UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MIGRANT CLINICIANS No. 21-70719 NETWORK; BEYOND PESTICIDES; CENTER FOR BIOLOGICAL DIVERSITY; ENVIRONMENTAL OPINION CONFEDERATION OF SOUTHWEST FLORIDA; FARMWORKER ASSOCIATION OF FLORIDA; FARMWORKER JUSTICE; NATURAL RESOURCES DEFENSE COUNCIL; UNITED STATES PUBLIC INTEREST RESEARCH GROUP,

Petitioners,

v. U.S. ENVIRONMENTAL PROTECTION AGENCY; MICHAEL REGAN, in his official capacity as Administrator of the United States Environmental Protection Agency,

Respondents. 2 MIGRANT CLINICIANS NETWORK V. USEPA

On Petition for Review of an Order of the Environmental Protection Agency

Argued and Submitted January 23, 2023 San Francisco, California

Filed December 13, 2023

Before: Ronald M. Gould, Johnnie B. Rawlinson, and Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress

SUMMARY*

Federal Insecticide, Fungicide, and Rodenticide Act / Endangered Species Act

The panel granted in part and denied in part a petition for review of the Environmental Protection Agency’s amended pesticide registrations of streptomycin sulfate for use in combating citrus diseases, vacated the EPA’s amended registrations, and remanded to the agency to comply with its statutory obligations. Before a pesticide can be distributed and sold in the United States, the EPA must satisfy the requirements of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA). On * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MIGRANT CLINICIANS NETWORK V. USEPA 3

January 11, 2021, the EPA issued a Final Registration Decision, which unconditionally amended the registration of streptomycin for use on citrus crop group 10-10. Petitioners argued that substantial evidence did not support the EPA’s determination, as required by FIFRA, that registration of streptomycin for use on citrus would not cause “unreasonable adverse effects on the environment.” See 7 U.S.C. § 136a(c)(5)(C), (D). The panel held that substantial evidence supported the EPA’s assessment of the risk that the registration of streptomycin, which is used as a human antibiotic drug, would lead to antibiotic resistance. However, the EPA’s assessment of the risk that the registration poses to pollinators (bees) was incomplete—or, at the very least, inadequately explained. Further, although substantial evidence supported the EPA’s determination that streptomycin was effective at treating Huanglongbing disease and citrus canker, the EPA failed to provide a sufficient explanation for the registration labels’ suggestion that streptomycin could be used to prevent either disease. Accordingly, the panel granted the petition for review as to the pollinator and disease prevention issues so that the EPA could provide either additional support or a more cogent explanation of why the current record was adequate to support the registration, or both. The EPA conceded that its amended registrations failed to comply with the ESA but argued that the equities weighed against vacatur. Given the seriousness of the EPA’s failure to comply with the ESA, as well as its failure to fully comply with FIFRA, the panel held that remand without vacatur would not be an appropriate remedy. Accordingly, the panel vacated the EPA’s amended registration of streptomycin for 4 MIGRANT CLINICIANS NETWORK V. USEPA

use on citrus group 10-10, and remanded so that the agency could address the defects in its FIFRA analysis and conduct an ESA effects determination.

COUNSEL Margaret T. Hsieh (argued), Natural Resources Defense Council, San Francisco, Californ