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Case number 21-1270, Game Race Center for Biological Diversity and Center for Food Safety Petitioners.

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Ms.

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Parent for the petitioners, Ms.

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Cachette for the respondents, and Ms.

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Johnson for the interveners.

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Good morning, Your Honor.

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May it please the court, Stephanie Parent, on behalf of petitioners.

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Over five years ago, this court held that the Environmental Protection Agency violated its

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clear and mandatory duty to comply with the Endangered Species Act before registering the insecticide cyanetronella probe.

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The court issued a remand order to the EPA to act consistent with that opinion.

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When petitioners filed the petition four and a half years into the remand order, there was uncontroverted evidence that

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the EPA had not taken any action to comply with this court's remand order.

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And we provided that through declarations filed in other courts and records that were responsive to several FOIA requests that petitioners submitted to the EPA.

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Rather than taking action to comply with the court's remand order in the Nature Species Act, the EPA simply ignored it.

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In response to this petition, as expected,

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EPA is now estimating that it can complete a biological evaluation for the effective analysis that it should have done before registering cyanotronillopril by September 2023.

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This court should find, under the familiar track factors, that EPA has unreasonably delayed complying with both this court's remand order for now five years

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and the Endangered Species Act duty, which attached eight years ago.

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You want us to give them just six months, right?

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Isn't that what you say in your brief?

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We should order them to comply within six months?

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That was our original request, Your Honor.

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At this point in time, given that it's now September 2022.

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Wait, but was that your request in the... Yes, Your Honor.

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And in our reply brief, we said at a minimum no later than September 2023.

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Well, that's exactly the date the agency has proposed, right?

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That's correct.

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But the agency had not made any proposal prior to the filing position.

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So what we have before us now is you seem to be in agreement that September, and the agency says it's, quote, committed to that.

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So I realize there's some other issues about

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Do we actually issue a mandamus to order?

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What do we do about conditional vacancy, things like that.

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But just in terms of the date, you two sides seem to think that that's a pretty good date.

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The two sides seem to think... September 2023 is a good day.

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Correct.

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I think all parties would agree that if the court issues an order, a court enforceable deadline, September 2023 is appropriate.

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So then is the only difference between you and EPA here that you want us to actually enter a mandamus order and they don't?

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Correct, Your Honor.

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And there are several reasons for that.

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I want to point out why a court enforceable deadline is still necessary here.

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First of all, I'm sorry.

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Why?

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What is so necessary?

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The court enforceable order by September 20.

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Would you, when you talk about it, separate entering a mandamus order requiring compliance in September 2023 and doing that plus, I think what you call conditional vacatur.

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Can you separate the two of them?

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Yes, Your Honor.

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When we filed the petition, when petitioners filed the petition last December, I believe it was, after researching the cases in this circuit, we presented a menu of all the ways that courts have remedied an unreasonable delay.

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And that included the primary unusual one and what petitioners are really pushing for here is that court enforceable deadline.

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Is what?

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the court enforceable deadline of September 20.

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That's what you really care about.

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Yeah.

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Yes, that's clear from your brief.

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Yes.

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Okay.

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The and a mandamus would do that, right?

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Yes, your honor.

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Um, so as far as you're concerned, then, you know, I don't want you to go beyond what you want to.

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But I asked the question because, you know, it seems to me that from your point of view, mandamus with a September date is what you mean.

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You don't

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you're not you're not arguing about yes you're not insisting on conditional vacancy or anything no your honor okay great the situation really has changed um from when we filed the petition to miss miss parent the fact that cbd is not seeking vacancy here at all or even apparently conditional vacancy doesn't that suggest that the conditions for extraordinary relief of mandamus are not met

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I mean, so your argument is not that this chemical is harming an endangered species or that its continued registration is harmful to the environment.

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I mean, in those circumstances, why is extraordinary relief necessary from this court?

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If I may, Your Honor, first of all, this situation is somewhat different than most of the court's unreasonable delay cases because it is violating the remand order.

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which effectively nullifies the court's order as the court held in in-rate court communications in 2008.

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And that... Well, say I agree with that, right?

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I mean, the EPA is in violation of our remand order.

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They haven't implied they're in violation of the statute.

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I think everybody agrees with that.

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And it seems the parties agree as to that.

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But even if there is a clear duty to act in order to respond to our remand decision, we still have to determine that our discretion is properly exercised to order mandamus.

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And in a case where

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you know, there's no vacature sought.

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I mean, the other cases, you know, in our circuit where someone is seeking this type of relief, you know, they are being, a rule is being enforced against them or some, you know, some other legal obligation is being imposed on them for, you know, an extensive period of time.

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And here, CBD is not seeking deregistration of CTP and doesn't seem to even envision that after the ESA process is completed,

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that this chemical will be deregistered.

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So I guess I'm not sure where the urgency comes from in terms of our jumping into this to require a time.

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Judge Rout, I will try to cover all of that.

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But essentially, we need to go through or the court needs to assess under all of the track factors in order to weigh and balance whether it's appropriate for a mandamus to issue.

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But I want to answer first, under track factor five, which is often evaluated with track factor three, we are alleging harm to species by this continued use of cyanotronilloprol.

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What is likely to happen?

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First of all, I want to emphasize, too, that the analysis that EPA estimates it will complete in September 2023 is just the first step of the process.

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result in deregulation or taking cyanotrynyloprol off the market.

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A more likely result is that additional mitigation will be put in place to one CPA has made that assessment either through its own process, which will happen after September 2023, or if they find any species likely to be adversely affected by the use of cyanotrynyloprol, they'll have to initiate formal consultation

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with the service.

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So this is just the first step in the process.

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So there is some urgency there.

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Moreover, under Trifecta V, the nature and extent of the interests that are being prejudiced, the agency back in 2013 in its ecological risk assessment concluded that there was potential for direct adverse effects on mammals and aquatic and terrestrial invertebrates.

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like Mitchell sat their butterfly.

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It also found or concluded that there would be indirect effects on all places that rely upon those.

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Well, it's true.

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But the reason this court gave in our remand order for leaving the registration in place for not vacating it was that it was more it was at least relatively beneficial to the environment to leave the registration in place.

