[00:00:00] Speaker 00: Case number 15-1054 et al. [00:00:03] Speaker 00: Center for Biological Diversity et al. [00:00:06] Speaker 00: Petitioners versus Environmental Protection Agency. [00:00:09] Speaker 00: Mr. Evans for the petitioners. [00:00:11] Speaker 00: Mr. Drakobi for the respondents. [00:00:13] Speaker 00: Ms. [00:00:13] Speaker 00: Berman for the interveners. [00:00:16] Speaker 03: Morning council. [00:00:17] Speaker 03: Mr. Evans, please proceed when you're ready. [00:00:19] Speaker 02: Good morning, your honor. [00:00:20] Speaker 02: May it please the court? [00:00:21] Speaker 02: Jonathan Evans for petitioners. [00:00:23] Speaker 02: I'd like to reserve three minutes for rebuttal. [00:00:25] Speaker 02: I'll be stopping at the three minute mark unless your honors have questions. [00:00:29] Speaker 02: I'll first address today why this court should enter the proposed order providing deadlines for the Environmental Protection Agency to comply with the Endangered Species Act. [00:00:39] Speaker 02: This case presents a unique opportunity where all of the parties are aligned and asking the court to effectuate a carefully balanced approach to resolve this case. [00:00:48] Speaker 02: Should the court decline to enter that order, setting deadlines, I'll focus on why vacating the four registrations that still remain at issue in this case is the appropriate outcome here. [00:00:58] Speaker 02: At the outset petitioners urge the court to follow the clear path forward, set by all the parties to this case and enter an order setting deadlines for EPA compliance with the Endangered Species Act for the remaining four pesticides that issue in these consolidated cases and effectuate the settlement agreement. [00:01:17] Speaker 02: Already born fruit through label changes to the pesticide for Cooper's iodide, reducing the risk to endangered species like salmonids and also keeping the product available, but under safer uses. [00:01:30] Speaker 02: Entering the proposed order would also trigger enhanced environmental protections in the settlement agreement. [00:01:35] Speaker 02: such as the establishment of an interactive geographically-based website detailing locations for ESA-protected species that could be affected by the four pesticides and steps to mitigate harms in those specific locations. [00:01:50] Speaker 02: It also establishes a meet and confer process after the draft biological evaluations are completed by the Embryonal Protection Agency, the first step in their compliance with the Endangered Species Act here. [00:02:01] Speaker 02: to allow the parties to negotiate potential future mitigations to reduce harm to Endangered Species Act, a list of species like happened within Cooper's iodide to streamline the future consultation process and reduce harm and allow the pesticides to remain on the market. [00:02:18] Speaker 02: It would also provide important regulatory certainty to the regulated community and to EPA. [00:02:24] Speaker 02: Without a court order, future benefits from the settlement agreement become null and void. [00:02:28] Speaker 03: Can I just ask one technical question? [00:02:30] Speaker 03: So for the pesticide that's already been dealt with, it's cupricide, I think. [00:02:35] Speaker 03: Correct. [00:02:36] Speaker 03: I take it that is everybody on board with dismissing that petition as moot? [00:02:40] Speaker 02: Petitioners agree that EPA met its ESA obligations by changing the labels to reduce the harms to endangered species and coming forward with that no effect determination that says there's no effect on endangered species. [00:02:52] Speaker 02: Petitioners are not disputing that determination. [00:02:55] Speaker 03: And is the consequence of that then that the petition associated with that one would be dismissed as moot? [00:03:00] Speaker 02: Dismissed, Your Honor, whether the decision was made as a result of the party's settlement agreement or mootness is something that we haven't negotiated with the other side, but we do agree that that's no longer an issue here. [00:03:10] Speaker 04: Okay. [00:03:12] Speaker 04: Mr. Evans, can you explain for me, what are the advantages that you believe the parties gained by the court retaining jurisdiction over this? [00:03:24] Speaker 02: That's a good question, Your Honor. [00:03:25] Speaker 02: As the records of briefing shows, unfortunately, the Environmental Protection Agency has had substantial challenges in complying with the Endangered Species Act. [00:03:35] Speaker 02: And we've seen consistently [00:03:37] Speaker 02: When EPA has complied with the Endangered Species Act after it has been resulted in litigation, it's only been when the court has retained jurisdiction and when it has enforced or has proposed deadlines for EPA to act. [00:03:50] Speaker 02: Unfortunately, when the court has remanded without vacatur and not retained jurisdiction of EPA's actions, such as the case of the cyanotronoacal pesticide, which is the Center for Biological Diversity versus EPA 861, F3D 174, [00:04:05] Speaker 02: The petitioners have been forced to return to this court [00:04:08] Speaker 02: to seek redress for EPA's continued violations of the law. [00:04:12] Speaker 02: EPA's failure to comply with both the congressional mandate of