Center for Biological Diversity v. EPA ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 10, 2022 Decided December 23, 2022
No. 15-1054
CENTER FOR BIOLOGICAL DIVERSITY, ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
BAYER CROPSCIENCE LP,
INTERVENOR
Consolidated with 15-1176, 15-1389, 15-1462, 16-1351
On Petitions for Review of Final Administrative Actions
of the Environmental Protection Agency
Jonathan Evans argued the cause for petitioners. With
him on the briefs were Stephanie M. Parent, George Kimbrell,
and Jason Rylander.
Patrick R. Jacobi, Trial Attorney, U.S. Department of
Justice, argued the cause for respondent. With him on the brief
were Todd Kim, Assistant Attorney General, and Lesley
2
Lawrence-Hammer, Trial Attorney. Paul Cirino, Trial
Attorney, entered an appearance.
Amanda Shafer Berman argued the cause for intervenor-
respondents. With her on the brief were Kirsten L. Nathanson,
David Y. Chung, and Elizabeth B. Dawson. Stanley H.
Abramson, Christopher Landau, and Donald C. McLean
entered appearances.
Before: SRINIVASAN, Chief Judge, PILLARD and RAO,
Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
Opinion concurring in part and dissenting in part filed by
Circuit Judge RAO.
PILLARD, Circuit Judge: Beginning in 2015, the U.S.
Environmental Protection Agency (EPA) registered five
pesticides, thereby clearing them under the Federal Insecticide,
Fungicide and Rodenticide Act (FIFRA) for distribution and
sale in the United States. Pesticides are meant to kill living
things considered to be pests. But they can also be fatal to flora
and fauna that are not their intended targets. The Endangered
Species Act (ESA) applies to any pesticide that may harm
endangered or threatened species or their habitats: Before
registering a pesticide, EPA must consult with the statutorily
specified agencies that have expertise on risks to species’
survival. But for decades EPA routinely skipped that step
when it registered pesticides, including those at issue here.
Even as the agency bypassed its ESA obligations, its backlog
of FIFRA registration requests mounted. The inadequacies of
the registration system have drawn attention across
government, but noncompliance persists. See EPA Br. at 6.
3
Three nonprofit conservation organizations—the Center
for Biological Diversity, the Center for Food Safety, and
Defenders of Wildlife (collectively, Petitioners or the
Conservation Groups)—submitted comments objecting to the
proposed registrations on that ground. After EPA went ahead
and okayed the five registrations, the Conservation Groups
petitioned this court to invalidate them. The parties then jointly
requested that we hold the petitions in abeyance to allow for
settlement negotiations. The parties worked for almost two
years to arrive at the terms of a settlement allowing the
registrations to stand if EPA fulfills core ESA obligations by
agreed deadlines. As a condition of their settlement
agreement’s binding effect, the parties now jointly move for an
Order returning the cases to abeyance until the specified
deadlines to afford EPA time to comply with the parties’
settlement terms.
As it awaited our action on the joint motion, EPA made
progress by meeting its deadline under the settlement to review
the first of the five licensed pesticide ingredients, cuprous
iodide. EPA’s consultation regarding species effects of that
substance led it to add new label specifications limiting its use.
The deadlines for the other four pesticide ingredients remain
pending. Given EPA’s acknowledged failure to comply with
the Endangered Species Act in registering the pesticides at
issue, together with the parties’ settlement agreement and joint
motion, the only issue now before us is whether to enter the
requested Order.
Under the proposed Order, we would hold these cases in
abeyance for the periods the parties have specified to allow
EPA to prepare biological evaluations on each of the disputed
pesticides. If EPA fulfills its obligations under the settlement
(completing two of the biological evaluations by September 30,
2025, and two by September 30, 2027), petitioners will seek
4
voluntary dismissals. The Order says how and when minor
timing adjustments might be made and anticipates that
petitioners may move for attorneys’ fees and costs. That is the
sum of it.
Before deciding whether to enter the requested Order, we
dismiss as moot the challenge to the registration of cuprous
iodide based on the parties’ report that EPA has complied to
their satisfaction with the proposed settlement regarding that
pesticide ingredient. We also hold that Petitioners have
standing to challenge the four remaining registration orders.
We then confirm our authority to afford the type of relief
requested and approve the Order on Consent as voluntary, fair,
adequate, reasonable, and in the public interest.
BACKGROUND
A. Statutory landscape
FIFRA generally precludes the distribution or sale of
pesticide active ingredients or pesticides that contain them
unless EPA has first issued a registration—effectively a license
to market the product as formulated and packaged, with
labeling identifying and limiting how it may be used. 7 U.S.C.
§ 136a(a); see Ctr. for Biological Diversity v. EPA, 861 F.3d
174, 178-79 (D.C. Cir. 2017) (CBD 2017). Applicants for
pesticide registration must give EPA in-depth information
about the product at issue, including its formula, the nature and
results of tests administered on the pesticide, its labeling and
uses, and other supporting data. 7 U.S.C § 136a(c)(1)-(2).
FIFRA directs that EPA “shall register a pesticide” if the
agency determines that:
(A) its composition is such as to warrant the proposed
claims for it;
5
(B) its labeling and other material required to be
submitted comply with the requirements of this
subchapter;
(C) it will perform its intended function without
unreasonable adverse effects on the environment;
and
(D) when used in accordance with widespread and
commonly recognized practice it will not
generally cause unreasonable adverse effects on
the environment.
7 U.S.C. § 136a(c)(5). It is unlawful to use a pesticide in a
manner contrary to its approved labeling. Id. § 136j(a)(2)(G).
EPA may revoke an approved registration or amend its terms,
including by changing specified uses or labeling requirements,
id. § 136d(b), but in the ordinary course EPA is not required to
reconsider a pesticide registration until fifteen years after initial
registration of its active ingredients, id. § 136a(g)(1)(A)(iv).
The Conservation Groups’ petitions sought invalidation of
the disputed FIFRA pesticide registrations as noncompliant
with the ESA. The ESA obligation to consult with designated
federal agencies to determine whether a pesticide’s intended
uses might jeopardize any endangered or threatened species or
habitat is distinct from EPA’s duty under FIFRA itself to avoid
“unreasonable adverse effects on the environment.” 7 U.S.C.
§ 136a(c)(5)(C), (D); see Defs. of Wildlife v. EPA, 882 F.2d
1294, 1299 (8th Cir. 1989). Congress enacted the ESA to
conserve species and their ecosystems, 16 U.S.C. § 1531(b),
and to “halt and reverse the trend toward species extinction,
whatever the cost,” Tenn. Valley Auth. v. Hill, 437 U.S. 153,
184 (1978). Section 7 of the ESA provides that, before any
federal agency (the action agency) takes any action
“authorized, funded, or carried out by such agency” that might
6
affect species that are listed as endangered or threatened under
the ESA or their critical habitat, the agency must consult with
designated federal wildlife services (the listing agencies) to
identify the risks. 16 U.S.C. § 1536(a)(2); see also id.§ 1532(15); 50 C.F.R. § 402.01(b).
The action agency here is EPA because it is responsible
for registering pesticides under FIFRA. The listing agencies
are the National Marine Fisheries Service of the Department of
Commerce and the United States Fish and Wildlife Service of
the Department of the Interior (together, the Wildlife Services).
The Wildlife Services, comprising scientists, policy analysts,
resource managers, and enforcement officers with expertise on
terrestrial and marine-based species and their habitats, “share[]
responsibilities for protecting threatened or endangered species
of fish, wildlife and plants.” In re Am. Rivers & Idaho Rivers
United, 372 F.3d 413, 415 (D.C. Cir. 2004) (footnotes omitted)
(citing 16 U.S.C. § 1533(a)). The parties agree that EPA’s
decision under FIFRA to register an active ingredient to be
used as a pesticide is a federal action subject to the Endangered
Species Act. EPA Br. at 7; Pet. Br. at 7; see 50 C.F.R. § 402.02(defining “action” subject to the ESA to include federal
agencies’ granting of licenses).
The ESA requires every federal agency to “insure that any
action authorized, funded, or carried out by such agency . . . is
not likely to jeopardize the continued existence of any
endangered species or threatened species or result in the
destruction or adverse modification of habitat” that the Wildlife
Services have determined to be critical to those species. 16
U.S.C. § 1536(a)(2); see 50 C.F.R. § 402.01. To that end, the
Act requires a staged process of consultation between action
agencies and the Wildlife Services. See 16 U.S.C. § 1536(a)-
(d). First, before taking any covered action such as a pesticide
registration, the action agency, with assistance from the
7
Wildlife Services, must conduct a threshold biological
assessment. That assessment yields an effects determination
identifying the species, habitats, and geographic areas that may
be present, and setting forth an empirically based judgment
whether the proposed action may affect a listed species or
critical habitat. See 16 U.S.C. § 1536(a)(2), (c)(1); 50 C.F.R.
§§ 402.02 (defining biological assessment), 402.12 (describing
the biological assessment requirement).
An agency whose planned action may have such effect has
an opportunity for informal consultation with the Wildlife
Services to help determine whether formal consultation is
required. See 50 C.F.R. § 402.13; see also 16 U.S.C.
§ 1536(a)(2), (a)(4). Informal consultation also presents an
opportunity for an agency that believes its action is not likely
to affect listed species or critical habitat to seek the Wildlife
Services’ written concurrence to that effect, which, if granted,
satisfies the ESA and obviates the need for formal consultation.
See 50 C.F.R. § 402.13.
If no informal consultation is undertaken or such
consultation is not conclusive, however, formal consultation is
required. See 16 U.S.C. § 1536(a)(2); 50 C.F.R. §§ 402.13(a),
402.14 (describing the formal consultation process). In that
case, the Wildlife Services write a biological opinion using
information in the biological assessment and “the best
scientific and commercial data available,” 50 C.F.R.
§ 402.14(f); accord 16 U.S.C. § 1536(a)(2), to determine
whether the agency action “is likely to jeopardize the continued
existence of listed species or result in the destruction or adverse
modification of critical habitat,” 50 C.F.R. § 402.02 (defining
biological opinion); see also 16 U.S.C. § 1536(b) (describing
the biological opinion’s role in formal consultations). The
biological opinion includes an evaluation of the basis for the
Wildlife Services’ findings; if the opinion concludes the action
8
is likely to harm listed species or critical habitat, it also
identifies reasonable and prudent alternatives, and includes a
statement concerning “incidental take” of covered species and
discretionary conservation recommendations. See 16 U.S.C.
§ 1536(b)(3)(A); 50 C.F.R. § 402.14(g)-(h). Identification of
anticipated adverse effects on species does not necessarily halt
the agency action, but it ensures that steps likely to jeopardize
any species protected by the ESA either not be taken without
consideration of those risks or yield to safer alternatives. 16
U.S.C. § 1536(b)(4); 50 C.F.R. § 402.15.
B. Factual and procedural background
From 2013 to 2014, pesticide manufacturers Bayer
CropScience LP, Syngenta Crop Protection, LLC, and Corteva
Agriscience LLC (previously Dow AgroSciences LLC)
applied to EPA to register pesticides containing the five
disputed active ingredients. As FIFRA requires, 7 U.S.C.
§ 136a(c)(4), EPA published notice of each application in the
Federal Register and allowed public comment. EPA then
issued proposed registration decisions for the five pesticides,
also subject to public comment, without first complying with
its obligations under the Endangered Species Act.
