[00:00:02] Speaker 00:
Case number 14-1036 at L, Center for Biological Diversity at L Petitioners vs. Environmental Protection Agency.

[00:00:10] Speaker 00:
Ms.

[00:00:10] Speaker 00:
Gooding for the petitioners, Mr. Antoine for the respondent.

[00:00:57] Speaker 03:
Let's wait until the courtroom clears.

[00:01:30] Speaker 04:
Ms.

[00:01:31] Speaker 04:
Gooden, good morning.

[00:01:31] Speaker 04:
Good morning.

[00:01:33] Speaker 04:
May it please the Court, my name is Amanda Gooden and I represent the conservation groups in this matter.

[00:01:39] Speaker 04:
I would like to reserve three minutes of my time for rebuttal.

[00:01:44] Speaker 04:
We are here today because EPA approved a new toxic pesticide for nationwide use without first consulting with the federal wildlife agencies.

[00:01:53] Speaker 04:
This consultation is a necessary and legally required step for EPA to figure out what protections are needed for endangered species.

[00:02:03] Speaker 04:
EPA doesn't dispute that it didn't consult, and it doesn't seriously dispute that it should have.

[00:02:09] Speaker 04:
The main questions for this court today concern jurisdiction and remedy.

[00:02:15] Speaker 04:
I'd like to address three points on those topics.

[00:02:19] Speaker 04:
First, the conservation groups have standing to bring this claim.

[00:02:24] Speaker 04:
Second, because there was no public hearing, jurisdiction over this claim is proper in district court.

[00:02:32] Speaker 04:
And third, EPA's failure to consult violates the Endangered Species Act, and the conservation groups are entitled to a remedy for that violation.

[00:02:42] Speaker 04:
Turning first to standing.

[00:02:43] Speaker 03:
I don't want to disrupt your order here, but on the last question, doesn't EPA concede that?

[00:02:51] Speaker 04:
Yes, Your Honor.

[00:02:52] Speaker 03:
So there's nothing for us to decide on your third point.

[00:02:55] Speaker 04:
What remedy is appropriate, Your Honor, I believe is the question before the court.

[00:02:59] Speaker 03:
I mean, just whether what we say when we, if you have standing and if you're in the right court, what we say when we remand it, right?

[00:03:07] Speaker 04:
Uh, correct.

[00:03:07] Speaker 04:
We're asking for an order.

[00:03:08] Speaker 03:
Do I understand the only difference between the parties on that is that you want a deadline and the EPA doesn't, correct?

[00:03:16] Speaker 04:
That's the difference, Your Honor.

[00:03:17] Speaker 04:
Yes.

[00:03:17] Speaker 04:
They want a remand with nothing more.

[00:03:19] Speaker 03:
Well, you all agree no vacatur, but they want, you want a deadline, they, they don't want one, right?

[00:03:24] Speaker 03:
Correct.

[00:03:25] Speaker 03:
Okay.

[00:03:26] Speaker 03:
Could I ask you to start on the second issue first?

[00:03:28] Speaker 03:
Yes, Your Honor.

[00:03:29] Speaker 03:
You said that, um, you, um, um,

[00:03:35] Speaker 03:
You say it shouldn't be here because there was no adversarial hearing, right?

[00:03:42] Speaker 03:
Correct.

[00:03:43] Speaker 03:
But what do you do with our cases?

[00:03:45] Speaker 03:
What do you do with EDF versus CASEL?

[00:03:51] Speaker 03:
It says the question about jurisdiction, it turns on whether the record is adequate.

[00:03:58] Speaker 03:
If it's adequate, it should be here.

[00:04:01] Speaker 03:
If it's not adequate, it should be in the district court.

[00:04:03] Speaker 04:
Your Honor, Costell did look to that legislative history.

[00:04:07] Speaker 03:
That's what it holds.

[00:04:09] Speaker 03:
It holds that.

[00:04:11] Speaker 04:
It held that in the context of that agency process, the record was adequate, and so it should come here.

[00:04:17] Speaker 04:
But, Your Honor, in Kossel, there was only one statutory provision this court was looking at, and that was the judicial review provision.

[00:04:24] Speaker 04:
Here we have two, and that changes things.

[00:04:26] Speaker 04:
The court is looking not just at the language of the judicial review provision, but also at the plain statutory language governing the registration process.

[00:04:36] Speaker 04:
So in Consul, the agency's decision, the agency process there is not one that the statute directly speaks to.

[00:04:43] Speaker 04:
The agency was deciding who could request a public hearing, a cancellation hearing specifically.

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And so this court looked at what the agency actually did and said, well, the record is adequate to judicial policy, supports review in this court, and so found review appropriate here.

[00:05:03] Speaker 03:
I just don't understand what this is about.

[00:05:08] Speaker 03:
The two questions before us are standing, correct?

[00:05:13] Speaker 03:
Correct.

[00:05:14] Speaker 03:
Now the record's completely adequate on that, isn't it?

[00:05:17] Speaker 03:
It's this typical standing record we have here day after day in this court, right?

[00:05:21] Speaker 03:
A bunch of affidavits on both sides.