the ESA and this court's remand order require petitioners to once again return to this court last year, over four and a half years after the court's remand order, and eight years after the initial registration to enforce the rule of law by filing a petition for writ of mandamus in Henry Center for Biological Diversity, case number 211270 in this circuit, [00:04:35] Speaker 02: Enforcing the petitioners to return to the court strains judicial resources of a clear remand order that the agency should have complied with. [00:04:43] Speaker 02: It also provides an improper burden for petitioners. [00:04:47] Speaker 04: How does the consent order make it easier for you to get relief if the EPA continues to miss deadlines? [00:04:54] Speaker 02: But by the court retaining jurisdiction, we simply, the consent order does two things. [00:05:00] Speaker 02: It provides deadlines. [00:05:02] Speaker 02: Well, I guess two things. [00:05:03] Speaker 02: It provides deadlines, it retains jurisdiction, and it allows the settlement agreement to be effectuated. [00:05:09] Speaker 02: By the court retaining jurisdiction, the agency has been demonstrated that it's incentivized to act. [00:05:15] Speaker 02: When the court doesn't retain jurisdiction and doesn't provide deadlines, [00:05:19] Speaker 02: we simply see EPA's priorities changing. [00:05:21] Speaker 02: They don't really address the court's clear remand order. [00:05:24] Speaker 02: So that's why we think it's crucial that the court retain jurisdiction in order bill. [00:05:28] Speaker 04: Is that really a problem with the remand without vacate or remedy itself? [00:05:34] Speaker 02: Well, absolutely. [00:05:35] Speaker 02: I mean, the science role call decision is a concrete example of how EPA's kind of unfortunately flaunted the court's order here and the congressional mandate. [00:05:45] Speaker 02: So we have to return and then come back and seek a petition for writ. [00:05:48] Speaker 02: The whole time it is violations of law are ongoing harm to endangered species are occurring and we just don't think that that's the appropriate judicial outcome and also. [00:05:58] Speaker 02: looking at what the Endangered Species Act requires, which is prioritizing the impacts to endangered species, not allowing ongoing harm to endangered species to occur. [00:06:07] Speaker 02: We do think that making sure that the agency does comply with this court's remand is important. [00:06:12] Speaker 02: And unfortunately, the record here in the EPA's history demonstrates that it has had shifting priorities in complying with the Endangered Species Act. [00:06:20] Speaker 05: Mr. Evans, what happens with the merits claim and the maximally available relief [00:06:29] Speaker 05: for your clients under three scenarios. [00:06:32] Speaker 05: One, I guess we can rule against you, the other we rule in your favor and remand without vacatur. [00:06:42] Speaker 05: And so really it's just that, we remand without vacatur as we did in CBD 2017, or we hold an abeyance and in light of the settlement, [00:06:58] Speaker 05: In the latter, how would you, or in either situation, I'm sorry, how would you prompt the court to, for example, decide to vacate these registrations? [00:07:17] Speaker 05: I mean, that's sort of in the background, that's your cudgel, right? [00:07:22] Speaker 05: And I guess I'm wondering the fate of that under the different scenarios. [00:07:27] Speaker 02: If I could just clarify the question, Judge Filler, you asked to thank you for indulging me that the two questions were to stand to pass were at the court remains without vacant or what do we do at the court hold maintains the case in advance while EPA complies. [00:07:42] Speaker 02: What do we do if EPA doesn't comply? [00:07:44] Speaker 05: Yeah, I mean, is there it seems to me that the the availability [00:07:51] Speaker 05: or the prospect or the risk from EPA's and intervenors' perspective that a court might hold that these registrations are invalid is somewhere in the mix. [00:08:04] Speaker 05: It's just not entirely clear to me where it is in the mix under the alternative scenarios. [00:08:09] Speaker 05: Does that make sense? [00:08:10] Speaker 05: I know that's... I think so. [00:08:11] Speaker 02: You know, if EPA [00:08:14] Speaker 02: fails to comply with the consent orders, their proposed orders, and the consent decree, that settlement agreement doesn't become effectuated. [00:08:23] Speaker 02: This is under the scenario two. [00:08:25] Speaker 02: We go back to the court either asking for EPA's compliance or asking for the court to vacate the pesticides because EPA has continued to demonstrate it won't comply with this court's deadlines. [00:08:35] Speaker 02: We don't think that that is likely. [00:08:37] Speaker 02: We certainly hope that it is likely, and EPA's history hasn't demonstrated that's the case. [00:08:42] Speaker 02: under the remand without a vacator scenario, we do what we did in science removal and come back and have to ask the court to issue an order deadline, which we already have here. [00:08:51] Speaker 02: So, you know, in other words, we can really achieve the outcome that is most beneficial for the parties, most efficient for the court and enhances environmental protections here