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And that

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does not seem to have changed in 2022.

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It doesn't seem that either party, neither the government nor CBD, is arguing that it is more beneficial to keep CTP registered than to unregister.

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I understand, Your Honor.

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What we have here, I understand the decision and the basis for it back in 2017.

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What we have here is another passage of five years where Syantranilla Patrol is being

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And the agency has simply been derelict in not taking any action.

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You're not suggesting that CTP shouldn't be, right?

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I think this would be a very different case if you were saying, you know, the continued use of this chemical is harming endangered species.

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And every year that this goes on and the, you know, the EPA fails to meet its statutory obligations, you know, there's harm to species, but that's,

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We do believe that there's potential harm to the species, which the EPA concluded in 2013.

[00:10:27] Speaker 01:
But it's not a harm that can be addressed apparently by deregistering CTP, right?

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What usually happens, endangered species like consultation does not usually result in an action not moving forward.

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What it does is put in place mitigation

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to ensure that the species, which EPA has not looked at specifically yet for scientific control, are provided sufficient protection so that they aren't, their very existence isn't jeopardized by the agency action.

[00:11:02] Speaker 06:
So what you want is not just continued use of CTP as is, what you want is continued, you don't object to continued use of CTP if appropriate conditions and modifications

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have been imposed, which is why you want this process to identify and start.

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I thought what you want, I mean, can I modify that just slightly?

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I thought what you wanted was the agency to make the effects determination one way or the other, right?

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Yes.

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That's all you want.

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That's what they were required to do under our previous order, right?

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And you want the agency to be ordered to make that decision one way or the other, right?

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Yes, Your Honor.

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And then what comes from that,

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is an unknown right now, because the agency hasn't undertaken its duty.

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And, for example, once the agency does undertake its duty, for example, in another insecticide, Malafion, which admittedly is not the same as Cyanthraniloprol, the conclusion was that without additional mitigation, and this didn't

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and or deregulate malafion, but without sufficient mitigation, 78 species were threatened with extinction.

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You don't disconnect.

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I'm just trying to understand, because if all you want is them to do an effects determination, I don't see how that even if would redress the injuries that you've asserted.

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They said they each piece of paper going, oh, yeah, it has an effect.

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The only thing that redresses the injuries you've asserted here is

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them going forward with the process, which I assume in your view, there's no question that there will be effects.

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That's what they say.

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Given your preliminary determination, yes.

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I assume your clients have their own view on this apart from their preliminary determination, but that there are going to have to be modifications or conditions.

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Yes, which is why it's so important to have a court enforceable deadline of September 2023 to get this process going.

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Do we know anything?

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I'm sorry.

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You're telling us that argument you don't even want conditional vacature because your reply brief after they identified the September 23 deadline still expressly argued for conditional vacancy.

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Yes, Your Honor.

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You're abandoning that now here.

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Sorry?

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You're abandoning that request here?

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We think that given that the EPA has now provided prioritization and that it is

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excuse me, and that it is estimates it can do by 2023, the court order is sufficient motivation.

[00:13:46] Speaker 01:
Why do you need a court order at all at this point?

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If EPA, if you're willing to take EPA, it's worried about September 2023.

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If they miss September 2023, you bring a writ of mandamus at that point.

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I mean, you know, why, what is, what is the benefit to just, you know, judicial supervision of the executive branch in this context?

[00:14:06] Speaker 04:
Well, the court order deadline is still, court enforceable deadline is still necessary for several reasons.

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First, EPA in its brief makes a lot of hay about the fact that it's in the sworn declaration and that EPA is committed.

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But if you look at the declaration itself,

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It actually says, and this is the Matuska declaration at paragraph 27, it's not a firm commitment.

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EPA estimates that it will complete the effects evaluation by September 2020.

[00:14:36] Speaker 03:
I thought I used the word committed.

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Doesn't she use the word committed?

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I wrote that down.

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I was going to ask her what committed.

[00:14:44] Speaker 03:
It's committed.

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Isn't that in the affidavit?

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It's in the briefing, Your Honor, paragraph 27.

[00:14:52] Speaker 06:
No, it's in the declaration.

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That's what I meant, the declaration.

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Paragraph 25 says DPA is committed.

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But then it drops a footnote that says some dates may change.

[00:15:04] Speaker 03:
Yeah, right.

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So they're committed to that unless they aren't.

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And that it anticipates a draft in February of 2023.

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Um, and I want to point out that simply because EPA has declared something or submitted a declaration, um, we filed a 28 J letter informing the court that in a different pesticide case concerning self oxyflora in the ninth circuit, EPA also made estimates and missed those deadlines because there was no court order in place.

[00:15:33] Speaker 01:
So, but then why aren't you seeking conditional vacuator then?

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Like if you're not confident that EPA will meet its deadline,

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But you don't want a court.

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I mean, I'm not sure what you want us to do here.

[00:15:44] Speaker 04:
Well, the other reason that the court order deadline is important here is so after in, I think it was April of this year, EPA produced its work plan.

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And at page 41 of that work plan, it said, well, the top priority is for existing and future court enforceable deadlines.

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And so right now, without a court order, those deadlines are going to slip.

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Now, they have, in the work plan, they placed Cyanthronella pearl at the bottom of the pile of all the cases where they already have court orders to comply with the Endangered Species Act.

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So given that it's their top priority, only if it's in a court enforceable order, whether existing or future, means that the

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Court's order carries much heavier weight than it did before EPA issued this work plan and committed to making its top priority court enforceable deadlines.

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I'm sorry, were you done with that?

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I have two questions.

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One is actual and it takes us outside the record, but the risk assessment

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was a couple years ago, right?

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What do we know about CTP today?

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Is there any more evidence out there about the potential impact of CTP on endangered species?

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What do we know about it?

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In the Brett Hartle declaration, we brought forward two studies that continue to show that it's harmful to aquatic species.

[00:17:26] Speaker 03:
Which was those?

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Which species?

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Was that tilapia?

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I mean, I think I saw that, but I don't think the ones in there are endangered.

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I could be wrong, but I think they're not endangered.

