agency’s action should remain in effect on remand, we apply
a two-factor balancing test first outlined in the D.C. Circuit’s
Allied-Signal decision: We weigh the seriousness of the
agency’s errors against “the disruptive consequences of an
interim change that may itself be changed.” Cal. Cmtys.
Against Toxics v. EPA, 688 F.3d 989, 992 (9th Cir. 2012)
(quoting Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm’n,
988 F.2d 146, 150–51 (D.C. Cir. 1993)). 11
11
CFS urges us to follow Standing Rock Sioux Tribe v. U.S. Army Corps
of Engineers, 985 F.3d 1032 (D.C. Cir. 2021), but this court is not bound
by that case, and we decline to adopt the rule that “[w]hen an agency
bypasses a fundamental procedural step, the vacatur inquiry asks not
whether the ultimate action could be justified, but whether the agency
could, with further explanation, justify its decision to skip that
procedural step.” 985 F.3d at 1052. We further question whether
Standing Rock represents a new standard for vacatur even in the D.C.
Circuit, as argued by CFS. Since Standing Rock has been issued, the
D.C. Circuit has repeatedly relied on the Allied-Signal test. See, e.g., Am.
Pub. Gas Ass’n v. U.S. Dep’t of Energy, 22 F.4th 1018, 1030 (D.C. Cir.
CENTER FOR FOOD SAFETY V. REGAN 31
A. EPA’s errors do not warrant vacatur because the
agency could likely adopt the same registration
decision on remand.
When weighing the seriousness of the errors, we look to
“whether the agency would likely be able to offer better
reasoning or whether by complying with procedural rules, it
could adopt the same rule on remand, or whether such
fundamental flaws in the agency’s decision make it unlikely
that the same rule would be adopted on remand.” Pollinator
I, 806 F.3d at 532; see also Nat’l Fam. Farm Coal., 966 F.3d
at 929–30.
EPA’s failure to comply with the ESA—while serious—
does not warrant vacatur based on the record before us. Our
case is analogous to Ctr. for Biological Diversity. See 861
F.3d at 188. In that case, EPA failed to make an effects
determination for cyantraniliprole. Id. The D.C. Circuit,
however, did not vacate EPA’s registration because
“[n]otwithstanding the EPA’s failure to make an effects
determination and to engage in any required consultation, it
did not register [the pesticide] in total disregard of the
pesticide’s potential deleterious effects.” Id. Here, too, EPA
did not greenlight sulfoxaflor in “total disregard” of its
potential harm. The agency conducted a new ecological risk
assessment, which “evaluate[d] the likelihood that exposure
to one or more pesticides may cause harmful ecological
effects,” based on the new data that Dow submitted. EPA
concluded that sulfoxaflor has a better ecological profile
than other main alternative pesticides—similar to the
pesticide in Ctr. for Biological Diversity. See id. at 189.
2022); Long Island Power Auth. v. FERC, 27 F.4th 705, 717 (D.C. Cir.
2022).
32 CENTER FOR FOOD SAFETY V. REGAN
EPA conducted a hazard comparison for sulfoxaflor that
compared the toxicity of sulfoxaflor to six alternative
registered pesticides. The agency found that “[s]ulfoxaflor’s
toxicity to non-target organisms is generally much lower
than the toxicity of [its] alternatives and in some cases by
many orders of magnitude lower.” CFS asserts the hazard
comparison is insufficient because it compared sulfoxaflor
only with “other extremely toxic insecticides.” The
comparison was not, however, “cherry picked.” EPA
explained that it chose those six pesticides because they “are
the most commonly used broad-spectrum insecticides
currently registered for the proposed uses of sulfoxaflor and
they account for 65% of the total acreage treated in those
crops targeting sulfoxaflor’s target pest spectrum.” Contrary
to CFS’s claim, the agency did not intentionally omit other
known, less toxic alternatives to “control pests for the same
crops” from its hazard comparison.” Some of these
alternatives have problems, such as causing aphid flares and
killing natural predators like lady bugs. Despite our serious
concern that EPA has continued to flout the ESA, we
ultimately conclude that EPA could maintain the same
registration decision once it makes an effects determination
and engages in any required consultation. See Pollinator I,
806 F.3d at 532.
EPA’s failure to comply with FIFRA’s notice and
comment requirement also does not warrant vacatur,
“especially in light of” EPA’s “substantial compliance” with
FIFRA. Nat’l Fam. Farm Coal., 966 F.3d at 929. Notice
and comment goes to the heart of agency accountability and
assists judges with reviewing agency action. When
considering whether notice and comment can cure the
defect, the “touchstone” of the court’s inquiry is thus the
“agency’s open-mindedness, because the concern is that an
CENTER FOR FOOD SAFETY V. REGAN 33
agency is not likely to be receptive to suggested changes
once the agency puts its credibility on the line in the form of
final rules.” Advocs. for Highway & Auto Safety v. Fed.