without having to string this case along, which has already been protracted for many years through a petition for rid of mandamus as we had to do in the science removal case. [00:09:09] Speaker 03: Okay, it could be remanded without vacator, but with deadlines. [00:09:13] Speaker 02: If it could, Your Honor, the settlement agreement does provide for, it requires deadlines, but does require the court maintaining jurisdiction. [00:09:25] Speaker 02: We do feel that maintaining jurisdiction is essential for making sure that the agency does comply with the law. [00:09:31] Speaker 05: I thought your position in your briefing was that the settlement, you were not on board with that. [00:09:39] Speaker 05: That's not part of the settlement as you [00:09:41] Speaker 05: negotiated it. [00:09:42] Speaker 02: It is not part of the settlement as we negotiated. [00:09:44] Speaker 02: If the court does remain without bigotry and deadlines, we'd have to evaluate how we can potentially salvage the settlement agreement if it's possible, because we do think it still has merits. [00:09:53] Speaker 02: But we do think it's important in order to streamline the potential beneficial outcome for all parties, enhance environmental protection, just to move forward with deadlines and jurisdiction, because that's what has demonstrated that EPA will act to comply with the law in the past. [00:10:09] Speaker 03: Why wouldn't it work to read? [00:10:11] Speaker 03: I'm not suggesting that we necessarily have to do that, but I'm not quite understanding. [00:10:16] Speaker 03: if we remand without vacator, but have deadlines, which are the deadlines that have been negotiated now. [00:10:22] Speaker 03: And that sort of thing has been done before where the court has remanded without vacator and then had a deadline in effect pursuant to which a lapse of the deadline would mean that the relevant instrument would be treated as vacated. [00:10:33] Speaker 03: So the registration would get vacated if the agency hasn't taken action in concert with our decision by the deadline. [00:10:41] Speaker 03: That doesn't work because [00:10:44] Speaker 02: That doesn't work, I guess, because it really places an unfair burden on petitioners to come back with a petition for writ to achieve the extraordinary remedy of a writ of mandamus. [00:10:54] Speaker 02: And then we have to argue the track factors. [00:10:55] Speaker 02: And if the court issues a deadline, it does say that EPA, that that is a reasonable time frame within which to react. [00:11:03] Speaker 02: But we do just think that it really burdens the court and the parties with unnecessary action in this case when it can simply retain jurisdiction for a limited time period. [00:11:13] Speaker 02: You know, we look, this court has done something similar and in Rio, Idaho Conservation League 811 F3D502 provides clear precedent for ordering deadlines for agency action, retaining jurisdiction to enforce those designs for over eight years longer than what we have here based on a joint motion from the party. [00:11:32] Speaker 04: So Mr. Evans, that's the that's the only case. [00:11:36] Speaker 04: right in which this court has has done that so it is fairly extraordinary there might be some precedent for it, but it's it's a fairly extraordinary action for this court to kind of just oversee the implementation of deadlines by federal agency. [00:11:53] Speaker 02: Well, we think that actually there's as the all the parties provided in the May 2021 response to this, the motions panel show cause order. [00:12:03] Speaker 02: There are numerous cases where the DC circuit has ordered deadlines and retained jurisdiction. [00:12:07] Speaker 02: I think one that is particularly appropriate here is public citizen health research group versus Octor. [00:12:13] Speaker 02: After a delay of three years or an agency to issue of notice proposed rulemaking within 30 days and a final rulemaking on a priority expedited basis as promptly as possible. [00:12:22] Speaker 02: Indeed, and I think that there again the party site in their May 2021 response to show cause order as numerous circumstances where the court has issued deadlines and retain jurisdiction, I will agree with you that normally they're much shorter on a much shorter time frame and we wish they were shorter shorter time frame here but the settlement agreement and consent order was a compromise with the parties and. [00:12:43] Speaker 02: recognize the exigencies that the EPA represented in terms of complying with the ESA. [00:12:48] Speaker 02: So we entered into a compromise to find the deadlines that we thought would achieve our beneficial outcome. [00:12:57] Speaker 04: Where does our authority come from to take that action? [00:13:01] Speaker 04: Even if there are cases that do that. [00:13:04] Speaker 04: Do we have statutory authority to do that? [00:13:08] Speaker 02: Well, the statutory authority Endangered Species Act provides for clear authority for the EPA making that decision making within a bounded time frame, and we're not asking the court to engage in any type of administrative, you know, type of effort we're just simply saying the court can provide a deadline like Congress did. [00:13:25] Speaker 02: Congress said EPA, you need to consult before