The Conservation Groups submitted comments on the
proposed pesticide registrations in which they objected to
EPA’s failure to comply with the ESA. The agency was by
then routinely ignoring its ESA obligations in registering
pesticides under FIFRA. EPA responded that it was focusing
first on reducing its backlog of ESA reviews of already-
registered products that “EPA believes to be more toxic
compounds.” 1 Meanwhile, EPA was unwilling to withhold
1
EPA, Flupyradifurone: Response to Public Comments on EPA’s
“Proposed Registration of the New Active Ingredient
9
registrations until it could conduct the requisite ESA review of
newer pesticide active ingredients, pointing to its assumption
that the new pesticide ingredients “are designed to compete
with more risky alternatives.” 2
In 2016, bypassing its ESA obligations, see EPA Mot. to
Consolidate, Doc. 1722049, at 1 (March 13, 2018); see also
EPA Br. at 1, 7, the agency issued final registrations for five
pesticides containing the active ingredients at issue in this case:
• Halauxifen-methyl, a weed-controlling herbicide used
on crops. See 78 Fed. Reg. 10,167 (Feb. 13, 2013)
(notice of registration application); Proposed
Registration Decision for the New Active Ingredient
Halauxifen-methyl (April 28, 2016), Rulemaking
Docket ID EPA-HQ-OPP-2012-0919-0013 3; EPA,
Final Registration Decision of the New Active
Ingredient Halauxifen-methyl (July 28, 2016), J.A. 293-
303.
• Benzovindiflupyr, a fungicide that protects against
fungal plant pathogens and fungal diseases on crops.
Flupyradifurone” (Jan. 19, 2015), J.A. 108-09 (flupyradifurone);
EPA, Bicyclopyrone: Response to Public Comments on EPA’s
“Proposed Registration of the New Active Ingredient
Bicyclopyrone” (May 4, 2015), J.A. 189-92 (bicyclopyrone); EPA,
Decision Memorandum Re: Registration of the New Active
Ingredient Benzovindiflupyr (Aug. 28, 2015), J.A. 203-05
(benzovindiflupyr); EPA, Registration Decision for the New Active
Ingredient Cuprous Iodide (Oct. 6, 2015), J.A. 265-67 (cuprous
iodide); EPA, Final Registration Decision of the New Active
Ingredient Halauxifen-methyl (July 28, 2016), J.A. 301-02
(halauxifen-methyl).
2
See id.3
Available at https://www.regulations.gov/document/EPA-HQ-
OPP-2012-0919-0013.
10
See 78 Fed. Reg. 23,558 (Apr. 19, 2013) (notice);
Proposed Conditional Registration Decision for the
New Active Ingredient Benzovindiflupyr (July 13,
2015), Rulemaking Docket ID EPA-HQ-OPP-2013-
0141-0020 4; EPA, Decision Memorandum re:
Registration of the New Active Ingredient
Benzovindiflupyr (Aug. 28, 2015), J.A. 194-208.
• Flupyradifurone, an insecticide that guards crops
against damaging and disease-inducing insects. See 78
Fed. Reg. 32,247 (May 29, 2013) (notice); Proposed
Registration Decision of the New Active Ingredient
Flupyradifurone (Sept. 24, 2014), Rulemaking Docket
ID EPA-HQ-OPP-2013-0226-0015 5; EPA,
Registration Decision for the New Active Ingredient
Flupyradifurone (Jan. 14, 2015), J.A. 1-11.
• Cuprous iodide, an antimicrobial used to preserve
materials in fibers, floor coverings, plastics, and
adhesives and sealants. See 78 Fed. Reg. 64,938 (Oct.
30, 2013) (notice); Proposed Registration Decision for
the New Active Ingredient Cuprous Iodide (Aug. 26,
2015), Rulemaking Docket ID EPA-HQ-OPP-2013-
4
Available at https://www.regulations.gov/document/EPA-HQ-
OPP-2013-0141-0020. EPA issued a conditional registration for
benzovindiflupyr “until all requirements have been met as outlined
with the registration notices.” J.A. 205. Those requirements largely
reference additional studies and data that EPA must analyze to
“refine” its predictions that the pesticide is low risk but that the
registrant had not yet had time to produce. J.A. 206-08. In the
meantime, EPA authorized benzovindiflupyrto be sold for its target
uses. J.A. 207-08.
5
Available at https://www.regulations.gov/document/EPA-HQ-
OPP-2013-0226-0015.
11
0433-0004 6; EPA, Registration Decision for the New
Active Ingredient Cuprous Iodide (Oct. 6, 2015), J.A.
262-71.
• Bicyclopyrone, a weed-controlling herbicide used on
crops. See 79 Fed. Reg. 47,453 (Aug. 13, 2014)
(notice); Proposed Registration of the New Active
Ingredient Bicyclopyrone (Mar. 13, 2015), Rulemaking
Docket ID EPA-HQ-OPP-2014-0355-0024 7; EPA,
Registration Decision of the New Active Ingredient
Bicyclopyrone (Apr. 24, 2015), J.A. 111-23.
The Conservation Groups petitioned for vacatur and remand of
the five registration orders for failure to comply with the
Endangered Species Act.
We held these petitions in abeyance pending resolution of
CBD 2017, which also involved an ESA challenge to a
pesticide registration order under FIFRA. In that case, after
confirming the petitioners’ standing, 861 F.3d at 181-85, we
sought to reconcile the ESA provision authorizing citizen suits
in district court, 16 U.S.C. § 1540(g)(1), with FIFRA’s
provision of exclusive jurisdiction in this court to review
challenges “as to the validity of any order issued by the
Administrator [or EPA] following a public hearing,” a term that
there included a paper “hearing” effected through notice and
opportunity to comment, 7 U.S.C. § 136n(b); see 861 F.3d at
187-88. We held that such suits must be filed directly in this
court. 861 F.3d at 188. Turning to the merits, we granted the
petition in view of EPA’s acknowledged ESA violation, but we
remanded without vacatur based on EPA’s Risk Assessment
6
Available at https://www.regulations.gov/document/EPA-HQ-
OPP-2013-0433-0004.
7
Available at https://www.regulations.gov/document/EPA-HQ-
OPP-2014-0355-0024.
12
classifying the pesticide as “Reduced Risk” compared to
pesticides currently on the market. Id. at 188-89.
Once our opinion in CBD 2017 issued, we removed these
petitions from abeyance. Over Petitioners’ objections, we
granted EPA’s request to consolidate the petitions, then
allowed the pesticide manufacturers to intervene in support of
EPA’s registration orders. After the Conservation Groups filed
their opening brief in March 2019, the parties jointly sought a
series of extensions to the remaining briefing deadlines to
enable them to explore settlement. As we often do to facilitate
voluntary resolutions, we granted the extensions.
By the end of 2020, after almost two years of what they
report were active negotiations, the parties arrived at a
proposed settlement. See Proposed Settlement Agreement,
Biological Evaluations, 85 Fed. Reg. 81,205 (Dec. 15, 2020);
Intervenors’ Response to Order to Show Cause, Doc. 1897868,
Add. at 29-50 (May 7, 2021) (Settlement Agreement). They
then jointly moved this court for an Order on Consent to give
the EPA defined time periods to comply with the terms of that
agreement. See Joint Motion for Order on Consent, Doc.
1880656 (Jan. 19, 2021) (Joint Motion).
The Settlement Agreement provides that if the court does
not enter the proposed Order on Consent or an agreed
equivalent “the settlement never was final and effective and
this Settlement Agreement shall be null and void.” Settlement
Agreement at 3. The proposed Order marks out staggered
periods of abeyance to allow EPA to complete Biological
Evaluations, with fourteen additional days to initiate
consultation, if necessary, following the evaluations. Proposed
Order at 2. The Order also says that Petitioners will seek
voluntary dismissal once EPA complies in full, and that they
may move for fees and costs. Proposed Order at 1-3. If EPA
13
falls short and if the parties have not by written stipulation
agreed to extend the relevant deadlines, the Order contemplates
motions to enforce the agreed deadlines and leaves open that
we may reactivate the petitions and rule on their merits. Joint
Motion ¶¶ 13, 15-16; Settlement Agreement at 11-13. It does
not, however, treat the stated dates by which the settlement
requires EPA to comply as judicially imposed deadlines;
rather, it provides that, if we were to enter “a separate order of
the Court resolving a motion to enforce the deadlines set forth”
and EPA were to violate that order, only then could a party
move for contempt of court. Proposed Order at 3.
In advance of oral argument, we issued an Order to Show
Cause “why the petitions for review should not be granted and
the cases remanded” to EPA “with or without vacatur,” and
“how and why the court can and should retain jurisdiction
while also remanding the cases.” Per Curiam Order, Doc.
1888883, at 1 (Mar. 8, 2021) (citing 7 U.S.C. § 136n(b)). The
parties filed supplemental briefs in response to our order. They
also completed their underlying briefing in the event we deny
their motion or the deadlines fail to elicit compliance and the
court proceeds to resolve the pending petitions.
DISCUSSION
A. Jurisdiction
We begin by confirming our jurisdiction. Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 93-94 (1998). As
already noted, because EPA has timely complied with the
Settlement Agreement regarding cuprous iodide to the parties’
satisfaction, the petition challenging registration of cuprous
iodide pesticides is now moot. As for the remaining petitions,
we hold that the Conservation Groups have established their
associational standing to seek the requested relief.
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1. The cuprous iodide petition is moot
The parties jointly accept EPA’s recent actions as
resolving the petition regarding cuprous iodide. During the
pendency of this case, EPA approved an amendment to the
label for cuprous iodide pesticides. The amended label
prohibits certain uses of the chemical that pose risks to aquatic
environments. See Cuprous Iodide, Draft Ecological Risk
Assessment for Federally Listed Species, Notice of
Availability, 85 Fed. Reg. 49,368, 49,369 (Aug. 13, 2020), J.A.
366-67; EPA, Label Amendment to EPA Reg. No. 84542-9
(Apr. 26, 2021), J.A. 368-74. The agency then conducted an
ecological risk assessment and determined that approved uses
of cuprous iodide in accordance with the label as amended have
no effect on protected species or their habitats. See EPA, Final
No-Effects Determination for Cuprous Iodide (July 28, 2021),
J.A. 375-77. Petitioners and Intervenors accordingly agree that
EPA has satisfactorily responded to the ESA Section 7 claims
regarding cuprous iodide as the Settlement Agreement
contemplates, and that fulfillment of the settlement renders
moot the petitions to review the cuprous iodide registration.
Pet. Reply Br. at 3-4; EPA Br. at 18-21 (citing Declaration of
Matuszko ¶ 11, EPA Br. Add. at A-011-12). We accordingly
grant the parties’ request to dismiss the cuprous iodide petition
as moot.
2. Petitioners have standing
As to the remaining petitions, the Conservation Groups
argue that they meet the requirements of both associational
standing and organizational standing. Intervenors (but not
EPA) challenge Petitioners’ standing. They assert that ESA
compliance would not redress Petitioners’ injuries flowing
from independent actions of nonparty growers who use
pesticides. See Intervenors’ Br. at 10-14. Intervenors
15
nonetheless support the Consent Order, contending we need
not determine standing to approve it so long as we hold the
petitions in abeyance. We conclude that in order to take
enforceable action on these petitions—even as limited to
entering the proposed Order setting a defined period of
abeyance after which we might be asked to award attorneys’
fees and costs—we must determine whether Petitioners have
Article III standing. See In re Idaho Conservation League, 811
F.3d 502, 508 (D.C. Cir. 2016).
Associational standing requires that (1) at least one
member of the association has standing to sue in her own right
(based on a showing of harm, causation, and redressability), (2)
the interests the association seeks to protect by suing on its
members’ behalf are germane to its purpose, and (3) neither the
asserted claim nor the relief requested requires individual
members to participate in the litigation. See Hunt v. Wash.