Highway Admin., 28 F.3d 1288, 1292 (D.C. Cir. 1994)
(internal quotation marks omitted). We do not, however,
require vacatur whenever an agency breaches its notice and
comment obligations. Thus, where an agency is likely to be
able to offer better reasoning and adopt the same rule on
remand, vacatur for failure to provide notice and comment is
not required. See Idaho Farm Bureau Fed’n, 58 F.3d at1401–02 (declining to vacate where the agency failed to
provide the public with the opportunity to review a report,
while acknowledging that the procedural error was
significant).
Though EPA failed to provide notice of Dow’s request
to amend the sulfoxaflor registrations, its ecological risk
assessment and decision memorandum reflect that the
agency considered sulfoxaflor’s impact on bees. See
Daimler Trucks N. Am. LLC v. EPA, 737 F.3d 95, 103 (D.C.
Cir. 2013) (vacating where the “EPA entirely failed to
provide notice of its intention to amend its regulation . . . and
offered no persuasive evidence that possible objections to its
final rule have been given sufficient consideration” (cleaned
up)). And Petitioners’ objections to sulfoxaflor have not
changed since its initial registration. See generally
Pollinator I, 806 F.3d 520.
EPA therefore could likely “adopt the same rule on
remand.” Id. at 532. 12 In Pollinator I, we vacated EPA’s
12
In EPA’s 28(j) letter, it also notified the court that it is working with
Dow on mitigating measures for the 2019 sulfoxaflor registration. But
our review is limited to the record before us. See San Luis & Delta-
Mendota Water Auth. v. Locke, 776 F.3d 971, 992–93 (9th Cir. 2014).
34 CENTER FOR FOOD SAFETY V. REGAN
sulfoxaflor registration because, upon further studies, the
agency could decide to change the maximum application rate
or find that it could not be “registered at all because of its
effects on brood development and long-term colony
strength.” Id. at 532–33. Six years later, EPA has received
all necessary data and found no negative effect on brood
development or long-term colony strength.
Petitioners’ assertions that EPA lacks enough data to
support its registration decision are without merit. First,
there are not “critical shortcomings” in Dow’s new tunnel
studies. Dow submitted three new Tier 2 tunnel studies for
EPA review. “Importantly, these new tunnel studies
evaluated long-term effects on colonies at the proposed
application rates of sulfoxaflor, thereby addressing
limitations identified in the previous 6 tunnel studies.” The
studies monitored hive strength, brood development, and
colonies’ ability to survive through winter (called
“overwintering”). EPA’s risk assessment concluded that
sulfoxaflor “did not result in long-term effects on colonies,
as indicated by colony strength and brood development.”
PSC disputes this conclusion by arguing that EPA could
not assess sulfoxaflor’s effect on colonies’ ability to survive
through winter. But EPA did assess overwintering. While
two of the studies were inconclusive because the control
group (the group not sprayed with sulfoxaflor) failed to
overwinter in adequate numbers, the third study determined
that low application rates of sulfoxaflor did not affect
overwintering. And one of the new Tier 2 colony feeding
studies successfully examined overwintering. EPA was
satisfied with its findings and continues to represent that
there is no need for further overwintering studies. Thus,
“where, as here, a court reviews an agency action
‘involv[ing] primarily issues of fact,’ and where ‘analysis of
CENTER FOR FOOD SAFETY V. REGAN 35
the relevant documents requires a high level of technical
expertise,’ we must ‘defer to the informed discretion of the
responsible federal agencies.’” Sierra Club v. EPA, 346
F.3d 955, 961 (9th Cir. 2003) (alteration in original) (quoting
Marsh v. Oregon Nat’l Res. Council, 490 U.S. 360, 377
(1989)).