[00:17:41] Speaker 03:
Okay, so I'm specifically asking you about whether there's more recent evidence about the effect of this on, well, it's two questions.

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One, the effect of this on CTP on endangered species.

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And I guess the other question is what about, I mean, if in the end the agency deregisters it,

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are the alternatives more dangerous to endangered species?

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I mean, that concern is what was underlying the original panel.

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And actually, you're brief also.

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You recognize that possibility, right?

[00:18:13] Speaker 04:
Yes, Your Honor.

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And so if you're weighing and balancing, the court-ordered deadline is appropriate.

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It won't affect the use of cyanotrynyloprol at least for the next year.

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But at that point in time, we will know

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which species the EPA assesses are being adversely affected.

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Okay.

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Second question is a legal one.

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There's some suggestion in our case law, I think, that in a case like this where you have an agency that is violating the directives of both other branches of government, Congress and the courts, that the track factors are less demanding.

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What do you think about that?

[00:19:02] Speaker 04:
I would agree, Your Honor.

[00:19:03] Speaker 04:
And that's what the court explained in 2008 in Ray Corps Communications and in Ray Peoples' Mohajeddin Organization of Iran.

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There, the court said that it was, quote, decisive that the agency failed to meet a statutory deadline and, quote, our remand

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So I would agree that that is an important factor here.

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We still do need to analyze the track factors.

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And I just want to say as to the, you know, the development of the work plan and the commitment, EPA's statement that it will make itself a priority to comply with existing and future deadlines,

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I think that makes track factor four the prioritization and competing interests of the agency ways in favor of issuing the writ because here the agency has developed the priorities.

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Granted, it was in response to this petition as it's done in many other lawsuits.

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Therefore, under track factor four, petitioners won't be jumping the queue because EPA has done the prioritization.

[00:20:36] Speaker 06:
Can I ask?

[00:20:36] Speaker 06:
I just had another fat question.

[00:20:38] Speaker 06:
In the original 2017 appeal, that argument, the lawyer was representing your clients, pointed out at least that farmers were not

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replacing more toxic pesticides with CTP, they just were using both.

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And so the toxic ones are still being used and CTP is sort of just on top of it.

[00:21:01] Speaker 04:
Is that still the fact?

[00:21:05] Speaker 04:
There's no evidence that this replacement theory is actually coming to pass.

[00:21:11] Speaker 06:
Is there evidence to the contrary?

[00:21:13] Speaker 06:
It was argued to the contrary.

[00:21:15] Speaker 06:
Is there evidence to the contrary?

[00:21:17] Speaker 04:
Well, Your Honor, unfortunately,

[00:21:20] Speaker 04:
That kind of market evidence is not available to the public.

[00:21:24] Speaker 04:
First of all, the Federal Insecticide, Fungicide, and Rodenticide Act, Section 10B, creates limitations on trade secrets or commercial information.

[00:21:37] Speaker 04:
The Supreme Court has told us that we cannot give this information through FOIA.

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And that was in the Food Marketing Institute, the Argus leader media case.

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And even the interveners here who represent

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registrants have not provided any evidence that CTP is replacing older chemicals.

[00:21:59] Speaker 04:
So that information is not available.

[00:22:02] Speaker 04:
So we can't say we don't, we've seen in other contexts that new active ingredients do tend to be additive rather than eliminating older insecticides.

[00:22:17] Speaker 06:
Thank you.

[00:22:19] Speaker 06:
Hear from the government now.

[00:22:44] Speaker 05:
May it please the court.

[00:22:45] Speaker 05:
My name is Kamala Cachette and I represent EPA.

[00:22:49] Speaker 05:
EPA recognizes the seriousness of not meeting its ESA obligations before registering Cyanthronella parole under FIFRA.

[00:22:57] Speaker 05:
EPA has made great progress in recent years since this court issued its underlying determination to bring its pesticide program into compliance with the ESA, including issuing revised methods for assessing risks to ESA listed species from pesticides and issuing its recent work plan.

[00:23:15] Speaker 05:
You've made no progress on CTP.

[00:23:18] Speaker 05:
It has made progress on CTP, Your Honor.

[00:23:21] Speaker 05:
Starting when?

[00:23:23] Speaker 05:
Earlier this year.

[00:23:24] Speaker 06:
So after the mandamus petition was filed?

[00:23:27] Speaker 05:
For CTP specifically, but all of the programmatic efforts that EPA has put into its ESA program have helped it with the CTP.

[00:23:37] Speaker 06:
Yeah, but in the last argument in 2017, coming from your

[00:23:44] Speaker 06:
and we call it you or someone else's attorney from your office stood up and said, oh, you know what?

[00:23:51] Speaker 06:
We're working out the interagency process and we want to deal with the most toxic stuff first, which is, so even back then that was already the excuse in 2017.

[00:24:02] Speaker 06:
And then that's all the explanation we have until they file the mandamus petition.

[00:24:09] Speaker 06:
I appreciate what you're saying now, but it surely doesn't seem like the government took at all to heart the remand order in this case and its obligation until somebody tried to force it again.

[00:24:25] Speaker 05:
Your honor, the problem EPA is trying to address is big and it's somewhat unique.

[00:24:32] Speaker 05:
And as for overall effort, EPA can't do everything all at once to fix all the pieces to this problem.

[00:24:39] Speaker 05:
And EPA does take this court's order and its ESA obligations seriously and has taken many important steps that has led it towards ESA compliance generally and in this case.

[00:24:51] Speaker 01:
So let me ask you, you suggest that you want to be able to set priorities without judicial interference, that the EPA should be allowed to move forward based on its expertise and other priorities.

[00:25:04] Speaker 01:
But CBD has made some fairly compelling arguments that it is in fact litigation that is setting the EPA's priorities and things move up the list depending on whether there is a court enforceable order.

[00:25:17] Speaker 01:
So I guess I'm wondering, I mean, is that, what is the basis for how EPA is prioritizing moving forward with these different chemicals?

[00:25:25] Speaker 01:
Like which goes to the front of the queue?

[00:25:27] Speaker 05:
Your honor, the reality is that EPA is facing many losses.