State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). If the
standing of any additional members or organizations “makes
no difference to the merits of the case,” the standing of one
member of one of the organizations bringing suit suffices.
Idaho, 811 F.3d at 509 (quoting Ry. Labor Execs. Ass’n v.
United States, 987 F.2d 806, 810 (D.C. Cir. 1993)). We
conclude that at least one of the Conservation Groups, the
Center for Biological Diversity, meets the requirements of
associational standing.
The Center plainly meets the second and third
requirements for associational standing. The Center’s effort to
protect species is germane to its organizational mission of
“protection and enjoyment of the environment and our nation’s
endangered and threatened species and their habitats.” Pet. Br.
at iii. And we see no reason—nor has any been identified—
that an individual member’s participation is required. See CBD
2017, 861 F.3d at 182.
16
The remaining question is whether the administrative
record together with any evidentiary submissions to this court
show that at least one of the identified Center members suffers
injury-in-fact fairly traceable to the challenged action that is
likely to be redressed by a favorable decision. Lujan v. Defs.
of Wildlife, 504 U.S. 555, 560-61 (1992). A claim of failure to
fulfill the statutory consultation obligation under the ESA is at
least in significant part a claim of procedural injury, as to which
we “relax the redressability and imminence requirements” of
standing. CBD 2017, 861 F.3d at 182 (quoting WildEarth
Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013)); see
generally Nat’l Ass’n of Homebuilders v. Defs. of Wildlife, 551
U.S. 644, 667 (2007) (noting that ESA Ҥ 7(a)(2) . . . imposes
a substantive (and not just procedural) statutory requirement”).
Regarding injury, the administrative record includes
information on the toxicity of the registered pesticide
ingredients. EPA’s preliminary identification of ecological
risks suffices to show that use of the pesticides at issue near
endangered and threatened species and their habitat poses risks
to wildlife. For flupyradifurone, EPA found the pesticide “very
highly toxic” to freshwater insects and estuarine/marine
crustaceans, EPA, Memorandum Re: Environmental Fate and
Ecological Risk Assessment for Foliar, Soil Drench, and Seed
Treatment Uses of the New Insecticide Flupyradifurone (BYI
02960) (EPA-HQ-OPP-2013-0226-0010) (June 25, 2014) at 6-
7, J.A. 41-42, and “uncertainty” regarding its potential for
adverse effects to protected species of terrestrial plants, id. at
112, J.A. 55. EPA found that chronic exposures to
bicyclopyrone may harm protected terrestrial and semi-aquatic
plants and mammals. EPA, Memorandum Re: Environmental
Fate and Ecological Risk Assessment for Use of the New
Herbicide Bicyclopyrone (NOA449280) (EPA-HQOPP-2014-
0355-0015) (Feb. 10, 2015) at 2, J.A. 126. The agency noted
that, even when accounting for mitigation measures,
17
benzovindiflupyr poses broad risks to terrestrial and beneficial
invertebrates, mammals, birds, and fish, particularly because of
pesticide buildup in bodies of water. EPA, Addendum to
Section 3 Environmental Fate and Ecological Risk Assessment
for Benzovindiflupyr New Chemical Registration for Proposed
Uses on Blueberries, Canola, Cereal Crops (Oats, Wheat, Rye,
and Barley), Corn, Cotton, Cucurbits, Tomatoes, Grapes,
Legumes, Peanuts, Pome Fruit, Soybeans, Potatoes, Turf
Grass, and Nursery Crops (EPA-HQ-OPP-2013-0141-0021)
(July 10, 2015) at 5-6, J.A. 221-22. And EPA concluded that
halauxifen-methyl may pose risks to terrestrial, aquatic, and
semi-aquatic vascular plants, largely driven by spray drift or
pesticide droplets carried through the wind away from the
treated area. EPA, Ecological Risk Assessment for the New
Herbicide Halauxifen-methyl (EPA-HQ-OPP-2012-0919-
0009) (Dec. 15, 2015) at 3, 104, J.A. 320, 331.
To show how those risks manifest as actual or imminent
harm to the Conservation Groups’ members, Petitioners
submitted standing declarations. The declarations of Center
members Ileene Anderson and James D. Williams suffice to
show concrete interests in listed animals and plants exposed to
the above-identified harms from the registered pesticides.
Anderson is the Center’s Public Lands Deserts Director and a
Senior Scientist. Pet. Reply Br. Add., Anderson Decl. ¶ 4. She
has a master’s degree in biology and has studied native plants
and animals in California for over thirty years. Id. ¶ 5.
Anderson lives in Los Angeles and still visits family where she
was born and raised in California’s San Joaquin Valley. Id. ¶¶
2, 6. In her spare time, Anderson enjoys traveling throughout
central and southern California to observe rare plants and
animals. Id. ¶ 8. Anderson has recreational, conservational,
aesthetic, scientific, educational, and preservation interests in
observing various mammals, fish, plants, and invertebrates in
18
their natural habitats in California. Id. ¶¶ 12-36. 8 Williams is
a Center member who lives in Gainesville, Florida, and has
used his Ph.D. in biology to research aquatic species. Pet.
Reply Br. Add., Williams Decl. ¶¶ 1, 2. He has research,
conservation, aesthetic, and moral interests that focus on
various fish and mussels in the southeastern United States. Id.
¶ 5. 9 EPA’s registration of the four pesticide ingredients
without complying with its ESA obligations risks the wildlife
of interest to Anderson and Williams, and indeed their
declarations underscore that harm because Anderson and
Williams live, study, and enjoy recreation in areas where EPA
specifically noted that the pesticide ingredients are being used.
See Anderson Decl. ¶¶ 2, 4; Williams Decl. ¶¶ 1, 6; Settlement
Agreement App. at 1-28 (identifying areas with ESA-listed
species in California, Florida, and the southeastern and
southwestern United States where the parties agree the four
pesticide ingredients are used). That information suffices to
8
Those threatened or endangered species include: the giant kangaroo
rat, the Buena Vista Lake ornate shrew, the San Joaqin kit fox, the
blunt-nosed leopard lizard, the Kern primrose sphinx moth, the
coastal California gnatcatcher, the Stephen’s kangaroo rat, the Santa
Ana sucker, the Orcutt grass, the thread-leaved brodiaea, the San
Diego thorn-mint, the spreading navarretia, the San Diego button-
celery, the San Diego mesa mint, and the fairy shrimp.
9
Those threatened or endangered species include: the Amber Darter,
the Blue Shiner, the Boulder Darter, the Cherokee Darter, the
Goldline Darter, the Gulf Sturgeon, the Alabama Moccasinshell, the
Chipola Slabshell, the Coosa Moccasinshell, the Fat Threeridge, the
Finelined Pocketbook, the Gulf Moccasinshell, the Heavy Pigtoe, the
Ochlockonee Moccasinshell, the Oval Pigtoe, the Purple
Bankclimber, the Round Ebonyshell, the Shinyrayed Pocketbook,
the Southern Clubshell, the Southern Combshell, the Southern
Kidneyshell, the Southern Pigtoe, the Triangular Kidneyshell, and
the Upland Combshell.
19
show that EPA’s bypassing of its ESA obligations affects
Center members’ concrete interests.
The Conservation Groups have also established the
requisite causation and redressability. As to causation, a party
asserting procedural injury “never has to prove that if he had
received the procedure the substantive result would have been
altered.” City of Dania Beach v. FAA, 485 F.3d 1181, 1186
(D.C. Cir. 2007) (quoting Sugar Cane Growers Coop. v.
Veneman, 289 F.3d 89, 94 (D.C. Cir. 2002)); see Idaho, 811
F.3d at 513. It suffices here that EPA’s bypassing of its ESA
obligations caused it to register the disputed pesticides without
attention to the risks they pose to listed species, thereby
jeopardizing the conditions for protected species of interest to
Anderson and Williams.
As for redressability, we conclude that our action on these
petitions could prevent or limit harmful uses of those products.
Compliance with the Endangered Species Act would likely
relieve Petitioners’ injuries, whether prompted by an order on
the merits setting aside the challenged registrations, or by entry
of the parties’ proposed Order charting a shorter and more
consensual route to EPA’s compliance under their settlement
agreement. The Order on Consent contemplates EPA’s
fulfillment of its settlement obligations, including
identification and curbing of risks the registered chemicals may
pose to wildlife. In particular, EPA’s consultations may lead it
to amend the pesticides’ registrations. The label amendment
that EPA’s settlement compliance has already required for
cuprous iodide products concretely illustrates the likelihood
that fulfillment of the Settlement Agreement as to the other
disputed registrations will likewise bring redress. Pesticide
manufacturers selling and marketing the products at issue
would have to comply with any added species-protective
conditions of a renewed registration. Field applications of the
20
pesticides, once guided and limited by any changes to the
registration, such as revisions of pesticide labels, would pose
less risk to the wildlife Anderson and Williams seek to study,
observe, and appreciate.
The likelihood that the relief sought here will ameliorate
species harms from pesticides distinguishes this case from
Food & Water Watch v. U.S. Dept. of Agriculture, 1 F.4th 1112(D.C. Cir. 2021), on which Intervenors rely. There, we denied
plaintiff’s standing to seek to enjoin a U.S. Department of
Agriculture (USDA) loan guarantee challenged as
noncompliant with the National Environmental Policy Act
(NEPA). Id. at 1114. The farmer had obtained the loan to
support construction of a poultry farm, and we assumed the
NEPA violation caused plaintiff’s harm. Id. But, with the farm
already up and running, we held plaintiff could not establish
redressability due to the speculative assumption that, if the
USDA loan guarantee were enjoined under NEPA, the farmer
would reapply to the government for a new loan guarantee,
thereby subjecting herself to additional environmental review
and potential restrictions. Id. at 1117. There were suggestions
that the farmer’s financial situation had changed, but nothing
in the record established the farmer’s current creditworthiness,
leaving us to “only guess” whether she would need a new
USDA loan guarantee with attendant environmental
requirements. Id. In this case, in contrast, there is no doubt
that Intervenors require registrations approved by EPA. Nor is
it speculative that compliance with the Settlement Agreement
would cause EPA to undertake the required consultations with
the Wildlife Services regarding species effects and account for
any adverse effects so identified by, for example, altering the
registrations to provide greater species protection.
Because we conclude that the Center for Biological
Diversity has associational standing, we need not address its
21
claim of organizational standing or the standing of the other
petitioner Conservation Groups.
B. The court has authority to grant the joint motion
The parties’ proposed Order reflects their agreement that
we should retain jurisdiction, enter their proposed schedule for
EPA to comply with the Settlement Agreement, and hold the
petitions in abeyance until the agreed time has elapsed.
Proposed Order at 1-2. The parties commit to seeking to reach
agreement on attorneys’ fees and costs, Joint Motion ¶ 17, but
ask us to retain jurisdiction to resolve a motion for fees and
costs if they cannot agree, Proposed Order at 3. The proposed
Order provides that, if EPA seeks to modify the timeframe and
the parties cannot agree on modifications to present to the
court, EPA will file a motion for modification. Id.
In response to our Order to Show Cause, the parties each
argue that effecting their settlement by entering the proposed
Order on Consent is in the public interest and that this court has
authority to do so. Pet. OTSC Resp. at 2-15; EPA OTSC Resp.
at 6-8; Intervenors’ OTSC Resp. at 1-2, 9-11, 14.
The Conservation Groups point to our “equitable authority
to provide for court-ordered deadlines requiring government
agencies to comply with Congressional mandates.” Pet. OTSC
Resp. at 1; see id. at 8-10 (citing cases). They highlight that we
retained jurisdiction pending EPA’s compliance with jointly
proposed, court-ordered deadlines in Idaho, 811 F.3d 502, and
that we ordered the Department of Energy to act by a deadline,
subject to vacatur if the agency failed to meet it, in American
Public Gas Association v. U.S. Department of Energy, 22 F.4th
1018 (D.C. Cir. 2022).