[00:05:23] Speaker 03:
Correct.

[00:05:24] Speaker 03:
There's nothing that needs to be supplemented on that, right?

[00:05:27] Speaker 04:
We feel there's not.

[00:05:28] Speaker 03:
Okay, and on the merits, there isn't any, right?

[00:05:31] Speaker 03:
We don't need a record to decide whether we impose a deadline or not, correct?

[00:05:35] Speaker 03:
It's a question of law, Your Honor, there's no... Yeah, so what sense... And our review is de novo on both questions, right?

[00:05:42] Speaker 03:
Correct.

[00:05:44] Speaker 03:
So just explain to me why... The case is here, right?

[00:05:51] Speaker 03:
It's on a petition.

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And there's no question about the adequacy of the record.

[00:05:58] Speaker 03:
So what's the possible reason to send this back for the district court to do what we could do in the next half hour?

[00:06:04] Speaker 04:
Because Congress, Your Honor, and the statute specified that only actions following a public hearing would come here.

[00:06:12] Speaker 02:
What, in your view, is a public hearing?

[00:06:13] Speaker 04:
Well, the Act describes a public hearing process as a cancellation or suspension proceeding.

[00:06:19] Speaker 04:
Now, in the legislative history and in this Court's decision in Costell, the Court held that it could be more than that, but it didn't define the limits of what a public hearing could be for purposes.

[00:06:30] Speaker 02:
There was a doctrine that grew up in the early 1970s defining what a hearing was after the Supreme Court's decision in Goldberg v. Kelly.

[00:06:39] Speaker 02:
And the Supreme Court said in 1973 in Florida East Coast that the hearing doesn't have to be what we lawyers think of as a oral presentation, cross-examination of witnesses and everything else.

[00:06:56] Speaker 02:
It can be a hearing on paper.

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And that's how Social Security claims have been handled now for years, despite the fact that the Supreme Court said that the individuals are entitled to a hearing.

[00:07:08] Speaker 02:
The hearing doesn't have to be an oral one.

[00:07:10] Speaker 02:
And the Supreme Court has adopted that doctrine, so have lower courts.

[00:07:15] Speaker 02:
So why isn't this what occurred here in the rulemaking proceeding, a hearing on paper?

[00:07:21] Speaker 04:
Because we have specific statutory language describing a different process, using different words to describe that process, and that's notice and comment for new registrations.

[00:07:32] Speaker 04:
And in fact, it would introduce redundancy into the statutory text because the statute also provides for a public hearing appeal, an administrative appeal from that notice and comment process.

[00:07:44] Speaker 04:
And if Congress thought these were the same thing and should both be reviewed in the same place, then there's no reason for a registration decision.

[00:07:52] Speaker 02:
No, actually there is.

[00:07:53] Speaker 02:
If what you have is an EPA interpretation of a particular regulation or statute, there's no need for EPA in that type of a situation to engage in any kind of notice and comment.

[00:08:06] Speaker 02:
And so there wouldn't be any public hearing in that situation if a hearing on paper is the equivalent.

[00:08:14] Speaker 02:
And I suppose those cases should go to the district court in light of this statute.

[00:08:19] Speaker 02:
So there are situations that are equivalent to having no hearing at all.

[00:08:28] Speaker 04:
What I'm saying, Your Honor, is that for the registration process specifically, the statute always requires that to be a notice and comment process.

[00:08:37] Speaker 04:
But where a pesticide applicant is disappointed, they can then go on and request a full public hearing, an adjudicative hearing under the Act.

[00:08:47] Speaker 04:
So if Congress thought the notice and comment record was always going to be the equivalent or equal to the full adjudication record, there's no real reason to have that whole second appeal route if Congress intended the notice and comment record to be the basis for it.

[00:09:02] Speaker 02:
If I'm understanding you correctly, then what you're saying is that the public hearing requirement is met only if there's been an adjudication, and it cannot be met if there's been a ruling.

[00:09:15] Speaker 02:
Is that what you're saying?

[00:09:16] Speaker 04:
I don't know that I would say it must always be an adjudication, but here when we have different statutory language describing a different process.

[00:09:25] Speaker 02:
Well, if it's not an adjudication, what is it?

[00:09:27] Speaker 02:
If it's not an adjudication, it's not a rulemaking, what is it?

[00:09:30] Speaker 04:
Well, Your Honor, it has, in the cases that this Court has considered, it's always been an adjudication.

[00:09:35] Speaker 04:
But we think the notice and comment process for registration review that the Act describes separately, that can't be swallowed into public hearing because of the very different statutory language that they are.

[00:09:47] Speaker 04:
I would also note that the legislative history that this Court looked to in Kossel, the discussion of the adequacy of the record, that appears in the context of two pages discussing cancellation and suspension hearings.

[00:10:00] Speaker 04:
There's no discussion of notice and comment or of registrations, new registrations in that section.

[00:10:06] Speaker 04:
That same Senate report does discuss new registrations in an entirely different section of the report

[00:10:12] Speaker 04:
talks about notice and comment, it doesn't talk about hearings, and it doesn't have any indication that review would be here.