the registration before the agency action occurs. [00:13:30] Speaker 02: We're asking the court to set a deadline. [00:13:31] Speaker 02: EPA, you need to act. [00:13:32] Speaker 02: That's the end of what we're asking the court to do in terms of deadlines. [00:13:36] Speaker 04: The statute says we can affirm or set aside the orders complained of in whole or in part. [00:13:44] Speaker 04: Correct, you know, either affirming or setting aside. [00:13:48] Speaker 02: I guess two things to get to get specifically to your question cobell versus Norton that they states that the court maintains equitable discretion as well as legal discretion in terms of crafting remedies. [00:13:59] Speaker 02: And we also think that affirming and setting aside and holder in part, you know that the, the court can. [00:14:06] Speaker 02: you know, in part is allowing the decision to continue to remain on the books while the agency complies with the law. [00:14:14] Speaker 02: And we don't think that that is inconsistent with the statute. [00:14:17] Speaker 05: So you're just saying it's a slow motion affirm. [00:14:19] Speaker 05: It's like we're affirming, but when certain conditions are met. [00:14:24] Speaker 05: So our action on the case ultimately before it's dismissed would be to affirm if all goes well. [00:14:33] Speaker 02: If the EPA complies with the Endangered Species Act, which is [00:14:37] Speaker 05: That's the point of the consent order. [00:14:40] Speaker 05: Why? [00:14:41] Speaker 05: I mean, I know your marriage briefing asked for vacatur. [00:14:46] Speaker 05: You know, the EPA has acknowledged obvious [00:14:52] Speaker 05: failure to comply. [00:14:53] Speaker 05: What's the scenario there? [00:14:56] Speaker 05: If Judge Rouse, the implication of Judge Rouse question is correct, that we don't actually have the option to enter the consent order and retain jurisdiction, vacate these certificates and decide the case on that ground. [00:15:18] Speaker 02: Well, the settlement agreement doesn't or the post order doesn't do anything to contravene that the presumptive remedy and and and and certain circumstance like this is a bigger and as the [00:15:34] Speaker 02: Court recently affirmed last year in the Standing Rock Sioux Tribe versus U.S. [00:15:37] Speaker 02: Army Corps of Engineers and Farmworker Association of Florida versus EPA, the presumptive and appropriate remedy for unlawful agency action is vacator. [00:15:45] Speaker 02: And we think that given the history of EPA's failure to comply with the Endangered Species Act, that vacator is the only other circumstance that would incentivize EPA to act because when the EPA's, when this court remanded without vacator, EPA has still failed to comply with this court's order four and a half years after it issued it. [00:16:04] Speaker 02: And I see my time is up. [00:16:05] Speaker 02: I'm happy to answer any more questions or save my remaining time for rebuttal. [00:16:10] Speaker 03: I think we'll give you your time for rebuttal. [00:16:12] Speaker 03: We'll hear from the government now. [00:16:13] Speaker 03: Thank you, Mr. Evans. [00:16:15] Speaker 03: Mr. Jacoby. [00:16:17] Speaker 01: Good morning, Your Honors. [00:16:19] Speaker 01: May it please the Court. [00:16:20] Speaker 01: I'm Patrick Jacoby from the Department of Justice on behalf of EPA. [00:16:24] Speaker 01: Your Honors, EPA recognizes the seriousness of not meeting its ESA obligations when registering products under FIFRA. [00:16:33] Speaker 01: Here, EPA has done its level best to identify dates for effects determination to commit to those dates and to resolve the four non-mood petitions. [00:16:42] Speaker 01: EPA has even, as Mr. Evans noted, completed its ESA obligations for one of the petitions. [00:16:49] Speaker 01: The court is not inclined to enter the proposed order to resolve the four non-mood petitions. [00:16:56] Speaker 01: Then EPA requests that the registrations be remanded to EPA [00:17:02] Speaker 01: without vacatur for two main reasons. [00:17:04] Speaker 01: First, EPA's commitment to deadlines for effects determinations, counsels against vacatur. [00:17:11] Speaker 01: Second, the balance of the equities, also counsels against vacatur for reasons similar to those identified and discussed by this court in the 2017 decision regarding the active ingredient, scientific note. [00:17:24] Speaker 01: Turning to the first point, EPA has negotiated, as you've discussed with Mr. Evans, a proposed order and settlement agreement in good faith [00:17:32] Speaker 01: has provided a sworn declaration of EPA's intent to meet the deadlines set out in that agreement. [00:17:38] Speaker 01: So this is not a case where EPA has refused to commit to deadlines at all. [00:17:43] Speaker 01: EPA's met the deadlines for ESA Section 7 compliance in the proposed order for Coupers IAI during the pendency of these petitions and the pendency of the proposed order. [00:17:54] Speaker 01: EPA also more broadly has made and continues to make meaningful steps towards making its ESA obligation or meeting its ESA obligations on for registrations. [00:18:04] Speaker 01: These range from some of the programmatic efforts we discussed in our brief at pages five through seven to the more recent announcement that