For its part, EPA acknowledges that it failed to comply
with its consultation obligations under the ESA here and in
22
other cases. EPA OTSC Resp. at 3-5. Noting that “this Court
typically remands meritorious petitions for review with or
without vacatur and does not retain jurisdiction,” EPA here
supports our entry of the agreed deadlines without vacatur or
remand, and argues that we have authority to do so. Id. at 6.
In accord with Petitioners, the agency points to our “equitable
authority to fashion appropriate relief and manage [our]
proceedings,” id. at 2, and the Supreme Court’s recognition of
“a court’s power to retain jurisdiction where a negotiated
resolution so provides,” id. at 6-7 (citing Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 380-81 (1994)).
Intervenors, too, support our authority to retain jurisdiction
to enforce the parties’ mutually agreed deadlines and argue that
we should do so. They cite a range of cases in which we have
retained jurisdiction while an agency takes steps to bring itself
into compliance with a statute, rule, or the terms of a settlement
agreement. Intervenors also analogize our position on direct
review of FIFRA registration orders to that of district courts
acting as courts of first instance with well-established authority
to retain jurisdiction pending parties’ effectuation of their
settlement agreements. Intervenors’ OTSC Resp. at 13.
Unsurprisingly, in the event that we do not take their
agreed path, the parties differ over the appropriate course. The
Conservation Groups assert that, if we deny the Order needed
to enable the settlement, they are entitled to the presumptive
remedy of vacatur and remand, which they say is especially
appropriate in view of the intentional and ongoing nature of
EPA’s ESA violations. If we instead remand without vacatur,
the Conservation Groups ask us to impose compliance
deadlines on EPA.
For their part, Intervenors and EPA argue for remand
without vacatur, citing CBD 2017. They suggest that even if
23
we relinquish jurisdiction, we could enter an order reflecting
the parties’ negotiated deadlines. As a further alternative,
Intervenors (but not EPA) request additional time for the
parties to renegotiate their settlement.
All agree, however, that unless we enter the order as the
parties present it—or with only agreed-to modifications—their
settlement becomes null and void.
We conclude that we have authority to enter the proposed
Order on Consent. As a general matter, we may manage our
docket as we see fit. We may hold cases in abeyance at the
parties’ request to afford an agency time to fulfill its settlement
undertakings and perhaps thereby obviate the need to decide
pending petitions for review. That is a power we regularly
exercise. And rightly so. It is a cardinal virtue of Article III
courts to avoid unnecessary decisions and to promote voluntary
resolutions where appropriate.
FIFRA also allows the requested relief. Petitioners assert
that EPA unlawfully registered the identified pesticides under
FIFRA without complying with the Endangered Species Act,
as all acknowledge the law requires. We have held that such
claims are governed by FIFRA’s jurisdictional grant under
which review originates in the court of appeals, 7 U.S.C.
§ 136n(b), rather than ESA’s citizen-suit provision sending
claims first to district court, 16 U.S.C. § 1540(g)(1)(A). CBD
2017, 861 F.3d at 177, 179, 187-88. FIFRA authorizes us “to
affirm or set aside the order complained of in whole or in part.”
7 U.S.C. § 136n(b). Under the parties’ proffered Order on
Consent, we retain authority to do just that. If EPA meets the
parties’ agreed deadlines, Petitioners will ask us to dismiss the
petitions; if EPA fails to do so, however, we may have to
remove the petitions from abeyance and rule on their merits,
24
either fully or partially affirming the registrations or setting
them aside.
The statutory conferral of power to “affirm or set aside”
the challenged registrations does not compel us to do so within
any specified time. Nothing in the statute bars us from
honoring the parties’ joint request to withhold ruling on a
petition for a defined period pending promised completion of
long-overdue agency action. Indeed, we routinely stay our
hand when parties identify developments that are likely to
render judicial resolution unnecessary.
Such restraint is particularly appropriate as a means of
facilitating voluntary settlement of plausible and credibly
supported statutory claims. See Idaho, 811 F.3d at 515-16; cf.
Kokkonen, 511 U.S. at 380-81. “[W]e have long recognized
the public interest in, and importance of, settlement of
litigation.” Canonsburg Gen. Hosp. v. Burwell, 807 F.3d 295,
307 (D.C. Cir. 2015). “Few public policies are as well
established as the principle that courts should favor voluntary
settlements of litigation by the parties to a dispute.” Id.(quoting Am. Sec. Vanlines, Inc. v. Gallagher, 782 F.2d 1056,
1060 (D.C. Cir. 1986)).
More generally, Section 136n does not purport to displace
our ordinary authority to hold a case such as this one in
abeyance to facilitate a settlement geared to efficient
remediation of the agency’s acknowledged noncompliance
with its FIFRA obligations. As a general matter, courts retain
equitable powers “unless Congress has expressly restricted
their exercise.” Cobell v. Norton, 240 F.3d 1081, 1108 (D.C.
Cir. 2011) (quotation marks omitted); see Hecht Co. v. Bowles,
321 U.S. 321, 329-30 (1944) (reading statutory conferral of
specified injunctive power in light of “the requirements of
equity practice with a background of several hundred years of
25
history”). If Congress does seek to restrict courts’ equitable
powers, it must do so by “the clearest command.” McQuiggin
v. Perkins, 569 U.S. 383, 397 (2013) (quoting Holland v.
Florida, 560 U.S. 631, 646 (2010)); Miller v. French, 530 U.S.
327, 340 (2000); see Califano v. Yamasaki, 442 U.S. 682, 705
(1979); see also Fed. Trade Comm’n v. Dean Foods Co., 384
U.S. 597, 603-04, 608 (1966) (authority under All Writs Act).
FIFRA contains no such express restriction on our exercise of
authority to put the cases back into abeyance for a specified
period while EPA fulfills its obligations under the parties’
settlement.
To be sure, we do not lightly retain jurisdiction for a period
of years, as we have been asked to do here. No court is eager
to have cases aging on its docket. But there is no question that
we have the power to hold these petitions for the specified
period to allow the parties to see their settlement through before
petitioners voluntarily dismiss the claims.
The length of the abeyance contemplated here may not be
typical, cf. In re Int’l Chem. Workers Union, 958 F.2d 1144,
1148, 1150 (D.C. Cir. 1992) (five months, based on agency’s
estimate of time needed for requisite agency action); Pub.
Citizen Health Rsch. Grp. v. Auchter, 702 F.2d 1150, 1159
(D.C. Cir. 1983) (30 days), but it is not unprecedented.
For example, after EPA failed for decades to enact
regulations required under the Comprehensive Environmental
Response, Compensation, and Liability Act, we granted a joint
motion similar to the one before us. See Idaho, 811 F.3d at
515-16. We entered the parties’ proffered order on consent
retaining jurisdiction and establishing a schedule for EPA to
fulfill its obligations under the settlement. Id. at 507-08. We
agreed to hold the petitions in abeyance and impose
compliance timelines comparable to—indeed, even lengthier
26
than—those proposed in this case. Id. at 515-16. We closed
the case only after EPA complied (which it did earlier than the
furthest deadline contemplated). See Idaho, No. 14-1149, Doc.
1875757 (D.C. Cir. Dec. 15, 2020) (per curiam order closing
case after EPA compliance with January 29, 2016, consent
order).
In Friends of the Earth, Inc. v. EPA, 446 F.3d 140 (D.C.
Cir. 2006), we went beyond remanding to the district court with
instructions to vacate approvals of excess effluent discharges
into already-polluted waters; in an alternative holding, we
authorized the district court to stay the vacatur until EPA
amended the challenged regulation or the District of Columbia
curtailed unlawful pollutants. Id. at 148. The parties requested
and the district court issued such a stay, see No. 04-0092, 2006
WL 7066924, at *1 (D.D.C. Sept. 18, 2006), and, after the
parties complied, dismissed the case as moot two and a half
years after our remand, see No. 04-0092, 2008 WL 4817509,
at *1 (D.D.C. Nov. 3, 2008).
In Devia v. Nuclear Regulatory Commission, 492 F.3d
421 (D.C. Cir. 2007), we held prudentially unripe petitions in
abeyance for several years. Id. at 428; Devia, No. 05-1419,
Doc. 1049256 (D.C. Cir. Jun. 26, 2007), and Doc. 1727939
(D.C. Cir. Apr. 24, 2018) (clerk’s order administratively
terminating the case without prejudice to any party seeking to
reopen). We correctly anticipated that the challenge sought “a
decision we may never need to make,” Devia, 492 F.3d at 425,
so stayed our hand and eventually were able to dismiss the case
without rendering an unnecessary ruling, Devia, No. 05-1419,
Doc. 1956793 (D.C. Cir. July 28, 2022) (per curiam order
dismissing case).
Confronted with another “unusual situation” in
National Treasury Employees Union v. Horner, 854 F.2d 49027
(D.C. Cir. 1988), we deemed more typical relief neither
satisfactory nor practicable, so we remanded for the parties to
consult on an expedited rulemaking schedule while we held
open the prospect of further relief if the rulemaking record
failed to support the challenged action. Id. at 501. In Air Line
Pilots Association, International v. Civil Aeronautics Board,
750 F.2d 81 (D.C. Cir. 1984), after holding that the agency
“unreasonably delayed” adjudicating unemployment
assistance claims, we retained jurisdiction for several years
until the reorganized agency fulfilled its statutory obligations.
Id. at 88-89; Air Line Pilots, No. 84-5225 (D.C. Cir. Nov. 5,
1991) (per curiam order dismissing case). And in Public
Citizen Health Research Group v. Brock, 823 F.2d 626 (D.C.
Cir. 1987), we faced claims against an agency that was
persistently noncompliant with statutory obligations, but that
we recognized was nonetheless entitled to “a certain degree of
breathing space in its implementation of the law.” Id. at 627.
We responded to the agency’s “delicate position” by ordering
it to conduct a rulemaking by a deadline it suggested, with
regular progress reports to the court, and ultimately granted
voluntary dismissal of the petition. Id. at 629; Pub. Citizen
Rsch. Grp., No. 84-1252 (D.C. Cir. July 29, 1988) (per curiam
order denying attorneys’ fees).
Compliance can take time, and agencies have many
competing obligations. The parties here are all satisfied with
the timeframe. Where we can stay our hand for willing
governmental agencies to bring about compliance on terms
satisfactory to petitioners, prudence counsels our restraint.
EPA acknowledges it registered the pesticides at issue
between six and seven years ago without having made the
effects determinations or consulting with the Wildlife Services
as the ESA requires, and that it has routinely sidestepped those
duties with respect to other pesticides registrations. See
28
Farmworker Ass’n of Fla. v. EPA, No. 21-1079, 2021 U.S.
App. LEXIS 16882, at *2 (D.C. Cir. June 7, 2021) (ordering
summary vacatur of pesticide registration “in light of the
seriousness of the admitted error and the error’s direct impact
on the merits of the EPA’s registration decision,” the limited
use of the pesticide, and lack of time for the agency to
reconsider the registration on remand before it was due to
expire); Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1029 (9th
Cir. 2005) (rejecting EPA’s assertion that ESA compliance was
not a prerequisite of registration of fifty-four pesticides under
FIFRA), 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); Defs. of Wildlife, 882 F.2d at 1299
(“FIFRA does not exempt the EPA from complying with ESA
requirements when the EPA registers pesticides.”). As we
recently commented in a parallel case, “EPA has faced at least
twenty lawsuits covering over 1,000 improperly registered
pesticides.” In re Ctr. for Biological Diversity, 53 F.4th 665,
668 (D.C. Cir. 2022) (citing Environmental Protection Agency,
Balancing Wildlife Protection and Responsible Pesticide Use:
How EPA’s Pesticide Program Will Meet its Endangered
Species Act Obligations 4 (2022)).