[00:10:17] Speaker 04:
Are you familiar with Florida East Coast?

[00:10:20] Speaker 04:
I am, Your Honor.

[00:10:21] Speaker 02:
Let me read to you a specific statutory mandate that the proceedings take place on the record after hearing may be satisfied in some circumstances by submissions in written form.

[00:10:38] Speaker 04:
But Your Honor, here we have the structure of the statute distinguishing between the adjudicative hearings and the cancellation and suspension procedures on the one hand and the registration process on the other.

[00:10:49] Speaker 04:
And when faced with agency decisions that didn't fit in either of those buckets, which was the case in Costell and the case in Humane Society, this court looked at what the agency did and said, OK, that should be a public hearing.

[00:11:00] Speaker 04:
The record is adequate.

[00:11:02] Speaker 04:
We believe sound policy supports review in this court.

[00:11:05] Speaker 04:
But we're not dealing with a no man's land here.

[00:11:07] Speaker 04:
We're not dealing with an agency decision that the statute does not speak to and does not dictate.

[00:11:12] Speaker 04:
We have a process Congress specified, and they used very different words to describe that process than the words they used to describe the processes that should go to the courts of appeals.

[00:11:23] Speaker 03:
So can I go back to my, I just have a very practical question.

[00:11:26] Speaker 03:
Yes.

[00:11:27] Speaker 03:
So you spent a lot of energy and time in your briefs arguing you should be in the district court.

[00:11:33] Speaker 03:
yet you agreed with me that the record is adequate as it is for both standing and the merits, right?

[00:11:40] Speaker 03:
Correct.

[00:11:41] Speaker 03:
So just what difference does it make to you?

[00:11:44] Speaker 04:
Your Honor, in this case, we really don't think it does make a difference.

[00:11:47] Speaker 04:
We simply want our claim to be heard.

[00:11:48] Speaker 03:
I see.

[00:11:50] Speaker 03:
So I'm not missing anything about it.

[00:11:52] Speaker 04:
No.

[00:11:53] Speaker 03:
But you just think, you know, you think the statute says what it does, and therefore it should be in the district court, but you don't have any

[00:12:01] Speaker 03:
In fact, let's assume we thought you had standing.

[00:12:06] Speaker 03:
You would get relief a lot faster here, right now.

[00:12:10] Speaker 04:
In this particular case, we would, Your Honor.

[00:12:13] Speaker 04:
But again, we have concerns about the 60-day notice requirement in the Endangered Species Act.

[00:12:18] Speaker 03:
Are you worried about other cases, future cases?

[00:12:22] Speaker 04:
Yeah, but the EPA has not argued in this case that there's no jurisdiction for that reason.

[00:12:27] Speaker 04:
But if we had brought only a claim here, we felt that we would be vulnerable to that argument.

[00:12:33] Speaker 03:
Well, I don't blame you for bringing a claim in both courts.

[00:12:35] Speaker 03:
That was a very wise choice.

[00:12:38] Speaker 03:
But now that you're here, other than your argument about what the statute means, you don't really care, right?

[00:12:46] Speaker 04:
In this case, no.

[00:12:47] Speaker 04:
But in this type of claim, the specific effects on endangered species, this is a rare case.

[00:12:54] Speaker 04:
EPA concedes that it did not follow the law.

[00:12:56] Speaker 03:
So if you have, let's assume tomorrow you get another case, where instead of EPA conceding that it didn't comply with that, it argues that it did.

[00:13:05] Speaker 03:
It did comply.

[00:13:07] Speaker 03:
Now there, you would have a record problem, right?

[00:13:10] Speaker 03:
You would have a question in that case about, well, is the record adequate?

[00:13:13] Speaker 03:
And if it isn't, it needs to be in the district court.

[00:13:16] Speaker 03:
Correct.

[00:13:16] Speaker 03:
OK.

[00:13:17] Speaker 03:
But that's not this case.

[00:13:19] Speaker 03:
This is a very strange case.

[00:13:20] Speaker 03:
It is a strange case, Your Honor.

[00:13:22] Speaker 03:
I have to say, this is one of the oddest cases I've ever seen.

[00:13:26] Speaker 03:
OK, so we're required, prior to Steele Co., we would have simply decided the merits here and remanded it.

[00:13:33] Speaker 03:
But we can't do that anymore.

[00:13:35] Speaker 03:
We now have to decide standing.

[00:13:36] Speaker 03:
So here we have a case where we have to decide standing first, but there's no merits, right?

[00:13:41] Speaker 04:
Right, there's no merits dispute.

[00:13:43] Speaker 04:
That's so strange.

[00:13:44] Speaker 04:
Your Honor, on the jurisdictional point, I think it creates a very challenging situation.

[00:13:49] Speaker 03:
There's a famous Civil War general who once said in the middle of a battle, this is like living upstairs over a vacant lot, which is what this case is like.

[00:13:59] Speaker 03:
It is something like that, Your Honor.

[00:14:01] Speaker 03:
There's nothing here other than standing.

[00:14:02] Speaker 03:
I've never seen anything like this.