[00:25:31] Speaker 05:
dealing with this pesticide issue.

[00:25:33] Speaker 05:
And so it puts court enforceable deadlines first because it does not want to be held in contempt of court.

[00:25:41] Speaker 05:
By issuing this work plan earlier this year, that was part of EPA's movement towards moving away from having its schedule set by these court ordered deadlines.

[00:25:54] Speaker 05:
Now trying to come up with a prioritization schedule and has come up with a prioritization schedule.

[00:26:00] Speaker 05:
so that it can move away from these court order deadlines.

[00:26:04] Speaker 03:
And- But isn't it, Council said, Council, that the Center said that what EPA is in fact prioritizing is complying with the court orders, right?

[00:26:15] Speaker 03:
You don't disagree with that, do you?

[00:26:17] Speaker 03:
No, Your Honor.

[00:26:17] Speaker 03:
Okay, and their argument is that unless we have a court order, we won't get priority.

[00:26:22] Speaker 03:
That's your whole argument.

[00:26:24] Speaker 03:
I mean, that's part of it.

[00:26:26] Speaker 05:
And Your Honor, the fact that in this case, EPA

[00:26:29] Speaker 05:
set a deadline for itself to issue an order for siantrinilacryl, or an effects determination for siantrinilacryl, without a court order, shows that EPA.

[00:26:39] Speaker 03:
Yeah, that was very effective in the Ninth Circuit, right?

[00:26:42] Speaker 03:
Didn't work there.

[00:26:43] Speaker 03:
I mean, EPA made a commitment there and blew right past it.

[00:26:46] Speaker 03:
Look, I don't want to oversimplify this case, but this case, and I totally understand the problems the agency's facing.

[00:26:55] Speaker 03:
I get that.

[00:26:57] Speaker 03:
But from this court's point of view,

[00:27:00] Speaker 03:
This court has ruled already that the agency's in violation of the statute and now for eight years.

[00:27:08] Speaker 03:
Now it's up to eight years.

[00:27:10] Speaker 03:
Number two, the agency's in violation for five years of our own order.

[00:27:17] Speaker 03:
And we know from the 28-J letter that EPA is not honoring other court orders as in the Ninth Circuit.

[00:27:24] Speaker 03:
So what is the, what possible, it seems to me like the only question

[00:27:29] Speaker 03:
for us is remedy.

[00:27:31] Speaker 03:
And for the life of me, I don't understand under the circumstances of this case, where you have both branches of government directing the agency.

[00:27:41] Speaker 03:
I don't understand what the argument would be saying that the petitioners don't have a clear and indisputable right to relief and no other adequate remedy.

[00:27:52] Speaker 03:
Do you have an argument for that?

[00:27:54] Speaker 03:
Can you make an argument?

[00:27:55] Speaker 03:
Yes, Your Honor.

[00:27:56] Speaker 03:
That's what I need to hear.

[00:27:58] Speaker 05:
First, I'd like to address the 28-J letter and the Sylvaksa floor determination, because that situation is distinguishable from Syantronella parole.

[00:28:07] Speaker 05:
So petitioners mischaracterize what happened with Sylvaksa floor.

[00:28:12] Speaker 03:
Let me just, I'm sorry to interrupt you, but your time is limited.

[00:28:15] Speaker 03:
Even without the Ninth Circuit, my question stands.

[00:28:18] Speaker 03:
Violating the statute for eight years, this court's order for five years, just explain to me, forget the Ninth Circuit.

[00:28:25] Speaker 03:
I'll take your word for it that it's different.

[00:28:28] Speaker 03:
What's the argument that plaintiff hasn't satisfied easily the requirements for an order requiring compliance by the date the agency has suggested September?

[00:28:43] Speaker 03:
And by using that date, there's no risk that this court would be upsetting the agency's own priority setting.

[00:28:51] Speaker 03:
The agency has itself picked September.

[00:28:53] Speaker 03:
What we would be saying is, given the history of this case,

[00:28:56] Speaker 03:
violation of the statute in the court order, the court is ordering compliance by September 20, 2020.

[00:29:06] Speaker 03:
I just don't see the argument against that.

[00:29:10] Speaker 03:
What is it?

[00:29:12] Speaker 05:
First of all, Your Honor, in the 2017 order, this court remanded the sanitary

[00:29:17] Speaker 03:
military decision without setting a deadline for EPA to act because right and there there hadn't the agency wasn't violating a court order at that time.

[00:29:26] Speaker 03:
Now it's five years in violation of a court order.

[00:29:30] Speaker 03:
It's a completely different situation.

[00:29:32] Speaker 05:
Your honor, I respectfully disagree.

[00:29:34] Speaker 05:
EPA isn't violating the court's order here.

[00:29:37] Speaker 05:
It has set a reasonable deadline for it to complete.

[00:29:40] Speaker 05:
But it didn't.

[00:29:41] Speaker 03:
It didn't happen.

[00:29:43] Speaker 03:
Okay, I'm not gonna argue with you, but is that your is that the best argument?

[00:29:47] Speaker 03:
that the reason why, and you know, maybe you're right, but your argument is, look, there's no need to do it because the agency has now set its own deadline, right?

[00:29:57] Speaker 05:
That is a big part of our argument is that yes.

[00:30:00] Speaker 03:
And what else?

[00:30:01] Speaker 03:
Give me the, what are the other parts of it?

[00:30:03] Speaker 05:
The other parts of it are the reasons for why we set that deadline.

[00:30:07] Speaker 05:
One of which was going back and taking a look at its program and

[00:30:14] Speaker 05:
refining the program so that it could issue effects determinations, like the one for cyanogenilipral, more efficiently and more quickly, which is what EPA spent much of its time and effort doing for the past few years since this court's determination in the underlying cyanogenilipral case.

[00:30:31] Speaker 05:
So EPA prioritized performing its pesticide program.

[00:30:36] Speaker 05:
And now it has set this deadline.

[00:30:39] Speaker 05:
It is doing, it is,

[00:30:45] Speaker 05:
a reasonable deadline under these circumstances.