EPA will include ESA analysis for new active ingredients prior to registration going forward. [00:18:19] Speaker 01: These are important steps and EPA is acting in good faith to address this problem. [00:18:24] Speaker 04: So, I wonder, I mean, I understand why the government does not want a vacator here and I understand the difficulty of. [00:18:34] Speaker 04: complying with these requirements and the time it takes and the resources and all of those things. [00:18:40] Speaker 04: But is the government concerned at all about the precedent that this type of, that if we entered this consent order, the precedent that would set? [00:18:48] Speaker 04: I mean, we see cases all the time in this circuit about agencies failing to meet their deadlines. [00:18:55] Speaker 04: And I don't know, I mean, this long-term consent order where we oversee how the EPA implements its various policy priorities, how it deals with limited resources, and all the different reasons why there are delays in agency action. [00:19:13] Speaker 04: I mean, does the government want this court to superintend those types of delays in agencies? [00:19:19] Speaker 04: I mean, how do we distinguish the circumstance from others? [00:19:24] Speaker 04: I'm just interested in the government's institutional position about why the executive branch would want judicial oversight over this type of highly political and executive function of figuring out how to do interagency review with competing priorities. [00:19:46] Speaker 01: Your honor, I'll try to answer the question without divulging any privileged information on behalf of the government. [00:19:53] Speaker 01: It is a concern and one that we take seriously. [00:19:57] Speaker 01: This section, the Environmental Defense Section appears before this court quite frequently in situations regarding petitions for review. [00:20:05] Speaker 01: So it is something we've considered carefully. [00:20:07] Speaker 01: I think, Your Honor, our preference and our initial volley, if I recall correctly, was a stay during the pendency of these deadlines, which is more in line with what we think this court has done in other situations. [00:20:20] Speaker 01: For example, I believe there's a stay in a case called DBA versus Nuclear Regulatory Commission at 492 F3rd, 421. [00:20:33] Speaker 01: That's a 2007 case. [00:20:34] Speaker 01: It's an open-ended years-long advance that's been going on for more than 10 years, whether it's an attempt to comply. [00:20:40] Speaker 05: Is that the waste case? [00:20:42] Speaker 01: I believe it is, Your Honor. [00:20:44] Speaker 01: It's been a while since I looked at it, but yes, I believe that's correct. [00:20:50] Speaker 01: That I think we would have said was the correct way to go. [00:20:53] Speaker 01: However, because of the risk of vacatur here and the fact that we don't have a merits defense, we had to weigh the potential risk of vacatur, the potential litigation risks. [00:21:06] Speaker 01: And we worked extensively with the petitioners to come up with what we thought was an acceptable procedure, which was not a CD, for example, but a consent motion asking the court to enter a proposed order [00:21:20] Speaker 01: and retain jurisdiction under the proposed order. [00:21:23] Speaker 01: I think it's pretty similar to a stay. [00:21:25] Speaker 01: I think what it provides that a stay doesn't is basically some of the benefits Mr. Evans identified regarding the website that they've set up with the registrants, some of the interim [00:21:38] Speaker 01: procedural pieces that allow them to meet and confer with the agency, that type of thing. [00:21:43] Speaker 05: I'm confused by that because those things are all required, I mean they're not specifically chapter and verse, but it's required by the statute that you meet and confer, it's required by the statute that you organize. [00:21:54] Speaker 05: not you, but that your client organize agency functions in a way that better enables it to meet the deadline so that the website and the you know would be efforts that you don't need any court supervision or any consent order to have authority to take those steps. [00:22:11] Speaker 05: So I'm a little, I mean, I understand that they're productive and that the lawsuit has occasioned engagement among the parties now before the court, but the authority for all of that is in the statute, no? [00:22:26] Speaker 01: Your Honor, I don't disagree. [00:22:27] Speaker 01: I mean, I think EPA could work with the petitioners to take those steps. [00:22:30] Speaker 01: I'm not sure that, you know, [00:22:35] Speaker 01: As a city right now i'm not sure that every single thing in the proposed order is necessarily required on behalf of EPA but certainly EPA good undertake all those steps and. [00:22:46] Speaker 05: As a choice of how to better be better position to expeditiously meet its obligations. [00:22:52] Speaker 05: Let me ask you, you had you had laid out to. [00:22:55] Speaker 05: reasons why you were remanding without vacatur. [00:22:58] Speaker 05: And I think we interrupted you after you got through your first. [00:23:00] Speaker 05: First was that the EPA's commitment to deadlines sort of shows it's good faith and bona fides. [00:23:05] Speaker 05: And the second was you said