[00:14:04] Speaker 04:
Your honor, I would just note quickly that to make the adequacy of the record the only consideration here without any reference to the process that produced that record means that the parties will have to potentially fight over whether the record is adequate or not before figuring out which court has jurisdiction to hear the claim.

[00:14:23] Speaker 04:
And I don't think that's what Congress intended.

[00:14:25] Speaker 04:
They said following a public hearing, which indicates that a specific type of agency process is what they have.

[00:14:30] Speaker 03:
I understand.

[00:14:31] Speaker 03:
I just don't understand.

[00:14:32] Speaker 03:
You're worried about this pesticide.

[00:14:33] Speaker 03:
Yes.

[00:14:34] Speaker 03:
You can get your fastest relief right here, assuming we think you have standing.

[00:14:38] Speaker 03:
The only reason you might not is if the district court, we didn't think you had standing, but the district court did.

[00:14:44] Speaker 03:
Now, I don't know whether that's part of your calculation or not.

[00:14:48] Speaker 03:
You can get a lot faster relief here if we think you have standing, then you have to go all the way back to the district court, because the government has said it's going to raise standing there, right?

[00:14:56] Speaker 04:
It has.

[00:14:57] Speaker 04:
We feel that we have adequately demonstrated that we have standing men for this court and for the district court as well.

[00:15:03] Speaker 04:
Thank you.

[00:15:22] Speaker 01:
May it please the court.

[00:15:23] Speaker 01:
My name is Travis Anatoin.

[00:15:24] Speaker 01:
I'm with the Department of Justice, and I'm representing the Environmental Protection Agency.

[00:15:30] Speaker 03:
I'd like to address first the district court's order dismissing the senator's complaint, and then move on to... Would you just... Am I right about this case that if we think petition is standing, then the EPA, the government, agrees that it's got to go back, right?

[00:15:46] Speaker 01:
That's correct, Your Honor.

[00:15:51] Speaker 03:
What's the reason why, given that's the government's position?

[00:15:54] Speaker 03:
And I realize you're from the Justice Department, and you don't have to answer this question.

[00:15:58] Speaker 03:
Obviously, you don't know.

[00:15:59] Speaker 03:
But if the agency agrees it has to do the endangered species analysis, and you and the petitioner both agree that the registration shouldn't be vacated, just remanded, why doesn't EPA just do it?

[00:16:16] Speaker 03:
Why are we spending all our time trying to figure out whether these people are standing?

[00:16:21] Speaker 01:
Well, Your Honor, we did have some settlement discussions.

[00:16:24] Speaker 01:
They were fruitless.

[00:16:25] Speaker 01:
I think it's important to understand that this case comes against a backdrop of now going on a decade's worth of efforts to streamline and synthesize the interaction between Phifra and the endangered species.

[00:16:38] Speaker 03:
So there are... So is your concern, let me just cut to the chase here, is your concern that the remedy, if there's a remedy here, it will upset the way the agency has prioritized

[00:16:49] Speaker 03:
its efforts to comply with the statute.

[00:16:52] Speaker 03:
In other words, as I understand it from your brief, the agency has decided to do the most risky pesticides first, right?

[00:17:00] Speaker 03:
And it thinks this pesticide is less risky, right?

[00:17:05] Speaker 01:
That's correct.

[00:17:06] Speaker 03:
So is the agency's concern that if the petitioners win, it will force the agency to move quicker on a less risky pesticide than on the more risky ones?

[00:17:17] Speaker 01:
Is that what's going on here?

[00:17:19] Speaker 01:
That's part of the concern, Your Honor.

[00:17:21] Speaker 01:
Is there another part?

[00:17:22] Speaker 01:
Yes, I think the other part is that the agencies are still working on creating a framework for this type of consultation.

[00:17:29] Speaker 01:
For many years, the EPA was under a good faith belief that the ESA Section 7 requirements did not apply up front at the national level.

[00:17:38] Speaker 01:
And it was only since around the time of Washington toxics that the agency learned that, in fact, it was required to consult.

[00:17:46] Speaker 01:
At that point, there were over 1,100 active ingredients that required consultation, dating back decades.

[00:17:54] Speaker 01:
And these consultations are huge nationwide undertakings.

[00:17:58] Speaker 01:
They go not just to the particular species at issue, which may number in the thousands.

[00:18:03] Speaker 01:
They go to agricultural use and climate, geography.

[00:18:09] Speaker 01:
It requires a wealth of modeling and cooperation between not just the three agencies, but

[00:18:14] Speaker 01:
all the affected parties, all the stakeholders.

[00:18:16] Speaker 01:
So part of it is, Your Honor, this worry about line cutting, but part of it is, in some sense, the mechanisms simply aren't there yet to effectuate the type of consultation that EPA and the services, the expert services would like.

[00:18:31] Speaker ?:
Okay.

[00:18:32] Speaker 01:
Your Honor, I do want to just briefly touch on the two jurisdictional issues addressed by the district court, then move on to standing.

[00:18:40] Speaker 01:
With respect to the public hearing question, Your Honor, as you noted... Well, you agree the case should be here, right?