[00:30:50] Speaker 05:
And petitioners also don't dispute that because EPA has set its own deadline that this court has found in other mandamus cases that EPA setting its own deadline bears great weight in

[00:31:15] Speaker 05:
denying mandamus.

[00:31:17] Speaker 03:
And in those cases, was there also a violation of a court order?

[00:31:22] Speaker 05:
In the NRAE court communications case, the first iteration of that, it was also brought against the court's order.

[00:31:30] Speaker 05:
It was a remand order.

[00:31:32] Speaker 05:
And in the first iteration of that case, yes, the court denied the petition for mandamus and gave the agency more time to

[00:31:43] Speaker 05:
complete the remand and especially here.

[00:31:46] Speaker 06:
We paid the price for that because it wasn't met and we had to issue it at Davis in the next round.

[00:31:52] Speaker 05:
That is what happened in that case, Your Honor, but the agency there hadn't set a deadline for itself.

[00:31:58] Speaker 05:
It said that it was going to do it soon, but it hadn't committed to a hard deadline, which is what EPA has done.

[00:32:03] Speaker 06:
It didn't even do it soon.

[00:32:04] Speaker 06:
Excuse me?

[00:32:06] Speaker 06:
It didn't even do it soon in that case.

[00:32:08] Speaker 05:
That agency didn't, but EPA committed to doing it by September 23rd.

[00:32:13] Speaker 05:
2020 23 here.

[00:32:14] Speaker 01:
And your honor, and I had a question about one of the reasons EPA gives for it taking so much time is that they're seeking public comment.

[00:32:27] Speaker 01:
which is not required by statute.

[00:32:29] Speaker 01:
Um, but of course the effects determination is required by statute and required, you know, based on our remand order.

[00:32:36] Speaker 01:
So I guess I'm wondering, um, you know, I mean, EPA has committed itself to extra statutory process while it's continuing to fail at, you know, and it's ongoing responsibility to do the effects determination.

[00:32:51] Speaker 01:
So I'm wondering about that trade off because that is one of the justifications for the delay.

[00:32:56] Speaker 05:
So the notice and comment period is something that EPA finds very important for the process.

[00:33:04] Speaker 05:
It realizes that it's not necessary, but doing notice and comment lets it get input from stakeholders that it otherwise wouldn't be able to get and which generally during consultation stakeholders also don't get an opportunity to give these agencies input.

[00:33:19] Speaker 05:
So by having this notice and comment period, it's able to talk to stakeholders like petitioners and like interveners and get their feedback and come up with the strongest scientific document that it can.

[00:33:31] Speaker 05:
And the other hope with that is that that will help with the consultation process and possibly shorten the consultation process because it's a stronger scientific document.

[00:33:41] Speaker 05:
So EPA finds a lot of value in that process, which is why it's asking for the September 2023 deadline here.

[00:33:51] Speaker 05:
Unless your honors have any.

[00:33:52] Speaker 06:
I do have a few months ago in April, EPA issued its only seen wildlife protection and responsible pesticide use report.

[00:34:07] Speaker 06:
Where it said on page four, I quote, over the next six years,

[00:34:13] Speaker 06:
So 2022 to 2028.

[00:34:15] Speaker 06:
Existing court enforceable deadlines will require EPA to complete ESA reviews for 18 pesticides.

[00:34:24] Speaker 06:
The most the agency estimates it can handle during this period based on current capacity and processes.

[00:34:31] Speaker 06:
Is CTP one of those 18?

[00:34:32] Speaker 06:
Because it did not have a court enforceable deadline.

[00:34:36] Speaker 06:
This is from the handbook.

[00:34:38] Speaker 06:
balancing wildlife protection and responsible pesticide use, how EPA's pesticide program will meet its Endangered Species Act obligations issued in April 2022.

[00:34:46] Speaker 06:
And what they would say right there on page four is the most the agency estimates it can handle during the next six years is meeting court enforceable deadlines.

[00:35:02] Speaker 06:
And you already told us CTP didn't have a court enforceable deadline.

[00:35:07] Speaker 06:
And so I'm trying to reconcile how you're going to meet that when in April, you all said the only thing you can, the most you can estimate you can handle is court and foreseeable deadlines.

[00:35:17] Speaker 05:
So your honor, there may have been an error in that document, but if you flip, I think this is the handbook that you're referring to.

[00:35:25] Speaker 05:
If you flip to appendix A, there is a schedule of all of the pesticides that EPA has committed to deadlines for.

[00:35:33] Speaker 05:
And one of those is cyanotronilatrol.

[00:35:36] Speaker 05:
It's on page 67 of the document.

[00:35:41] Speaker 05:
So there may have been an error earlier on, but the handbook does accommodate.

[00:35:45] Speaker 06:
So you included that as a court enforceable deadline, even though it wasn't a court enforceable deadline?

[00:35:50] Speaker 06:
Or you're saying they were mistaken when they said repeating it twice in the same sentence that all they can do in the next six years is meet court enforceable deadlines.

[00:36:01] Speaker 05:
Yes, Your Honor.

[00:36:02] Speaker 05:
That's a mistake because they had committed

[00:36:05] Speaker 05:
They're pretty clear.

[00:36:06] Speaker 06:
EPSA's current priorities are driven almost entirely by litigation settlements and other court enforceable deadlines.

[00:36:18] Speaker 06:
And ongoing litigation settlement discussions for other lawsuits over dozens of additional pesticides will likely fill the agency's workload beyond 2030.

[00:36:26] Speaker 06:
That doesn't give me much comfort that 2023 is going to hold.

[00:36:31] Speaker 05:
Your honors.

[00:36:32] Speaker 06:
I'm not sure it's a mistake, given all the statements that are all right there together.

[00:36:35] Speaker 05:
We understand the court's view on this.

[00:36:39] Speaker 05:
And while we are asking that the court don't think that the court needs to set a court enforceable deadline here, if the court does, we just ask that it be for an effects determination by September 2023.

[00:36:53] Speaker 06:
And then, no, I, sorry, I'm not done yet.

[00:36:57] Speaker 06:
In the, I'm sorry if I'm not saying, is it Matusko Declaration?

[00:37:03] Speaker 06:
Is that how you pronounce Matusko?