the balance of the equities that's similar to the position in the 2017 case. [00:23:11] Speaker 05: And I wanted to probe you more on the second. [00:23:13] Speaker 05: I mean, doesn't Standing Rock apply here? [00:23:16] Speaker 05: If you skipped a required procedural step, we can't remand without vacatur unless you've established that you were justified [00:23:24] Speaker 05: in skipping that step. [00:23:27] Speaker 05: And I don't see an argument to that effect. [00:23:29] Speaker 05: How could we, in this case, remand without vacatur under, given Standing Rock? [00:23:37] Speaker 01: Your Honor, I think that is a tricky question. [00:23:41] Speaker 01: I'll grant you that. [00:23:43] Speaker 01: So let me begin by saying I don't read Standing Rock to materially revise the court's analysis in a science or no decision. [00:23:53] Speaker 01: which I think is the most applicable here, given the statute, the facts, and the analysis and the record. [00:24:00] Speaker 01: So, you know, I think that's the easiest, shortest answer. [00:24:03] Speaker 01: I think the harder answer is, and I also think Standing Rock is distinguishable on the facts and the fact that it's a NEPA case, which, you know, I won't go into unless the court wants me to. [00:24:15] Speaker 01: But I think the more important question is, [00:24:18] Speaker 01: I'm not sure I know how far this court intends to extend Standing Rock. [00:24:22] Speaker 01: Is it the case that if there's a minor notice error or required notice in any agency petition that that will require vacatur, that would seem to take things too far, I think, and would maybe read Standing Rock more broadly than it's set out to be. [00:24:40] Speaker 01: So I think that about sums up how I see things. [00:24:44] Speaker 01: I think the easiest answer is I don't think scientific approach [00:24:48] Speaker 01: is barred from application here, Dr. Stanula. [00:24:53] Speaker 05: This situation is different in terms of what, I mean, a number of ways. [00:25:02] Speaker 01: This situation is different from San Antonio, is that a question? [00:25:07] Speaker 01: Yeah. [00:25:10] Speaker 01: Your Honor, the only, the main difference is that the court used the reduced risk designation as a shorthand in San Antonio. [00:25:17] Speaker 01: A reduced risk is not something that's done for every applied for use. [00:25:22] Speaker 01: It's actually usually done at always done at the request of registrants who are seeking expedited review. [00:25:28] Speaker 01: So it's just a shorthand. [00:25:30] Speaker 05: We don't have that with respect to each of these four remaining chemicals, do we? [00:25:35] Speaker 01: No, you have it for one for many uses. [00:25:36] Speaker 01: But the larger point is just because there wasn't a reduced risk analysis doesn't mean that the products aren't actually less risky than the alternatives. [00:25:45] Speaker 01: And if you look at the record and what we've presented in our briefs, I'm happy to go through it. [00:25:49] Speaker 01: There is quite a bit of analysis of not only the environmental benefits through a reduction risk compared to older alternatives, [00:25:57] Speaker 01: reduction in the use of those older riskier alternatives and obviously food supply and benefits to growers that we think are very important, many of which translate into environmental benefits, reduction in tillage, reduction in application, improved water quality. [00:26:12] Speaker 01: I see that I'm almost out of time. [00:26:14] Speaker 01: So unless there are further questions, I will close and say we request that the court dismiss the Cooper's iodide petition as moot. [00:26:23] Speaker 01: and remand the four remaining petitions to EPA without vacatur. [00:26:27] Speaker 01: If the court chooses to set deadlines, we would of course request that those be the ones we agreed to in the proposed order. [00:26:33] Speaker 03: Thank you. [00:26:35] Speaker 03: Thank you, Mr. Jacoby. [00:26:36] Speaker 03: We'll hear from Intervenors Council now, Ms. [00:26:38] Speaker 03: Berman. [00:26:41] Speaker 06: Thank you, Your Honors. [00:26:42] Speaker 06: Good morning. [00:26:43] Speaker 06: We join EPA and Petitioners in asking this Court to enter the consent order. [00:26:47] Speaker 06: The settlement was the product of years of negotiation, and it does include meaningful commitments from my clients as well as EPA. [00:26:55] Speaker 06: If the Court does not enter the consent order, many of the benefits of the settlement go away, including interveners' provision of additional information [00:27:02] Speaker 06: on a website to educate growers on the location of endangered species and specific label requirements of these products that protect them. [00:27:10] Speaker 03: And Your Honors, I do not think that is- Can I ask you at the outset, so you've raised a standing objection. [00:27:15] Speaker 06: Yes, Your Honor. [00:27:16] Speaker 03: I take it that if we were to agree with you on the standing objection, we couldn't enter the consent order. [00:27:22] Speaker 06: Your honor, I don't think the court needs to reach standing if it enters the consent order. [00:27:27] Speaker 06: This court has many times held cases in abeyance, which is what the consent order would do, waiting for