EPA also relied on other data to inform its conclusion on
the long-term effects of sulfoxaflor. The agency found that
“no long-term colony-level effects were observed prior to
overwintering and submitted studies from other insecticides
that act on the [same] receptor indicate that effects on
colonies post overwintering are not more sensitive than those
expressed prior to overwintering.” It thus concluded that
“the relatively short duration (3 days or less) of forager
mortality and quantifiable residues of sulfoxaflor in pollen
and nectar are not suggestive of long-term exposure.”
Second, PSC challenges the new colony feeding studies.
Dow submitted two new colony feeding studies, which
evaluated effects of oral exposure to sulfoxaflor. EPA found
one of the studies acceptable for quantitative use in risk
assessment and the other “supplemental (qualitative) due to
uncertainties associated with actual exposures that hives
received during the study.” The agency concluded that there
is “a low potential for colony-level risks to honey bees
indic[a]ted from oral exposure to contaminated pollen and
nectar for canola, corn, cotton, pome fruit, and sorghum.”
For the remaining crops, EPA found “a potential for colony-
level risk” when “conservatively assuming that bees feed
exclusively on the treated crop.”
PSC focuses on the “potential for colony level risk,” but
their framing of the data is inappropriate. EPA did not find
that there is an “adverse effect on the entire colony if the
36 CENTER FOR FOOD SAFETY V. REGAN
colony forages for up to 10 days on crops.” The colony
feeding studies were based on a ten-day oral exposure to
sulfoxaflor, and the ecological risk assessment found:
If honey bee colonies were to become
exposed to sulfoxaflor for periods lasting
substantially longer than 10 days and such
longer exposures led to greater sensitivity of
colonies, there is a potential for the oral Tier
II risk assessments results to underestimate
colony-level risk to honey bees.
Longer exposure could result from “a potential for repeated
applications of sulfoxaflor to honey-bee attractive crops
during or near bloom” and honeybee colonies pollinating
multiple crops in success. Since honeybee colonies pollinate
multiple crops in succession, this could “potentially” expose
the bees to sulfoxaflor “for combined time periods lasting
longer than 10 days.”
PSC also omits a key assumption. EPA’s risk
assessment is conservative because it assumes that bees feed
exclusively on treated crop. Bees in the Tier 2 studies were
fed a pesticide-treated diet, so the results of those studies
reflect exposures that are higher than that expected from real
world conditions. This is true of both the feeding and tunnel
studies. And for the tunnel studies EPA noted that “the
exposure of bees within the tunnel is considered a
reasonable worst case scenario since applications were
made while bees were actively foraging on the treated crop
over the duration of the exposure (7-10 days) and bees were
forced to forage only on treated crop.” Therefore, any
potential risk is based on a conservative assessment.
Third, EPA did not “entirely fail” to assess the risk to
non-honeybees. Nat’l Fam. Farm Coal. v. EPA, 960 F.3d
CENTER FOR FOOD SAFETY V. REGAN 37
1120, 1124–25 (9th Cir. 2020). Consistent with EPA’s 2014
Guidance, the agency analyzed the risk to non-honeybees by
using honeybee data as a surrogate for non-honeybees
because of limits in testing. Risk assessments focus on
honeybees because (1) “honey bees are widely recognized as
the most important managed pollinator in most regions of the
world . . .” and (2) “standardized test methods for evaluating
exposure and effects of chemicals in a regulatory context are
more developed with the honey bee compared to non-Apis
bees . . . although recent progress has been made on test
method development for bumble bees.” “We defer to agency
expertise on methodology issues, unless the agency has
completely failed to address some factor[,] consideration of
which was essential to [making an] informed decision.”
Brower v. Evans, 257 F.3d 1058, 1067 (9th Cir. 2001)
(second alteration in original) (internal quotation marks).
And a “reasonable mind might accept” EPA’s reliance on
honeybee studies “as adequate to support a conclusion” that
sulfoxaflor does not pose “unreasonable adverse effects on
the environment.” Nat. Res. Def. Council v. EPA, 735 F.3d
873, 877 (9th Cir. 2013).