[00:37:06] Speaker 06:
As Judge Tell was pointing out on page 17, you say you're committed to the following schedule, but then drop a footnote immediately that says some dates may change if EPA extends the public comment period.

[00:37:19] Speaker 06:
Now, given that public comment is optional here anyhow,

[00:37:23] Speaker 06:
And given how late EPA is in complying both with the statute getting close to a decade and our court order close to half a decade, why can't the EPA just commit to not extending the public comment period and making clear when it issues this NPRM, this is our hard and fast deadline because we are under duty

[00:37:50] Speaker 06:
to a court.

[00:37:51] Speaker 06:
I don't know how I can trust anything when you say we don't have to do it and then I'm going to drop a footnote that says I just said commit but I don't really mean it because I might decide to do even more optional things.

[00:38:00] Speaker 05:
I think what EPA was trying to get at there is that there are some circumstances that are out of EPA's control that it has to account for or it can't account for but could force it to push off the deadline.

[00:38:15] Speaker 06:
What could force it if it's an optional notice and comment rulemaking?

[00:38:18] Speaker 06:
What could force it?

[00:38:20] Speaker 05:
The EPA has no intentions of extending the notice and comment.

[00:38:23] Speaker 06:
There's a footnote here reserving your ability to do it.

[00:38:25] Speaker 06:
So that's why I'm asking what could, what could, I hear your response being something to happen that are beyond our control, but what could force it when notice, and I get that if notice and comment was required, but it's not required here.

[00:38:36] Speaker 06:
So why can't you say it's optional?

[00:38:38] Speaker 06:
And so we're leaving, we are firmly committed to doing it on this timeframe, full stop, no extensions.

[00:38:47] Speaker 05:
Your honor, what I can tell you is that EPA fully intends to hit the September 2023 deadline.

[00:38:54] Speaker 06:
You fully intend to now, and I'm not questioning that, and I appreciate your representation.

[00:39:00] Speaker 06:
But there are, as I pointed out, there's wiggle words in this declaration.

[00:39:05] Speaker 06:
And that, I think, gives them some indigestion, and could the court as well.

[00:39:12] Speaker 03:
I understand, your honor.

[00:39:16] Speaker 03:
Like Judge Millett, I appreciate your representation, but, you know, given EPA's record here, you might be a lot safer saying, I have been assured by the agency that they may not want to give us your personal guarantee.

[00:39:33] Speaker 03:
Just a suggestion.

[00:39:36] Speaker 05:
I couldn't quite hear you, Your Honor.

[00:39:38] Speaker 03:
Are you speaking for, yeah, I think he's asking, can you, I'm sorry.

[00:39:42] Speaker 03:
I was simply saying that,

[00:39:44] Speaker 03:
you know, I'd be careful about giving us a personal guarantee as counsel, given the record of your client.

[00:39:51] Speaker 03:
And a safer statement would be, I have been assured by my agency that they will meet the September date.

[00:39:58] Speaker 03:
I'm going to assume that's what you meant to say.

[00:40:02] Speaker 05:
It is your honor.

[00:40:03] Speaker 03:
Yes.

[00:40:03] Speaker 03:
Okay.

[00:40:05] Speaker 06:
Sorry.

[00:40:05] Speaker 06:
You're telling me the EPA has told you, assured you that they will meet that deadline.

[00:40:11] Speaker 05:
That is their number one priority.

[00:40:13] Speaker 05:
No, no, no.

[00:40:14] Speaker 06:
That's not the same thing.

[00:40:17] Speaker 05:
Well, Your Honor, I can't predict the future.

[00:40:20] Speaker 05:
EPA can't predict the future.

[00:40:21] Speaker 05:
There could be a lapse in government appropriations.

[00:40:24] Speaker 05:
There are circumstances here that are out of EPA's control.

[00:40:27] Speaker 05:
So it has to account for that in this declaration.

[00:40:31] Speaker 03:
And that is exactly why the Center wants an enforceable order.

[00:40:39] Speaker 03:
That's what this case is all about.

[00:40:41] Speaker 01:
Do you have a sense of how many pesticides must still go through the ESA process that are not subject to some litigation, ongoing litigation?

[00:40:52] Speaker 01:
I mean, I know there's like a long backlog of registered pesticides for which EPA has to do this process.

[00:41:00] Speaker 01:
Are all of them being litigated or are only a handful of them being litigated?

[00:41:05] Speaker 01:
I understand there's a fair amount of litigation.

[00:41:07] Speaker 01:
I'm wondering if you just have some sense of that.

[00:41:10] Speaker 05:
I can't give you an exact number, but I can tell you it is only a handful of pesticides that are being litigated right now.

[00:41:23] Speaker 06:
Great.

[00:41:23] Speaker 06:
Thank you very much.

[00:41:24] Speaker 06:
We'll hear from the intervener.

[00:41:45] Speaker 07:
Good morning, Your Honors.

[00:41:46] Speaker 02:
Thomas Lorenzen here on behalf of Respondent and Reviewers, Syngenta Crop Protection, and FMC Corporation.

[00:41:55] Speaker 02:
As I understand, the Council for Petitioners today has conceded that they are no longer seeking conditional vacature of the registration of Syntramylochrome if EP does not meet its deadline.

[00:42:10] Speaker 02:
I'm not sure that I have much to affirmatively argue to you unless you have questions.

[00:42:15] Speaker 02:
I do want to know.

[00:42:16] Speaker 06:
Deciding remedies on mandamus, is this court bound by party's representations?

[00:42:20] Speaker 06:
I mean, last time they didn't argue for vacatur either, but we went through a whole vacatur analysis in our opinion, nonetheless.

[00:42:26] Speaker 02:
I understand.

[00:42:26] Speaker 06:
Don't we have to do it on our own anyhow?

[00:42:28] Speaker 02:
I don't think you do, given that they're not seeking it.

[00:42:32] Speaker 02:
It's within the court's discretion to order it.

[00:42:36] Speaker 02:
Right.

[00:42:37] Speaker 02:
But I think it would be unwise to do so.

[00:42:39] Speaker 02:
And I can tell you why.