We initially took a tack more lenient to EPA and the
registrants in CBD 2017 despite the acknowledged ESA
violation. No consent order was proposed in that case, nor did
the parties there stipulate to deadlines for EPA’s compliance.
It was clear that EPA had, consistent with its persistent
practice, registered a pesticide without the requisite ESA
consultation—and we so held. See 861 F.3d at 188. But EPA
had at least completed an ESA Risk Assessment suggesting
that the pesticide there, cyantraniliprole (CTP), was generally
less toxic than existing alternatives. Id. at 188-89. We
accepted EPA’s assertion that “allowing the EPA’s CTP
registration order to remain in effect until it is replaced by an
29
order will maintain enhanced protection of the environmental
values covered by the CTP registration order.” Id. at 189
(formatting modified). We accordingly remanded the case to
the agency without vacating the order. Id. More than five years
later, EPA had failed to act and the Center for Biological
Diversity and the Center for Food Safety returned to this court
seeking mandamus.
Just weeks ago, another panel of this court granted the
mandamus petition in CBD 2017 and ordered EPA to complete
an effects determination by September 2023. The panel noted
that we will “retain jurisdiction and monitor EPA’s progress,”
including by directing EPA “to submit status updates every 60
days” until then. In re Ctr. for Biological Diversity, 53 F.4th
at 667, 673; see Farmworker Ass’n of Fla., 2021 U.S. App.
LEXIS 16882, at *2 (granting summary vacatur of pesticide
registration decision). EPA’s ongoing, widespread failure to
comply with the ESA when it registers pesticides under FIFRA,
despite court holdings that it must, plainly counsels against
remand without vacatur yet again. Vacatur and remand is
another option, but not what these parties now prefer.
There may be benefits of settlement that would not be
achieved by vacatur and remand. As mentioned above, the
dysfunction of the FIFRA registration process has drawn
attention from various quarters. The systemic shortcomings
are not before us; they are for the political branches to fix. But
it is notable that all parties before us are repeat actors on the
issues at stake, making it unlikely that this settlement’s call for
review of certain chemicals would somehow delay or disrupt
efforts by Congress and the agency to make better policy.
Suffice it to say that one byproduct of our authority to play the
largely passive, waiting role the proposed Order describes is
that it enables us to take seriously petitioners’ claims, while
also accommodating the EPA’s fulfillment of its legal
30
obligations with minimal interference and respecting
Congress’s ongoing role and responsibility to act as it sees fit
to support and adjust the statutory obligations it has imposed.
Our dissenting colleague views this issue quite differently.
Because she thinks we are not exercising restraint but wading
deeply into management of an executive branch agency, she
sounds the alarm against perceived judicial excess. See, e.g.,
Diss. Op. at 1 (referring to the Order as a “wide-ranging
Consent Order” that “effectively places the EPA’s
administration of its statutory duties under this court’s
supervision”); id. (characterizing the Order as “saddl[ing] this
court with supervising the EPA for years to come”); id. at 10
(referring to the “extraordinary relief contemplated by the
Consent Order”); id. at 11 (describing “[w]hat the court enters
today” as “a consent order . . . against an Executive Branch
agency, in an institutional reform case . . . ”); id. at 12
(asserting lack of equitable authority for an order “establishing
judicial supervision over the EPA”); id. at 21 (accusing us of
“attempt[ing] to supervise the political quagmire and the
regulatory challenges at hand”). Whatever the merits of that
critique where it applies, it is does not fairly describe this case.
The dissent rests principally on the line of precedent that
deems remedies—such as compensatory damages, punitive
damages, or monetary relief against a sovereign—to lack
statutory authorization where not expressly provided or
appropriately implied by statute. See Diss. Op. at 7-9. But
nothing about the Order we enter today implicates those cases
or the larger principle they express. Suffice it to say that none
of them disapproves an abeyance order entered to allow
parties’ settlement schedule to play out, or has any other feature
that bears any resemblance to the Order at issue here.
31
Given our colleague’s support just weeks ago for
mandamus in the aforementioned parallel case, In re Ctr. for
Biological Diversity, No. 21-1270, her disapproval of our
accepting the parties’ joint request in this case seemingly
stems, not from our retaining jurisdiction and monitoring
EPA’s progress (which also happened in that parallel case), but
from the fact that the Order in this case accommodates an
underlying settlement. She equates our Order with complex
consent decrees or structural injunctions granting courts an
ongoing and active role in supervising governmental agencies.
Diss. Op. at 11 n.3, 19-20. But this discrete Order is not that
kind of relief. We need not consider the precise scope of the
courts’ equitable authority to enforce consent decrees, see Swift
& Co. v. United States, 276 U.S. 311 (1928) (denying motion
to vacate consent decree); cf. Kokkonen, 511 U.S. at 380-81(suggesting, in holding court lacked ancillary jurisdiction to
enforce private settlement of dismissed case, that an order
retaining jurisdiction would have afforded the requested
authority), to confirm our authority to act in the markedly
circumspect way we do here.
Far from putting us in control of EPA, the Order itself
commits us to stand by for a defined period to enable EPA to
comply with the parties’ private settlement of FIFRA claims
involving four pesticides. The cause of action is explicit, there
is no question we have jurisdiction, and the approved Order
includes no implied remedy. Critiques of agency takeover have
no footing here. The parties call on us to hold the petitions in
abeyance in recognition of their agreed schedule for EPA’s
biological evaluations. Their proposed Order notes that
petitioners may seek interim measures, but that the agency does
not concede any entitlement to them—an issue on which we do
not rule. The dissent claims that “the EPA must abide by
reporting deadlines over the next five years,” Diss. Op. at 4, see
id. at 3 (referring to reporting “on a set schedule”), but the only
32
reporting the Order mentions is a requirement that EPA give
the court a heads up 90 days before each of the two stated
deadlines as to whether the agency anticipates meeting it. The
dissent’s critique of complex and detailed consent decrees is
far off base here, where the action we take is mild,
straightforward, and plainly within our power.
Somewhat paradoxically, the dissent faults the Order not
just for overreaching, but also for not doing enough: It fails to
“bind[] parties to particular legal consequences,” Diss. Op. at
12, “merely recognizes the preexisting legal rights of the
parties,” id. at 13, and does not, without more, contemplate
enforcement by contempt if the timeframe is not met, id. at 14-
15. The Order is “both broad in scope and shallow in effect,”
“toothless,” and “an inconsequential half-measure.” Id. at 1,
20, 21. For our dissenting colleague, the minimalism of the
Order suggests collusion, a distortion of “the respective roles
of each of the three branches of government,” and a threat to
the very “rule of law.” Id. at 20. The nub of this concern seems
to be that the court is somehow acting in an advisory manner.
There is no advisory opinion involved in accepting the parties’
voluntary agreement, in view of a credible and well supported
challenge, to a schedule by which the agency will comply with
stated settlement terms. The patience and light touch the Order
calls for from this court is no defect. Those features place it
squarely in the court’s power.
In sum, faced with the joint motion to enter the parties’
Order on Consent, we need not immediately rule on the merits
of the petitions, but may elect to wait. The parties have spent
nearly two years negotiating a settlement agreement that all
conclude is the best resolution of the issues presented in the
petitions for review. Joint Motion ¶ 18. And because it is a
compromise resolution, their agreement has advantages we
cannot directly confer: The parties have made creative
33
commitments that are beyond what this court might order and
have tailored a resolution that presumably comports with their
broader plans, priorities, and practical limitations. They ask us
to enter their proposed Order holding the fully briefed petitions
in abeyance for a period of time that all deem to be reasonable
to allow EPA to fulfill the settlement obligations the Order
describes. We hold that, in the circumstances of these
petitions, we may enter the proposed Order.
C. The proposed Order is reasonable
Because these petitions for administrative review bypass
the district court and come to us directly, we treat them as a
district court would in deciding a motion for summary
judgment. See Sierra Club v. EPA, 292 F.3d 895, 899 (D.C.
Cir. 2002). Having established our jurisdiction and authority
to act, we must now determine whether to approve the
proposed Order on Consent. To do so, we consider whether the
parties validly consented, and whether the Order is “fair,
adequate, reasonable and appropriate under the particular
facts” and “in the public interest.” See Idaho, 811 F.3d at 515
(quoting Citizens for a Better Env’t v. Gorsuch, 718 F.2d 1117,
1126 (D.C. Cir. 1983)). The proposed Order on Consent meets
that standard.
We have no reason to doubt that the parties arrived at their
agreement and seek its approval knowingly and voluntarily.
They jointly describe the settlement as the product of many
months of negotiation informed by the strong advocacy of
well-represented parties with distinct interests and areas of
expertise. There is no suggestion or evidence of collusion.
The proposed Order also appears to be fair and reasonable.
There is no dispute that EPA has persistently avoided its
Section 7 duties, so it is appropriate to grant time-limited
abeyance, and especially so when EPA has undertaken to
34
complete its settlement obligations within the agreed schedule.
Each party stands to benefit from the accompanying
agreement: The Conservation Groups’ interest in protection of
listed species and their habitat is served by imposition of a
timeframe for EPA’s compliance. It is also served by
Intervenors’ commitment to fund an external third-party
website identifying counties where endangered species are
present that Petitioners believe could be adversely affected by
pesticide uses. The agreement benefits EPA by relieving it of
a potential immediate vacatur and the attendant burdens of
redoing the entire registration process for each pesticide in a
manner compliant with the ESA. For their part, Intervenors
benefit because their registration orders remain in effect for
now, enabling them to continue manufacturing and selling the
pesticide products in question subject to any changes resulting
from the scheduled consultations, postponing vacatur and
perhaps avoiding it if EPA timely complies with the settlement
terms.
Finally, accommodating a settlement agreement that
prompts EPA to fulfill its congressionally mandated evaluation
obligations under Section 7 of the ESA is in the public interest.
“When federal law is at issue and ‘the public interest is
involved,’ a federal court’s ‘equitable powers assume an even
broader and more flexible character than when only a private
controversy is at stake.’” Kansas v. Nebraska, 574 U.S. 445,
456 (2015) (quoting Porter v. Warner Holding Co., 328 U.S.
395, 398 (1946)); see also Citizens for Responsibility & Ethics
in Wash. v. U.S. Dep’t of Justice, 846 F.3d 1235, 1242 (D.C.
Cir. 2017) (same). Protecting listed species and their habitat
from potentially harmful pesticides that have until now been
marketed and used without fully accounting for their
environmental effects serves interests in species’ survival and
biodiversity with myriad public benefits to current and future
generations. “[E]ncouraging the States and other interested
35
parties . . . to develop and maintain conservation programs . . .
is a key to . . . better safeguarding, for the benefit of all citizens,
the Nation’s heritage in fish, wildlife, and plants.” 16 U.S.C.
§ 1531(a)(5). The Order is also in the public interest insofar as
it respects EPA’s institutional competence in the first instance
to conduct the required consultations and respond
appropriately to what it learns. See, e.g., EPA, Label
Amendment to EPA Reg. No. 84542-9 (Apr. 26, 2021), J.A.
368-74; see Joint Motion ¶ 13 (referencing EPA’s retained
authority under the Settlement Agreement to amend its
regulations and to reach its own conclusions in biological
evaluations).
We note that the settlement has already proved beneficial.