Finally, contrary to PSC’s assertion, EPA’s decision to
waive Tier 3 field testing was reasonable. EPA may waive
data requirements because they “will not always be
appropriate for every product.” 40 C.F.R. § 158.45(a). The
agency explained that, in some cases, Tier 3 studies have
limited utility because “there has been difficulty in
controlling the extent to which free-foraging bees utilize the
treated crops.” The agency’s 2014 and 2016 guidance
therefore “narrowed and clarified” when Tier 3 testing is
recommended. EPA now recommends Tier 3 testing only
“in situations where important uncertainties or risk
hypotheses could not be adequately addressed by data from
38 CENTER FOR FOOD SAFETY V. REGAN
lower tier assessments.”
For its evaluation of sulfoxaflor, EPA concluded that
Tier 3 studies would “not add meaningful input to [its]
conclusions.” Dow’s Tier 2 semi-field and residue studies
were “sufficient to characterize colony-level risks to honey
bees with an appropriate level of confidence.” 13
EPA, though, admits that it “could explain more clearly
why harm to beekeepers is not likely from the uses of
sulfoxaflor authorized by the 2019 registration
amendments.” In its decision, EPA acknowledged the
economic value that beekeeping adds to agriculture each
year and stated that the agency “believes that sulfoxaflor has
less of an impact on bees than its main alternatives.” But it
did not identify the potential economic cost to beekeepers.
EPA points to a response it made in 2016 to public
comments as proof that it considered the economic cost to
beekeepers. The agency’s response, however, largely
repeats its conclusion in the 2019 decision memorandum and
could not have addressed beekeeper costs based on the new
Dow studies submitted in 2018.
While EPA was aware of the third-party costs and yet
failed to address them in its analysis, see Nat’l Fam. Farm
Coal., 960 F.3d at 1142–43, this is not an error serious
enough to warrant vacatur because the registration already
has precautions for beekeepers. EPA found that, when
sulfoxaflor was directly sprayed on foraging honeybees, “the
13
Pollinator full-field study designs “have varied considerably and
overall their utility has been limited” due to “confounding influence of
other stressors including disease, pests, poor nutrition, climate, other
pesticides; insufficient statistical power due to practical limitations to
replicating study sites; insufficient characterization of exposure; [and]
limited ability to extrapolate results to other crops or other regions.”
CENTER FOR FOOD SAFETY V. REGAN 39
impacts of sulfoxaflor [were] short-lived (3 days or less) and
long-term effects on the colonies [were] not indicated.”
Even so, the sulfoxaflor product labels advises growers of
bee-attractive crops that “[n]otifying known beekeepers
within 1 mile of the treatment area 48 hours before the
product is applied will allow them to take additional steps to
protect their bees” and that “limiting application to times
when managed bees and native pollinators are least active,
e.g. 2 hours prior to sunset or when the temperature is below
50°F at the site of application will minimize risk to bees.” A
more thorough explanation of the costs to beekeepers would
cure the defect on remand.
In sum, the seriousness of EPA’s errors does not support
vacatur.
B. The possible environmental harm and disruptive
impact of vacatur warrant leaving the faulty
registration undisturbed.
Under the second prong of the Allied-Signal test, “we
consider whether vacating a faulty rule could result in
possible environmental harm,” Pollinator I, 806 F.3d at 532,
and the disruptive impact of vacatur, Cal. Cmtys. Against
Toxics, 688 F.3d at 992.
Remand without vacatur here maintains “the enhanced
protection of the environmental values covered by [the
registration]” because sulfoxaflor has a more favorable
toxicological profile compared to alternatives. Ctr. for
Biological Diversity, 861 F.3d at 188; see Idaho Farm
Bureau Fed’n, 58 F.3d at 1405–06. As discussed above,
“[s]ulfoxaflor’s toxicity to non-target organisms is generally
much lower than the toxicity of these alternatives and in
some cases by many orders of magnitude lower.” While
EPA could not make a “full comparison of honey bee
40 CENTER FOR FOOD SAFETY V. REGAN
toxicity for sulfoxaflor and its main alternatives,” it looked
at toxicity from contact exposure and the dissipation rate.
The “residual toxicity time” (RT25) is the time that the
pesticide remains acutely toxic and results in 25% mortality.