[00:42:40] Speaker 06:
I just want to ask.

[00:42:41] Speaker 06:
I want to back up.

[00:42:42] Speaker 06:
I'm sorry.

[00:42:42] Speaker 06:
I'm sure you have arguments on that front.

[00:42:45] Speaker 06:
In our prior opinion, even though petitioners was a mandamus petition, regular EPA petitioners were argued for, petitioners were argued, didn't argue, at least by argument again, they said they weren't seeking vacatur.

[00:42:59] Speaker 06:
But nonetheless, our opinion went through a whole analysis on whether vacatur.

[00:43:04] Speaker 06:
And so

[00:43:06] Speaker 06:
in deciding, now we're at mandamus, which is a different creature altogether, is the determination as to what the appropriate remedy is bound by?

[00:43:16] Speaker 06:
What parties argue or don't argue?

[00:43:19] Speaker 02:
Well, I think your honors can go through the analysis, and I don't think that anything has changed in terms of whether they... I'm sorry, we can go through the analysis?

[00:43:28] Speaker 02:
You can go through the analysis in your opinion, and I think you'll reach the same conclusion that nothing has changed to suggest that... I'm just trying to understand.

[00:43:36] Speaker 06:
Do we need to?

[00:43:37] Speaker 06:
Is that something the court has to do?

[00:43:38] Speaker 06:
My question is more... Must you do it, rather than even if they concede at the point... Is it our obligation as part of mandamus?

[00:43:45] Speaker 06:
The mandamus factors, these are generally treated as jurisprudence.

[00:43:48] Speaker 02:
No, because mandamus is about setting a deadline for the agency to act.

[00:43:52] Speaker 02:
They're not seeking immediate vacatur.

[00:43:54] Speaker 02:
The question that they've asked the court about, as I understand it, that we were here to address today, is whether the court should order vacatur conditionally if EPA doesn't meet its September 2023 deadline.

[00:44:08] Speaker 02:
Now first, as counsel has argued this morning for the government, I don't think that mandamus is required here either.

[00:44:16] Speaker 02:
I would suggest that there might be a compromise solution here, which is that the court retains jurisdiction and orders periodic status reports between now and next September to ensure the agency remains on track.

[00:44:30] Speaker 02:
As Judge Tatel suggested earlier, if it appears the agency is not on track, the court can entertain briefing that as to what ought to happen.

[00:44:40] Speaker 02:
If we are looking at, you know, a two to four week lapse of

[00:44:45] Speaker 02:
funding in the federal government, it seems hard to put the court to a mandatory deadline when there is such a lapse, and then to go further and potentially conditionally vacate the registration of cyanotroniloprol in such an event would be not only, I think, contrary to the allied signal factors, which asks the court to examine whether after its full analysis, the agency might arrive at the same place,

[00:45:12] Speaker 02:
And CTP is a reduced risk pesticide as EPA concluded back in 2014.

[00:45:18] Speaker 02:
And as this court reaffirmed or affirmed in its decision remanding to EPA.

[00:45:24] Speaker 02:
So we might end up in this.

[00:45:25] Speaker 06:
This court didn't make any fact-finding.

[00:45:26] Speaker 02:
It just took... It accepted the agency's conclusion there.

[00:45:30] Speaker 06:
But what about this concern that was voiced in the prior argument and I asked about that is that CTP isn't used as replacement.

[00:45:39] Speaker 06:
It's just used on top of or in addition to those already more toxic pesticides.

[00:45:46] Speaker 02:
Well, and I think you were actually driving this very important point.

[00:45:50] Speaker 02:
It's not that it's used on top of it's that it's used as part of integrated pest management.

[00:45:58] Speaker 02:
Pests develop resistance to pesticides over time and with use of a pesticide.

[00:46:04] Speaker 02:
The way to prevent that from happening is by rotating the use of pesticides.

[00:46:10] Speaker 02:
Cyanthronilapole is a reduced-risk pesticide on its own, whether it's being rotated with these others or not.

[00:46:18] Speaker 02:
But it's also a critical tool in the toolbox of crop growers to preventing resistance from developing in these pests.

[00:46:29] Speaker 02:
Take cyanthronilapole out of that toolbox.

[00:46:34] Speaker 02:
First of all, you make the growers more reliant on those other pesticides that are more toxic.

[00:46:40] Speaker 06:
don't know, because if the problem is the resistance, it doesn't do any point to pouring more on.

[00:46:45] Speaker 06:
So the predicate was, at least in our prior decision, that, wow, if this is vacated, they're going to replace it with these more toxic ones.

[00:46:56] Speaker 06:
But then it turns out the more toxic ones are being used anyhow, then that harm

[00:47:04] Speaker 02:
starts to slip away well they've put your statement that well then they'll just use more of it doesn't make sense because you just said the reason they want something else is because of resistance right but but what happens instead yes the pests will develop more resistance to those other pesticides more quickly and what you will end up with is damage to our nation's crop supply i mean if we're talking about something like it's actually not it's the same thing because

[00:47:35] Speaker 02:
all of the pesticides become less effective as pests develop resistance.

[00:47:40] Speaker 02:
Taking CTP out of the mix increases the likelihood that they become resistant earlier.

[00:47:46] Speaker 02:
And now you're talking about having to remove citrus trees for seven miles.

[00:47:51] Speaker 02:
It takes eight years to grow them back.

[00:47:53] Speaker 02:
You're talking about effects of blueberry crops and other things.

[00:47:58] Speaker 02:
One other thing that I want to note, your honors asked the petitioners this morning whether anything has changed.

[00:48:05] Speaker 02:
to whether there's more information about the effects of CTP on listed species.

[00:48:12] Speaker 02:
And I would just refer your honors to paragraph 17 of the declaration of Duane Moore that's attached to our intervener's brief, where we note that there have been very few incidents reported for cyanophonilopole.

[00:48:28] Speaker 02:
especially given the number of years the pesticides been used.

[00:48:31] Speaker 02:
It's very high adoption rate and there are no reported aquatic incidents, no reported wildlife.

[00:48:38] Speaker 02:
So the evidence over the years is actually born out.