EPA has complied with the first deadline in the proposed Order
to the satisfaction of all parties. We anticipate continued
compliance within the timeframe proposed to and now entered
by the court. More broadly, EPA tells us that coordinated
interagency efforts are underway, with oversight from
Congress, to fix EPA’s broken system of ESA (non)review
under FIFRA. See EPA Br. at 6-7 (citing Agriculture Act of
2014, Pub. L. No. 113-79, § 10013, 128 Stat. 649, 951, and
Agriculture Improvement Act of 2018, Pub. L. No. 115-334,
§ 10115, 132 Stat. 4490, 4914-17); accord EPA OTSC Resp.
at 3-5 (citing same); Intervenors’ OTSC Resp. at 5-8 (same).
We trust that the duties the settlement imposes will be timely
fulfilled without detracting from broader, ongoing efforts to
resolve EPA’s acknowledged, systemic failures to meet its
ESA obligations when registering pesticides under FIFRA.
CONCLUSION
For the foregoing reasons, we grant the joint motion for
the petitions pertaining to halauxifen-methyl,
benzovindiflupyr, flupyradifurone, and bicyclopyrone. We
36
dismiss the cuprous iodide petition based on the parties’
agreement that EPA successfully complied with the terms of
their settlement of that petition by the agreed-to August 13,
2021, deadline. Our court will hold the four remaining
petitions in abeyance pending completion of the remaining
compliance obligations, in accordance with the accompanying
Order on Consent.
So ordered.
RAO, Circuit Judge, concurring in part and dissenting in
part: This case arises out of acknowledged legal violations by
the Environmental Protection Agency (“EPA”). The EPA
registered the pesticide active ingredients at issue here without
first performing the effects determinations required by the
Endangered Species Act. The petitioners initially asked this
court to vacate the unlawful orders. Now the petitioners, the
EPA, and the pesticide manufacturers as intervenors have
reached nearly total agreement. The majority enters their wide-
ranging Consent Order, which imposes deadlines on the EPA
and effectively places the EPA’s administration of its statutory
duties under this court’s supervision. The Order provides
unusual relief yet excludes any enforcement mechanism. It is
both broad in scope and shallow in effect.
While I agree that the petition is moot with respect to
cuprous iodide and that the petitioners have standing under this
circuit’s caselaw, I would decline to enter the Consent Order.
At the outset, we lack statutory or equitable authority to take
this step. Moreover, the Order’s substance sits uncomfortably
with the Article III judicial power. It advises and signals what
the EPA should do, and it oversees the agency’s compliance
for five years—all without providing anything like traditional
judicial enforcement. And in any event, the Order is at least an
unwise exercise of our equitable power. The majority saddles
this court with supervising the EPA for years to come. I
respectfully dissent.
I.
The majority sets out the full background of this case, so
here I provide only a brief overview to situate the Consent
Order and its operation.
Under the Federal Insecticide, Fungicide and Rodenticide
Act (“FIFRA”), the EPA generally must issue a registration for
any given pesticide active ingredient before a person may
2
distribute or sell the ingredient. See 7 U.S.C. § 136a(a). The
Endangered Species Act (“ESA”) and its implementing
regulations require the EPA to determine whether any agency
action, including the issuance of a pesticide registration, “may
affect” listed species or critical habitats. 50 C.F.R. § 402.14(a);
16 U.S.C. § 1536(a)(2). This is referred to as an “effects
determination.” Ctr. for Biological Diversity v. EPA (“CBD
I ” ), 861 F.3d 174, 178 (D.C. Cir. 2017).
If the effects determination indicates that registering a
given pesticide ingredient may impact listed species or critical
habitats, the EPA generally must consult with the National
Marine Fisheries Service of the Department of Commerce or
the United States Fish and Wildlife Service of the Department
of the Interior (jointly, the “Wildlife Services”) before issuing
the registration. Id. These requirements aim to ensure the
EPA’s registrations of new pesticides are “not likely to
jeopardize the continued existence of any endangered species
or threatened species or result in the destruction or adverse
modification of” critical habitats. 16 U.S.C. § 1536(a)(2); see
also CBD I, 861 F.3d at 177–78.
For years, the EPA has registered pesticide active
ingredients without first making the required effects
determinations or consulting with the Wildlife Services. This
lawsuit is one of a number of similar suits challenging the
EPA’s failure to comply with the ESA. The Center for
Biological Diversity, the Center for Food Safety, and
Defenders of Wildlife (collectively, “CBD”) petitioned this
court for review, seeking vacatur of five pesticide registrations.
Because our court was already hearing a similar challenge to a
different registration, we held these petitions in abeyance. In
CBD I, we held in 2017 that the EPA had violated the ESA by
registering a pesticide active ingredient without performing the
3
required effects determinations and consultations. 861 F.3d at
188–89 (remanding to the EPA without vacatur).
It followed from CBD I that the registrations challenged in
the instant petition also violated the ESA, as all parties before
us agree. After several years of negotiations, the parties,
including the pesticide manufacturers as intervenors, reached
agreement in 2020 and proposed the Consent Order, which the
majority now adopts and enters.
The Order imposes a series of deadlines on the EPA. The
two most important deadlines are (1) the EPA must make
effects determinations for two of the four pesticide ingredients
by September 30, 2025, and (2) it must make determinations
for the other two by September 30, 2027. If the EPA determines
that a pesticide may affect a listed species or critical habitat,
consultation with the Wildlife Services is necessary, and the
EPA must “initiate such consultation within [14] business days
of issuing” the effects determination. The offending
registrations, however, are left in place. The EPA must also
report its progress to this court and to the other parties on a set
schedule.
The Order is ambiguous about the consequences, if any, of
a failure to comply. It provides that “[t]he Court will retain
jurisdiction over each petition for review to enforce the terms
of its order.” But it then stipulates, “[n]o Party shall institute a
proceeding for contempt of court unless EPA is in violation of
a separate order of the Court resolving a motion to enforce the
deadlines set forth above.” The parties may modify the
deadlines by mutual consent, and such modifications must be
filed with this court.
4
II.
I would decline to enter this Consent Order, which
simultaneously expands this court’s power to oversee the
functions of an Executive Branch agency and withholds this
court’s power to enter traditional judicial remedies. The
majority claims authority for the Consent Order in the court’s
general authority to manage our docket, FIFRA, and equity, but
the Order cannot be justified under any of these sources.
A.
The majority begins by gesturing to our “general”
authority to “manage our docket as we see fit,” including by
“hold[ing] cases in abeyance.” Maj. Op. 23. Holding a matter
in abeyance is unobjectionable and routine. But this Consent
Order is not analogous to such ordinary and temporary
suspensions of judicial proceedings.
The Consent Order affirmatively directs the EPA to fulfill
its statutory obligations on a specific timeline. The EPA must
finish two of the four effects determinations by September 30,
2025, and it must finish the remaining two by September 30,
2027. Depending on the results of those effects determinations,
the EPA will have to consult with the Wildlife Services within
14 business days of completing each determination. And the
EPA must abide by reporting deadlines over the next five years.
The Order is thus a far cry from cases in which the court
merely paused proceedings. For instance, we have held cases
in abeyance on the ground of prudential unripeness, Devia v.
NRC, 492 F.3d 421, 424, 428 (D.C. Cir. 2007); in order to give
the district court time to rule on a motion, United States v.
Quinn, 475 F.3d 1289, 1290–91 (D.C. Cir. 2007) (per curiam);
and to await the decision of a related case that seemed poised
to resolve a central issue, NLRB v. Sw. Regional Council of
5
Carpenters, 826 F.3d 460, 461 (D.C. Cir. 2016). As the
examples demonstrate, abeyance is typically ordered when the
court is simply waiting for further developments.
The majority attempts to fit the Order into the abeyance
framework, arguing that the judicial role here is similarly
“passive” and that the action it takes is “mild” and
“straightforward.” Maj. Op. 29, 32. Elsewhere, the majority
characterizes the Order as merely “returning the cases to
abeyance until the specified deadlines.” Maj. Op. 3. The
majority even asserts that, because the Order forswears
enforcement by contempt, there are no “judicially imposed
deadlines” to speak of. Maj. Op. 13.
But these descriptions cannot be squared with the Consent
Order’s text. The Order twice mandates that the EPA “will
prepare” effects determinations. It uses the term “deadline”
eight separate times. It bars the EPA from altering those
deadlines without consent from either CBD or this court. These
requirements belie the claim that the Order merely holds the
case “in abeyance to facilitate a settlement.” Maj. Op. 24.
In short, the Order addresses the substantive heart of this
case, imposing corrective actions for the EPA’s long-
recognized failure to comply with its statutory obligations. Far
from a waiting posture of docket management, the court directs
action by the EPA and imposes judicial superintendence over
the agency’s compliance.
B.
Nor can FIFRA provide authority for this court to enter the
Order. See Maj. Op. 23 (arguing that FIFRA “allows the
requested relief”). We have jurisdiction under FIFRA to review
petitions challenging pesticide registrations. When the EPA
issues a registration after a public hearing, FIFRA gives courts
6
of appeals “exclusive jurisdiction to affirm or set aside the
order complained of in whole or in part.” 7 U.S.C. § 136n(b);
CBD I, 861 F.3d at 185–86. Yet the statute provides only three
options: affirm, set aside, or set aside in part. There is no fourth
option, and so it is very hard to see how this grant of
jurisdiction affirmatively empowers us to do anything other
than affirm or set aside (in whole or in part) agency orders.
The majority maintains that, under the Consent Order, “we
retain authority” to take one of those actions. Maj. Op. 23. We
of course may do any of the three things that FIFRA empowers
us to do. But by entering the Consent Order, the court is not
doing any one of them. Reserving the right to exercise our
statutory jurisdiction in the future is not the same thing as
actually exercising our statutory jurisdiction in this case. The
majority’s reliance on FIFRA is therefore misplaced.
C.
The majority finally rests on “equitable powers” for the
Consent Order, claiming that “Section 136n does not purport
to displace our ordinary [remedial] authority.” Maj. Op. 24.
But FIFRA provides an exclusive list of actions this court may
take. That list leaves no room for unwritten equitable remedies,
not even by way of consent decree.
In FIFRA, Congress specifically and repeatedly outlined
the scope of direct review by a court of appeals. If a person is
adversely affected by an order of the EPA Administrator issued
after a public hearing, that person may file “a petition praying
that the order be set aside in whole or in part.” 7 U.S.C.
§ 136n(b). The court of appeals “shall have exclusive
jurisdiction to affirm or set aside the order complained of in
whole or in part.” Id. And then, as if that left any doubt about
permissible remedies, the statute provides that “[t]he judgment
of the court affirming or setting aside, in whole or in part, any
7
order under this section shall be final,” subject only to review
by the Supreme Court. Id. Congress thrice repeated that a
petition in a court of appeals may seek only to set aside, in
whole or in part, an order of the EPA. This limitation is further
reinforced by contrast to FIFRA’s broad grant of remedial
power to the district courts, which “are vested with jurisdiction
specifically to enforce, and to prevent and restrain violations
of, this subchapter.” Id. § 136n(c) (emphasis added).
When Congress has explicitly provided for a limited
exercise of jurisdiction, as it has done here, we must respect the
limits of that grant. Courts “are not free to fashion remedies
that Congress has specifically chosen not to extend.” Landgraf
v. USI Film Prods., 511 U.S. 244, 285 n.38 (1994); see also
Karahalios v. Nat’l Fed’n of Fed. Emps., Local 1263, 489 U.S.