And beekeepers have shared that “RT25” data on pesticide
persistence are “one of the most important pieces of
information for the protection of honey bees.” Based on the
data, EPA concluded that the dissipation rate for sulfoxaflor
is significantly shorter than its alternatives. 14
To reevaluate sulfoxaflor’s ecological impact, EPA
conducted a second ecological risk assessment and benefits
assessment for the 2019 registration amendments. This
“significant expenditure of public resources . . . would be
unnecessarily wasted if we affirm the decision to set aside
the [registration] when a more closely tailored remedy is
available.” Idaho Farm Bureau Fed’n, 58 F.3d at 1405–06;
cf. Cal. Cmtys. Against Toxics, 688 F.3d at 994 (“While we
have only ordered remand without vacatur in limited
circumstances, if saving a snail warrants judicial restraint,
. . . so does saving the power supply.”).
Finally, vacatur is a disruption to the agricultural
industry. “[T]here is evidence of potentially serious
disruption if a pesticide that has been registered for over
[many years] can no longer be used.” Nat’l Fam. Farm
Coal., 966 F.3d at 929–30. And vacating the sulfoxaflor
registration would disrupt many agricultural sectors, which
could cause “yield quantity losses.”
14
Sulfoxaflor remains acutely toxic for less than 3 hours as compared to
8 hours (imidacloprid), more than 24 hours (chlorpyrifos), 24–48 hours
(bifenthrin), and 54 hours (lambda-cyhalothrin).
CENTER FOR FOOD SAFETY V. REGAN 41
We thus reluctantly remand without vacatur for EPA to
make an effects determination for sulfoxaflor, solicit
additional notice and comment for the sulfoxaflor
amendments, and address the economic costs to beekeepers
in determining whether the registration will cause
“unreasonable adverse effects.” 7 U.S.C. §§ 136a(a); 136(l).
We “expect and urge EPA to move promptly on remand.”
Nat’l Fam. Farm Coal., 966 F.3d at 930. 15
EPA should act immediately to address these
deficiencies and complete the ESA “effects” determination
and consultation requirements, as well as the FIFRA notice
and comment obligation, within 180 days of the mandate
being issued in this case. See In re Core Commc’ns, Inc.,
531 F.3d 849, 861–62 (D.C. Cir. 2008).
CONCLUSION
Petitioner CFS’s petition for review is GRANTED in
part and DENIED in part. Petitioner PSC’s petition for
review GRANTED in part and DENIED in part. The case
is REMANDED WITHOUT VACATUR to EPA. 16
15
The partial dissent argues that we should vacate based on EPA’s failure
to abide by the law. There is indeed a strong case for vacatur, given
EPA’s history of noncompliance. But we ultimately believe that a
remand without a vacatur—even if it appears to allow “EPA to escape[]
any serious consequence”—is appropriate under the unique facts here
because a vacatur would likely harm the environment more and disrupt
the agricultural industry. Cf. Ctr. for Biological Diversity, 861 F.3d at188–89 (remanding without vacatur).
16
The motions for leave to file amicus curiae filed by (1) Conservation
Law Foundation, et al. (Case No. 19-72109, Dkt. 41 and Case No. 19-
72280, Dkt. 41), (2) National Cotton Council, et al. (Case No. 19-72109,
Dkt. 93 and Case No. 19-72280, Dkt. 91), and (3) CropLife America
42 CENTER FOR FOOD SAFETY V. REGAN
MILLER, Circuit Judge, concurring in part and dissenting in
part:
The court correctly holds that the Environmental
Protection Agency acted unlawfully by failing to engage in
consultation or provide public notice and an opportunity to
comment before it approved the expanded use of sulfoxaflor.
But rather than set aside the EPA’s action, the court leaves it
in place, gives the EPA a disapproving wag of a finger, and
asks the agency to spend the next six months trying harder.
I would instead vacate the order under review.
When a court determines that an agency has erred, the
normal practice is to vacate the agency’s action. “[V]acatur
of an unlawful agency action normally accompanies a
remand.” Alsea Valley All. v. Department of Com., 358 F.3d
1181, 1185 (9th Cir. 2004); see United Steel v. Mine Safety
& Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019)
(“The ordinary practice is to vacate unlawful agency
action.”). Although we have held that a court has discretion
to remand without vacating, doing so is appropriate only in
“limited circumstances.” California Cmtys. Against Toxics
v. EPA, 688 F.3d 989, 994 (9th Cir. 2012). Our discretion is
guided by two factors: “the seriousness of the order’s
deficiencies (and thus the extent of doubt whether the agency
chose correctly) and the disruptive consequences of an
interim change that may itself be changed.” Allied-Signal,
Inc. v. NRC, 988 F.2d 146, 150–51 (D.C. Cir. 1993) (quoting
International Union, United Mine Workers of Am. v. Federal
Mine Safety & Health Admin., 920 F.2d 960, 967 (D.C. Cir.