[00:18:48] Speaker 01:
Yes, we do, Your Honor.

[00:18:50] Speaker 01:
I just wanted to emphasize, with respect to the public hearing, the process that occurred here.

[00:18:54] Speaker 01:
EPA did undertake two rounds of notice and comment.

[00:18:58] Speaker 01:
It took dozens of comments.

[00:19:00] Speaker 01:
You responded to those comments in detail.

[00:19:02] Speaker 01:
including comments from petitioners, and compile the 100,000 page record, which is more than enough to evaluate the legal issues before the court today.

[00:19:13] Speaker 01:
Secondly, going back to at least City of Rochester rebond with this court has held with respect to bifurcated review statutes like FIFRA,

[00:19:21] Speaker 01:
is that where Congress determines that review of particular agency actions should be in the Court of Appeals, that necessarily ousts competing grounds of jurisdiction to the district courts in independent statutes.

[00:19:33] Speaker 01:
And that's exactly how FIFRA operates.

[00:19:35] Speaker 01:
vis-a-vis the ESA.

[00:19:37] Speaker 01:
And indeed, if one looks at plaintiff's complaint and petitioner's petition, it's very clear that their challenges bound up with the ESA are inextricable from their challenge to a pesticide registration order.

[00:19:53] Speaker 01:
If there's no further questions on the district court's order of dismissal, I would like to discuss standing.

[00:19:59] Speaker 01:
The court should dismiss the Senator's petition for want of standing because petitioners have not demonstrated an actual and imminent injury as required by Article 3, but only an abstract conjectural injury.

[00:20:16] Speaker 01:
And in particular, I want to stress that this court has been very exacting and careful in reviewing standing declarations, where, as here, petitioners premise their theory of injury not only on the actions of third parties not before the court, in this case, the end users of scientific rule, but also an additional set of third parties, the regulated parties, the interveners.

[00:20:41] Speaker 01:
So there's a fairly long causal chain from the onset.

[00:20:46] Speaker 01:
And in this case, petitioners haven't met their burden for at least three reasons.

[00:20:51] Speaker 03:
Let me ask you about your first point.

[00:20:53] Speaker 03:
The petitioners haven't shown that farmers will use it.

[00:20:56] Speaker 03:
EPA itself says that this is the most effective pesticide.

[00:21:03] Speaker 03:
It says, quote, it's an essential tool to citrus growers and blueberry farmers, which are under serious threat.

[00:21:12] Speaker 03:
And it says this pesticide is the most effective alternatives for combating these evasive insect.

[00:21:23] Speaker 03:
So, I mean, why isn't that enough?

[00:21:29] Speaker 03:
The producers of this have spent a huge amount of money getting this pesticide registered.

[00:21:36] Speaker 03:
EPA says it's the most effective.

[00:21:39] Speaker 03:
Isn't it fairly obvious that the farmers will use it?

[00:21:43] Speaker 01:
Yes, Your Honor, we don't contest as a general principle that users, end-users of cyanotinoloprol will use cyanotinoloprol.

[00:21:50] Speaker 01:
What we're contesting is the showing by petitioners that users near the declarants and near the declarants professed species of interest will use cyanotinoloprol.

[00:22:01] Speaker 03:
And in cases where this court has... Well, the record shows there's overlap between where these two insects are and where blueberry and citrus farms are.

[00:22:14] Speaker 03:
Now, you disagree about the extent of the overlap, but the evidence shows there's an overlap, so what else do they need to show?

[00:22:23] Speaker 01:
Well, Your Honor, we think they need to show

[00:22:27] Speaker 01:
at least two more pieces of evidence.

[00:22:29] Speaker 01:
The first thing they need to show is that cyanotinylapurl will actually adversely affect these particular species.

[00:22:38] Speaker 01:
What the risk assessment prepared by EPA shows is that based on representative samples, the pesticide is harmful at most at the level of taxa.

[00:22:48] Speaker 03:
Yeah, but that's to things like birds and mammals.

[00:22:51] Speaker 03:
Didn't the risk assessment say it was risky to insects?

[00:22:56] Speaker 01:
At the level of taxa, it is generally speaking.

[00:23:00] Speaker 03:
So they have a study that says, your own study says it's risky to insects.

[00:23:07] Speaker 03:
This beetle and this butterfly are insects.

[00:23:10] Speaker 03:
What more do they need?

[00:23:12] Speaker 03:
I mean, EPA could come forward with evidence that it's not.

[00:23:16] Speaker 03:
it's not toxic to these two insects, but that's the only question before us, and I don't see that evidence.

[00:23:22] Speaker 01:
Well, Your Honor, to clarify, what the risk assessment does not say is that cyanotinoloprol is harmful to all insects.

[00:23:30] Speaker 01:
It just is predictive, in general, saying that there may be some concern to insects.

[00:23:35] Speaker 02:
But the risk assessment…

[00:23:40] Speaker 02:
If the citrus farms and the blueberry growers are having problems now without this pesticide, that doesn't mean they're not using any pesticide.