EPA to take action without ever diving into the issue of whether there is a standing issue in that case before that issue is ever raised in brief. [00:27:40] Speaker 03: So if the court is- How is it different from Idaho in that respect? [00:27:45] Speaker 03: Is there a material difference? [00:27:46] Speaker 03: Because in Idaho, the court went through standing analysis first. [00:27:50] Speaker 06: Sure. [00:27:50] Speaker 06: So, Your Honor, in that case it did. [00:27:51] Speaker 06: I don't think it's necessary. [00:27:53] Speaker 06: I would point the court to the American Chemistry Council versus EPA case from 2016, where the court held the case in abeyance while waiting for EPA to act to fulfill a settlement. [00:28:03] Speaker 06: I don't think there was any standing analysis there. [00:28:06] Speaker 06: Generally, if a case is being held in abeyance so that EPA can take an action that may moot the case, that happens before there is any briefing on the standing issue. [00:28:15] Speaker 03: Now, if- If we enforce one of the deadlines, so wouldn't we have to, if the whole idea behind our keeping it is that there's deadlines and then we retain jurisdiction so that those deadlines can be enforced, it doesn't matter if they're standing, it still doesn't matter? [00:28:28] Speaker 06: Your honor, so long as the court holds the case in abeyance, I don't think so now if the court doesn't if the court were to read to instead look at remanding with or without bigotry we do think it should reach the standing issue first, and I would like to mostly rest on my briefs in regard to that issue or key point was that. [00:28:44] Speaker 06: its petitioner's burden as this court emphasized last year in the Food and Water Watch case to put forth evidence showing that there will be redressability, that third parties will act in a specific way so as to alleviate the harm claim. [00:28:56] Speaker 06: We don't think they've done that. [00:28:58] Speaker 06: But Your Honors, what I would really like to take my time to do today is to urge the court that in no event should it vacate these registration decisions. [00:29:07] Speaker 06: Not only are they the result of decades of work and over one billion in collective investment by my clients here, [00:29:12] Speaker 06: The point of these individual active ingredients is that they are both more effective and less environmentally impactful than the alternatives that they replace. [00:29:23] Speaker 05: Another difficulty that we have in this record compared with the record in the 2017 CBD case where we don't have [00:29:32] Speaker 05: assertions by EPA that each of these pesticides is actually less risky. [00:29:40] Speaker 05: I think we have something close for flupera differon, but not for the others. [00:29:51] Speaker 05: Haloxifen methyl, they only say that it may be better than older pesticides. [00:30:00] Speaker 05: So I just don't see how we can take your word for that on this record. [00:30:05] Speaker 06: Your honor, I would respectfully disagree and I'd like to point you to specific places in the record that I think get us there for the other active ingredients. [00:30:13] Speaker 06: As, as DOJ Council pointed out, the reduced risk label is a helpful shorthand, but it's not determinative on this issue. [00:30:20] Speaker 06: So for, for helaxfemethyl, for example, at page 307 of the joint appendix, [00:30:25] Speaker 06: EPA explains that it has much lower use rates than the alternatives that it would displace and it uses the word displace. [00:30:34] Speaker 06: EPA also explains, and you can see this ranging from pages 299 to 307, that it is less persistent in the environment and it is practically non-toxic [00:30:43] Speaker 06: to animals as well as humans. [00:30:45] Speaker 06: For bicyclopyrone, for example, I would point the court to page 122 of the record, where EPA explains that because this active ingredient is much more effective. [00:30:57] Speaker 06: What page was that? [00:30:59] Speaker 06: 122, Joint Appendix 122. [00:31:00] Speaker 06: EPA notes that because it's more effective in smaller quantities, again, a lower use rate, [00:31:06] Speaker 06: One pre-emergent application can avoid multiple post-emergence applications of pesticide, resulting in a decrease in specific older, riskier pesticides, such as atrazine is the one noted there, as well as several others by EPA. [00:31:21] Speaker 05: So, yes, well. [00:31:23] Speaker 05: Petitioners claim that EPA didn't consider indirect effects, joint effects by cyclopyrone. [00:31:33] Speaker 05: you know, with multiple other active ingredients. [00:31:36] Speaker 05: And, you know, so we have competing characterizations on the record. [00:31:41] Speaker 05: We don't have a determination by EPA. [00:31:44] Speaker 05: I don't think we can kind of de novo just credit evidence. [00:31:50] Speaker 05: That's for EPA, and it hasn't done that. [00:31:54] Speaker 06: Your Honor, respectfully, I think EPA has done that. [00:31:56] Speaker 06: On synergism, the issue you note, in every one of these registration decisions, EPA addresses [00:32:01] Speaker 06: The speculation that there might be synergistic effects from mixing with other compounds, for example, at Joint Appendix page 300 EPA explains synergism