1990)); see California Cmtys. Against Toxics, 688 F.3d at
(Case No. 19-72109, Dkt. 95 and Case No. 19-72280, Dkt. 93) are
GRANTED.
CENTER FOR FOOD SAFETY V. REGAN 43
994 (adopting the Allied-Signal test). Here, both factors
counsel in favor of vacatur.
I begin with the agency’s errors. The court is unanimous
in holding that the EPA violated the Endangered Species Act
of 1973 (ESA), 16 U.S.C. § 1531 et seq., and the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7
U.S.C. § 136 et seq., in three ways.
First, the ESA requires federal agencies to engage in
“consultation” to ensure that their actions are not “likely to
jeopardize” endangered or threatened species or “result in
the destruction or adverse modification” of the “critical”
habitat of such species. 16 U.S.C. § 1536(a)(2). The
regulations elaborate on that requirement by specifying that
an agency must determine whether its proposed action “may
affect a listed species or critical habitat.” 50 C.F.R.
§ 402.14(a). If the agency determines that the action would
have no effect, it need not proceed with further ESA
analysis. Id. § 402.14(b)(1). But if it determines that the
action might have such an effect, then “formal consultation
is required.” Id. § 402.14(a). In this case, the EPA did not
make the required determination before it approved the
amended registration of sulfoxaflor in 2019, nor did it
engage in consultation. As the EPA now concedes, its failure
to consult violated the ESA.
Second, FIFRA requires the EPA to publish “a notice of
each application for any pesticide if it contains any new
active ingredient or if it would entail a changed use pattern,”
and to allow a period of at least 30 days for public comment
on the application. 7 U.S.C. § 136a(c)(4). Although the EPA
provided public notice after the initial application to register
sulfoxaflor, we vacated the registration that resulted from
that application. Pollinator Stewardship Council v. EPA,
44 CENTER FOR FOOD SAFETY V. REGAN
806 F.3d 520, 533 (9th Cir. 2015). Thus, as the court
explains, the EPA was required to undertake notice and
comment before it approved the 2019 amended registration.
It did not do so.
Third, FIFRA permits the EPA to register a pesticide
only if it determines that the use of the pesticide will not have
“unreasonable adverse effects on the environment,” 7 U.S.C.
§ 136a(c)(5)(D), which the statute defines to include “any
unreasonable risk to man or the environment, taking into
account the economic, social, and environmental costs and
benefits of the use of any pesticide,” id. § 136(bb). The
statute thus requires the agency to consider “risks of
economic and social costs.” National Fam. Farm Coal. v.
EPA, 960 F.3d 1120, 1142 (9th Cir. 2020). But, in part as a
result of its failure to provide notice and allow for public
comment, the EPA did not discuss the costs that registering
sulfoxaflor might have on commercial beekeepers. The EPA
does not quite concede that it erred, but it does acknowledge
that its “rationale describing why the amendments satisfy the
FIFRA standard could be more robust.”
The agency’s errors were serious. We have described the
ESA’s consultation requirement as the “heart of the ESA.”
Karuk Tribe of Cal. v. United States Forest Serv., 681 F.3d
1006, 1019 (9th Cir. 2012) (en banc) (quoting Western
Watersheds Project v. Kraayenbrink, 632 F.3d 472, 495 (9th
Cir. 2011)). An agency’s failure to comply with it “cannot
be considered a de minimis violation.” Thomas v. Peterson,
753 F.2d 754, 763 (9th Cir. 1985), abrogated on other
grounds as recognized by Cottonwood Env’t L. Ctr. v.
United States Forest Serv., 789 F.3d 1075, 1092 (9th Cir.
2015). Likewise, notice-and-comment procedures are
critical “to ensure fairness to affected parties” and “to give
affected parties an opportunity to develop evidence in the
CENTER FOR FOOD SAFETY V. REGAN 45
record to support their objections to the rule and thereby
enhance the quality of judicial review.” International Union,
United Mine Workers of Am. v. Mine Safety & Health
Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005). An agency’s
“[f]ailure to provide the required notice and to invite public
comment” is therefore “a fundamental flaw that ‘normally’
requires vacatur of the rule.” Heartland Reg. Med. Ctr. v.