[00:23:49] Speaker 02:
They're using some sort of pesticide that is not as effective.

[00:23:53] Speaker 02:
And so there's room in there, it seems to me, for a comparative analysis.

[00:23:57] Speaker 02:
If the pesticides they're using now are killing more insects that are not threatening the farms,

[00:24:07] Speaker 02:
and this pesticide would not, then that is a net gain, not a net loss.

[00:24:13] Speaker 01:
Yes, Your Honor, I think that that is certainly a plausible scenario.

[00:24:17] Speaker 01:
Candidly, the EPA and petitioners, according to their brief, don't know how the pesticides affect a particular species because the framework for consultation isn't there.

[00:24:29] Speaker 01:
It is plausible that certain species are better off in this case.

[00:24:35] Speaker 03:
I think the point is that... Doesn't the record say that this pesticide is more effective and less harmful?

[00:24:43] Speaker 03:
In fact, I think the DuPont study suggests that farmers will use this.

[00:24:56] Speaker 03:
This will be used in addition to the existing pesticides, right?

[00:25:04] Speaker 01:
It could, in theory.

[00:25:05] Speaker 01:
Part of the problem with the declarancy is that there's just no information as to what's happening on the ground in these particular locations, the particular overlaps which have been the basis for the court's jurisdiction in cases like the Sierra Club cases from 2014.

[00:25:23] Speaker 01:
when petitioners haven't been able to show that nexus, as in Florida Audubon, as in the Sierra Club case from 2002.

[00:25:30] Speaker 02:
Is there anything in the record indicating that whatever pesticide is being used now is less expensive than this particular product would be?

[00:25:41] Speaker 01:
Yeah, I'm not aware of it.

[00:25:42] Speaker 02:
The reason a farmer wouldn't use it, even though it's more effective, is because it's much more expensive.

[00:25:48] Speaker 02:
I'm thinking of personal experience.

[00:25:50] Speaker 02:
There's a new pesticide out called finacity that kills nimble will, which I unfortunately have in my lawn.

[00:25:57] Speaker 02:
So I thought, oh, this is great.

[00:25:59] Speaker 02:
It's the only selective one.

[00:26:01] Speaker 02:
And so I got on the internet, and it was $990 a gallon.

[00:26:07] Speaker 02:
So I decided to pass.

[00:26:11] Speaker 01:
I'm not aware of anything in the record that breaks down the pesticides by cost, but I will say that there are additional reasons to use varying pesticides, including human health.

[00:26:23] Speaker 01:
And what the record does establish is that for farm workers especially, cyanotinylapro will be less toxic than its counterparts.

[00:26:32] Speaker 02:
What is the term EPA uses for saying that the pesticide is less dangerous to humans?

[00:26:38] Speaker 02:
There's a particular term they use.

[00:26:42] Speaker 01:
In the risk assessment, it's generally labeled as less toxic.

[00:26:47] Speaker 01:
The specific measurements are labeled as risk quotients, which is essentially exposure over the denominator, which is levels of the pesticide which are harmful under certain measurements to each individual species.

[00:27:05] Speaker 01:
But generally, it's just really referred to as toxicity.

[00:27:09] Speaker 03:
Let me make sure, so we understand from the risk assessment that it is toxic to insects generally, correct?

[00:27:15] Speaker 01:
That's correct, Your Honor.

[00:27:17] Speaker 03:
So is there anything in the record that says it's not toxic?

[00:27:24] Speaker 03:
Well, let me ask you, is there anything in the record that says it's less toxic than other insecticides?

[00:27:31] Speaker 01:
Absolutely, Your Honor.

[00:27:32] Speaker 03:
To insects?

[00:27:34] Speaker 01:
To insects.

[00:27:36] Speaker 01:
Yes, I think the most concrete example I can give you on that point is vis-a-vis honeybees.

[00:27:43] Speaker 03:
Okay, but we're not talking about honeybees here.

[00:27:45] Speaker 03:
These people are watching beetles and butterflies.

[00:27:52] Speaker 03:
They're not worried about bumblebees, honeybees.

[00:27:57] Speaker 03:
What about these two insects?

[00:27:59] Speaker 01:
There is nothing in the record that demonstrates conclusively that this pesticide is better.

[00:28:05] Speaker 03:
So the burden is on the petitioner and they've cited EPA's study which says it's toxic to insects.

[00:28:13] Speaker 03:
And the only insect that I know of, as you just pointed out, that it isn't toxic to in the record is the honeybee.

[00:28:20] Speaker 03:
So isn't it EPA's burden to come forward with evidence that, well, yes, it's toxic generally to insects, but A, it's either not toxic to these two bugs, or it's less toxic than other insecticides.

[00:28:38] Speaker 03:
Those two things I don't see in the record.

[00:28:40] Speaker 01:
Well, it would be our burden, respectfully, Your Honor.

[00:28:43] Speaker 01:
We disagree that petitioners have made the prima facie showing that, in fact, Sinatranilopril is harmful to these particular insects.

[00:28:50] Speaker 01:
The National Academy report spells this out very clearly that it's impossible to draw conclusions regarding the effects to particular species from documents like the risk assessment.