[00:48:43] Speaker 02:
This is a reduced risk pesticide as well as the registered industry.

[00:48:50] Speaker 03:
This is actually what you've been saying.

[00:48:52] Speaker 03:
It's actually quite interesting.

[00:48:54] Speaker 03:
I hadn't understood the point about

[00:48:56] Speaker 03:
rotating pesticides, and what you've just said about current data is also interesting, but isn't it all premature at this point from this court's perspective?

[00:49:08] Speaker 03:
What will happen in September, I assume, is the agency will either make an effects determination or it won't.

[00:49:13] Speaker 03:
Those are the two options, right?

[00:49:14] Speaker 03:
So if it doesn't, these issues are off the table, correct?

[00:49:18] Speaker 03:
There won't be a threat to CTP's registration unless the effects decision is challenged.

[00:49:24] Speaker 03:
Well, let me just finish.

[00:49:28] Speaker 03:
On the other hand, if they do make an effect determination, then the agency in the center and maybe this court will have to wrestle with these really interesting questions, but not now.

[00:49:38] Speaker 02:
Agreed.

[00:49:38] Speaker 02:
Okay.

[00:49:39] Speaker 02:
Agreed.

[00:49:40] Speaker 02:
And that is why, you know, we were here this morning, Your Honors, to address because of their requests in their briefing for that automatic vacatur.

[00:49:50] Speaker 02:
And that's now off the table.

[00:49:51] Speaker 02:
And that is off the table.

[00:49:53] Speaker 02:
And if that is in fact the case, Judge Millett, you asked, do we have to engage in that analysis anyway?

[00:50:01] Speaker 02:
You may wish to engage in it, but what I have tried to explain this morning is that nothing has changed from the analysis in 2017 regarding any risks posed by cyanotronilapone.

[00:50:13] Speaker 02:
It is still a reduced risk pesticide.

[00:50:16] Speaker 02:
As the declaration of Duane Moore demonstrates, there have been no reported incidents

[00:50:22] Speaker 02:
with cyanophonilaprol.

[00:50:23] Speaker 02:
And it is better than these older, more toxic chemicals that EPA is also being used.

[00:50:30] Speaker 02:
They're also being used.

[00:50:32] Speaker 02:
If your honors have no more questions, thank you.

[00:50:38] Speaker 06:
Okay, Ms.

[00:50:39] Speaker 06:
Parent, I'll give you two minutes for rebuttal.

[00:50:48] Speaker 04:
Thank you, your honors.

[00:50:50] Speaker 04:
I want to address the two excuses that EPA uses this programmatic approach that has been undertaking for the last 16 years.

[00:51:00] Speaker 04:
These would fall under track factor two, that the delay here is unreasonable in the overall context of the Endangered Species Act.

[00:51:09] Speaker 04:
First, it looks for a timetable as court clearly held it has to happen before the decision, but it did not.

[00:51:18] Speaker 04:
And while EPA claims to have been refining its program for 16 years to take a programmatic approach, that cannot be an excuse for failure to comply when there's a specific agency action, like cyanotrinole pro-registration, that triggers the ESA Section 7 duties.

[00:51:40] Speaker 04:
Moreover, the second excuse that falls under this Track Factor 2 is that

[00:51:47] Speaker 04:
The agencies claim that they need to refine, well, first they say it's complex and that they need to refine their approach to look at these endangered species as opposed to other non-target species.

[00:52:01] Speaker 04:
And with respect to that it's complex, the Batusco Declaration of Paragraph 17b said that they listed out the eight steps they had to undertake and had already completed

[00:52:16] Speaker 04:
Six of them.

[00:52:18] Speaker 04:
In 2013, the EPA just simply decided not to comply.

[00:52:22] Speaker 04:
It also runs afoul of the Endangered Species Act best available science standard.

[00:52:30] Speaker 04:
The agency is not supposed to further refine and gather more information and gather more information.

[00:52:37] Speaker 04:
They're supposed to protect the species before, even if there is some scientific uncertainty.

[00:52:44] Speaker 04:
I'd like to

[00:52:45] Speaker 04:
Point out two cases that Judge Tatel, you asked about, what were those remand orders?

[00:52:54] Speaker 04:
And of course, Judge Millett, you commented that in court communications, it came back to bite them.

[00:53:00] Speaker 04:
Or maybe the court.

[00:53:01] Speaker 04:
I don't know.

[00:53:04] Speaker 04:
In any case, in that 2005 court communications decision, it had only been three years since the remand order.

[00:53:10] Speaker 04:
The other case that the EPA cites is in Raybachtel.

[00:53:15] Speaker 04:
They characterize it as having been four years since the remand order.

[00:53:19] Speaker 04:
It was actually three years and two months.

[00:53:22] Speaker 04:
Here we have now five years since the remand order.

[00:53:27] Speaker 01:
In record communications, we issued a conditional vacator.

[00:53:31] Speaker 01:
Correct, Your Honor.

[00:53:36] Speaker 04:
Yes.

[00:53:45] Speaker 04:
this replacement idea.

[00:53:48] Speaker 04:
If you look at Interveneers Brief and the Moore Declaration, it only discusses, quote, potential replacement pesticides, unquote, with no hard evidence that this is actually happening.

[00:54:01] Speaker 04:
Finally, if the court were to issue the September 2023 deadline as a court enforceable order, this discussion about the only thing I heard was, well, what if there's a lapse in appropriations?

[00:54:12] Speaker 04:
Certainly,

[00:54:13] Speaker 04:
Either the court can account for that in its order, if that were to come to pass, or certainly EPA and, I don't believe, petitioners would oppose modification of that deadline if, in fact, there were a six-week government check.

[00:54:35] Speaker 04:
So in the end, Your Honor, the track factor one, the rule of reason, we've got eight years since the duty attached under the Endangered Species Act.

[00:54:43] Speaker 04:
five years since the remand order.

[00:54:46] Speaker 04:
We need to have that first step of looking at the effects and then decide what goes next.

[00:54:51] Speaker 04:
Thank you.

[00:54:52] Speaker 04:
Thank you.

[00:54:53] Speaker 04:
The case is submitted.