Sebelius, 566 F.3d 193, 199 (D.C. Cir. 2009) (quoting Sugar
Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 97
(D.C. Cir. 2002)).
These deficiencies are not merely technical or formal;
they raise significant doubts about the EPA’s choices. See
Allied-Signal, 988 F.2d at 150. It is the EPA’s job, not ours,
to assess the risks of a pesticide. But it is difficult for us to
know whether the EPA did so correctly when its errors
obscure our view of the alternatives. I do not share the
court’s confidence that the EPA’s violations could not have
made a difference.
The record reveals that the EPA overlooked important
risks. A Tier II ecological assessment found “a potential for
colony-level risk” to honeybees from exposure to sulfoxaflor
for periods longer than ten days. Longer exposure is a real
possibility because growers of blooming crops like citrus
and strawberries may repeatedly apply sulfoxaflor and
because some colonies pollinate multiple crops in
succession. The court dismisses these findings largely
because the study “conservatively assum[ed] that bees feed
exclusively on the treated crop.” But the potential exposure
extends beyond the study’s assumptions, and the EPA
cautioned that the potential for risk remained even “at lower
dietary concentrations.” The conservative study design thus
does not erase a legitimate cause for concern. See Pollinator
46 CENTER FOR FOOD SAFETY V. REGAN
Stewardship Council, 806 F.3d at 531; NRDC v. EPA, 735
F.3d 873, 883–84 (9th Cir. 2013).
The record also suggests risks for other species of bees.
As compared to honeybees, many non-honeybees are
smaller, so they are exposed to a higher dose of pesticide
from a given spray. In addition, most are solitary, so as the
EPA acknowledged, the death of a non-honeybee “would
have a much greater consequence on reproduction.” The
court accepts the EPA’s analysis of the risks to non-
honeybees because the agency did not “entirely fail” to
assess them. But total ignorance is not necessary for vacatur;
an erroneous or incomplete assessment will also do. See
Pollinator Stewardship Council, 806 F.3d at 532–33. That
the EPA did not completely neglect the risks does not mean
the agency would necessarily make the same decision if it
understood them better.
As for beekeepers, the EPA’s approach was one of
thorough disregard. The agency “entirely failed” to assess
the costs they would incur. National Fam. Farm. Coal., 960
F.3d at 1145. The court recognizes the agency’s failure but
excuses it because sulfoxaflor’s labeling advises users that
“[n]otifying known beekeepers . . . before the product is
applied will allow them to take additional steps to protect
their bees.” The labeling does not even inform the
beekeepers directly, let alone hint at what the costs to them
might be. It is not a meaningful substitute for an assessment
of economic harm.
The EPA’s serious errors have raised correspondingly
serious questions about its decision. The unresolved risks to
bees and beekeepers mean that “[o]n remand, a different
result may be reached.” Pollinator Stewardship Council, 806
CENTER FOR FOOD SAFETY V. REGAN 47
F.3d at 533. These deficiencies should lead us to follow the
ordinary course of vacating the agency’s action.
Vacatur would not pose a risk of “disruptive
consequences of an interim change that may itself be
changed.” Allied-Signal, 988 F.2d at 150–51. As the District
of Columbia Circuit has recognized, “a quintessential
disruptive consequence arises when an agency cannot easily
unravel a past transaction in order to impose a new
outcome.” American Great Lakes Ports Ass’n v. Schultz, 962
F.3d 510, 519 (D.C. Cir. 2020); see, e.g., Sugar Cane
Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 97 (D.C.
Cir. 2002) (“The egg has been scrambled and there is no
apparent way to restore the status quo ante.”); Heartland
Reg. Med. Ctr., 566 F.3d at 198 (determining that remand
without vacatur was justified because “vacatur of
the . . . requirement would have raised substantial doubt
about HHS’s ability to recoup payments it made for years
prior to reinstatement of that requirement”). Here, by
contrast, there is little evidence that the “interim change”
created by vacatur of the registration would have disruptive
consequences. The agency has not disbursed funds based on
the registration, nor has anyone taken irreversible actions in
reliance on it.