[00:29:01] Speaker 01:
That's the whole point of further consultation.

[00:29:04] Speaker 01:
And beyond that, the only other point I'd make with respect to standing, is that the nexus is so unclear between these species and these petitioners and scientific approval use.

[00:29:17] Speaker 01:
One of the tightest overlaps we could find alleged in petitioners' declarations

[00:29:22] Speaker 01:
Listen to that of Martha Crouch.

[00:29:24] Speaker 01:
She alleges that she's concerned about Sandhill Cranes in Jasper County, which is around 560 square miles, because there are allegedly 100 acres of blueberry farms in Jasper County.

[00:29:35] Speaker 01:
Now, even assuming that Sciontonilla Pearl is harmful to cranes and that all 100 acres use Sciontonilla Pearl,

[00:29:43] Speaker 01:
That overlap turns out to be only three thousandths of one percent of Jasper County.

[00:29:49] Speaker 01:
And we think under Summers, which held at an 800 square mile nexus, wasn't sufficient to show standing under the circuit's cases like Sierra Club and Florida Audubon, like I've mentioned, that's far too thin a read to premise an injury in fact on.

[00:30:05] Speaker 01:
And as I've said, that's one of the tightest overlaps we've found.

[00:30:08] Speaker 02:
a particular pesticide does not accumulate in the soil?

[00:30:13] Speaker 02:
What is it?

[00:30:14] Speaker 02:
Dissipate into the atmosphere?

[00:30:15] Speaker 01:
Well, it's less likely to bioaccumulate than its counterparts.

[00:30:20] Speaker 01:
It does degrade into multiple components, and those are assumed to have the same toxicity as sinutrional coral itself.

[00:30:28] Speaker 02:
And it's less harmful to honeybees, which is a big deal, because without honeybees, you don't get fruit and you don't get blueberries.

[00:30:35] Speaker 01:
That's correct.

[00:30:37] Speaker 01:
The appendix at 442 and 500 spells out how, especially compared to organophosphates and other pesticides, synginolapuril, from what we know, is generally less toxic to honeybees.

[00:30:50] Speaker 02:
The toxicity studies, are they species-specific or general?

[00:31:00] Speaker 01:
I can try to answer your question by spelling out the consultation process in a bit more detail.

[00:31:06] Speaker 01:
There's three levels.

[00:31:07] Speaker 01:
The first is a screening level assessment where what the EPA does is it tries to rule out no effect determinations.

[00:31:17] Speaker 01:
for an entire taxa.

[00:31:19] Speaker 01:
And for the, at this level, which is what the court has in front of it, it uses representative species.

[00:31:24] Speaker 03:
Well, you haven't done, the EPA hasn't done that in this case, right?

[00:31:27] Speaker 01:
It has done that, Your Honor.

[00:31:28] Speaker 03:
It has or hasn't?

[00:31:29] Speaker 01:
It has.

[00:31:29] Speaker 01:
That's the risk assessment that's in the appendix.

[00:31:32] Speaker 03:
Well, what does this sentence mean in your, you say should the court read the merits of this claim?

[00:31:37] Speaker 03:
EPA does not contest that it has not made an effects determination.

[00:31:45] Speaker 03:
By the way, that's a good reason why you shouldn't use a lot of knots in a sentence.

[00:31:53] Speaker 03:
Doesn't that mean EPA has not made the effects determination?

[00:31:57] Speaker 01:
Well, so following the National Academy report in 2013, EPA huddled with the Fish and Wildlife Service and the National Marine Fisheries Service.

[00:32:07] Speaker 01:
And what came out of that process and what came out of the National Academy report was following the screening level assessment, which is what we have now.

[00:32:16] Speaker 01:
So EPA looks at onions or rainbow trout.

[00:32:21] Speaker 01:
It then goes back and it really refines the models and it takes a hard look at a species life cycle, the geography, where the species lives, it looks at the agricultural patterns, the climate, and it tries to much more thoroughly document how the species could be affected.

[00:32:41] Speaker 01:
The EPA has done this for three trial pesticides.

[00:32:45] Speaker 01:
It's just finished that in December.

[00:32:46] Speaker 01:
And it's only at that stage that it makes the may affect the termination.

[00:32:49] Speaker 01:
I see.

[00:32:50] Speaker 03:
So that hasn't happened in this case.

[00:32:52] Speaker 03:
That has not happened.

[00:32:53] Speaker 03:
I get you.

[00:32:54] Speaker 01:
Okay.

[00:32:54] Speaker 01:
Now I understand.

[00:32:55] Speaker 01:
Okay.

[00:32:56] Speaker 01:
I see I'm well past my time.

[00:32:58] Speaker 03:
So if it goes back, if it is remanded, the EPA will have to do that first, right?

[00:33:03] Speaker 01:
Yes, Your Honor.

[00:33:04] Speaker 03:
And it could conclude, based on that, that it then doesn't need to consult with the endangered species people, correct?

[00:33:09] Speaker 01:
At that stage, it would render a not likely to adversely affected termination.

[00:33:13] Speaker 01:
If the expert agencies concur, there's no further consultation.