527, 533 (1989) (“It is … an elemental canon of statutory
construction that where a statute expressly provides a remedy,
courts must be especially reluctant to provide additional
remedies.”) (cleaned up). FIFRA’s text and context
demonstrate that the grant of jurisdiction to affirm or to set
aside in whole or in part is limited only to those actions. See
Alexander v. Sandoval, 532 U.S. 275, 290 (2001) (“The
express provision of one method of enforcing a substantive rule
suggests that Congress intended to preclude others.”).1
1
The majority does not distinguish these cases or point to any
authority for judicial imposition of equitable remedies in the face of
a statute specifying remedies. The majority counters only that these
cases do not “disapprove[] an abeyance order entered to allow
parties’ settlement schedule to play out, or ha[ve] any other feature
that bears any resemblance to” the Order. Maj. Op. 30. But this is a
distinction without a difference. The majority does not explain how
the Order, which goes beyond abeyance and settlement, comports
with FIFRA or with Supreme Court and circuit precedent on the
limits of equitable authority.
8
Furthermore, we have long recognized that direct review
jurisdiction in the courts of appeals is “strictly limited” to what
has explicitly been provided by Congress. Loan Syndications
& Trading Ass’n v. SEC, 818 F.3d 716, 721 (D.C. Cir. 2016)
(cleaned up). This principle follows both from the limited
jurisdiction of the lower federal courts and the understanding
that, as a court of review, we must not transgress the authority
of the district courts. Home Depot U.S.A., Inc. v. Jackson, 139
S. Ct. 1743, 1746 (2019) (“[F]ederal courts are courts of
limited jurisdiction. … And lower federal-court jurisdiction
is … limited to those subjects encompassed within a statutory
grant of jurisdiction.”) (cleaned up); Watts v. SEC, 482 F.3d
501, 505 (D.C. Cir. 2007) (stating in the context of a direct
review statute that “[b]ecause district courts have general
federal question jurisdiction under 28 U.S.C. § 1331, the
normal default rule is that persons seeking review of agency
action go first to district court rather than to a court of appeals”)
(cleaned up). The circumscribed limits of direct review in our
court, combined with FIFRA’s explicit specification of
remedies, foreclose a broad understanding of our remedial
authority.
We have at times recognized that when “Congress is silent
on the question of remedies, a federal court may order any
appropriate relief.” Cobell v. Norton, 240 F.3d 1081, 1108
(D.C. Cir. 2001) (cleaned up). But FIFRA is simply not silent
on the question of remedies. When a statute explicitly sets forth
a legal right and provides remedies for violations of the right,
the Supreme Court has foreclosed judicial expansion of
remedies. “The provision of an express, private means of
redress in the statute itself is ordinarily an indication that
Congress did not intend to leave open a more expansive
remedy.” City of Rancho Palos Verdes v. Abrams, 544 U.S.
113, 121 (2005); see also Landgraf, 511 U.S. at 285 n.38
(refusing to find implied remedies in Title VII because that
9
statute “did not create a general right to sue for employment
discrimination, but instead specified a set of circumscribed
remedies”) (cleaned up).
For instance, when the Supreme Court has recognized an
implied cause of action in a statute, it has consistently
recognized that ordinary judicial remedies may apply. It is
unsurprising that when the Court discovers an implied cause of
action, it has similarly discovered the remedies to vindicate the
action. See Sossamon v. Texas, 563 U.S. 277, 288–89 (2011)
(limiting the presumption in favor of broad remedies to
“implied right of action” cases, where there is “no statutory text
to interpret”); see also Franklin v. Gwinnett Cnty. Pub. Schs.,
503 U.S. 60, 69 (1992) (concluding that courts could issue “any
appropriate relief” under Title IX, which had previously been
recognized to include an implied private cause of action).
Similarly, when a statute provides for a cause of action but is
silent on remedies, ordinary judicial remedies are assumed. See
J. I. Case Co. v. Borak, 377 U.S. 426, 428 n.2, 435 (1964);
Barnes v. Gorman, 536 U.S. 181, 189 (2002) (discussing the
“well settled rule that where legal rights have been invaded,
and a federal statute provides for a general right to sue for such
invasion, federal courts may use any available remedy to make
good the wrong done”) (cleaned up). Implied and residual
remedies are recognized only when a statute is otherwise silent
on the question of remedies.
Under Supreme Court and circuit precedent, when a
statute specifies remedies, courts cannot just choose to impose
additional remedies. Because FIFRA provides explicit
statutory remedies, we cannot assert additional equitable
authority to issue the Consent Order.
10
D.
FIFRA forecloses extra-statutory judicial remedies, but
even on the majority’s view that the statute leaves room for
some equitable remedies, the majority fails to establish that the
extraordinary relief contemplated by the Consent Order is
permissible.
The majority asserts that, “[i]f Congress does seek to
restrict courts’ equitable powers, it must do so by ‘the clearest
command.’” Maj. Op. 25 (quoting McQuiggin v. Perkins, 569
U.S. 383, 397 (2013)). That statement misses an important
qualifier. The cited rule from McQuiggin is that courts should
not “construe a statute to displace courts’ traditional equitable
authority absent the clearest command.” 569 U.S. at 397
(cleaned up) (emphasis added). Every Supreme Court case
cited by the majority similarly references “traditional equitable
authority” or addresses an obviously traditional form of relief,
like injunctions.2 These cases confirm that the clear statement
2
Holland v. Florida, 560 U.S. 631, 646 (2010) (“[W]e will not
construe a statute to displace courts’ traditional equitable authority
absent the clearest command.”) (cleaned up); Miller v. French, 530
U.S. 327, 340 (2000) (“[W]e should not construe a statute to displace
courts’ traditional equitable authority absent the clearest command,
or an inescapable inference to the contrary.”) (cleaned up); Califano
v. Yamasaki, 442 U.S. 682, 705 (1979) (“Absent the clearest
command to the contrary from Congress, federal courts retain their
equitable power to issue injunctions in suits over which they have
jurisdiction.”); FTC v. Dean Foods Co., 384 U.S. 597, 608 (1966)
(“In the absence of explicit direction from Congress we have no basis
to say that … a court of appeals … [cannot] exercise its express
authority under the All Writs Act to issue such temporary injunctions
as may be necessary to protect its own jurisdiction.”); Hecht Co. v.
Bowles, 321 U.S. 321, 329–30 (1944) (holding, in light of traditional
11
rule protects only traditional forms of relief, not any judicial
remedy asserted to be “equitable.” The majority’s more
sweeping clear statement requirement conflicts with the
Court’s numerous cases cited above indicating that when a
statute provides for judicial remedies, courts may not assume
additional remedies are available.
Here, the Consent Order goes well beyond traditional
forms of equitable relief. What the court enters today is a
consent order issued by a court of appeals, against an Executive
Branch agency, in an institutional reform case, in order to
impose prospective deadlines on the agency’s performance of
its regulatory duties. When Congress provided for direct
review jurisdiction in the courts of appeals over FIFRA orders
in 1972, a consent decree of this nature would have been
unheard of in federal practice.3 We cannot simply assume this
equity practice, that a statute empowering courts to grant injunctions
did not ipso facto require them to do so in every case).
3
Section 136n(b) was part of the 1972 amendments to FIFRA. See
Federal Environmental Pesticide Control Act of 1972, Pub. L. No.
92-516, § 16(b), 86 Stat. 973, 994 (codified at 7 U.S.C. § 136n(b)).
Consent decrees did not become an established tool for institutional
reform litigation until the late 1970s. See Douglas Laycock, Consent
Decrees Without Consent: The Rights of Nonconsenting Third
Parties, 1987 U. CHI. LEGAL F. 103, 104–08 (collecting many cases
as examples, almost all of which postdate 1972); Charles J. Cooper,
The Collateral Attack Doctrine and the Rules of Intervention: A
Judicial Pincer Movement on Due Process, 1987 U. CHI. LEGAL F.
155, 155–157 (similar); Donald L. Horowitz, Decreeing
Organizational Change: Judicial Supervision of Public Institutions,
32 DUKE L.J. 1265, 1266–69 (1983) (tracing the use of structural
injunctions, which predated consent decrees in institutional reform
litigation, to “a relatively small but highly significant number of”
cases beginning in the 1960s). The majority cites only one pre-1972
consent decree case to support its stance. Maj. Op. 31 (citing Swift &
12
court possesses the authority to exercise such far-reaching
equitable powers under FIFRA.
***
The Order cannot be justified as garden-variety abeyance.
FIFRA does not authorize the actions taken, and the specific
remedies in Section 136n foreclose additional equitable
remedies. And even if some equitable authority persists under
FIFRA, the Order establishes judicial supervision over the
EPA in the exercise of its ESA obligations, a remedy that
reaches far beyond any traditional equitable authority.
III.
This Consent Order is also difficult to reconcile with the
Article III judicial power because it is largely advisory and
imposes no binding legal consequences. The Order is markedly
unlike established judicial remedies, such as the writ of
mandamus this court recently ordered in a parallel case. See In
re Ctr. for Biological Diversity (“In re CBD”), 53 F.4th 665(D.C. Cir. 2022).
A.
The Order is inconsistent with the limited judicial power
in several ways. First, the Order is not a judgment that binds
parties to particular legal consequences. Courts are designed to
act, not by any means, but specifically by issuing judgments
that conclusively settle legal disputes between parties. See
Co. v. United States, 276 U.S. 311 (1928)). Yet that case concerned
a consent decree that barred private parties from engaging in certain
legally questionable conduct, not a decree directing a government
agency how to exercise its statutory authority. See Swift & Co., 276
U.S. at 327–28.
13
William Baude, The Judgment Power, 96 GEO. L.J. 1807, 1815
(2008) (“[T]he judicial power has traditionally been the power
to issue binding judgments.”). It has long been settled that the
federal courts cannot issue advisory opinions on the meaning
of the law. See, e.g., Flast v. Cohen, 392 U.S. 83, 96 (1968)
(describing the bar on advisory opinions as “the oldest and
most consistent thread in the federal law of justiciability”)
(cleaned up).
The Consent Order accomplishes little more than an
advisory opinion. Consider what the Order says. First, it
reaffirms the EPA’s obligations to follow the ESA’s
requirements. But that is nothing new; we already recognized
those obligations in CBD I. 861 F.3d at 188. Second, the Order
imposes timelines on the EPA. But instead of backing up those
timelines with some form of relief actually binding on the
parties, the Order simply provides that “[t]he Court will retain
jurisdiction over each petition for review to enforce the terms
of its order.” This statement alters no legal rights. It leaves the
status quo ante perfectly intact. Emphasizing its inefficacy, the
Order stipulates, “[n]o Party shall institute a proceeding for
contempt of court unless EPA is in violation of a separate order
of the Court resolving a motion to enforce the deadlines set
forth above.” The Order therefore does not make it easier for
CBD to initiate contempt proceedings in the future. Contempt
will be unavailable until the court enters a separate order and
the EPA violates that order. That was as true before today’s
decision as it is now. Similarly, the Order reserves CBD’s right
to seek injunctive relief, and the EPA reserves the right to
challenge such relief. Again, this merely recognizes the
preexisting legal rights of the parties—CBD has “the right” to
seek injunctive relief in this Court (as it always has), a right the
EPA could oppose (as it always could). Thus, while the
Consent Order sets out timelines for the EPA’s compliance, it
contains no judicially enforceable remedy not previously
14
available. The Order raises Article III concerns both because it
superintends an executive agency and because it does so in a
way that is largely advisory. There is nothing “paradoxical[]”
in this critique. Maj. Op. 32. The tension inheres in the Order,
which stretches the judicial power in multiple ways.
The terms of the Consent Order are unprecedented and
easily distinguished from the remedies in the two closest cases
cited by the majority. In American Public Gas Association v.