To be sure, sulfoxaflor offers benefits to the farmers who
use it, and vacatur would make those benefits unavailable
while the agency reconsiders the registration. The
Department of Agriculture submitted a declaration stating
that vacating the registration would disrupt “numerous
agricultural sectors” and increase “the likelihood of yield
quantity losses (for some crops).” Thus, it may be true that
sulfoxaflor is economically beneficial, and it may also be
true, as the EPA suggests, that it is environmentally
beneficial because it displaces older, more hazardous
48 CENTER FOR FOOD SAFETY V. REGAN
pesticides. It is appropriate to view that argument with at
least some skepticism because it is based on an incomplete
record: The costs to beekeepers and the risks to bees are
unknown and may chip away at the claimed benefits,
whether or not they cancel them out. See Pollinator
Stewardship Council, 806 F.3d at 532. But if the EPA’s
factual predicates are valid, they are a reason for Congress
to amend the ESA and FIFRA to make new pesticides easier
to approve. They are not a reason to excuse the EPA’s
decision to ignore the requirements of statutes that are
currently on the books. See National Fam. Farm Coal., 960
F.3d at 1145 (vacating the registration of an herbicide even
though doing so meant that growers would be forced to
purchase alternatives, thus incurring costs “through no fault
of their own”). Had the EPA simply announced at the outset
that it thought sulfoxaflor was so useful that it should be
registered without complying with the statutory procedures,
we would not uphold the agency’s action. But that is the
practical effect of our decision not to vacate the registration.
And that is undoubtedly how the EPA will understand
our ruling. Cf. NRDC, Inc. v. EPA, 489 F.3d 1250, 1264
(D.C. Cir. 2007) (Randolph, J., concurring) (observing that
“[a] remand-only disposition is, in effect, an indefinite stay
of the effectiveness of the court’s decision and agencies
naturally treat it as such”). The EPA has a long history of
violating the ESA by not preparing effects determinations.
Although it says that it is working to remedy its pattern of
noncompliance, it admits that it has a backlog of “[m]any
hundreds of pesticides [that] have been approved and are
available for use that have not undergone ESA review.” In
circumstances such as these, remand without vacatur
“invites agency indifference.” In re Core Commc’ns, Inc.,
531 F.3d 849, 862 (D.C. Cir. 2008) (Griffith, J., concurring);
CENTER FOR FOOD SAFETY V. REGAN 49
see Oglala Sioux Tribe v. NRC, 896 F.3d 520, 537 (D.C. Cir.
2018) (“We have never turned merely to a remand remedy
when an agency refused to adhere to a statutory command in
such an across-the-board fashion.”).
The court recognizes the EPA’s history of
noncompliance, offering a Ciceronian denunciation of the
agency’s behavior: “How long does the agency expect us to
excuse its failure to follow the law?” But unlike Catiline, the
EPA escapes any serious consequence. The answer to the
court’s question, apparently, is “at least until the completion
of the proceedings on remand.”
To its credit, the court acknowledges the bad incentives
created by remand without vacatur. To mitigate those
incentives, the court imposes a time limit on the agency,
mandating that it complete its review within 180 days. That
is an understandable response to the agency’s
procrastination, but it creates a different set of problems. A
court generally “may not, after determining that additional
evidence is requisite for adequate review, proceed by
dictating to the agency the methods, procedures, and time
dimension of the needed inquiry.” Vermont Yankee Nuclear
Power Corp. v. NRDC, Inc., 435 U.S. 519, 544–45 (1978)
(quoting FPC v. Transcontinental Gas Pipe Line Corp., 423
U.S. 326, 333 (1976)); see also Center for Biological
Diversity v. EPA, 861 F.3d 174, 189 n.12 (D.C. Cir. 2017)
(rejecting the plaintiffs’ “request to establish a deadline for
the EPA to conduct its ESA consultation” because “‘[t]he
function of the reviewing court ends when an error of law is
laid bare. At that point the matter once more goes to the
[agency] for reconsideration.’” (quoting FPC v. Idaho
Power Co., 344 U.S. 17, 20 (1952)) (second alteration in
original)). Rather than assume for ourselves the
responsibility for micromanaging the agency’s schedule, I
50 CENTER FOR FOOD SAFETY V. REGAN
would simply vacate its unlawful action and let it determine
how, and at what pace, to proceed.