[00:33:16] Speaker 01:
Gotcha.

[00:33:17] Speaker 03:
OK.

[00:33:17] Speaker 03:
That was helpful.

[00:33:18] Speaker 03:
Thank you.

[00:33:18] Speaker 01:
Thank you, Your Honor.

[00:33:19] Speaker 03:
Thank you.

[00:33:22] Speaker 03:
Why don't you take two minutes?

[00:33:29] Speaker 04:
Thank you, Your Honor.

[00:33:30] Speaker 04:
A few points on standing to start.

[00:33:35] Speaker 04:
The action we have here before us is EPA's decision to authorize this pesticide.

[00:33:39] Speaker 04:
There are certainly other threats to these species, but EPA, nothing in EPA's decision here requires that any other pesticide be used less as a condition of this pesticide's use.

[00:33:52] Speaker 04:
If EPA had actually said in its decision this pesticide can only be used where these other more toxic pesticides aren't used, we'd have a very, very different fact pattern.

[00:34:01] Speaker 04:
That's not what we have.

[00:34:02] Speaker 04:
And we had EPA and the registrant saying we expect it will be used in addition to other pesticides.

[00:34:12] Speaker 04:
I agree, Judge Tatel, that the general statements in the risk assessment that it is toxic to this taxa do meet our prima facie showing that there is likely harm to these specific species within that taxa, and we have nothing that would indicate to the contrary.

[00:34:31] Speaker 04:
I also want to turn back quickly to kind of what this

[00:34:34] Speaker 04:
what this case is about as- Could you say a little more about standing?

[00:34:37] Speaker 03:
Yes, of course.

[00:34:41] Speaker 03:
I understand your point about how it's, you think you've met your burden that it's likely to be used, but what about the overlap problem?

[00:34:51] Speaker 04:
Uh, Your Honor, we... Could you say something about that?

[00:34:53] Speaker 04:
Yes, we've identified species, for example, in the Mitchell-Sator butterfly, which exists only in the largest blueberry-growing county in Michigan, which is the largest blueberry-growing state in the country, and we've shown that this butterfly's habitat is in and around these blueberry fields.

[00:35:12] Speaker 04:
This is one of the crops that EPA has said it is desperately needed, Sandra Neal-Pole, to combat in these crops, and so...

[00:35:19] Speaker 02:
Michigan is the largest blueberry producer?

[00:35:22] Speaker 02:
I thought it was New Jersey.

[00:35:24] Speaker 04:
Michigan is by acreage.

[00:35:25] Speaker 04:
I think New Jersey might be by volume.

[00:35:28] Speaker 03:
And is this in your reply brief the response to the DuPont analysis?

[00:35:34] Speaker 03:
Is that where that is?

[00:35:35] Speaker 04:
Yes, we have an additional declaration that is attached to our reply brief.

[00:35:39] Speaker 03:
That's Mr. Bradley, I believe.

[00:35:42] Speaker 03:
Yeah.

[00:35:43] Speaker 03:
And so tell me what you think that shows.

[00:35:45] Speaker 04:
We think it shows substantial overlap between agricultural uses and this butterfly, and we've also shown that the predominant – Is that the 93 – is that that number, 94?

[00:35:57] Speaker 03:
Let's see.

[00:35:57] Speaker 04:
There are a few.

[00:35:58] Speaker 04:
I would have to pull the exact number.

[00:35:59] Speaker 03:
What is the number that I should be looking at?

[00:36:02] Speaker 03:
Here.

[00:36:07] Speaker 04:
So there are a few different analyses in that.

[00:36:12] Speaker 04:
So it looks at what's called an elemental occurrence, which is a specific time the butterfly was sighted.

[00:36:18] Speaker 04:
That overlap for the butterfly was 92.4%.

[00:36:22] Speaker 04:
That's what I thought, yeah.

[00:36:24] Speaker 03:
And that's overlap where there are blueberry fields, correct?

[00:36:28] Speaker 04:
Yes, Your Honor.

[00:36:29] Speaker 04:
Where there are, excuse me, where there are, so the agricultural areas don't distinguish by crop.

[00:36:35] Speaker 04:
It's where there are agricultural areas, so we can't tell whether those are blueberry fields or not, but we do know that it is the biggest by acre blueberry producing county in the country.

[00:36:46] Speaker 03:
I see.

[00:36:47] Speaker 03:
Okay.

[00:36:49] Speaker 03:
And, okay, thanks.

[00:36:52] Speaker 03:
I get it.

[00:36:53] Speaker 03:
What were you going to say about, did you have something else to say about the standing?

[00:36:57] Speaker 03:
Is there anything else you want to say about standing?

[00:37:01] Speaker 04:
Just that, Your Honor, this case does not present any kind of chain of attenuation that this court has found unacceptable in other cases.

[00:37:08] Speaker 04:
We're simply saying that it is likely that this pesticide will be used in exactly the ways that EPA is saying that it is likely that it will be used.

[00:37:18] Speaker 04:
I see that I'm out of time, so we would ask this court to reverse the district court and remand.