U.S. Department of Energy, which did not involve a consent
decree, this court ordered the Department of Energy to
reevaluate a final rule and specified that the rule would be
vacated automatically if the agency failed to comply within 90
days. 22 F.4th 1018, 1030–31 (D.C. Cir. 2022). Imposing
vacatur after a short time if defined conditions are not met is
wholly unlike the hazy and inconsequential terms of the
Consent Order.
The Order also goes beyond the remedy in In re Idaho
Conservation League, 811 F.3d 502 (D.C. Cir. 2016). There,
the court entered a consent decree that imposed deadlines and
reporting requirements on the EPA. See id. at 508, 516. Failure
to comply with that order could presumably form the basis of
contempt proceedings, which are a traditional remedy for
noncompliance with a court’s mandate. Contempt likewise
remained on the table in National Treasury Employees Union
v. Horner, 854 F.2d 490 (D.C. Cir. 1988), and Public Citizen
Health Research Group v. Brock, 823 F.2d 626 (D.C. Cir.
1987) (per curiam), two of the majority’s other cited cases.
Today’s Order, however, specifically eliminates
enforcement by contempt. If the EPA does not comply with the
timelines, CBD must seek an additional order from this court
before pursuing contempt proceedings. The Order reaffirms the
status quo with timelines that have no enforcement mechanism
15
and also explicitly withdraws enforcement through contempt.
The majority thus pushes past even the anomalous and far-
reaching decree in In re Idaho Conservation League. The
Order merely signals this court’s concern that the EPA should
work toward the stated deadlines. But signaling, like advising,
has never been within the proper province of the federal courts.
Second, the Order’s terms are prospective and
prescriptive, much more like legislation than adjudication.
Legislation is concerned primarily with establishing the rules
for future conduct, whereas adjudication is mainly
retrospective, determining the result of a particular dispute
under the established law. Cf. Chisholm v. Georgia, 2 U.S. (2
Dall.) 419, 448 (1793) (Iredell, J.) (declaring “that the distinct
boundaries of law and Legislation [should not] be confounded”
because “that would make Courts arbitrary, and in effect
makers of a new law, instead of being (as certainly they alone
ought to be) expositors of an existing one”). It is true that
equitable relief is often prospective—specific performance and
injunctions are two obvious examples. But prospectivity is the
exception and not the rule. Cf. Abram Chayes, The Role of the
Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1298
(1976) (explaining that judicial decrees “differ[] in almost
every relevant characteristic from relief in the traditional model
of adjudication,” in part because they “seek[] to adjust future
behavior, not to compensate for past wrong”). That is precisely
why Article III courts should carefully cabin equitable relief to
its traditional forms.
The Consent Order goes well beyond any traditional
equitable relief. It does nothing to declare what the law was or
is (because the parties agree about that) nor to change parties’
rights and obligations (because the Order lacks penalties). The
Order instead looks to the future, setting a schedule that might
govern disputes between CBD and the EPA.
16
The parallels to legislation are not just theoretical.
Congress has responded to the EPA’s ongoing failure to
comply with the ESA by enacting into law a provision much
like the Consent Order. The EPA is now required to submit
reports to Congress regarding (among other things) the EPA’s
efforts to “minimize delays in integrating … the pesticide
registration and registration review requirements
of … [FIFRA] … and … the species and habitat protection
processes described in” the ESA. Agricultural Act of 2014,
Pub. L. No. 113-79, § 10013(a), 128 Stat. 649, 951; see also
Agriculture Improvement Act of 2018, Pub. L. No. 115-334,
§ 10115, 132 Stat. 4490, 4914–15 (amending FIFRA to create
“an interagency working group … to provide
recommendations regarding, and to implement a strategy for
improving, the consultation process required under” the ESA).
Congress did not impose a deadline for pesticide registrations,
nor did it impose any stronger remedy.
The court now enters an Order that looks uncomfortably
similar to the statute: both acknowledge the EPA’s failures,
both impose reporting requirements on the agency, and both
leave enforcement of those requirements for another day. That
the Consent Order mimics Congress’s solution further reflects
how far the Order strays from the domain of the Article III
courts.
B.
The Consent Order also stands in sharp contrast to this
court’s recent grant of mandamus ordering the EPA to comply
with its ESA obligations for pesticide registration by a certain
date. In re CBD, 53 F.4th 665. I joined in the granting of that
writ because the circumstances warranted the extraordinary
relief of mandamus—a traditional form of relief plainly
consistent with the Article III judicial power.
17
The differences between the writ of mandamus and the
Consent Order highlight the problems with the latter. The
federal courts have authority under the All Writs Act to issue
“all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.”
28 U.S.C. § 1651(a). CBD petitioned for mandamus because
the EPA had failed to make the same ESA determinations we
had required in CBD I. We explained that mandamus “is an
extraordinary remedy, reserved only for the most transparent
violations of a clear duty to act,” and we laid out the demanding
showing any mandamus petitioner must make. In re CBD, 53
F.4th at 670 (cleaned up); see also In re Nat’l Nurses United,
47 F.4th 746, 752–53 (D.C. Cir. 2022). CBD made that
showing. Not only had the EPA failed to meet its ESA
obligations for eight years, but over five years had elapsed
since this court had ordered the EPA to come into compliance.
In re CBD, 53 F.4th at 669. Other considerations were relevant,
but that “failure to heed our remand” was “the decisive factor”
in granting mandamus. Id. at 671 (cleaned up).
We had clear authority to grant the writ and doing so was
appropriate under the circumstances. This case cannot rest on
the same authority because CBD does not seek mandamus. Nor
does CBD attempt to demonstrate that the circumstances
warrant extraordinary relief.
The gulf between the cases is further underscored by the
very different terms of the orders. In granting mandamus, we
ordered the EPA “to complete [the relevant] effects
determination and replace its previous order with an order
consistent with the ESA by September 2023.” Id. at 673.
Directly ordering a discrete agency action is a classic
mandamus remedy because it cabins judicial interference and
obviates any need for the court to weigh competing agency
priorities down the line. See, e.g., Radio-Television News Dirs.
18
Ass’n v. FCC, 229 F.3d 269, 271–72 (D.C. Cir. 2000). Unlike
a writ of mandamus ordering a specific action on a short
timeline, the Consent Order requires effects determinations but
leaves the existing registrations in place. It includes no
penalties for failure to comply and allows for future
modification by the parties or by the court over a period of five
years. Furthermore, the mandamus order implicitly left
contempt available as a penalty for continued EPA
intransigence. The Consent Order explicitly eliminates this
traditional remedy.
The writ of mandamus and the Consent Order bear only a
superficial resemblance. Mandamus rests on a solid statutory
foundation and comports with the traditional exercise of the
Article III judicial power. By contrast, today’s Order is outside
of FIFRA’s limited remedies and exceeds traditional equitable
remedies.
IV.
Even on the majority’s view that we possess the necessary
equitable authority, the Consent Order is an inappropriate
exercise of such authority. Equitable power is committed to our
discretion, and the circumstances here counsel in favor of
staying our hand. Three considerations underscore why the
Order is ill-advised.
First, we lack the competence to supervise the EPA. The
Order states that we retain jurisdiction to oversee the EPA’s
compliance with set deadlines. But we have none of the tools
required to control the agency’s compliance or to make the
judgments that the EPA necessarily must make in setting
priorities, weighing costs and benefits, and making policy
tradeoffs. We, of course, lack political control over the agency.
That belongs to the White House. And the Order fails to impose
any judicial penalties for failure to comply with the deadlines.
19
It is not clear how this court will supervise or enforce
compliance.
The majority justifies this excursion, in part, by
emphasizing how obvious and longstanding the EPA’s
violations are. The EPA has been falling short of its statutory
duties for years, and all agree the registrations at issue are the
product of that failure. The ordinary remedy should be vacatur
under Section 136n, setting aside the unlawful registrations. 7
U.S.C. § 136n(b); see also United Steel v. Mine Safety &
Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019)
(explaining that vacatur is the ordinary course in the context of
the Administrative Procedure Act’s similar remedial
language). We eschewed this remedy before, when we
remanded to the EPA without vacatur in CBD I. The EPA
flouted that order, ultimately requiring the writ of mandamus
already discussed. See In re CBD, 53 F.4th at 673. Despite this
experience, the Order takes a similarly feeble approach.
When we merely exhort an agency to act without imposing
consequences for the failure to comply, we squander our
authority to enter binding judgments and wander outside of the
judicial terrain. The practical problems caused by the EPA’s
failure to follow its statutory requirements cannot justify our
equitable indulgence.
Second, a Consent Order also may limit democratic
responsiveness. The EPA is overseen and directed by its
Administrator and ultimately by the President. But the Consent
Order may as a practical matter commit future EPA officials to
a given course of action, making it difficult for the current
President, or a future one, to direct change at the agency. See
Michael W. McConnell, Why Hold Elections? Using Consent
Decrees to Insulate Policies from Political Change, 1987 U.
CHI. LEGAL F. 295, 297 (“To the extent that consent decrees
20
insulate today’s policy decisions from review and modification
by tomorrow’s political processes, they violate the democratic
structure of government.”). The court’s intervention with this
Consent Order, toothless though it may be, will make political
solutions seem less urgent. Given the difficulty of securing
legislation, judicial oversight may have the effect of pushing
this pesticide problem to the political back burner, no doubt
further protracting this litigation and other similar suits. This
unusual equitable remedy distorts the respective roles of each
of the three branches of government.
Finally, today’s decision will inevitably cause agencies
and challengers to seek similar orders in the future. The
circumstances here are not so extraordinary. Agencies often
face thorny problems arising from their failure or inability to
comply with statutory demands. When they are unable to
secure legislative change or additional resources, agencies may
buy more time by colluding with the interested parties.4 Here,
court-sanctioned collusion means that all three sides get
something out of this bargain, at least in the short term. The
petitioners get yet another judgment requiring the EPA to
evaluate the biological effects of the pesticide ingredients. But
the existing pesticide registrations remain in place, which
means the EPA gets more time to comply with the law. And
the pesticide manufacturers are allowed to continue selling the
unlawfully registered ingredients. Everyone scores a win, but
the rule of law suffers.
4
Cf. Frew v. Hawkins, 540 U.S. 431, 441 (2004) (warning of the
dangers of consent decrees that are “not limited to reasonable and
necessary implementations of federal law”); Horowitz, 32 DUKE L.J.
at 1294–95 (noting that, because of the possibility of collusive
consent decrees, “[n]ominal defendants are sometimes happy to be
sued and happier still to lose”).
21
***
All parties involved acknowledge the difficult situation
here—the EPA has failed to meet its statutory obligations for
years, but it lacks the resources to come into compliance
quickly. We have already recognized that the normal remedy,
vacating the registrations, may be undesirable as a policy
matter in cases like this because the unlawfully registered
pesticides are often environmentally beneficial compared to
the alternatives. See CBD I, 861 F.3d at 188–89. I recognize
the Order seeks to implement a pragmatic solution to these
challenging circumstances. But the fact that the political
branches cannot implement a workable solution is not a
justification for this court to attempt to supervise the political
quagmire and the regulatory challenges at hand. And one might
reasonably ask why the majority and the parties believe this
weak Consent Order will secure the EPA’s compliance when
neither legislation, nor ongoing political attention, nor this
court’s earlier orders were able to do so.
In this Consent Order, the majority sees only a sheep, but
I spy a wolf. The Order imposes a new kind of judicial
supervision over agency dysfunction that goes well beyond the
traditional province of the Article III courts. Numerous
prudential considerations also counsel against this equitable
innovation. The bare fact that the parties have conveniently
agreed to today’s inconsequential half-measure cannot justify
yielding our adjudicatory role to watch over the slow
implementation of policy change at the EPA. I respectfully
dissent.