is rare. [00:32:11] Speaker 06: It's only been found in limited circumstances, there are no synergistic claims or suggestion of synergistic effects here. [00:32:17] Speaker 06: So, frankly, your honors EPA did address these these issues very thoroughly in the record in the benefits documents and the risk assessment. [00:32:24] Speaker 06: And the registration decision and for each one of these active ingredients it explained that they are improvements that they are better than the older pesticides that they would replace and so they could share would have an impact here that's that's at odds with the endangered species act. [00:32:39] Speaker 06: just as was the case back in 2017 in regards to CTP. [00:32:45] Speaker 06: And so in conclusion, your honor, since I see my time is up, you know, my clients, they share many of Petitioner's values. [00:32:51] Speaker 06: These are chemistries that were designed to be both more effective and more targeted, lower risk to the environment. [00:32:57] Speaker 06: so that food production is sustainable long-term. [00:32:59] Speaker 06: And so we would ask the court first to enter the consent order negotiated by the parties which protects those values, but if not, above all, not to vacate these registrations. [00:33:08] Speaker 06: Thank you. [00:33:10] Speaker 03: Thank you, Ms. [00:33:11] Speaker 03: Barman. [00:33:11] Speaker 03: Mr. Evans, we'll give you back the three minutes that you'd asked for for rebuttal. [00:33:16] Speaker 02: Thank you, Your Honors. [00:33:17] Speaker 02: I'll just briefly touch on some of the questions raised by the court and some of the issues raised by the other parties. [00:33:23] Speaker 02: First, Judge Rai, I apologize. [00:33:24] Speaker 02: I didn't have the sites on hand, but the question about the court's authority regarding the order to enter the deadlines. [00:33:33] Speaker 02: The petitioners and the interveners and EPA will brief that in the response to show cause. [00:33:37] Speaker 02: That's document 1897864, pages 8 to 10 for petitioners. [00:33:43] Speaker 02: Interveners document 1897868 ages 13 and 14 and EPA 1897888 at pages seven and eight again, citing the cobell versus Norton the courts are presumed to possess the full range of remedial powers legal as well as equitable, unless Congress is expressly restricted otherwise. [00:34:02] Speaker 02: Judge Feller, you asked about the settlement agreement regarding the websites. [00:34:08] Speaker 02: Importantly, that settlement agreement is between the EPA, excuse me, is between the petitioners and the respondents. [00:34:14] Speaker 02: And the EPA has chosen not to waive sovereign immunity, which is why we need the consent orders or the orders for deadlines from the EPA in order to effectuate the settlement agreement. [00:34:28] Speaker 02: The court asked about this and the risk PPA cited to the signed Trenola Poll case. [00:34:35] Speaker 02: In addition to the reduced risk issue, I really want to emphasize that the substitution theory is quite the red herring. [00:34:42] Speaker 02: There is no evidence that these pesticides would be substituted for more environmentally beneficial substances. [00:34:49] Speaker 02: Indeed, the registrations of some of these pesticide products are literally combined with more hazardous older pesticides such as Atrazine and 2,4-D. [00:34:57] Speaker 02: That's a joint appendix 150, 240, 345. [00:35:02] Speaker 02: And their labels emphasize that these pesticides should be combined in tank mixtures with older pesticides. [00:35:07] Speaker 02: That's a joint appendix 83, 85, 166, 246, and 354. [00:35:15] Speaker 02: And the evidence before this court is that new pesticide approvals is actually correlated with increased pesticide use for the past 14 plus years where there's data [00:35:26] Speaker 02: New pesticide approvals is actually correlated with increased pesticide use for corn and soybeans, some of the biggest crops in the United States. [00:35:33] Speaker 02: That's a petitioners reply declarations 175 to 181. [00:35:37] Speaker 02: So the substitution theory is quite problematic and as you alluded to. [00:35:41] Speaker 02: You know these pesticides work additively so when you're affected by when any organism is affected by multiple chemicals from multiple sources, they add provide additional stresses and toxins, so they will stress endangered wildlife such as the whooping crane and San San Juan can get thoughts not reducing harm batting more pesticides. [00:35:59] Speaker 02: And the issue is standing. [00:36:02] Speaker 02: The cuprous iodide is a clear example that petitioners' injuries are redressable. [00:36:06] Speaker 02: Their EPA took action complying with the Endangered Species Act, eliminated the harms that were most problematic for an imperiled and endangered salmon and other fish. [00:36:17] Speaker 02: Petitioners' injuries were addressed, and that claim is no longer a lie. [00:36:22] Speaker 02: I'll rest on that. [00:36:23] Speaker 02: I encourage the court to enter the orders and effectuate the settlement agreement. [00:36:26] Speaker 02: Thank you very much. [00:36:27] Speaker 03: Thank you, counsel. [00:36:28] Speaker 03: Thank you to all counsel. [00:36:30] Speaker 03: We'll take this case under submission.